EXHIBIT 10.10
AGREEMENT
for term loan facilities
for
FOUR MEDIA COMPANY ASIA PTE LTD
Lee & Lee
5 Shenton Way, Level 19
UIC Building
Singapore 0106
CONTENTS
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Clause Heading Page No
- ------ ------- -------
1. Purpose and Definitions 1
2. The Term Loan Facility 5
3. Fees and Expenses 8
4. Payments and Accounts 9
5. Representations and Warranties 10
6. Undertakings 13
7. Conditions 17
8. Events of Default 18
9. Default Interest and Indemnities 21
10. Unlawfulness and Increased Costs 21
11. Set-off 23
12. Assignment 23
13. Notices and Other Matters 23
14. Law 24
Schedule
- --------
1. Form of Drawdown Notice 25
2. List of Documents and Evidence 26
THIS AGREEMENT is dated 22 February 1995 and made BETWEEN
(1) FOUR MEDIA COMPANY ASIA PTE LTD a company incorporated in Singapore
and having its registered office at 9 Penang Road #13-21, Park Mall,
Singapore 0923 (the "BORROWER"); and
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED a company
incorporated in Hong Kong and having a place of business at 40-A
Orchard Road #01-00, MacDonald House, Singapore 0923 (the "Bank").
BY WHICH IT IS AGREED as follows: -
1. PURPOSE AND DEFINITIONS
-----------------------
1.01 This Agreement sets out the terms and conditions upon and subject to
which the Bank agrees to make available to the Borrower loan and
other facilities to be used in connection with the financing and/or
refinancing of the acquisition of certain machinery and equipment.
1.02 In this Agreement, unless the context otherwise requires:-
"Advance" means the drawing or (as the case may be) drawings of
Tranche 1 made by the Borrower pursuant to Clause 2;
"Assignment" means a first legal assignment (in form and substance
satisfactory to the Bank) executed or to be executed by the Borrower
of all its present and future rights title and interest in and to
all moneys from time to time payable under or contemplated by the
MTV Contract by way of security for the performance of the
Borrower's obligations under this Agreement;
"Bank" includes the successors in title and assigns of the Bank;
"Banking Day" means a day (other than Saturday or Sunday or a public
holiday) on which banks are open for business generally in
Singapore;
"Cancellation Date" has the meaning ascribed thereto in the MTV
Contract;
"Cancellation Option" has the meaning ascribed thereto in the MTV
Contract;
"Confirmation Date" means the Actual Commencement Date (as defined
in the MTV Contract);
"Debenture" means a first debenture (in form and substance
satisfactory to the Bank) executed or to be executed by the Borrower
over all its assets and undertakings by way of security for the
performance of the Borrower's obligations under this Agreement;
"Deed of Subordination" means a deed of subordination (in form and
substance
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satisfactory to the Bank) to be executed by the Guarantor;
"Dollars" and "S$" mean the lawful currency of Singapore and (in respect
of all payments to be made under this Agreement) mean immediately
available and freely transferable funds;
"Drawdown Notice" means the notice substantially in the terms of Schedule
1;
"Drawdown Period" means:
(i) in relation to Tranche 1 the period commencing from the date of
this Agreement and ending on 31 May 1995; and
(ii) in relation to Tranche 2 the period commencing from the
Confirmation Date and ending on 30 June 1995,
or ending on such earlier date (if any) on which the obligations of the
Bank are terminated pursuant to Clause 8.02 or 10;
"Event of Default" means any of the events or circumstances described in
Clause 8.01;
"Facilities" includes the Term Loan Facility;
"First Repayment Date" means the date falling 25 months after the First
Drawdown Date;
"First Drawdown Date" means the date of the first drawdown or utilization
of the Facilities;
"Guarantee" means the guarantee (in form and substance satisfactory to
the Bank) of the Borrower's obligations under this Agreement given or to
be given by the Guarantor in favour of the Bank;
"Guarantor" means Four Media Company, U.S.A. a corporation incorporated
in the state of Delaware, the United States of America with its principal
place of business at 2813 West Alameda Avenue, Burbank, California 91505-
4455, U.S.A.;
"Indebtedness" means any obligation for the payment or repayment of
money, whether present or future, actual or contingent;
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means each period for the calculation of interest in
respect of an Advance calculated in accordance with Clause 2.08;
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"Machinery and Equipment" means the machinery and equipment in relation
to the provision of production and/or post production facilities to be
financed, inter alia, by the Term Loan Facility;
"MTV Asia LDC" means a company incorporated in Cayman Islands with its
registered office at Caledonian Bank & Trust Limited, P.O. Box 1043,
Grand Cayman, Cayman Islands, B.W.I.;
"MTV Contract" means the contract entered or to be entered into by the
Borrower with MTV Asia LDC under the terms of which the Borrower will,
inter alia, make available to MTV Asia LDC its premises, crew members,
certain equipment and production and/or post-production facilities in
consideration of which MTV Asia LDC will, inter alia, pay to the Borrower
a monthly fee;
"Prime Rate" means the rate of interest from time to time publicly quoted
by the Bank to be its prime rate for loans in Dollars);
"Project Costs" means the aggregate costs of the setting up and
construction of the production and/or post production facilities,
including without limitation, the costs of the Machinery and Equipment,
installation and wiring of the said facilities and any and all start-up
costs in connection with the said facilities;
"Repayment Dates" means the First Repayment Date and each of the 59 dates
falling at successive monthly intervals thereafter;
"Security Documents" means the Assignment, the Debenture, the Guarantee,
the Deed of Subordination and any other document from time to time
executed by way of security for the performance of the Borrower's
obligations under this Agreement;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Term Loan" means the principal amount owing to the Bank in respect of
the Term Loan Facility at any relevant time;
"Term Loan Facility" means the facility made available by the Bank
pursuant to Clause 2;
"Term Loan Interest Payment Date" means:
(a) in respect of an Advance, the Interest Payment Date; and
(b) in respect of Tranche 2, the Tranche 2 Interest Payment Date;
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"Term Loan Interest Period" means:
(a) in respect of an Advance, the Interest Period; and
(b) in respect of Tranche 2, the Tranche 2 Interest Period;
"Termination Date" means the date falling 84 months after the First
Drawdown Date;
"Tranche 1" means that portion of the Term Loan made available to the
Borrower pursuant to Clause 2.01(a) or (as the case may be) the aggregate
principal amount owing to the Bank in respect thereof;
"Tranche 2" means that portion of the Term Loan made available to the
Borrower pursuant to Clause 2.01(b) or (as the case may be) the aggregate
principal amount owing to the Bank in respect thereof;
"Tranche 2 Drawdown Date" means the date, being a Banking Day, on which
Tranche 2 is, or is to be, drawndown;
"Tranche 2 Drawdown Notice" means a notice substantially in the terms of
Schedule 1;
"Tranche 2 Interest Payment Date" means the last day of a Tranche 2
Interest Period;
"Tranche 2 Interest Period" means each period for the calculation of
interest in respect of Tranche 2 calculated in accordance with Clause
2.08; and
"US Dollars" and "US$" mean the lawful currency of the United States of
America and (in respect of all payments to be made under this Agreement)
mean immediately available and freely transferable funds;
"Year 1" means the period commencing from the First Drawdown Date and
ending on the date falling one year from the first Drawdown Date;
"Year 2" means the period commencing from the date falling immediately
after the end of Year 1 and ending on the date falling two years from the
First Drawdown Date;
"Year 3" means the period commencing from the date falling immediately
after the end of Year 2 and ending on the date falling three years from
the First Drawdown Date;
"Year 4" means the period commencing from the date falling immediately
after the end of Year 3 and ending on the date falling four years from
the First
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Drawdown Date;
"Year 5" means the period commencing from the date falling immediately
after the end of Year 4 and ending on the date falling five years from
the First Drawdown Date;
"Year 6" means the period commencing from the date falling immediately
after the end of Year 5 and ending on the date falling six years from the
First Drawdown Date;
"Year 7" means the period commencing from the date falling immediately
after the end of Year 6 and ending on the date falling on the Termination
Date.
