EXHIBIT 10.4
Portions of this exhibit have been deleted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment. The redacted portions are identified by an asterisk indicating
deleted information.
AGREEMENT
DATED AS OF FEBRUARY 13, 1995
BETWEEN
MTV ASIA LDC
AND
FOUR MEDIA COMPANY ASIA PTE LTD.
TABLE OF CONTENTS
PAGE(S)
-------
1. USE OF PREMISES, CREWS, SERVICES AND EQUIPMENT.......................... 1
2. TERM; CANCELLATION OPTION; CANCELLATION FEE; AMELIORATION MEASURES...... 5
3. FAILURE TO SATISFY...................................................... 6
4. CREWS AND MEALS......................................................... 7
5. MATERIALS TO BE SUPPLIED BY MTVA........................................ 11
6. CONSIDERATION........................................................... 11
7. SECURITY; INSURANCE..................................................... 19
8. DELAYS OR ADDITIONAL EXPENSES DUE TO EQUIPMENT FAILURE OR 4MCA PERSONNEL 21
9. TERMINATION............................................................. 23
10. ENGINEERING AND MAINTENANCE............................................. 25
11. PERSONNEL............................................................... 27
12. PRINCIPAL MANAGERS...................................................... 28
13. OVERHEAD................................................................ 28
14. PUBLICITY; PRESS RELEASES............................................... 28
15. CLOSED SET.............................................................. 29
16. 4MCA REPRESENTATIONS, WARRANTIES AND COVENANTS.......................... 29
17. MTVA REPRESENTATIONS, WARRANTIES AND COVENANTS.......................... 30
18. INDEMNITIES............................................................. 32
19. FORCE MAJEURE........................................................... 34
20. ASSIGNMENT.............................................................. 35
21. WAIVER NOT CONSENT...................................................... 35
22. NOTICES................................................................. 35
23. APPLICABLE LAW; JURISDICTION............................................ 37
24. PROPRIETARY INFORMATION................................................. 38
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25. ADDITIONAL SERVICES...................................................... 39
26. ATTORNEYS' FEES.......................................................... 39
27. END OF TERM.............................................................. 40
28. ENTIRE AGREEMENT......................................................... 40
29. CONSENT NOT UNREASONABLY WITHHELD........................................ 40
30. SURVIVAL OF INDEMNITIES.................................................. 40
31. FURTHER INSTRUMENTS...................................................... 40
32. SEVERABILITY............................................................. 40
33. COUNTERPARTS............................................................. 41
34. GUARANTIES............................................................... 41
35. CHANGES IN TAX LAW....................................................... 41
36. REASONABLE EFFORTS....................................................... 41
37. CONTRAVENTION OF LAWS.................................................... 41
38. CHANGES IN LABOR LAW..................................................... 41
39. EXECUTION OF LEASE....................................................... 42
40. EMPLOYMENT CONTRACTS AND OTHER EMPLOYMENT DOCUMENTATION.................. 42
SCHEDULES................................................................ 44
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EXHIBIT 10.4
This Agreement (the "Agreement"), dated as of February 13, 1995, is entered
into by and between MTV Asia LDC, Treasury Building, 0 Xxxxxxx Xxx, #00-00,
Xxxxxxxx xx Xxxxxxxxx 0106 ("MTVA"), and Four Media Company Asia PTE Ltd., 30
Xxxxx Xxxx Street, Republic of Singapore 0207 ("4MCA").
1. USE OF PREMISES, CREWS, SERVICES AND EQUIPMENT
----------------------------------------------
1.1. 4MCA agrees to furnish for the use of MTVA certain premises located
at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx of Singapore, as listed in, and of the size
described in, SCHEDULE A attached hereto and made a part hereof (collectively,
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the "Premises"). At no cost to MTVA, 4MCA shall renovate the Premises in
accordance with that certain floor plan which has been provided to MTVA by 4MCA,
which floor plan is attached hereto and made a part hereof as SCHEDULE F (the
----------
"Floor Plan"). By MTVA's execution of this Agreement, MTVA shall be deemed to
have approved the Floor Plan in the form of SCHEDULE F. If either party desires
----------
to implement any material change to the Floor Plan, any such change shall only
be implemented upon the prior written approval of the other party. MTVA shall
have the right to consult with 4MCA with respect to the design, carpeting and
painting of the Premises.
1.2. 4MCA agrees to furnish for the exclusive use of MTVA certain
production, on-line editing, audio mixing, subtitling, origination and library
personnel, all as more specifically described in SCHEDULE B attached hereto and
----------
made a part hereof, and any other similar personnel that are added pursuant to
Paragraphs 4.1(c) and 6.6 (collectively, the "Crews"). SCHEDULE B also sets
----------
forth each particular Crew position, the number of Crew members for each such
position, the work week and work hours for each Crew member, and the budgeted
total compensation for each Crew member.
1.3. 4MCA agrees to furnish certain services to enable MTVA to produce,
videotape and transmit programming to an interconnect on the terms and
conditions hereunder, including, without limitation, production studio services,
production control room services, on-line editing services, off-line editing
services, audio mixing services, graphics services, subtitling services,
origination services, videotape library services, and other services, all as
more particularly described in SCHEDULE C attached hereto and made a part hereof
----------
(collectively, the "Services"). MTVA acknowledges that the Services to be
provided hereunder shall be limited to those services which are capable of being
provided from the Premises (except for off-line editing, which shall be provided
from two edit bays located on premises leased by MTVA, for which 4MCA shall be
responsible solely for providing and maintaining certain off-line editing
equipment and shall not be responsible for off-line editing personnel), and
shall also be limited by the Equipment (as hereinafter defined) to be provided
hereunder pursuant to Paragraph 1.4.
1.4. 4MCA agrees to furnish and maintain certain equipment to enable MTVA
to produce, videotape and transmit programming to an interconnect on the terms
and conditions hereunder, as generally described in SCHEDULE C, and as more
----------
specifically detailed on an
1
item-by-item basis in SCHEDULE D attached hereto and made a part hereof
----------
(collectively, the "Equipment").
1.5. 4MCA agrees to furnish a local satellite downlink capability to the
Premises to provide access to one or more satellite transponders as requested by
MTVA, on which MTVA programming may be carried, if and only if 4MCA makes the
determination, in its sole and absolute discretion, after using all reasonable
efforts, that the following conditions are or can be reasonably satisfied:
(a) the ability to construct, operate and maintain small aperture receive-
only antenna(s) is technically feasible;
(b) the landlord on whose property the antenna is to be placed grants
permission for the placement of such antenna;
(c) 4MCA is granted the appropriate licenses (the "TVRO License") to
install and operate the downlink antenna from the Singapore Broadcasting
Authority and any other appropriate governmental licensing agencies (in which
event the term of 4MCA's services under this Paragraph 1.5 shall be co-extensive
with the term of such licenses);
(d) 4MCA and MTVA can mutually agree on a reasonable fee for such downlink
services, which fee shall be in addition to the fees described in Paragraph 6.1
hereof; and
(e) MTVA obtains all applicable licenses, as required, for the signal to be
transmitted from 4MCA's downlink antenna at the Premises to MTVA's premises and
MTVA complies with all of the material terms and conditions of such licenses
(but only if MTVA requests that the signal be transmitted to MTVA's premises).
To the extent 4MCA defaults in its obligations as set forth in this
Paragraph 1.5, such default shall not be deemed a "Default" for purposes of
Paragraph 9.1 hereof, nor shall the technical specifications set forth in
SCHEDULE H be applicable to the services which may be provided pursuant to this
----------
Paragraph 1.5.
1.6. In connection with the origination services to be provided by 4MCA as
described on SCHEDULE C, 4MCA shall use all reasonable efforts to implement
----------
certain systems and procedures in order to maintain the reliability of the
origination services to be provided hereunder, which systems and procedures are
described in Paragraph 7.6 of SCHEDULE C.
----------
1.7. Subject to the terms of Paragraph 1.8 hereof, MTVA shall have the
right to inspect and approve the Premises prior to the commencement of the Term
(as defined in Paragraph 2.1) to determine compliance with subparagraphs (a),
(b) and (c) of this Paragraph
2
1.7. 4MCA hereby acknowledges and agrees that MTVA shall only be obligated to
commence payments of the fees set forth in Paragraph 6 below on the Actual
Commencement Date (as defined in Paragraph 1.8(b) hereof) if and when:
(a) the Premises have been renovated in substantial compliance with the
Floor Plan;
(b) the Premises are operational for the use intended by and described in
this Agreement (except as set forth in Paragraph 1.10 hereof); and
(c) the Premises may be lawfully occupied, as determined by the appropriate
local authorities, and used for the intended purposes described herein. In
connection therewith, 4MCA shall deliver to MTVA copies of any and all
certificates or other documents it may possess evidencing the satisfaction of
this subparagraph (c), if applicable. MTVA acknowledges and agrees that,
notwithstanding 4MCA's failure to receive a Certificate of Statutory Completion
in connection with the Premises as evidence of compliance with this subparagraph
(c) as of the date 4MCA delivers the Commencement Notice (as hereinafter
defined) to MTVA, if 4MCA has received, as of such date, a Temporary Occupation
Permit which permits the Premises to be lawfully occupied and used in the manner
intended by and described in this Agreement, then 4MCA shall be deemed to have
satisfied this subparagraph (c) with respect to lawful occupancy of the
Premises.
