EXHIBIT 10.5
SCHEDULE I-1
FORM OF GUARANTY TO BE EXECUTED
BY VIACOM INTERNATIONAL INC.
GUARANTY
This Guaranty ("Guaranty") is entered into as of February 13, 1995 by
Viacom International Inc., a Delaware corporation ("Guarantor"), in favor of
Four Media Company Asia PTE Ltd. ("4MCA").
In order to induce 4MCA to enter into that certain Agreement dated as of
February 13, 1995 (the "Agreement") between 4MCA and MTV Asia LDC ("MTVA"),
which is a wholly-owned subsidiary of (a) Guarantor and (b) MTV Asia Development
Company, Inc. (a wholly-owned subsidiary of Guarantor), and for other valuable
consideration, receipt of which is hereby acknowledged, Guarantor hereby
irrevocably, absolutely, unconditionally guarantees to 4MCA the prompt, punctual
and full performance and payment when due of any and all obligations of MTVA
under the Agreement and the prompt performance of any and all of the terms,
conditions and covenants agreed to be performed by MTVA under the Agreement,
irrespective of the value, genuineness, validity, regularity or enforceability
of the Agreement or any term or provision of any other document relating to the
obligations or any other circumstance, to the extent any of the foregoing might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (all such obligations, terms, conditions and covenants are hereinafter
collectively referred to as the "Obligations"). The term "Obligations" is used
herein in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities heretofore, now or hereafter made, incurred or
created under the Agreement, whether voluntary or involuntary and whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether recovery upon any of the Obligations may be or
hereafter become unenforceable.
This Guaranty has been duly authorized, executed and delivered by Guarantor
and constitutes the legal, valid and binding obligation of Guarantor,
enforceable in accordance with its terms.
Guarantor hereby expressly waives diligence, presentment, demand for
payment, protest, benefit of any statute of limitations affecting MTVA's
liability under the Agreement or the enforcement of this Guaranty, benefit of
any act or omission by 4MCA which directly or indirectly results in or aids the
discharge of MTVA or any of the Obligations by operation of law or otherwise,
all notices whatsoever, including, without limitation, notice of acceptance of
this Guaranty and the incurring of the Obligations, and any requirement that
4MCA exhaust any right, power or remedy or proceed against MTVA or any other
guarantor, or any other security for, or any other party liable for, any of the
Obligations. Guarantor specifically agrees that it will not be necessary or
required, and Guarantor shall not be entitled to require, that 4MCA file suit or
proceed to assert or obtain a claim for personal judgment against MTVA for the
Obligations or to make any effort at collection or enforcement of the
Obligations from MTVA or file suit or proceed to obtain or assert a claim for
personal judgment against any other guarantor or other party liable for the
Obligations or make any effort at collection of the
1
Obligations from any such party or exercise or assert any other right or remedy
to which 4MCA is or may be entitled in connection with the Obligations or any
guaranty thereof or assert or file any claim against the assets of MTVA or any
other person liable for this Guaranty or the Obligations, or any part thereof,
before or as a condition of enforcing the liability of Guarantor under this
Guaranty.
Until payment and performance in full of the Obligations, Guarantor waives
any right to enforce any remedy of 4MCA which 4MCA now or may hereafter have
against MTVA, any other guarantor or any other person and waives any benefit
of, or any right to participation in, any security whatsoever now or hereafter
held by 4MCA. Guarantor waives any defense Guarantor may have based upon any
election of remedies by 4MCA which impairs or nullifies guarantor's subrogation
rights or Guarantor's rights to proceed against MTVA for reimbursement,
including, without limitation, any loss of rights Guarantor may suffer by reason
of any rights, powers or remedies of MTVA in connection with any state, federal
or foreign anti-deficiency laws or any other laws limiting, qualifying or
discharging the Obligations.
The liability of Guarantor hereunder shall be reinstated and revived and
the rights of 4MCA shall continue if and to the extent that for any reason any
payment or performance by or on behalf of MTVA is rescinded or must be otherwise
restored by 4MCA, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, all as though such amount had not been paid or such
act had not been performed. The determination as to whether any such payment or
performance must be rescinded or restored shall be made by 4MCA in this sole
discretion; provided, however, that if 4MCA chooses to contest any such matter
at the request of Guarantor, Guarantor agrees to indemnify and hold harmless
4MCA with respect to all costs (including, without limitation, attorneys' fees)
of such litigation.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered by
Guarantor as of the date first above written.
VIACOM INTERNATIONAL INC., a Delaware
corporation
By: /s/ Mike Fricklas
---------------------------------
Its: Senior Vice President and
---------------------------
Deputy General Counsel
2