1.03 Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement. In this Agreement, unless the context otherwise requires,
references to Clauses and Schedules are to be construed as references to
clauses of and schedules to, this Agreement and references to this
Agreement include its Schedules, words importing the plural shall include
the singular and vice versa and references to a person shall be construed
as references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any agency thereof and
references to a time of day shall be to Singapore time.
2. THE TERM LOAN FACILITY
----------------------
2.01 The Bank, relying upon the representations and warranties in Clause 5,
agrees to lend to the Borrower in respect of the Term Loan Facility upon
and subject to the terms of this Agreement the principal sum of up to
S$16,950,000 comprising:
(a) Tranche 1 not exceeding the principal sum of S$15,093,000; and
(b) Tranche 2 not exceeding the principal sum of S$1,857,000.
2.02 (a) Subject to the terms and conditions of this Agreement, each Advance
shall be made to the Borrower following receipt by the Bank of a
Drawdown Notice no later than 10 a.m. on the third Banking Day
before the date on which the proposed Advance is intended to be
made. The Drawdown Notice shall be effective on actual receipt by
the Bank and, once given, shall, subject as provided in this
Agreement, be irrevocable.
(b) Subject to the terms and conditions of this Agreement, Tranche 2
shall be made to the Borrower in full following receipt by the Bank
of the Tranche 2 Drawdown Notice no later than 10 a.m. on the third
Banking Day before the proposed Tranche 2 Drawdown Date. The
Tranche 2 Drawdown Notice shall be effective on actual receipt by
the Bank and, once given,
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shall, subject as provided in this Agreement, be irrevocable.
2.03 Each Advance and Tranche 2 may only be drawndown on a Banking Day falling
within the Drawdown Period. Each Advance and Tranche 2 shall be used by
the Borrower in connection with the financing or refinancing of the
acquisition of the Machinery and Equipment but the Bank need not check
that it does so.
2.04 No Advance shall be made unless:
(a) each Advance is of a minimum of S$1,000,000;
(b) the applicable Drawdown Notice is accompanied by evidence
satisfactory to the Bank (including, without limitation, such
invoices acceptable to the Agent) confirming the costs of the
relevant part of the Machinery and Equipment; and
(c) the amount of the Advance requested in the applicable Drawdown
Notice is not more than the costs of the relevant part of the
Machinery and Equipment as confirmed pursuant to (b) above.
2.05 (a) Upon receipt of a Drawdown Notice complying with the terms of this
Agreement the Bank shall, subject to the provisions of Clause 7, on
the date specified in the Drawdown Notice make the requested
Advance available to the Borrower on the Drawdown Date in
accordance with Clause 4.02.
(b) Upon receipt of the Tranche 2 Drawdown Notice complying with the
terms of this Agreement the Bank shall, subject to the provisions
of Clause 7, on the date specified in the Tranche 2 Drawdown Notice
make Tranche 2 available to the Borrower on the Tranche 2 Drawdown
Date in accordance with Clause 4.02.
2.06 (a) All or any part of Tranche 1 undrawn at the end of the Drawdown
Period applicable thereto shall thereupon be automatically
cancelled and the Borrower shall pay a cancellation fee calculated
in accordance with the provisions of Clause 2.13.
(b) All or any part of Tranche 2 undrawn at the end of the Drawdown
Period applicable thereto shall thereupon be automatically
cancelled and the Borrower shall pay a cancellation fee calculated
in accordance with the provisions of Clause 2.13.
2.07 (a) Up to but not including the Confirmation Date the Borrower shall
pay interest on each Advance or, as the case may be, Tranche 1 in
respect of each Interest Period relating thereto on each Interest
Payment Date at the rate per annum determined by the Bank to be the
aggregate of (i) three per
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cent per annum and (ii) the Prime Rate calculated on a basis of a
year of 365 days.
(b) From and after the Confirmation Date the Borrower shall pay
interest on each Advance or, as the case may be, Tranche 1 in
respect of each Interest Period relating thereto on each Interest
Payment Date at the rate per annum determined by the Bank to be the
aggregate of (i) one point two five per cent. per annum and (ii)
the Prime Rate calculated on a basis of a year of 365 days.
(c) The Borrower shall pay interest on Tranche 2 in respect of each
Tranche 2 Interest Period relating thereto on each Tranche 2
Interest Payment Date at the rate per annum determined by the Bank
to be the aggregate of (i) one point two five per cent. per annum
and (ii) the Prime Rate calculated on a basis of a year of 365
days.
2.08 Every Interest Period and Tranche 2 Interest Period shall be of the
duration of one month but so that:
(a) (i) the first Interest Period in respect of each Advance shall
commence on its Drawdown Date and end on the same day as the
then current Interest Period in respect of Tranche 1 and each
subsequent Interest Period shall commence forthwith upon the
expiry of the previous Interest Period;
(ii) the first Tranche 2 Interest Period shall commence on the
Tranche 2 Drawdown Date and each subsequent Tranche 2 Interest
Period shall commence forthwith upon the expiry of the
previous Tranche 2 Interest Period; and
(b) if the final Interest Period and/or Tranche 2 Interest Period would
otherwise overrun the Termination Date, then such Interest Period
and/or Tranche 2 Interest Period (as the case may be) shall be
abridged so as to end on that date.