1.8. MTVA shall determine in good faith whether the conditions set forth
in Paragraph 1.7 have been reasonably satisfied in accordance with the following
procedures:
(a) 4MCA shall notify MTVA in writing that the conditions set forth in
Paragraph 1.7 have been satisfied (the "Commencement Notice").
(b) MTVA shall have seven (7) business days from the date of its receipt of
the Commencement Notice to approve or disapprove the conditions set forth in
Paragraph 1.7. If MTVA approves the conditions set forth in Paragraph 1.7, MTVA
shall deliver written confirmation of such approval within the seven (7)-
business day period set forth above. If the date of such confirmation is on or
prior to April 15, 1995, then April 15, 1995 shall be the "Actual Commencement
Date" hereunder. If the date of such confirmation is after April 15, 1995, then
the date of such confirmation shall be the Actual Commencement Date hereunder.
If MTVA disapproves one or more of the conditions set forth in Paragraph 1.7,
MTVA shall deliver written notice of disapproval to 4MCA within such seven (7)-
business day period set forth above, specifying the particular reason(s) for
disapproval. MTVA's failure to respond in writing to the Commencement Notice
within seven (7) business days after receipt thereof shall be deemed MTVA's
approval of the conditions set forth in Paragraph 1.7 above and, in such event,
the Actual Commencement Date will be the later of (i) April 15, 1995 or (ii)
seven (7) business days after MTVA's receipt of the Commencement Notice.
3
Notwithstanding the foregoing, if MTVA commences to utilize a portion of the
Premises, Crews, Services and Equipment pursuant to Paragraph 1.10 hereof in
connection with any particular activity to be provided hereunder in the manner
intended by, and described in, this Agreement, then MTVA shall not use or cite
such particular activity as a basis on which to disapprove the conditions set
forth in Paragraph 1.7 (unless such portion of the Premises, Services, Crews and
Equipment that are utilized in connection with such particular activity no
longer complies with the conditions set forth in Paragraph 1.7).
1.9. MTVA shall have the exclusive use of all Premises and Crews described
in SCHEDULES A and B during the Regular Hours (as defined in Paragraph 4.4) with
----------- -
respect to production, on-line editing, audio mixing, subtitling and graphics
Services and at all times with respect to origination and library Services.
MTVA shall be given scheduling priority over any other 4MCA customer in
connection with the production, on-line editing, audio mixing, subtitling and
graphics Premises and Crews during Overtime Hours, Weekend Hours and Holiday
Hours (all as defined in Paragraph 4.7), in accordance with the provisions set
forth in Paragraph 4.7. The production studio and production control rooms
shall be exclusively available to MTVA, unless 4MCA obtains MTVA's consent to
use such facilities for 4MCA's other customers, which consent may be withheld by
MTVA in its sole and absolute discretion. MTVA acknowledges that 4MCA may
provide services, facilities, personnel and equipment to other customers of 4MCA
which may be similar to the Premises, Services, Crews and Equipment to be
provided to MTVA hereunder. MTVA acknowledges that such similar facilities,
services, personnel and equipment may be provided by 4MCA from the Premises.
4MCA represents and warrants that its provision of facilities, services,
personnel and equipment to such other 4MCA customers will in no way infringe
upon MTVA's rights under this Agreement or adversely affect 4MCA's obligations
hereunder.
1.10. Prior to the Actual Commencement Date and subject to the next four
sentences of this Paragraph 1.10, at MTVA's request, 4MCA may provide a portion
of the Premises, Crews, Services and Equipment in accordance with the Pre-
Commencement Fee Schedule set forth on SCHEDULE G attached hereto and made a
----------
part hereof. If the Premises, Crews, Services and Equipment to be used in
connection with any particular activity to be provided hereunder (for example,
origination) satisfy the conditions set forth in Paragraph 1.7 for use in the
manner intended by, and described in, this Agreement prior to the Actual
Commencement Date, then, if MTVA requests the commencement of such particular
activity, 4MCA shall be obligated to commence the provision of such Premises,
Crews, Services and Equipment to MTVA and MTVA shall be obligated to commence
paying a prorated portion of the Monthly Base Fee (as defined in Paragraph
6.1(a)(ii)) for such Premises, Crews, Services and Equipment, in accordance with
the Pre-Commencement Fee Schedule. The date on which 4MCA commences its
provision of the Premises, Crews, Services and Equipment in connection with any
particular activity pursuant to the prior sentence shall be referred to as the
"Pre-Commencement Date". Notwithstanding the foregoing, if the Premises, Crews,
Services and Equipment to be used in connection with any particular activity to
be provided hereunder do not
4
fully satisfy the conditions set forth in Paragraph 1.7 prior to the Actual
Commencement Date, but 4MCA and MTVA agree that MTVA shall nevertheless commence
utilizing such Premises, Crews, Services and Equipment in connection with such
particular activity in a manner other than as specifically intended for use by
and described in this Agreement, then (a) MTVA shall not be obligated to
commence payment in accordance with the Pre-Commencement Fee Schedule, but
rather shall pay to 4MCA an amount equal to 4MCA's actual documented costs
incurred in connection with the provision of such Premises, Crews, Services and
Equipment (but in no instance shall the amount be greater than the amount
payable in accordance with SCHEDULE G), and (b) MTVA shall not be obligated
----------
to pay for the full complement of Crew members in connection with such
particular activity, but rather shall be obligated to pay 4MCA's actual
documented costs in connection with those Crew members who are actually being
utilized during such pre-commencement period (but in no instance shall the
amount be greater than the amount payable in accordance with SCHEDULE G).
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4MCA's obligation to provide the Premises, Crews, Services and Equipment
pursuant to this Paragraph 1.10 shall at all times take priority over any
potentially conflicting arrangement or relationship with any other 4MCA customer
or other party.
2. TERM; CANCELLATION OPTION; CANCELLATION FEE; AMELIORATION MEASURES
------------------------------------------------------------------
2.1. The term of this Agreement (the "Term") shall commence on the Actual
Commencement Date and shall continue through and including April 14, 2002 (the
"Termination Date"), subject to earlier termination as provided herein.
2.2. (a) MTVA shall have the option, in its sole discretion, to cancel
this Agreement (the "Cancellation Option") as of the date which is five (5)
years from April 15, 1995 (the "Cancellation Date"), exercisable by written
notice to 4MCA no less than one (1) year prior to the Cancellation Date. If
MTVA fails to deliver such notice to 4MCA at least one (1) year prior to the
Cancellation Date, MTVA shall be deemed to have waived the Cancellation Option.
(b) If MTVA exercises the Cancellation Option, then on the Cancellation
Date, MTVA shall be obligated to pay to 4MCA a cancellation fee in an amount
equal to * of the actual aggregate
documented costs of the Initial Equipment, Installation and Wiring Expenditures
(as defined in, and determined pursuant to, Paragraph 6.4(a)), but in no event
to exceed * * (the
"Cancellation Fee").
2.3. If and when MTVA delivers written notice to 4MCA of its exercise of
the Cancellation Option in accordance with Paragraph 2.2(a) , 4MCA shall be
obligated to use all reasonable efforts during the one-year period prior to the
Cancellation Date to ameliorate 4MCA's potential business losses as the result
of MTVA's exercise of the Cancellation Option, including without limitation,
using all reasonable efforts to secure replacement customers to
5
utilize the Premises, Services and Crews during the two-year period following
the Cancellation Date and/or using all reasonable efforts to sell the Equipment.
2.4. Notwithstanding the provisions of Paragraph 2.2(b), if 4MCA is
successful in finding a replacement customer or customers who will pay
substantially the same fee that MTVA would have paid hereunder during the two-
year period following the Cancellation Date, then MTVA shall not be obligated to
pay the Cancellation Fee to 4MCA.
2.5. If 4MCA is unable to find such replacement customer(s) but is able to
sell substantially all of the Equipment for an aggregate purchase price in
excess of the lesser of: (a) *
* of the actual aggregate documented costs of the Initial Equipment,
Wiring and Installment Expenditures (as determined pursuant to Paragraph 6.4(a))
or (b) *
* (such excess dollars to be referred to as the "Excess Equipment
Price"), then the Cancellation Fee shall be reduced on a dollar-for-dollar basis
by the amount of the Excess Equipment Price.
2.6. If 4MCA is able to find a replacement customer or customers who will
utilize a portion (but less than substantially all) of the Premises, Services
and Crews (but only with respect to those Crew members under written contract or
to whom severance would be owing upon termination of such Crew members'
services) during the two year period following the Cancellation Date, and is
also able to sell a portion of the Equipment, then 4MCA and MTVA shall negotiate
in good faith to determine the appropriate reduction in the Cancellation Fee.
4MCA shall negotiate in good faith with, and use all reasonable efforts to
contact, all potential buyers, customers and/or other parties in order to
accomplish the amelioration measures set forth in Paragraphs 2.3 through 2.6.
3. FAILURE TO SATISFY
------------------
In the event that the Premises do not satisfy the terms of subparagraphs
(a), (b) or (c) of Paragraph 1.7 above and such failure to satisfy (a "Premises
Failure") exists on or after April 15, 1995 (which shall not include a Premises
Failure that is directly caused by either (a) a Force Majeure Event or (b) any
unreasonable act or failure to act by MTVA (including without limitation and for
illustration purposes only, a Premises Failure relating to MTVA's approval
rights set forth in Paragraph 4.1(b) below) or (c) any other event not within
4MCA's control (including without limitation and for illustration purposes only,
(i) reasonably unforeseen delays in the delivery of any Equipment listed on
SCHEDULE D or (ii) the reasonably unforeseen failure of the Landlord to act
----------
regarding the installation of certain equipment by the Landlord pursuant to the
Lease or (iii) delays (which delays are reasonably unforeseen as of the date
hereof, or thereafter are unforeseen in the exercise by 4MCA of all reasonable
efforts) in the granting of appropriate required licenses and/or permits by the
appropriate local authorities, so long as 4MCA has taken all necessary actions
to obtain such required licenses and permits)), and
6
the Premises Failure continues to exist as of May 15, 1995 (the "Penalty Date"),
then 4MCA shall be in material breach of this Agreement and MTVA shall have the
right, among other remedies available to it hereunder or at law or equity, to
terminate this Agreement forthwith and MTVA shall have no obligation to 4MCA of
any nature whatsoever (other than MTVA's pre-commencement payment obligations to
4MCA under Paragraph 1.10 hereunder, if applicable).
4. CREWS AND MEALS
---------------
4.1. (a) 4MCA shall furnish MTVA with the Crews described in SCHEDULE B
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on the terms set forth herein. The employment of all persons (and any
individual who replaces any such person during the Term) comprising the Crews
listed in SCHEDULE B will be subject to MTVA's reasonable approval, as more
----------
specifically set forth in Paragraph 4.1(b) below.
(b) SCHEDULE B attached hereto and made a part hereof sets forth the
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initial individual (by job description) and aggregate budgeted annualized Crew
costs of *
U.S. Dollars * (the "Budgeted Crew Costs") necessary for
implementation of this Agreement on April 15, 1995. For each individual Crew
member, the Budgeted Crew Costs include base compensation, benefits and taxes,
holiday compensation, if applicable, and an expatriate allowance, if applicable
(collectively for each individual Crew member "Total Compensation").
(i) From time to time after the execution of this Agreement but in any
event no less than thirty (30) days prior to April 15, 1995, 4MCA shall deliver
to MTVA a notice or notices containing the name(s) of proposed Crew member(s)
and corresponding proposed Total Compensation (each a "Crew Notice"). MTVA
shall have the right to reasonably approve or disapprove each Crew member for
any reason; provided, however, if MTVA desires to disapprove a particular Crew
member on the basis of Total Compensation alone, MTVA may only do so if the
proposed Total Compensation for such Crew member, as set forth in the Crew
Notice, exceeds the Total Compensation, by job title, for such Crew member as
set forth on SCHEDULE B. If MTVA disapproves a particular Crew member on the
----------
basis of proposed Total Compensation as set forth in the Crew Notice, MTVA shall
have thirty (30) days from the date of receipt of the particular Crew Notice to
find a replacement Crew member at a Total Compensation equal to or less than the
level set forth in the Crew Notice (even if such Total Compensation set forth in
the Crew Notice is in excess of the level set forth on SCHEDULE B). If MTVA is
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unable to find a replacement Crew member at a Total Compensation equal to or
less than that set forth in the Crew Notice within such thirty (30) day period,
MTVA shall be deemed to have approved the individual Crew member and
corresponding Total Compensation set forth in the Crew Notice. If MTVA locates
a replacement Crew member at a Total Compensation equal to or less than that set
forth in the Crew Notice, then 4MCA shall be obligated to hire such replacement
Crew member at such equal or lesser Total Compensation level.
7
(ii) MTVA shall have fifteen (15) business days from the date of receipt of
a particular Crew Notice to disapprove a particular Crew member for any reason
other than Total Compensation. MTVA shall deliver notice to 4MCA of MTVA's
disapproval of such particular Crew Member within such fifteen (15) business day
period, stating the particular reason for MTVA's disapproval. MTVA may provide
such notice verbally or in writing, but if 4MCA so requests, MTVA shall confirm
any verbal notice in writing. If MTVA fails to notify 4MCA in writing of MTVA's
disapproval within such fifteen (15) business day period, MTVA shall be deemed
to have approved such particular Crew member (unless MTVA disapproves such
particular Crew member on the basis of Total Compensation, in which case the
provisions of subparagraph (i) above shall be applicable).
(iii) To the extent the aggregate actual Crew costs as of April 15, 1995
exceed the aggregate Budgeted Crew Costs (taking into account the possible
exercise by MTVA of the procedures set forth in this Paragraph 4.1(b)), then the
Annual Base Fee (as defined in Paragraph 6.1(a)) will be increased by an amount
equal to * of such difference.
(iv) To the extent the aggregate actual Crew costs as of April 15, 1995 are
less than the aggregate Budgeted Crew Costs (taking into account the possible
exercise by MTVA of the procedures set forth in this Paragraph 4.1(b)), then the
Annual Base Fee will be decreased by a net amount equal to * of such
difference.
(c) From and after the Actual Commencement Date and subject to paragraph
6.6 hereof, MTVA retains the right, in MTVA's sole and absolute discretion, to
add individual Crew members to, or remove individual Crew members from, the
complement of Crew members and negotiate the consideration paid for any such
additions or removals accordingly (and upon any such removal, MTVA, in its sole
and absolute discretion, may also elect to delete the corresponding Crew
position from the Crew complement). MTVA shall be billed monthly in an amount
equal to the monthly consideration to be paid for any additional Crew members
added by MTVA in accordance with this paragraph and Paragraph 6.6 hereof. If at
any time during the Term MTVA determines to cause the termination of Crew
members required hereunder, and if the particular Crew members whose services
are terminated hereunder have been employed pursuant to written long-term
contracts and/or would be entitled to receive severance payments upon
termination of employment pursuant to any written agreement or in accordance
with Local Laws and Practice (as hereinafter defined), then MTVA shall be
obligated to pay to 4MCA an amount equal to the aggregate severance payments
owing to any and all such terminated Crew members. As used in this Agreement,
the term "Local Laws and Practice" shall mean any and all applicable laws,
rules, regulations, statutes, acts, administrative requirements and related
legislation of the Republic of Singapore with respect to labor matters as such
matters relate to the Crews, and all other mandatory rules, regulations and
practices imposed by the Singapore government.
8
4.2. 4MCA shall make the Crew members listed on SCHEDULE B under
----------
"Production Studio", "Production Control Room", "Production Audio Control Room"
and "Production Video Tape" and any other similar Crew members that are added to
the complement of Crew members pursuant to Paragraphs 4.1(c) and 6.6
(collectively, "Studio Crew") available to MTVA exclusively on a Monday through
Friday schedule, in accordance with the hours set forth on SCHEDULE B with each
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day consisting of nine hours, including a meal period of up to one hour (the
"Regular Production Hours"), except for the holidays set forth in SCHEDULE B-1
------------
("Holidays"). Weekly call schedules may be requested by MTVA no later than the
previous Friday at noon, and 4MCA shall use its best efforts to accommodate such
schedule. Daily call schedule amendments may be requested by MTVA by 6:00 p.m.
or at the end of the taping day, whichever is later, on the day prior to the
date such amended call schedule is to become effective, and 4MCA shall use its
best efforts to accommodate such schedule.
4.3. 4MCA shall make the Crew members listed on SCHEDULE B under "Edit 1",
----------
"Edit 2", "Edit 3" and "Edit Other" and any other similar Crew members that are
added to the complement of Crew members pursuant to Paragraphs 4.1(c) and 6.6
(collectively, "Edit Crew") and Crew members listed on SCHEDULE B under "Audio
----------
Mixing Room" and any other similar Crew members that are added to the complement
of Crew members pursuant to Paragraphs 4.1(c) and 6.6 (collectively, "Audio
Mixing Crew") available to MTVA exclusively on a Monday through Friday schedule,
in accordance with the hours set forth on SCHEDULE B, with each day consisting
----------
of nine hours including a meal period of up to one hour (the "Regular Edit and
Audio Mixing Hours"), except for Holidays. 4MCA shall use its best efforts to
accommodate requests for changes to the daily schedule, in accordance with
Paragraph 4.7 below. Regular Production Hours and Regular Edit and Audio Mixing
Hours shall sometimes collectively be referred to herein as the "Regular Hours".
4.4. 4MCA shall make the Crew members listed on SCHEDULE B under
----------
"Subtitling 1" and "Subtitling 1/2" and any other similar Crew members that are
added to the complement of Crew members pursuant to Paragraphs 4.1(c) and 6.6
(collectively, "Subtitling Crew") exclusively available to MTVA, with each week
consisting of seven days, in accordance with the shifts and hours set forth on
SCHEDULE B, with each day consisting of nine hours including a meal period of up
----------
to one hour, except for Holidays. 4MCA shall use its best efforts to
accommodate requests for changes to the daily schedule, in accordance with
Paragraph 4.7 below.
4.5. 4MCA shall make the Crew members listed on SCHEDULE B under
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"Origination" and any other similar Crew members that are added to the
complement of Crew members pursuant to Paragraphs 4.1(c) and 6.6 (collectively,
"Origination Crew") available to MTVA on an exclusive basis at all times during
the Term, each week to consist of 168 hours of continuous seven (7) day per week
coverage between and including Monday through Sunday, including all Holidays, in
eight and one-half hour shifts, including a meal period of one-half hour.
9
4.6. 4MCA shall make the Crew members listed on SCHEDULE B under "Library
----------
Facility" and any other similar Crew members that are added to the complement of
Crew members pursuant to Paragraphs 4.1(c) and 6.6 (collectively, "Library
Crew") available to MTVA on an exclusive basis in accordance with the Monday
through Sunday schedule set forth in SCHEDULE B, in eight and one-half hour
----------
shifts, including a meal period of one-half hour, except for Holidays which will
be worked with a reduced Crew that is proportional to actual origination and
other related activities. 4MCA shall use its best efforts to accommodate
requests for changes to the Library Crew schedule, in accordance with Paragraph
4.7 below.