2.09 The Borrower shall repay the Term Loan by 60 instalments, one such
instalment to be repaid on each of the Repayment Dates. The principal
amount of each such instalment shall, subject to the provisions of this
Agreement, be S$282,500 or such other lower amount as the Bank may from
time to time agree.
2.10 Upon giving not less than 30 Banking Days' notice to that effect to the
Bank, the Borrower may prepay the Term Loan after the end of the Drawdown
Period in whole or part (being S$250,000 or any larger sum which is an
integral multiple of S$250,000) on any Term Loan Interest Payment Date
upon payment of a prepayment fee at the rate of one per cent. on the
principal amount prepaid together with accrued interest to the date of
prepayment.
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2.11 Every notice of prepayment shall be effective only on actual receipt by
the Bank, shall be irrevocable and shall oblige the Borrower to make such
prepayment on the date specified. No amount prepaid may be redrawn and
any amount prepaid pursuant to Clause 2.10 shall be applied in reducing
the repayment instalments under Clause 2.10 in inverse order of their due
dates for payment. The Borrower may not prepay the Term Loan or any part
thereof save as expressly provided in this Agreement.
2.12 The Borrower may by one month's advance notice to that effect to the Bank
(effective only on actual receipt) cancel the Term Loan Facility which
has not been borrowed or requested in a Drawdown Notice or the Tranche 2
Drawdown Notice in whole or in part (being S$250,000 or any larger sum
which is an integral multiple of S$250,000) upon payment of a
cancellation fee of one per cent. of the cancelled amount of the Term
Loan Facility. Any such notice of cancellation, once given, shall be
irrevocable.
3. FEES AND EXPENSES
-----------------
3.01 The Borrower shall pay to the Bank on the date falling at three-monthly
intervals after the date of this Agreement commitment fee at a rate of
0.25 per cent. per annum computed on the daily unutilized amount of the
Term Loan Facility which remain available for drawing under this
Agreement.
3.02 The Borrower shall pay to the Bank on the date falling one year after the
date of this Agreement and on each anniversary thereof a facility fee of
S$3,000 or such other amount as the Bank may at its sole discretion
determine provided that such facility fee shall not exceed the sum of
S$10,000 per year.
3.03 The Borrower shall pay to the Bank on demand: -
(a) all expenses (including legal, printing and out-of-pocket expenses)
incurred by the Bank in connection with the negotiation,
preparation and execution of this Agreement or the Security
Documents and of any amendment or extension of or the granting of
any waiver or consent under this Agreement or the Security
Documents;
(b) all expenses (including legal, printing and out-of-pocket expenses
on a full indemnity basis) incurred by the Bank in connection with
the enforcement of, or preservation of any rights under, this
Agreement and the Security Documents or otherwise in respect of the
moneys owing thereunder together with interest at the respective
rates referred to in Clause 9.01 from the date on which such
expenses were expended to the date of payment (as well after as
before judgment); and
(c) all goods and services, value added and other similar taxes payable
on all
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such expenses.
3.04 The Borrower shall pay all stamp, documentary, registration or other like
duties (including any duties payable by the Bank) imposed on or in
connection with this Agreement or the Security Documents and shall
indemnify the Bank against any liability arising by reason of any delay
or omission by the Borrower to pay such duties or taxes.
4. PAYMENTS AND ACCOUNTS
---------------------
4.01 All payments to be made by the Borrower under this Agreement shall be
made in full, without any set-off or counterclaim whatsoever and, subject
as provided in Clause 4.05, free and clear of any deductions or
withholdings, in the currency in which such sum is payable on the due
date to such account as the Bank may specify to the Borrower for this
purpose.
4.02 All sums to be advanced by the Bank to the Borrower under this Agreement
shall be remitted in the currency in which such sum is to be advanced to
such account as the Borrower may specify to the Bank for this purpose.
4.03 When any payment would otherwise be due, or any Interest Period would
otherwise end, on a day which is not a Banking Day, the next following
Banking Day shall be substituted for such day unless such next following
Banking Day falls in the next calendar month in which case the
immediately preceding Banking Day shall be substituted therefor.
4.04 All interest, commissions and other payments of an annual nature under
this Agreement shall accrue from day to day and be calculated on the
basis of actual days elapsed and a 365 day year. Any certificate or
determination of the Bank as to any rate or interest or any other amount
payable under this Agreement shall, in the absence of manifest error, be
conclusive and binding on the Borrower.
4.05 If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes from any payment to the Bank under this
Agreement, the sum due from the Borrower in respect of such payment shall
be increased to the extent necessary to ensure that, after the making of
such deduction or withholding, the Bank receives on due date a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the Borrower shall indemnify the
Bank against any losses or costs incurred by the Bank by reason of any
failure of the Borrower to make any such deduction or withholding. The
Borrower shall promptly deliver to the Bank any receipts, certificates or
other proof evidencing the amounts (if any) paid or payable in respect of
any deduction or withholding as aforesaid.
4.06 If following any such deduction or withholding as is referred to in
Clause 4.05
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from any payment by the Borrower, the Bank shall receive or be granted a
credit against or remission for any Taxes payable by it, the Bank shall,
subject to the Borrower having made any increased payment in accordance
with Clause 4.05 and to the extent that the Bank can do so without
prejudicing the retention of the amount of such credit or remission and
without prejudice to the right of the Bank to obtain any other relief or
allowance which may be available to it, reimburse the Borrower with such
amount as the Bank shall in its absolute discretion certify to be the
proportion of such credit or remission as will leave the Bank (after such
reimbursement) in no worse position that it would have been in had there
been no such deduction or withholding from the payment by the Borrower as
aforesaid.
4.07 The Bank shall maintain an account evidencing the amounts from time to
time lent by, owing to and paid to it under this Agreement. Such account
shall, in the absence of manifest error, be conclusive as to the amount
from time to time owing by the Borrower under this Agreement.