4.7. If MTVA requests that 4MCA provide the Studio Crew, Edit Crew,
Subtitling Crew and/or Audio Mixing Crew in excess of the Regular Hours, such
additional hours shall be deemed "Overtime Hours". If MTVA requests that 4MCA
provide the Studio Crew, Edit Crew, Subtitling Crew and/or Audio Mixing Crew
during a weekend, such hours shall be deemed "Weekend Hours". Notwithstanding
the above, work begun on a Friday which continues beyond midnight and is in
excess of Regular Hours shall be deemed Overtime and not Weekend Hours. If MTVA
requests that 4MCA provide the Studio Crew, Edit Crew, Subtitling Crew and/or
Audio Mixing Crew during a Holiday, the hours worked during the Holiday shall be
deemed "Holiday Hours", except that work begun on a non-Holiday which continues
into a Holiday shall not be deemed Holiday Hours. MTVA shall have priority over
any other 4MCA customer in connection with securing Crew members to work during
Overtime Hours, Weekend Hours and Holiday Hours; provided however, that MTVA
shall not unreasonably seek to extend its use of the Premises, Services and
Crews into Overtime Hours, Weekend Hours and/or Holiday Hours, and provided
further that MTVA shall use its best efforts to notify 4MCA within a reasonable
time period of its need for such Overtime Hours, Weekend Hours and/or Holiday
Hours.
4.8. MTVA shall use all reasonable efforts to provide each member of the
Studio Crew, Edit Crew, Audio Mixing Crew and Subtitling Crew with one one-hour
meal break during each full production, on-line editing, audio mixing or
subtitling day, the commencement of which meal break shall be determined by MTVA
in its sole discretion. In addition, Origination Crew members and Library Crew
members shall be provided with a meal break of up to one-half hour per each
eight and one-half hour shift, the commencement of which meal break shall be
determined by MTVA in its sole discretion. On days extending beyond the Regular
Hours, MTVA shall use its reasonable efforts to provide each member of the
Studio Crew, Edit Crew, Subtitling Crew and Audio Mixing Crew with an additional
meal break, the commencement of which break shall be determined by MTVA in its
sole discretion. Notwithstanding the foregoing, MTVA shall use all reasonable
efforts to conform to standard local industry practice in providing timely meal
breaks to Crew members hereunder (which shall not result in any increased cost
to MTVA hereunder).
10
4.9. MTVA acknowledges and agrees that 4MCA shall not be responsible for
providing any off-line editing or graphics Crews hereunder. Any and all off-
line editing and/or graphics Services to be performed hereunder shall be
performed by MTVA's personnel.
4.10. Notwithstanding any other provision herein, the shifts and hours
set forth in SCHEDULE B may be adjusted by mutual agreement of the parties, in
----------
writing.
5. MATERIALS TO BE SUPPLIED BY MTVA
--------------------------------
5.1. MTVA shall be responsible for providing (at its cost):
(a) Videotape in such formats as MTVA shall deem appropriate, and such
audio tape, raw stock and videocassettes and data media, including disks,
diskettes and cartridges, as may be used by MTVA. All of the aforementioned
shall be of high quality material, and, to MTVA's knowledge, shall be free of
defect. Any defective tapes, raw stock and/or videocassettes causing down time
shall be the responsibility of MTVA. MTVA shall be liable for any consequential
or other unforeseen damages which reasonably result from such defective
materials only to the extent any damages are solely and directly caused by the
defective materials and not by defective Equipment or by operator error.
(b) All wardrobe, various props, sets, curtains, scrims, soft cyclorama,
certain "above-the-line" personnel and any additional support personnel required
by (i) MTVA's employees or (ii) talent hired by MTVA.
(c) Production and stage accessories not otherwise provided for in this
Agreement.
5.2. All materials and equipment supplied by MTVA in connection with this
Agreement may be stored at the Premises at no extra charge to MTVA, and MTVA's
materials and equipment shall be insured and secured by 4MCA in accordance with
the provisions of Paragraph 7 hereof.
6. CONSIDERATION
-------------
6.1. CONSIDERATION FOR PREMISES, CREW, SERVICES AND EQUIPMENT
--------------------------------------------------------
(a) Except as otherwise expressly provided for in this Agreement, in full
and complete consideration for 4MCA's provision of the Premises, Crews, Services
and Equipment in accordance herewith during the Term, MTVA shall pay to 4MCA and
4MCA shall accept from MTVA the sum of *
* (the "Base Fee"),
exclusive of taxes, in annual payments in the amount of *
* U.S.
11
Dollars * ("Annual Base Fee"), payable in Singapore dollars, using a
1.0:1.5 exchange rate from U.S. Dollars to Singapore Dollars (i.e., the Annual
Base Fee will equal *
* Singapore Dollars * Singapore)), as follows:
(i) The first installment due on the Actual Commencement Date in the amount
of * U.S. Dollars *
if the Actual Commencement Date falls on the first day of a month. If the
Actual Commencement Date falls on a day other than the first day of a month, the
first installment shall be paid on the Actual Commencement Date and shall be
equal to the prorated portion of *
* U.S. Dollars * for such partial month.
(ii) Subsequent installments due on the first day of each consecutive month
of the Term in advance (beginning with the first day of the month following the
Actual Commencement Date and terminating on the first day of the month preceding
the Termination Date), each installment in the amount of *
* U.S. Dollars * , except that if the
Term ends on a day other than the last day of a month, then the final
installment shall be paid on the first day of such month and shall equal the
prorated portion of * U.S.
Dollars * for such partial month. Each monthly installment fee shall
be referred to as the "Monthly Base Fee".
(b) Notwithstanding the above payment schedule, the Annual Base Fee shall
be increased annually commencing one year from the Actual Commencement Date by
* percent * over the prior year's Annual Base Fee. In addition, unless
otherwise stated herein or agreed to by the parties, any and all other stated
costs and charges payable by MTVA hereunder shall be subject to an annual
increase of * commencing one year from the Actual Commencement Date, over the
prior year's stated costs and charges.
(c) Notwithstanding the above payment schedule, the Annual Base Fee may
increase or decrease pursuant to the terms of Paragraphs 4.1(b) and may decrease
pursuant to the terms of Paragraphs 6.4(a) and/or 6.4(b).
(d) Any costs that are incurred by 4MCA during the Term of this Agreement
in order for 4MCA to perform its obligations under this Agreement (other than
the amounts which MTVA is expressly required to pay pursuant to this Agreement,
including without limitation, those amounts set forth in Paragraphs 4.1(c), 6.1,
6.2, 6.5, 6.6 and 6.7) shall be the sole and exclusive responsibility of 4MCA,
except that MTVA shall be responsible for the payment of all existing and new
sales and service taxes and other similar taxes applicable to the Premises,
Services and Equipment, prorated for the period of MTVA's actual use and/or
occupancy of the Premises, Services and Equipment.
12
(e) Notwithstanding the above, 4MCA shall have the one-time right, at any
time prior to the Actual Commencement Date, to elect to receive a portion of any
and/or all of the payments required to be made under Paragraphs 6.1(a)(i) and
(ii) in U.S. Dollars. Upon any such election by 4MCA hereunder, the payment
schedules set forth Paragraph 6.1 shall be adjusted accordingly and the parties
agree to be bound thereby.
(f) All payments of the Monthly Base Fee, together with any other amounts
to be paid by MTVA hereunder, shall be paid in Singapore dollars by wire
transfer of immediately available funds to a bank to be designated by 4MCA and
delivered in writing to MTVA no less than seven (7) business days prior to the
Actual Commencement Date, provided that should local banking and/or currency
laws, rules or regulations (collectively, "Currency Rules") at any time prohibit
the making of such payments (or any portion thereof) in accordance with this
Paragraph 6.1(f), then (a) the parties shall agree in good faith to alternative
payment arrangements and (b) MTVA agrees that in such instances, 4MCA shall
nevertheless remain entitled to the full payment that 4MCA would have received
as a result of MTVA making payment in the manner contemplated herein but for
such Currency Rules. If 4MCA exercises the one-time right to elect to receive a
portion of any or all of the payments required to be made under Paragraphs
6.1(a)(i) and (ii) in U.S. dollars, at such time as 4MCA notifies MTVA in
writing of such election, 4MCA shall specify the U.S. location to which such
funds should be sent via wire transfer of immediately available funds.
6.2. OVERTIME, WEEKEND AND HOLIDAY SERVICES AND CREW
-----------------------------------------------
(a) MTVA will pay Overtime Hours for Services worked by the Studio Crew,
Edit Crew, Audio Mixing Crew and Subtitling Crew in excess of the Regular Hours,
in accordance with SCHEDULE B-2 attached hereto and made a part hereof. For
------------
each Overtime Hour that MTVA requests 4MCA to provide, MTVA agrees to pay the
hourly fee set forth on SCHEDULE B-2, prorated for less than a full Studio Crew
------------
or Edit Crew pursuant to the formula described in Paragraph 6.2(d). The fee for
any Overtime Hours, Weekend Hours or Holiday Hours shall be prorated to the
quarter-hour.
(b) MTVA agrees to pay 4MCA and 4MCA agrees to accept the applicable
amounts set forth on SCHEDULE B-2 for a full complement of Services and Crews
------------
that MTVA requests 4MCA to provide which are deemed Weekend Hours or Holiday
Hours (i.e., not including services of the Crews begun after 5 PM on a Friday
-----
that continue beyond midnight in excess of Regular Hours, which shall be deemed
Overtime Hours, or services of the Crews begun on a non-holiday that continue
into a Holiday), prorated for less than a full Studio Crew or Edit Crew pursuant
to the formula described in Paragraph 6.2(d).
13
(c) If MTVA procures other services of 4MCA in excess of the Regular Hours,
the charges for such additional time shall be agreed upon by MTVA and 4MCA in
good faith and shall in no event exceed the lowest rate then charged by 4MCA for
similar services or crew.
(d) If MTVA requests that 4MCA provide less than a full complement of
----
Studio Crew and/or Edit Crew in connection with any Overtime, Weekend or Holiday
Hours, then MTVA shall pay 4MCA the applicable amount set forth on SCHEDULE B-2
------------
with respect to studio Services and Studio Crew and/or edit Services and Edit
Crew (as the case may be), reduced as follows: MTVA shall designate those
individual Studio Crew members and/or Edit Crew members whose presence is not
required with respect to such Overtime, Weekend or Holiday Hours. The actual
base salary of each such designated Studio Crew member and/or Edit Crew member
as of the Actual Commencement Date (as increased annually pursuant to the terms
of this Agreement) shall be divided by 2080 (40 hours per week multiplied by 52
weeks per year) and the quotient shall be multiplied by 1.5. The resulting
product with respect to each such designated Studio Crew member and/or Edit Crew
member shall be deducted from the hourly fee set forth on SCHEDULE B-2 with
------------
respect to studio Services and Studio Crew members and/or edit Services and Edit
Crew members, as applicable.
(e) There shall be no charge to MTVA for Overtime Hours, Holiday Hours or
Weekend Hours without the express written authorization of MTVA (via its
production manager or other designated representative).
(f) Crew utilization during Overtime Hours, Weekend Hours and Holiday Hours
shall be subject, in all instances, to availability of particular Crew members.
Notwithstanding the foregoing, 4MCA shall use all reasonable efforts to provide
the full complement of Crew members requested by MTVA during Overtime, Weekend
or Holiday Hours (even if 4MCA cannot provide certain individually-identified
Crew members during such periods).
6.3. ACCESS TO PREMISES
------------------
Unless expressly provided to the contrary herein, MTVA and its personnel
and other representatives shall have the full right of access to the Premises,
on a twenty-four (24) hour, seven (7) days per week basis, for the purpose of
producing, videotaping and transmitting programming to an interconnect and all
related activities thereto. MTVA represents and warrants that, notwithstanding
the full right of access provided pursuant to the preceding sentence, under no
circumstances shall MTVA and/or its personnel interfere in any manner with
4MCA's provision of services, facilities, personnel and equipment to other
customers of 4MCA, to the extent such provision of services, facilities,
personnel and equipment is permissible hereunder. MTVA further covenants that
(a) neither it nor any of its personnel shall utilize such right of access for
any purposes other than in connection with the terms and conditions of this
14
Agreement and (b) MTVA and its personnel shall be subject to all security
measures implemented by 4MCA pursuant to the terms of this Agreement, including
without limitation, those security measures described in Paragraph 7.1 herein.
6.4. INITIAL CAPITAL EXPENDITURES AND BUILD-OUT COSTS
------------------------------------------------
(a) SCHEDULE D attached hereto and made a part hereof sets forth 4MCA's
----------
budgeted initial capital expenditures on an itemized basis relating to
Equipment, installation and wiring of the Premises but excluding start-up and
build-out costs of the Premises (the "Initial Equipment, Installation and Wiring
Expenditures") of *
Dollars U.S. Dollars * (the "Initial Equipment, Installation and
Wiring Expenditure Budget"). If the proposed cost of any item of Equipment
required to implement the terms of this Agreement (without regard to any
increased services pursuant to Paragraph 25 or elsewhere) exceeds the cost for
such item on the Initial Equipment, Installation and Wiring Expenditure Budget
by the greater of * or * then MTVA shall have the right to disapprove
such item and to designate a piece of replacement Equipment which 4MCA shall be
required to purchase, provided such Equipment is reasonably compatible with the
other items of Equipment to be installed pursuant to this Agreement. If MTVA
fails to disapprove a particular item of Equipment within seven (7) business
days after receiving written notification from 4MCA of the proposed cost of such
item of Equipment, then MTVA shall be deemed to have approved such item of
Equipment at such proposed cost. If the aggregate actual documented costs of
the Initial Equipment, Installation and Wiring Expenditures required to
implement the terms hereof (without regard to any increased services pursuant to
Paragraph 25 or elsewhere), which documentation shall be presented to MTVA no
later than thirty (30) days after the Actual Commencement Date, are lower than
the Initial Equipment, Installation and Wiring Expenditure Budget (taking into
account the possible exercise by MTVA of the approval procedures set forth in
this paragraph), then for each * Dollar * decrease in
actual documented costs of the Initial Equipment, Installation and Wiring
Expenditures from the Initial Equipment, Installation and Wiring Expenditure
Budget, the Annual Base Fee shall decrease by *
Dollars * (it being understood and agreed that the calculation of any
decrease in the Annual Base Fee in accordance with this Paragraph 6.4(a) shall
be based on such * to * proportion). The Monthly Base Fee shall
be decreased accordingly, effective as of the Actual Commencement Date (i.e. all
amounts that have been paid in excess of such decreased amount prior to the
effectiveness of the foregoing calculation (the "Capital Credit") shall be
deducted from the next adjusted Monthly Base Fee to be paid hereunder and any
subsequent adjusted Monthly Base Fees as required to reduce the Capital Credit
to zero). If the aggregate actual documented costs of the Initial Equipment,
Installation and Wiring Expenditures exceed the Initial Equipment, Installation
and Wiring Expenditure Budget (without taking into account any increased
services pursuant to Paragraph 25 or elsewhere), there shall be no increase in
the Annual Base Fee or Monthly Base Fee based upon such increased costs. For
illustration purposes only, assume that within 30 days after the Actual
Commencement Date, 4MCA delivers documentation to MTVA which
15
demonstrates that the aggregate actual documented costs of the Initial
Equipment, Installation and Wiring Expenditures total *
* * resulting in a
decrease of * Dollars * from the Initial Expenditure
Budget. An amount equal to * Dollars *
would be deducted from the Annual Base Fee in each year of the Term, and the
Monthly Base Fee would be reduced accordingly.
(b) 4MCA's budgeted initial expenditures relating to start-up and build-out
costs of the Premises, together with possible overages in connection with
Initial Equipment, Installation and Wiring Expenditures (collectively, the
"Build-Out Costs"), total *
* Dollars * all in accordance with the Floor Plan
(the "Initial Build-Out Budget"). If the aggregate actual documented Build-Out
Costs required to implement the terms hereof (based on the Floor Plan and
without regard to any increased services pursuant to Paragraph 25 or elsewhere),
which documentation shall be presented to MTVA no later than thirty (30) days
after the Actual Commencement Date, are lower than the Initial Build-Out Budget,
then for each * Dollar * decrease in actual documented
Build-Out Costs from the Initial Build-Out Budget, the Annual Base Fee shall
decrease by * Dollars * (it being
understood and agreed that the calculation of any decrease in the Annual Base
Fee in accordance with this Paragraph 6.4(b) shall be based on such *
to * proportion). The Monthly Base Fee shall be decreased accordingly,
effective as of the Actual Commencement Date (i.e. all amounts that have been
paid in excess of such decreased amount prior to the effectiveness of the
foregoing calculation (the "Build Out Credit") shall be deducted from the next
adjusted Monthly Base Fee to be paid hereunder and any subsequent adjusted
Monthly Base Fees as required to reduce the Build Out Credit to zero). For
illustration purposes only, assume that within thirty (30) days after the Actual
Commencement Date, 4MCA delivers documentation to MTVA which demonstrates that
the aggregate actual documented Build-Out Costs total *
* Dollars * resulting in a
decrease of * in actual Build-Out Costs from the Initial Build-Out
Budget. An amount equal to * Dollars *
would be deducted from the Annual Base Fee in each year of the Term, and the
Monthly Base Fee would be reduced accordingly. If the actual initial Build-Out
Costs exceed the Initial Build-Out Budget (without taking into account any
increased services pursuant to Paragraph 25 or elsewhere), there shall be no
increase in the Annual Base Fee or the Monthly Base Fee based upon such
increased costs.
(c) Notwithstanding the foregoing provisions contained in subparagraphs (a)
and (b) above, if MTVA request changes and/or additions to the Floor Plan that
would result in an increase in the Build Out Costs and/or the Initial Equipment,
Installation and Wiring Expenditures, and 4MCA agrees to make such changes
and/or additions to the Floor Plan, then 4MCA and MTVA shall negotiate in good
faith to determine the appropriate increase, if any, in the Annual Base Fee.
16
6.5. ADDITIONAL EQUIPMENT
--------------------
(a) From and after the Commencement Date, MTVA may from time to time
request that 4MCA make available to MTVA certain additional equipment and/or
facilities of 4MCA not otherwise provided hereunder in connection with MTVA's
production, post-production or related activities, and 4MCA agrees to provide
such additional equipment and/or facilities to MTVA, to the extent such
equipment and/or facilities are reasonably available. In consideration for
4MCA's provision of such equipment and/or facilities pursuant to this paragraph,
MTVA shall pay 4MCA a mutually agreed rental price not to exceed 4MCA's then-
current rate card for such services. If MTVA requests documented
substantiation of such costs, 4MCA agrees to provide the same in a timely
manner.