5. REPRESENTATIONS AND WARRANTIES
------------------------------
5.01 The Borrower hereby represents and warrants to the Bank that: -
(a) the Borrower is a limited liability company and the Guarantor is a
corporation duly incorporated and validly existing under the laws
of their respective countries of incorporation with full power and
authority to own their respective properties and assets and to
carry on their respective businesses;
(b) the Borrower has full power and authority to enter into this
Agreement and the Security Documents to which it is a party, to
borrow and incur indebtedness hereunder, to comply with the
provisions of and to perform all its obligations under this
Agreement and the Security Documents to which it is a party and has
taken all necessary corporate and other action to authorize the
borrowing hereunder and the execution, delivery and performance of
this Agreement and the Security Documents to which it is a party;
(c) the Guarantor has full power and capacity to enter into the
Security Documents to which it is a party, to comply with the
provisions thereof and to perform all of its obligations
thereunder;
(d) this Agreement constitutes and the Security Documents when executed
and delivered will constitute, valid and legally binding, direct
and unconditional obligations of the parties thereto respectively;
(e) no Event of Default or event or circumstance which constitutes or
which with the giving of notice or lapse of time and/or
determination of
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materiality or other condition would become an Event of Default has
occurred and is continuing;
(f) none of the Borrower and the Guarantor is in breach of or default
under any law or order applicable to it or under any agreement or
other instrument to which it is a party or by which it or any of
its respective assets may be bound or affected or to which any
other person is a party for whom the Borrower or the Guarantor is
responsible by reason of any guarantee, indemnity, law or order;
and no event or omission has occurred which entitles (or may, with
the giving of notice and/or the lapse of time and/or the fulfilment
of any other condition, entitle) any creditor or creditors of the
Borrower or the Guarantor to declare any Indebtedness of any of
them due and payable prior to its specified maturity or to cancel
or terminate any loan or other credit facility or to decline to
make any advances or further advances thereunder;
(g) (i) except as otherwise disclosed to the Bank in writing before
the date of this Agreement, no litigation, arbitration or
administrative proceeding involving a claim of a sum exceeding
US$150,000 before or of any court, tribunal, arbitrator or
governmental authority is presently taking place, pending or
to its knowledge (having made all reasonable enquiries)
threatened against the Guarantor or any of its properties or
assets other than those which, in the opinion of the Bank, are
of a frivolous or vexatious nature;
(ii) no litigation, arbitration or administrative proceeding
involving a claim of a sum exceeding S$500,000 before or of
any court, tribunal, arbitrator or governmental authority is
presently taking place, pending or to its knowledge (having
made all reasonable enquiries) threatened against the Borrower
or any of its properties or assets other than those which, in
the opinion of the Bank, are of a frivolous or vexatious
nature;
(h) all (if any) consents, authorizations, approvals and waivers from
and resolutions of the holders of any class of shares in or from
any of the creditors of, the Borrower or from any other party to
any relevant deed or document or from any governmental or other
authority required by the Borrower or the Guarantor in order for
the Borrower to borrow up to the full amount of the Facilities
and/or to execute, deliver and perform their respective obligations
under this Agreement and the Security Documents have been duly
obtained and passed and are in full force and effect;
(i) neither the execution and delivery of this Agreement or the
Security Documents nor the drawing or utilization by the Borrower
of the full amount of the Facilities hereunder, nor the performance
or observance by the Borrower and the Guarantor of any of their
respective obligations
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hereunder will or would: -
(i) conflict with, or result in any breach of or default under,
any provision of any law, order, agreement, instrument,
franchise, concession, licence, permit, liability, obligation
or duty applicable to the Borrower or the Guarantor or by
which they are bound; or
(ii) cause any limit on any of the borrowing, guaranteeing,
charging or other powers of the Borrower or the Guarantor or
any of them (whether imposed by its Memorandum or Articles of
Association or other incorporation documents or by agreement,
instrument or otherwise), or upon any of the powers of the
Board of Directors of the Borrower or the Guarantor to
exercise any of such powers, or any other limit affecting the
Borrower or the Guarantor to be exceeded; or
(iii) create or result in, or (except for the Security Documents)
oblige the Borrower or the Guarantor to create, any lien,
charge, security interest or other encumbrance on the whole
or any part of the Borrower's or the Guarantor's property,
assets or revenues, present or future;
(j) the latest audited balance sheets and profit and loss accounts of
the Borrower and the Guarantor, respectively, delivered to the Bank
have been prepared in accordance with the accounting principles
generally accepted in their respective countries of incorporation
and on the basis of accounting policies consistently applied, and
present fairly and accurately the results of the operations of the
Borrower for the relevant accounting period and the financial
position of the Borrower at the end of the accounting period to
which they relate;
(k) there has been no material adverse change in the business, assets,
liabilities, profits, prospects or condition of the Borrower or the
Guarantor since the date of the accounts referred to in Clause
5.01(j);
(l) the information supplied to the Bank by the Borrower concerning
itself and the Guarantor and all related matters are to the best of
its knowledge and belief (having made all reasonable enquiries)
true and accurate and do not contain any material mis-statement of
fact or omit to state a material fact or any fact necessary to make
any statement contained therein not misleading and all the
forecasts and projections contained therein were made after due and
careful consideration on its part, are based on the best
information available to it and on fair and reasonable assumptions
and are, in its considered opinion, fair and reasonable in the
circumstances prevailing at the time such forecasts and projections
were
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made and in the light of the assumptions made, and the Borrower is
not aware at the date of this Agreement of any fact which might
have a material effect on any of the information or on any of such
assumptions or which constitutes a material fact for inclusion in
the information or which might necessitate a material revision to
any of the said forecasts or projections; and
(m) the Borrower is the wholly-owned subsidiary of the Guarantor and
more than 50 per cent. of the issued and paid-up share capital of
the Guarantor is ultimately owned by entities controlled by
Michael Steinhardt (Passport No. ).
5.02 The Borrower hereby represents and warrants to and undertakes with the
Bank that each of the representations and warranties in Clause 5.01 (with
the substitution in Clauses 5.01(j) and (k) of references to the then
most recent audited balance sheets and profit and loss accounts of the
Borrower and the Guarantor, respectively, if those referred to in
paragraphs (j) and (k) as at that date shall not then be the most recent
such accounts) will be true and accurate in all respects (other than any
considered by the Bank not to be material) as though made on each date on
which the Facilities are utilized and each Interest Payment Date with
reference to the facts and circumstances subsisting on each such date.
6. UNDERTAKINGS
------------
6.01 The Borrower hereby undertakes with the Bank from the date of this
Agreement and for so long thereafter as the Term Loan or any other sum
hereunder or under any of the Security Documents remains outstanding: -
(a) that the Borrower shall, and shall procure that the Guarantor
shall, furnish to the Bank annually as soon as possible and in any
event not later than 180 days after the close of their respective
financial years their respective audited financial statements
consisting of a balance sheet as of the close of such respective
financial years and a statement of profit and loss for the period
then ended in accordance with generally accepted accounting
practices in the Borrower's and the Guarantor's respective
countries of incorporation and principles consistently applied and
the Borrower shall also furnish to the Bank such other information
in respect of its financial condition or otherwise as the Bank may
from time to time reasonably require;
(b) that the Borrower will take out and maintain or cause to be taken
out and maintained with such insurance company as may be reasonably
approved by the Bank all risk policies of insurance as the Bank may
from time to time approve, fully insuring the assets of the
Borrower against, inter alia, loss or damage by fire and all other
risks commonly covered with
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respect to properties of a similar kind and such policies shall be
in such amounts and shall contain such terms and provision as shall
be approved by the Bank and such terms and provisions shall not be
varied without the prior consent in writing of the Bank and shall
contain standard mortgagee clauses naming the Bank as loss payee
and the Borrower will punctually pay all premia payable in respect
of the said policies of insurances and submit to the Bank receipts
for such payment, and if the Borrower fails to comply with the
provisions of this sub-clause the Bank may at its discretion (but
without any obligation on its part to do so) have such insurance
effected at the cost of the Borrower and all moneys paid by the
Bank in respect of such insurances shall on demand be repaid to the
Bank and until repayment shall be added to the Term Loan and bear
interest accordingly and all other statutory powers of insurance
for the said sum may be exercised by the Bank;
(c) that the Borrower shall not except at the request or with the
consent of the Bank effect or keep on foot any insurance against
any risk in respect of any of the Borrower's assets where any
insurance hereinbefore mentioned has been effected or kept on foot;
(d) that the Borrower and the Guarantor shall duly pay and discharge
all taxes, assessments and governmental charges upon them or
against their respective properties prior to the date on which
penalties become attached thereto other than those in respect of
which the Borrower and/or the Guarantor (as the case may be) is
contesting in good faith;
(e) that the Borrower will carry on and conduct its affairs in a proper
and efficient manner and will keep or cause to be kept all its
properties, assets and plant in a good state of repair and
condition in accordance with good commercial practice (fair wear
and tear excepted);
(f) that the Borrower shall maintain all such consents, authorizations,
approvals, waivers and resolutions as are referred to in Clause
5.01(h), take immediate steps to obtain (and notify immediately the
Bank of the taking of such steps) any others which may become
necessary or advisable for the purposes mentioned in Clause
5.01(h), comply with all conditions and restrictions (if any)
imposed in connection with any of the foregoing and maintain or
accomplish any filing or registration which may be or become
necessary or advisable for such purposes;
(g) that the Borrower shall forthwith notify the Bank in writing of any
such litigation, arbitration or administrative proceeding as is
referred to in Clause 5.01(g) which is brought against the Borrower
or the Guarantor, or any of the respective properties or assets of
any of them, or which, to the Borrower's knowledge, is threatened
and the amount of any relevant contingent liability if such amount
is ascertainable;
15
(h) that the Borrower will not declare, pay or make any dividend or
other distribution, whether of an income or capital nature and
whether in cash or in specie, in respect of any accounting period
without the prior written consent of the Bank (such consent not to
be unreasonably withheld);
(i) that the Borrower shall not repay or redeem any share capital;
(j) that the Borrower will not (otherwise than pursuant to this
Agreement) create or agree to create or permit to arise any
mortgage, charge, debenture, pledge, lien or other encumbrance
(save for liens arising by operation of law and in the ordinary
course of trading and pledges over its properties, assets and/or
services acquired pursuant to documentary credits opened in the
ordinary course of trading for the purpose of financing acquisition
thereof) over or in respect of any of its present or future
undertaking, properties, assets, rights or revenues, or any part
thereof, including its uncalled capital (if any) for the time
being;
(k) that unless otherwise first agreed in writing by the Bank the
Borrower will not at any time form or acquire any subsidiary or
subscribe or agree to subscribe for any shares of any subsidiary or
make loans or (except in the ordinary course of trading) transfer
any assets or grant any credit to any subsidiary or related
corporation;
(l) that it will procure that unless otherwise first agreed in writing
by the Bank no alteration shall be made to the general nature of
the business of the Borrower as carried on at the date of this
Agreement which would constitute a substantial alteration and no
alteration shall be made to its Memorandum and Articles of
Association relating to its borrowing powers and principal business
activities;
(m) that the Borrower will not cause or suffer itself, to undergo any
reorganization, take-over, reconstruction or amalgamation or any
schemes of compromise or arrangement without the prior written
approval of the Bank;
(n) that (other than pursuant to this Agreement) the Borrower shall not
without the prior written consent of the Bank (such consent not to
be unreasonably withheld) borrow or raise any moneys from any bank
or financial institution or advance moneys or give financial
accommodation exceeding in the aggregate the sum of S$150,000 to
any person;
(o) that the Borrower shall notify the Bank of the occurrence of an
Event of Default or an event or circumstance which constitutes or
which with the giving of notice or lapse of time and/or
determination of materiality or other condition would constitute an
Event of Default or of a material
16
adverse change in the business, assets or general condition of the
Borrower or the Guarantor which could materially affect the ability
of the Borrower or the Guarantor to perform their respective
obligations under this Agreement and/or the Security Documents;
(p) that the Borrower will ensure that during Year 1 and Year 2 all of
the Borrower's Indebtedness to its Directors and shareholders
(including, without limitation, the Indebtedness amounting to
US$5,762,000) will be subordinated to all amounts owing to the Bank
(both actual and contingent) under this Agreement and the Security
Documents save and except as follows:
(i) a maximum amount of up to S$3,000,000 may be repaid to the
Guarantor in Year 1; and
(ii) a further maximum amount of up to S$3,000,000 may be repaid to
the Guarantor in Year 2.
(q) that the Borrower shall supply immediately on request by the Bank
all information regarding the Borrower's operations, finances and
affairs as may be reasonably required;
(r) that the Borrower shall not except on an arm's length basis and in
the ordinary course of its business as now conducted by it part
with, transfer, sell or otherwise dispose of or attempt to part
with, transfer, sell or otherwise dispose of any of its
undertakings, properties or assets;
(s) that the Borrower shall not permit or suffer to permit any change
of its shareholders and the Guarantor shall not permit or suffer to
permit any change in control of more than 50 per cent. of its
issued and paid-up share capital;
(t) that the Borrower shall not grant issue or extend any guarantee or
indemnity or enter into any other form of contractual undertaking
or arrangement of similar effect in respect of any Indebtedness or
obligations, actual or contingent, of any other person whatsoever
except in the usual and ordinary course of trading as now conducted
by it and its subsidiaries and for the purpose of the carrying on
by it, or the relevant subsidiary, of its business;
(u) that the Borrower will, from the date of this Agreement up to the
Confirmation Date, on a monthly basis, provide to the Bank a
progress report on the setting up of the production and/or post
production facilities and all other salient particulars relating to
the production and/or post production facilities;
17
(v) that, in the event at any time the Project Costs exceed the
aggregate of (i) the principal amount of the Term Loan; (ii) the
equity injection of S$3,000,000 into the Borrower by the Guarantor
and (iii) the loan from the Guarantor of the principal amount of
the Dollar equivalent of US$5,762,000 if converted at the Bank's
spot rate of exchange on that day, the Borrower will finance, or
will procure that the Guarantor will finance, such excess costs
from funds outside the Facilities; and
(w) that the Borrower will use its best endeavours to ensure that
neither Robert Walston nor Gavin Schutz will leave the employment
of the Borrower and the Guarantor, respectively and Robert Walston
will remain a Director of the Borrower and the Guarantor,
respectively.