(b) At MTVA's request and according to MTVA's need, 4MCA shall provide
supplementary equipment from an outside source as requested throughout the Term
of this Agreement, so long as such supplementary equipment is reasonably
available. The cost of such equipment shall be at a mutually agreed upon rate
and shall be borne by MTVA.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
(ii) If 4MCA elects not to secure the Additional Equipment for MTVA, or
MTVA elects not to secure the Additional Equipment from 4MCA, MTVA may then rent
or lease the Additional Equipment from any outside source engaged by MTVA,
provided such Additional Equipment is reasonably compatible with the existing
Equipment located at the Premises and is delivered to 4MCA in good and proper
working order. Any Additional Equipment installed from an outside source
engaged by MTVA shall be installed and maintained at MTVA's expense and
liability or, if MTVA elects, MTVA may engage 4MCA to install and maintain such
Additional Equipment, at costs acceptable to MTVA. Notwithstanding the
foregoing, if any Additional Equipment is to be installed in areas of the
Premises relating to origination Services, then 4MCA shall install and maintain
such Additional Equipment, at costs
17
acceptable to MTVA. 4MCA shall have the right to inspect the Additional
Equipment prior to installation to confirm that such Additional Equipment is not
defective and is reasonably compatible with the existing Equipment required
pursuant to this Agreement. MTVA shall be solely responsible for any damages to
the Additional Equipment and/or any materials supplied by MTVA hereunder which
are a direct result of any installation of Additional Equipment by a person or
an entity other than 4MCA or 4MCA's designee. Further, MTVA shall be liable to
4MCA for any damages to 4MCA's equipment, personnel and/or the Premises which
are a direct result of such installation by a person or an entity other than
4MCA or 4MCA's designee.
6.6. ADDITIONAL CREW
---------------
MTVA may request that additional Crew members be added to or removed from
the Crew complement provided by 4MCA in SCHEDULE B at any time and from time to
----------
time, at MTVA's sole and absolute discretion, subject to the provisions of
Paragraph 4.1(c). Upon any such removal, MTVA, in its sole and absolute
discretion, may also elect to delete the corresponding Crew position from the
Crew complement. In the event that 4MCA provides any additional Crew members
pursuant to MTVA's request, MTVA agrees to pay and 4MCA agrees to accept payment
with respect thereto in accordance with a rate card to be negotiated in good
faith by the parties. In the event 4MCA fails to provide MTVA with additional
crew members pursuant to MTVA's request therefor, MTVA shall have the right to
engage such person or persons as MTVA's employees.
6.7. OVERAGES; CREDITS TO MTVA
--------------------------
(a) 4MCA shall invoice MTVA weekly for all amounts due in excess of the
consideration payable as set forth in Paragraph 6.1 (the "Overages"). Each
Overage invoice shall be delivered to MTVA within 10 business days after the
date the Overage fee was incurred, or such Overage shall be deemed waived by
4MCA. MTVA shall have the right to reasonably contest any Overages by requiring
4MCA to provide written documentation substantiating any such Overages. To the
extent the parties cannot agree on a particular Overage invoice, both parties
shall submit the relevant calculations and any relevant documentation to a
mutually approved independent third-party accounting firm of international
standing who shall promptly render its decision as to the appropriate Overage in
writing , which decision shall be final and binding on the parties. If such
accounting firm determines that the Overage was either properly invoiced or
should have been a higher amount, then MTVA shall bear the costs of such
accounting firm. If such accounting firm determines that the Overage invoice
was improperly invoiced in exceeding the actual amount that should have been
invoiced to MTVA, then 4MCA shall bear the costs of such accounting firm.
Payment of any uncontested Overages shall be payable thirty (30) days after the
delivery to MTVA of such invoice. Payment of any contested Overage shall be
made within ten (10) days of MTVA's receipt of the independent third-party
accounting firm's written decision, such payment to be in the amount specified
in such written decision.
18
(b) To the extent that any amounts paid by MTVA to 4MCA pursuant to this
Paragraph 6 are in excess of the amounts actually owed for the period in
question, 4MCA shall promptly refund to MTVA such overpayment.
7. SECURITY; INSURANCE
-------------------
7.1. 4MCA shall at all times be responsible for providing reasonable care
and reasonable security for the studio, edit, origination, storage areas,
videotape storage and all other areas where MTVA's personnel or property may at
any or all times be located or have access to. Such security measures shall
include, without limitation, a minimum of one security guard in the reception
area that is immediately adjacent to and a part of the Premises, at all times
during MTVA's production hours. 4MCA shall provide a card-key lock or security
key pad system on all entrances to the Premises, which card-key lock or security
key pad system shall be approved in advance by MTVA. Accordingly, access to the
Premises shall be limited to MTVA and its authorized employees and visitors,
4MCA and its authorized employees and visitors (and with respect to 4MCA's
visitors, to the extent prior approval of MTVA has been obtained), and with
respect to certain Premises, 4MCA's other customers (but only to the extent use
of the Premises by such customers is permitted hereunder). In addition, MTVA
may provide additional guards at MTVA's expense during production hours;
provided however, that such additional security shall in no way reduce 4MCA's
obligations to provide reasonable security hereunder. Notwithstanding the
foregoing, if for any reason, including without limitation, the appearance of
high-visibility talent in connection with any MTVA production, extraordinary
security is required (beyond that which would already be provided pursuant to
this Paragraph 7.1), the cost of any and all such extraordinary security
measures shall be borne solely by MTVA.
7.2. 4MCA shall be liable for any and all personal injury and property
damage arising from 4MCA's employees', agents', invitees' or 4MCA's grossly
negligent or willful acts or omissions or 4MCA's material breach of any
representation, warranty, covenant or agreement in this Agreement. MTVA shall
be liable for any and all personal injury and property damage arising from
MTVA's employees', agents', invitees' or MTVA's grossly negligent or willful
acts or omissions or MTVA's material breach of any representation, warranty,
covenant or agreement in this Agreement.
7.3. 4MCA shall maintain fire, theft and comprehensive general personal
and property liability insurance in a form and in amounts satisfactory to MTVA,
which insurance shall also cover all personnel and property on the Premises and
all equipment and materials owned by MTVA as set forth on a schedule to be
provided by MTVA to 4MCA prior to the Actual Commencement Date, naming MTVA and
its parent companies, Viacom International Inc and Viacom Inc. (and any two
other parties as MTVA may designate) as additional insureds. 4MCA shall commit
to, and the parties will cooperate with each other in connection with,
19
obtaining appropriate insurance coverage for any additional MTVA-owned equipment
and/or materials delivered to the Premises during the Term.
7.4. In addition, 4MCA shall maintain Comprehensive General Liability
insurance and All Risk Property insurance, covering MTVA's interest in all
property located on or around the Premises, and the liability of 4MCA to third
parties, including MTVA's personnel, arising out of the furnishing by 4MCA of
the Services and Crews. 4MCA will maintain such coverage in a form satisfactory
to MTVA and in the amounts set forth below. The policies obtained by 4MCA in
accordance herewith shall remain in effect throughout the Term.
Xxxxxxx'x Compensation and employer's liability
Coverage A - Statutory
Coverage B - Minimal Amount of $1,000,000 (U.S.)
Comprehensive General Liability
Combined Single Limit-Per Occurrence $1,000,000 (U.S.)
Umbrella Liability
$3,000,000 (U.S.) in excess of Primary Insurance
With respect to the Comprehensive General Liability, Umbrella Liability and
All Risk Property Damage coverages scheduled above, MTVA and its parent
companies, Viacom International Inc. and Viacom Inc. (and any two other parties
designated by MTVA), shall be named as additional insureds. With respect to All
Risk Property Damage Coverage, MTVA, Viacom International Inc. and Viacom Inc.
(and any other two parties designated by MTVA) shall be named as loss payees
with respect to their interest in property in the care, custody and control of
4MCA.
7.5. 4MCA shall ensure that each insurance company providing coverage
under Paragraphs 7.3 and 7.4 shall be licensed to do business in the Republic of
Singapore and shall be authorized to issue the policies listed hereunder. All of
the policies referred to above shall be written as primary insurance coverage
only, and shall not be deemed to be in excess of, or to contribute to any,
coverage carried by MTVA, Viacom International Inc., Viacom Inc. or any other
direct or indirect subsidiary or affiliate thereof with respect to the same
risks. 4MCA shall ensure that each insurer providing coverage hereunder shall
provide MTVA with written notice of any change in such insurer, coverage,
material change or reduction thereof (including limits, loss of coverage,
provisions or forms, notice of termination, cancellation or non-renewal or of
aggregate erosion thereon) at least thirty (30) days prior to the proposed
effective date thereof. 4MCA represents and warrants that it will secure
liability insurance and xxxxxxx'x compensation insurance of the type and in the
amounts set forth above with Chubb. 4MCA shall deliver to MTVA certificates of
insurance prior to or upon the execution of this Agreement
20
evidencing that the coverages identified in Paragraphs 7.3 and 7.4 are in full
force and effect (and also indicating the additional insureds and loss payees as
required herein). MTVA will be provided with renewal certificates upon request.
7.6. MTVA will provide 4MCA with a Xxxxxxx'x Compensation certificate for
its employees and shall obtain liability insurance covering its employees, of
the same type and in the same amounts as set forth in Paragraphs 7.3 and 7.4,
and with respect to such liability insurance, naming 4MCA and Four Media Company
as additional insureds.