6.02 The Borrower undertakes with the Bank that, during the periods set out in
the left column of the schedule below, it will procure that the
respective Gearing Ratio set out in the right column of the schedule
below shall not be exceeded: -
Period Gearing Ratio
------ -------------
Year 1 2.4:1
Year 2 2.3:1
Year 3 2.2:1
Year 4 1.5:1
Year 5 1.5:1
Year 6 and Year 7 1.1:1
In this Clause 6.02, "Gearing Ratio" means the ratio of (a) the aggregate
of the Borrower's Indebtedness to banks and financial institutions to
(b) the aggregate of (i) the Borrower's shareholders' loans to the
Borrower; (ii) the Borrower's shareholders' funds and (iii) the
Borrower's retained earnings.
7. CONDITIONS
----------
7.01 The obligation of the Bank:
(a) to make available the Facilities shall be subject to the condition
that the Bank, or its duly authorized representative, shall have
received, no later than five Banking Days before the first
utilization of any of the Facilities the documents and evidence
specified in Schedule 2 in form and substance satisfactory to the
Bank; and
(b) to permit any utilization of the Facilities in Singapore Dollars
shall be subject to the condition that the Monetary Authority of
Singapore shall have given (and not withdrawn) its consent for that
purpose in accordance with MAS Notice 621.
18
7.02 The obligation of the Bank to comply with any request for utilization of
the Facilities is subject to the further conditions that at the time of
the request for, and at the time of, such utilization: -
(a) the representations and warranties set out in Clause 5.01 (and so
that the representation and warranty in Clause 5.01(j) shall for
this purpose refer to the then latest financial statements
delivered under Clause 6.01(a)) are true and correct on and as of
each such time as if made with respect to the facts and
circumstances existing at such time; and
(b) no Event of Default or event or circumstance which constitutes or
which with the giving of notice or lapse of time and/or
determination of materiality or other condition would constitute an
Event of Default shall have occurred and be continuing or would
result from the proposed utilization of the Facilities.
8. EVENTS OF DEFAULT
-----------------
8.01 Each of the following events shall be an Event of Default:-
(a) if the Borrower fails to pay any sum under this Agreement and/or
the Security Documents within three Business Days of the due date
thereof or if payable on demand within five Business Days of such
demand being made by the Bank;
(b) if the Borrower or the Guarantor shall fail or threatens to fail to
perform or observe any of its obligations hereunder or under the
Security Documents or any of them and in any case (except where the
Bank considers that such failure is not capable of remedy) such
failure shall continue for a period of 14 days following the date
of the service by the Bank on the Borrower of notice requiring the
same to be remedied; or
(c) if any representation or warranty made or deemed to be made by the
Borrower or the Guarantor in or pursuant to this Agreement or the
Security Documents or any of them or in any notice, certificate,
instrument, document or statement contemplated hereby or thereby or
made or delivered pursuant hereto or thereto is or proves to have
been untrue or inaccurate in any respect considered by the Bank to
be material; or
(d) if any of the consents, authorizations, approval, waivers or
resolutions referred to in Clause 5.01(h) shall be modified in a
manner unacceptable to the Bank or shall be wholly or partly
revoked, withdrawn, suspended or terminated or shall expire and not
be renewed or shall otherwise fail to remain in full force and
effect and such circumstances are reasonably
19
considered by the Bank to be material; or
(e) if in respect of the Borrower or the Guarantor: -
(i) any Indebtedness shall become capable of being declared due
prematurely by reason of default in its obligations in
respect of the same or it shall fail to make any payment in
respect thereof on the due date for such payment or within
any applicable grace period in respect thereof, or the
security for any such Indebtedness shall become enforceable;
(ii) any application or petition shall be presented or any order
shall be made by a competent court or other appropriate
authority or any resolution shall be passed for its
bankruptcy, liquidation, winding up or dissolution (as the
case may be) or in respect of the Borrower, any application
or petition shall be presented or order shall be made by a
competent court or other appropriate authority or any
resolution passed for the appointment of a liquidator,
judicial manager, trustee or similar official of it or of all
or a material part of its assets;
(iii) an encumbrancer takes possession of or a receiver is
appointed over its undertaking or the whole or any part of
its chattels, properties, assets, rights or revenues or a
distress or execution or other similar process shall be
levied or enforced upon or sued out against a material part
of its chattels, properties, assets, rights or revenues;
(iv) it shall stop payment to creditors generally or shall be
unable to or admits inability to pay its debts as they fall
due or proposes or enters into any composition or other
arrangement for the benefit of its creditors generally;
(f) if, in the opinion of the Bank it shall become impossible or
unlawful for the Borrower or the Guarantor to fulfil any of their
respective undertakings or obligations contained herein or in the
Security Documents or any of them or for the Bank to exercise the
rights or any of them vested in it under the aforesaid documents or
otherwise; or
(g) if anything shall be done or suffered or omitted to be done by the
Borrower or the Guarantor which, in the reasonable opinion of the
Bank imperils or may imperil the performance of the obligations or
the security created by this Agreement, the Security Documents or
any of them; or
(h) if any legal proceedings suits or actions of any kind whatsoever
whether
20
criminal or civil) shall be instituted against the Borrower and/or
the Guarantor which in the opinion of the Bank may materially and
adversely affect the Borrower's or the Guarantor's ability to
perform their respective obligations under this Agreement or the
Security Documents such opinion so formed being binding and
conclusive on the Borrower or the Guarantor (as the case may be);
or
(i) if the Borrower or the Guarantor shall transfer or otherwise
dispose of all or substantially all of their respective assets to
any person, firm or corporation; or
(j) if the Borrower is declared by the Minister to be a declared
company under the provisions of Part IX of the Companies Act (Cap
50); or
(k) if there is any material adverse change in the nature of the
business, assets or general conditions of the Borrower or the
Guarantor or if there is any change in the shareholding of the
Borrower or in the control of more than 50 per cent. of the issued
and paid-up share capital of the Guarantor without the prior
written consent of the Bank; or
(l) if, in the opinion of the Bank, the security in the Security
Documents or the business of the Borrower is in jeopardy; or
(m) if any event occurs (including, without limitation, the repudiation
or termination of the MTV Contract) which, in the opinion of the
Bank acting in good faith, is likely to materially and adversely
affect the Borrower's or the Guarantor's ability to perform or
comply with all or any of their respective obligations under this
Agreement or the Security Documents
Provided that, notwithstanding any other provision herein or in the
Security Documents, neither the exercise by MTV Asia LDC of the
Cancellation Option pursuant to the terms of the MTV Contract nor the
Borrower's performance of its obligations under Clause 2.3 of the MTV
Contract shall constitute an Event of Default.
8.02 The Bank may at any time after the happening of an Event of Default or
any notice pursuant to Clause 6.01(o) shall have been given by the
Borrower, so long as such Event of Default is continuing, by notice in
writing to the Borrower declare that: -
(a) the Facilities are immediately cancelled; and
(b) all amounts owing by the Borrower under this Agreement have become
immediately due and payable;
21
and the Borrower shall forthwith make payment of all such amounts.
8.03 If any moneys owing contingently under this Agreement are paid to the
Bank as a result of a declaration pursuant to Clause 8.02, then the
moneys so received may be credited by the Bank to a cash collateral
account in the name of the Borrower. Such account and the moneys standing
to its credit shall stand charged to the Bank by way of security for the
performance of the Borrower's obligations in respect of which such sum
was paid.
9. DEFAULT INTEREST AND INDEMNITIES
--------------------------------
9.01 The Borrower shall pay interest on sums not paid on due date under this
Agreement from due date up to the date of actual payment (as well after
as before judgment) at a rate of six per cent. (6%) per annum above the
Prime Rate or at such other rate as the Bank may from time to time at its
sole discretion determine.
9.02 The Borrower shall indemnify the Bank against any loss (including loss of
interest) or expense which the Bank shall certify as incurred by it as a
consequence of (i) any default in payment by the Borrower of any sum
under this Agreement when due, (ii) the occurrence of any Event of
Default, (iii) any prepayment of any moneys being made under Clause 10
or (iv)) any moneys not being advanced for any reason after they have
been requested other than the Bank's failure to make such advance in
default of its obligations hereunder, including, in any such case, but
not limited to, any loss or expense incurred in maintaining or funding
such moneys or in liquidating or re-employing deposits from third parties
acquired to effect or maintain any proposed utilization of the
Facilities.
9.03 No payment to the Bank under this Agreement pursuant to any judgment or
order of any court or otherwise shall operate to discharge the
obligations of the Borrower in respect of which it was made unless and
until payment in full shall have been received in Dollars, and to the
extent that the amount of any such payment shall on actual conversion
into Dollars fall short of the amount of the relevant obligation
expressed in Dollars, the Bank shall have a further and separate cause of
action against the Borrower for the recovery of such sum as shall after
conversion into Dollars be equal to the amount of the shortfall.
10. UNLAWFULNESS; INCREASED COSTS; CANCELLATION OF MTV CONTRACT
-----------------------------------------------------------
10.01 If any law or regulation or any order of any court, tribunal or authority
binding upon the Bank renders it unlawful for the Bank to make available
or to fund any of the Facilities then the Bank shall forthwith notify the
Borrower and the Banks' obligation to make the Facilities available shall
forthwith cease. If it shall be
22
unlawful for the Bank to maintain or fund any amounts outstanding in
respect of the Facilities then the Bank shall give notice to the Borrower
requiring the Borrower to prepay without prepayment fee all moneys
outstanding (whether contingently or otherwise), under this Agreement
either (i) forthwith or (ii) on a future specified date and the Borrower
shall prepay such moneys in accordance with such notice, together with
accrued interest thereon to the date of prepayment and all other sums
payable by the Borrower under this Agreement and the Bank's obligation
under this Agreement shall thereupon terminate. Any amount prepaid
pursuant to this Clause 10.01 in respect of a contingent obligation may
be applied by the Bank in the manner described in Clause 8.04.
10.02 If any law or regulation or any order of any court, tribunal or authority
binding upon the Bank taking effect after the date of this Agreement or
if compliance by the Bank with any direction, request or requirement
(whether or not having the force of law) of any competent governmental or
other authority shall: -
(a) subject the Bank to Taxes or change the basis of Taxation of the
Bank with respect to any payment under this Agreement (other than
Taxes or Taxation on the overall net income of the Bank); or
(b) impose, modify or deem applicable any capital adequacy, liquidity
or reserve requirements or other prudential or similar
requirements or require the making of any special deposits against
or in respect of any assets or liabilities of, deposits with or for
the account of, or loans by, the Bank; or
(c) impose on the Bank any other condition with respect to this
Agreement or its obligations under this Agreement,
and, as a result of any of the foregoing, the cost to the Bank of making
the Facilities available or maintaining or funding any amounts
outstanding in respect of them is increased or the amount payable or the
effective return to the Bank under this Agreement is reduced, the
Borrower shall on demand pay to the Bank the amount which the Bank
specifies is required to compensate the Bank for such increased cost or
reduction. Such specification by the Bank as to the amount required to
compensate the Bank for such increased cost or reduction shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
10.03 The Borrower shall, upon its receipt of written notice from MTV Asia LDC
of its intention to exercise the Cancellation Option, forthwith notify
the Bank thereof and shall prepay all moneys outstanding (whether
contingently or otherwise) under this Agreement on the Cancellation Date,
together with accrued interest thereon to the date of prepayment, a
prepayment fee at the rate of zero point five per cent. on the principal
amount prepaid and all other sums payable by the Borrower under this
Agreement and the Bank's obligations under this Agreement shall thereupon
terminate.
23
11. SET-OFF
-------
11.01 The Borrower authorizes the Bank to debit any account of the Borrower
with the Bank at any of its branches in or towards satisfaction of any
sum then due and payable from the Borrower to the Bank whether such
liability is actual or contingent, principal or collateral or several or
joint, notwithstanding that such debiting may result in the Borrower's
account or accounts being overdrawn. For this purpose the Bank is
authorized to purchase with the moneys standing to the credit of such
account such other currencies as may be necessary to effect such
application.