8. DELAYS OR ADDITIONAL EXPENSES DUE TO EQUIPMENT FAILURE OR 4MCA
--------------------------------------------------------------
PERSONNEL
---------
8.1. If the equipment provided or maintained by 4MCA hereunder (including,
without limitation, property owned by MTVA) ceases to operate properly, causing
an unreasonable delay in production, or unreasonable delays in production occur
due to 4MCA's personnel (including, without limitation, late arrival of
personnel) (any such event, a "Production Failure"), then, except for gross
negligence on the part of 4MCA or 4MCA's personnel (which shall be covered
pursuant to Paragraph 18 hereof) and notwithstanding any other provision of this
Agreement to the contrary, 4MCA's sole liability (but only with respect to the
consequences of a Production Failure) shall be the rights afforded to MTVA as
set forth in subparagraphs (a), (b), and (c) below in connection with any such
Production Failure, and MTVA at its sole option and within 48 business hours may
elect to:
(a) *
*
*
* ; or
(b) *
*
*
* or
(c) *
*
*
8.2. If MTVA extends the Term pursuant to the option set forth in
Paragraph 8.1(a) above, and such extension conflicts with either services,
personnel and/or equipment being provided to other customers of 4MCA, then,
notwithstanding such conflict, MTVA shall have priority over any other customer
of 4MCA and 4MCA shall fully perform its obligations hereunder without regard to
any such conflict.
21
8.3. If MTVA desires to extend the Term pursuant to Paragraph 8.1(a)
above, but such extension violates the terms of the Lease, then 4MCA agrees to
pay MTVA in an amount equal to the fees that would have been paid to 4MCA for
services performed during such extension, had the Term been extended in
accordance with Paragraph 8.1(a).
8.4. 4MCA shall not be responsible for any delays or additional expenses
due to equipment failure which is the direct result of the servicing of such
equipment by personnel provided by MTVA.
8.5. With respect to any advertising that is not aired as a result of any
negligent act or negligent omission by 4MCA (other than in connection with a
loss of origination of the signals, as described in Paragraph 9.1(b), or a
failure or total loss of the signals, as described in Paragraphs 9.1(c) and (d)
respectively), 4MCA shall be liable for all costs, losses, expenses, claims,
liabilities and damages (collectively, "Damages") incurred by MTVA in connection
with, or arising from, any such negligent act or negligent omission, including
without limitation, all lost advertising revenue that would have been received
by MTVA had such advertising actually aired. At MTVA's option, the Damages
shall be payable directly to MTVA by 4MCA or shall be deducted from any of the
installment payments due for 4MCA pursuant to Paragraph 6.1 hereof.
Notwithstanding anything to the contrary contained herein:
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
(c) 4MCA shall not be liable for any Damages with respect to advertising
that is not aired as a direct result of (i) any Force Majeure event, (ii) any
act or
22
omission to act by MTVA or (iii) any other reason other than the negligent act
or negligent omission by 4MCA.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
9. TERMINATION
-----------
9.1. MTVA may, without prejudice to any of its rights hereunder or at law
or equity, upon giving appropriate notice in accordance with Paragraph 22,
terminate this Agreement (which shall extinguish its obligations to 4MCA
hereunder except as otherwise expressly set forth herein) at any time upon the
occurrence of any of the following events (except that if any such event occurs
as a result of a Force Majeure Event, as defined in Paragraph 19, then the
provisions of Paragraph 19 shall apply, rather than the termination provisions
set forth below):
(a) if 4MCA shall fail to observe or perform any of the material terms or
conditions hereof (a "Default") and after MTVA has served notice in accordance
with Paragraph 22 specifying the Default and requiring the same to be remedied,
the Default results in a delay in production or post-production of MTVA
programming for 24 hours or more after
23
receipt of such notice, and 4MCA fails to either cure the Default or provide
alternative production or post-production facilities satisfactory to MTVA within
such 24-hour period; or
(b) if 4MCA commits a Default, and after MTVA has served notice in
accordance with Paragraph 22 specifying the Default and requiring the same to be
remedied, the Default continues and results in a loss of origination of the
signals (audio and/or video) for * or more after receipt of such
notice, and 4MCA fails to either cure the Default or provide alternative
origination facilities satisfactory to MTVA within such * period; or
(c) if the signals fall below any of the levels specified in SCHEDULE H
----------
(which event shall constitute a Default hereunder) and after MTVA has served
notice specifying the Default and requiring the same to be remedied, the signals
continue to fall below any of the levels specified in SCHEDULE H for a period of
----------
12 hours or more after receipt of such notice; or
(d) if by reason of failure of the origination facilities and/or
maintenance and repairs to the origination facilities there is a total loss of
the signals for any individual feed for either:
(i) * in the aggregate in any * day period for any
individual feed; or
(ii) * in the aggregate in any * day period for any
individual feed; or
(iii) * separate periods, each lasting longer than * minutes in
any * day period, for any individual feed; or
(e) if the control and/or ownership of 4MCA passes, directly or indirectly,
to a person or entity engaged in the production and/or distribution of
television programming (via satellite or otherwise) in competition with MTVA; or
(f) if 4MCA or Four Media Company seeks relief under any applicable
bankruptcy statute, is placed in receivership, makes any assignment for the
benefit of creditors or commences the winding-up of its business, and any such
action is not dismissed within thirty (30) days of the commencement of such
action.
(g) without limiting any of MTVA's other rights or remedies provided
hereunder or at law or equity in the event of a Default or otherwise, if there
is a conflict between any provision of this Agreement and the Lease (as defined
in Paragraph 16.2) which (i) prevents 4MCA from effectuating any material term
or provision hereunder or (ii)
24
results in a material adverse effect on any of MTVA's rights, whether express or
implied, under this Agreement (either of (i) or (ii) shall constitute a Default
hereunder), and after MTVA has served notice in accordance with Paragraph 22
specifying the Default and requiring the same to be remedied, the Default
continues for a period of 48 hours or more after receipt of such notice.
9.2. 4MCA may, without prejudice to any of its rights hereunder or at law
or equity, upon giving appropriate notice in accordance with Paragraph 22,
terminate this Agreement (which shall extinguish its obligations to MTVA
hereunder except as otherwise expressly set forth herein) at any time upon the
occurrence of any of the following events:
(a) subject to the proviso set forth in the first sentence of Paragraph
6.1(f) hereunder, if any payment required to be made by MTVA hereunder (other
than Overages which are in dispute) is not made within * after the
date on which 4MCA notifies MTVA that MTVA's payment is past due (a "Payment
Default Date"), and 4MCA has given MTVA an additional * written
notice of termination to MTVA following the Payment Default Date, provided that
if MTVA delivers payment to 4MCA during such * period following the
Payment Default Date, such termination notice shall cease to be effective; or
(b) if MTVA or Viacom International Inc. seeks relief under any applicable
bankruptcy statute, is placed in receivership, makes any assignment for the
benefit of creditors or commences the winding-up of its business, and any such
action is not dismissed within thirty (30) days of the commencement of such
action.
9.3. Notwithstanding any other provision herein, neither party shall have
the right to exercise termination rights hereunder if such party is in material
default of any of its obligations hereunder.
10. ENGINEERING AND MAINTENANCE
---------------------------
10.1. 4MCA agrees to provide MTVA with engineering coverage through the
availability of at least one engineer on-site or on-call 24 hours a day, 7 days
a week throughout the Term. 4MCA agrees to dedicate at least 40 hours per week
for the maintenance of the studio, edit and origination Equipment. 4MCA shall
provide to MTVA or its designees a weekly schedule in advance showing the
engineering coverage, including the names of the engineers and hours to be
worked. 4MCA shall keep accurate records of maintenance performed on all
Equipment and provide ready access to these records at all times. 4MCA shall
provide the following services, which shall include, without limitation:
(a) Routine maintenance of the Equipment: The Equipment shall be tested
and maintained in accordance with manufacturers' then current specifications,
recommendations and good engineering practice. If no such specifications or
recommendations
25
have been issued by the manufacturer, then testing and maintenance shall be
performed in accordance with good engineering practice. In all cases of lack of
documentation of specifications, 4MCA shall consult with a designee of MTVA as
to what course of action should be taken.
(b) Routine alignment of origination Equipment: All Equipment shall be
realigned at least three times a year at a time and date to be agreed with MTVA
at least 4 weeks in advance. Further, 4MCA shall cooperate with the uplink and
interconnect service provider in relation to the alignment of the main and
standby audio and video circuits and uplink. Such alignment shall be carried
out in accordance with then current manufacturers' specifications and good
engineering practice. Under no circumstances shall any alignment be conducted
in such a manner as knowingly or negligently will result in the interruption or
loss of origination of the signals. If interruption is necessary for the above
purpose, 4MCA shall obtain MTVA's written approval before conducting any
alignment or maintenance.
(c) Fault detection and restoration: 4MCA shall use its best efforts to
correct any fault, loss, defect, or interruption to the signals (or any part
thereof) immediately after it becomes aware of the same or reasonably should
have become aware of the same. Upon any fault, loss, defect or interruption
that results in the loss of the signals (or any part thereof), 4MCA shall notify
MTVA immediately. All other faults, losses, defects or interruptions shall be
reported to MTVA on the next working day, stating the time, date, cause and the
remedial course of action taken or to be taken.