12. ASSIGNMENT
----------
12.01 This Agreement shall be binding upon, and enure for the benefit of, the
Bank and the Borrower and their respective successors. The Borrower may
not assign or transfer any of its rights or obligations under this
Agreement. The Bank may assign all or any part of its rights or transfer
all or any part of its obligations under this Agreement to any bank or
other financial institution having the ability to perform this Agreement.
If the Bank assigns all or any part of its rights or transfers all or any
part of its obligations as provided in this Clause 12.01 all relevant
references in this Agreement and the Security Documents to the Bank shall
thereafter be construed as a reference to the Bank and/or its assignee(s)
or transferee(s) (as the case may be) to the extent of their respective
interests.
12.02 The Bank may disclose to the Guarantor, to a potential assignee or
transferee or to any other person who may propose entering into
contractual relations with the Bank in relation to this Agreement such
information about the Borrower as the Bank shall consider appropriate.
13. NOTICES AND OTHER MATTERS
-------------------------
13.01 Every notice or other communication under this Agreement shall be in
writing, delivered personally by prepaid letter or telex addressed to the
relevant party at its address stated above or to any telex number which
is published as belonging to it (or such other address or telex number as
is notified by one party to the other under this Agreement). Every notice
or other communication shall, subject as otherwise provided in this
Agreement, be deemed to have been received, in the case of a letter when
delivered personally or five days after it has been put into the post
and, in the case of a telex, at the time of despatch with confirmed
answerback of the addressee appearing at the beginning and end of the
transmission (provided that if the date of despatch is not a Banking Day
it shall be deemed to have been received at the opening of business on
the next such Banking Day).
24
13.02 Time is of the essence of this Agreement but no failure or delay on the
part of the Bank to exercise any power, right or remedy under this
Agreement shall operate as a waiver thereof nor shall any single or
partial exercise by the Bank of any power, right or remedy preclude any
other power, right or remedy. The remedies provided in this Agreement are
cumulative and are not exclusive of any remedies provided by law.
13.03 This Agreement may only be amended by instrument in writing signed by or
on behalf of all parties affected by such amendment.
13.04 If at any time any one or more of the provisions herein or in the
Security Documents is or becomes invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected
or impaired thereof.
14. LAW
---
14.01 This Agreement is governed by and shall be construed in accordance with
the laws of Singapore and the Borrower irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the Singapore courts.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed.
25
SCHEDULE 1
----------
Form of [Drawdown Notice/Tranche 2 Drawdown Notice]*
----------------------------------------------------
Date:
To: The Hongkong and Shanghai Banking Corporation Limited
[40-A Orchard Road #01-00
MacDonald House
Singapore 0923
Facility Agreement dated.....................1995
-------------------------------------------------
We refer to the above Facility Agreement and hereby give you notice that we wish
to draw [an Advance of S$............/Tranche 2 of S$1,857,000]* on............
19... The funds should be credited to [name and number of account] with [bank in
Singapore].
We confirm that: -
(i) no event or circumstance has occurred and is continuing which
constitutes, or which with the giving of notice of lapse of time or both
would constitute, an Event of Default;
(ii) the representations and warranties contained in Clause 5.01 of the
Facility Agreement (and so that the representation and warranty in
Clause 5.01(j) for this purpose refers to the latest audited financial
statements of the Borrower and the Guarantor, respectively) are true and
correct at the date hereof as if made with respect to the facts and
circumstances existing at such date; and
(iii) there has been no material adverse change in (a) our or Four Media
Company's business operations or (b) our or Four Media Company's
financial position from that set forth in the financial statements
referred to in (ii) above.
Words and expressions defined in the Facility Agreement shall have the same
meanings when used herein.
For and on behalf of
FOUR MEDIA COMPANY ASIA PTE LTD
.......................
(* Delete where inapplicable)
26
SCHEDULE 2
----------
Documents and evidence
----------------------
required as conditions precedent
--------------------------------
(a) A copy, certified as a true, complete and up to date copy by an authorized
officer of the incorporation documents of the Borrower.
(b) A copy, certified as a true copy by an authorized officer, of resolutions
of the Board of Directors of the Borrower and the Guarantor evidencing
approval of this Agreement and the Security Documents to which it is a
party and authorizing its appropriate officers to execute and deliver this
Agreement and the Security Documents to which it is a party and to give all
notices and take all other action required under this Agreement and the
Security Documents.
(c) A set of specimen signatures of the persons referred to in paragraph (b)
above, duly authenticated on behalf of the Borrower.
(d) The Certificate of Incumbency (in form and substance satisfactory to the
Bank) signed and sealed by the Secretary of the Guarantor.
(e) A copy, certified as a true copy by an authorized officer, of all
authorizations required by the Borrower to authorize, or required by the
Borrower and the Guarantor in connection with, the execution, delivery,
performance, validity, enforceability and admissibility in evidence of this
Agreement and the Security Documents.
(f) The Security Documents and the MTV Contract duly executed by the Borrower
and/or the Guarantor and (where applicable) duly stamped, together with
such further documentation as may be required in connection with the
registration, completion and perfection in all respects of the security
thereby created.
(g) Legal opinions (in form and substance satisfactory to the Bank) by
solicitors in the relevant jurisdictions in respect of (i) the Guarantor's
entry into and performance of the Guarantee and the Deed of Subordination
and (ii) MTV Asia LDC's entry into and performance of the MTV Contract.
(h) Evidence satisfactory to the Bank that (i) Michael Steinhardt (Passport
No. ) controls the entities which ultimately hold more than 50
per cent. of the issued and paid-up share capital of the Guarantor; (ii)
the Guarantor is the legal and beneficial owner of all the shares in the
Borrower; (iii) the Guarantor has made loans of up to US$5,762,000 to the
Borrower and (iv) the equity injection and loans referred to in (ii) and
(iii) above have been utilized by the Borrower to partially fund the
acquisition of the Project Costs.
27
(i) An independent auditor's report confirming that the Borrower's issued and
paid-up capital is at least S$3,000,000.
(j) Bank references satisfactory to the Bank from the Borrower's bankers.
Agreement
28
SIGNED for and on behalf of )
FOUR MEDIA COMPANY ASIA PTE ) /s/ Robert Walston
LTD in the presence of: )
/s/ John Sabin
Signed by Lilian Yap Ah Wan )
as Attorney for THE HONGKONG )
AND SHANGHAI BANKING )
CORPORATION LIMITED )
acting under )
a Power of Attorney dated )
the 11th day of May 1983 )
(a copy of which was deposited) ) /s/ Lilian Wan
in the Registry, Supreme )
Court, Singapore on the 23rd day )
of June 1983 and registered )
as No. 2654 of 1983) in the )
presence of: )
/s/ Cheng Wei Lin