10.2. 4MCA shall have a documented contingency plan agreed to between MTVA
and 4MCA which specifies the course of action to be taken by 4MCA in the event
of catastrophic failure of the origination Equipment. A copy of the contingency
plan shall be supplied to MTVA prior to the Actual Commencement Date (or the
Pre-Commencement Date, if applicable) and will be updated in agreement with MTVA
annually, or at such shorter intervals as either party shall deem necessary, but
in no event more frequently than every three months.
10.3. The technical suitability of recordings and other transmissions made
with the Equipment described in SCHEDULE D and all other Equipment provided by
----------
4MCA shall at all times be in accordance with then currently accepted television
broadcast standards, practices and regulations (including without limitation
those of BR (Former CCIR), EBU and SMPTE).
10.4. The line of demarcation between the origination signal and the
common carrier ("Carrier") shall be as follows:
(a) For unencrypted and uncompressed signals (whether analog or digital),
including video (with vertical blanking interval ("VBI") signals) and one or two
stereo pairs (whether analog or digital), the line of demarcation shall be
located between the final
26
output of the originated audio and video signals and the Carrier-provided
customer premise equipment ("CPE"), which in turn interfaces to Carrier's
terrestrial circuits ("Terrestrial Channels").
(b) For encrypted analog signals, including scrambled video (with VBI
signals) and one or two encoded stereo audio pairs, the line of demarcation
shall be located between the output of the scrambling equipment (with
distribution and/or monitoring equipment associated with the operation of the
scrambling equipment) and the input to Carrier-provided CPE, which in turn
interfaces to Carrier's Terrestrial Channels.
(c) For digital compression signals, including one or more digitally
compressed video signals with accompanying digitally compressed audio channels
and other digital signals, the line of demarcation shall be situated between the
output of the digital compression encoder system (with distribution and/or
monitoring equipment associated with the operation of the compression equipment)
and Carrier-provided CPE, which in turn interfaces to Carrier's Terrestrial
Channels.
(d) Provided that 4MCA maintains all origination equipment in conformity
with manufacturer's specifications, then except for any gross negligence by 4MCA
and/or its employees in connection with the use of any such equipment, the
failure of any encryption and/or compression equipment, and all related
equipment (including without limitation, multiplexors, modems, changeover units
and control computers, and also including without limitation, any of such
equipment purchased and/or provided by MTVA), which failure results in the
degradation or loss of the originated signals, shall not trigger the provisions
of Section 9.1 hereunder, notwithstanding any other provision of this Agreement
to the contrary.
10.5. 4MCA shall only be required to operate radio frequency ("RF")
equipment, including, without limitation, wireless microphones, wireless
intercom, receive-only satellite antenna and similar equipment, within the
operating parameters and conditions granted by the local telecommunication
authority and in a manner so as not to cause harm to third parties.
11. PERSONNEL
---------
11.1. 4MCA shall be responsible for all benefits, wages, payroll, and
withholding taxes that may become due with respect to all 4MCA personnel,
including subcontractors engaged by 4MCA or personnel engaged through such
subcontractors in connection with this Agreement. It is the intent of the
parties hereunder that 4MCA is and shall be an independent contractor. All Crew
or other persons providing services hereunder (which are hired by 4MCA) shall be
employees of 4MCA and not MTVA.
27
11.2. Unless otherwise herein provided, 4MCA covenants that MTVA shall
have no responsibility or liability to or on behalf of any persons or entities
whose services are furnished by 4MCA pursuant to this Agreement or otherwise,
and 4MCA will indemnify MTVA and hold harmless MTVA from any and all claims,
costs, expenses or damages arising out of the employment by 4MCA of personnel
engaged in a strike, boycott, or work slow-down, except in connection with a
Force Majeure Event. 4MCA covenants that it will use its best efforts to employ
qualified replacement workers, subject to MTVA's prior approval, to perform the
services required herein. Notwithstanding the above, if 4MCA is unable to
obtain such replacement workers to fulfill 4MCA's obligations herein, which
results in an unreasonable delay in production (i.e. a delay in production of 24
hours or more) then, MTVA shall have the right to terminate this Agreement
without further obligation to 4MCA, except in connection with a Force Majeure
Event.
12. PRINCIPAL MANAGERS
------------------
If both Xxxxxx Xxxxxxx and Xxxxx Xxxxxx cease to be actively employed by
4MCA or its parent corporation, or cease to be actively engaged in the
administration of the 4MCA facility or the servicing of MTVA'S relationship with
4MCA, and such individuals are not replaced to the satisfaction of MTVA, then
MTVA may terminate this Agreement upon one month's written notice to 4MCA.
During the Term of this Agreement, MTVA shall pay to 4MCA a monthly fee of up to
* (consistent with the provisions of Paragraph 35) in order to induce 4MCA
to ensure that the oversight and administrative duties described in the prior
sentence will be available throughout the Term. Such monthly fee shall not be
subject to any annual increases during the Term.
13. OVERHEAD
--------
4MCA shall be responsible for providing and maintaining, *
* all basic utilities, services and any other related systems, in proper
working order, necessary for MTVA to use the Premises in accordance with the
purposes set forth herein, including without limitation, plumbing facilities,
adequate heat, air conditioning, power, working lights, equipment maintenance,
set storage space, garbage removal, and maintenance of the studio, edit and
origination facilities and office space, by a cleaning service. The maintenance
shall include, among other services, regular cleaning of all facilities and
reasonable maintenance necessitated as a result of normal wear and tear.
14. PUBLICITY; PRESS RELEASES
-------------------------
14.1. 4MCA shall not release or authorize the release of any advertising
or other publicity in connection with this Agreement, the operations of MTVA,
the use of the 4MCA facilities by MTVA, or in connection with MTVA or its
affiliated companies, without the prior written approval of MTVA.
28
14.2. MTVA represents and warrants, and 4MCA acknowledges and agrees, that
MTVA (or its parent or an affiliated company) currently owns all rights in the
names and trademarks: "MTV ASIA", "MTV: MUSIC TELEVISION", and any other names,
marks, logos, copyrights and other intellectual property, and the good will
associated therewith. 4MCA shall not acquire any right, title or interest of
any nature in such property or goodwill as a result of the services to be
performed hereunder and the transactions contemplated hereby. In addition, 4MCA
shall not use any such property in any manner without MTVA's prior written
consent other than as expressly provided for in this Agreement.
15. CLOSED SET
----------
The studio set will be closed at all times, except that persons designated
by MTVA and all 4MCA employees listed as studio Crew members on SCHEDULE B (and
----------
any other 4MCA employees and/or guests approved in advance by MTVA) may enter.
16. 4MCA REPRESENTATIONS, WARRANTIES AND COVENANTS
----------------------------------------------
4MCA represents, warrants and covenants (as applicable) to MTVA as follows:
16.1. 4MCA has the full corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
16.2. 4MCA will occupy the Premises by virtue of its rights as a
tenant under a lease (the "Lease") to be executed between Singapore
Telecommunications Ltd., 000 Xxxxxxx Xxxxxx Xx., Xxxxxxxxx 1543, Republic of
Singapore ("Landlord") and 4MCA.
16.3. As of the date of execution of the Lease, the Lease will be in
full force and effect without default thereunder by 4MCA, and without default
thereunder by Landlord (but only to the extent such default by Landlord would
materially adversely affect MTVA's rights, or 4MCA's obligations, hereunder (a
"Material Landlord Default")).
16.4. 4MCA shall comply with all of its obligations under the Lease
and shall immediately provide to MTVA copies of any notices, including default
notices, given to 4MCA under the Lease.
16.5. 4MCA shall advise MTVA of any Material Landlord Defaults, and
provide copies to MTVA of any notices to be given to Landlord.
16.6. To the extent applicable to this Agreement, 4MCA shall not
modify or amend the Lease or waive any rights thereunder (to the extent that
such modification, amendment or waiver would materially adversely affect MTVA's
rights hereunder) or allow same to terminate or expire prematurely, without
prior written consent of MTVA.
29
16.7. Under the Lease, 4MCA shall have the right to effectuate all of
the terms and provisions hereunder, without violation of the Lease.
16.8. 4MCA will be in compliance, as of the Actual Commencement Date
(or, if applicable, as of the Pre-Commencement Date), and will continue to
comply, with all applicable government laws, rules, regulations and
administrative requirements, including without limitation, environmental laws,
zoning laws, and applicable fire safety codes and regulations, to the extent
necessary to perform its obligations hereunder without any material adverse
effect on MTVA's rights or obligations hereunder.
16.9. 4MCA will procure, prior to the Actual Commencement Date (or
the Pre-Commencement Date, if applicable), all licenses, permits or other
authorizations or exemptions necessary for performing its obligations hereunder
(unless the failure to obtain such licenses, permits or other authorizations or
exemptions would not have any material adverse effect on MTVA's rights or 4MCA's
obligations hereunder), and shall deliver copies of all such licenses, permits
or other authorizations or exemptions to MTVA, upon MTVA's written request.
4MCA shall maintain such licenses, permits and other authorizations and/or
exemptions in good standing with the appropriate governmental authorities.
Notwithstanding the foregoing, 4MCA shall not be deemed in breach of any
representation, warranty or covenant contained herein on account of any
withdrawal or revocation of the TVRO License, so long as such withdrawal or
revocation was beyond the reasonable control of 4MCA to prevent.
16.10. The representations, warranties and covenants contained in
Paragraphs 16.2 through 16.7 above are subject to the execution of the Lease as
more particularly provided in Paragraph 39 below.
17. MTVA REPRESENTATIONS, WARRANTIES AND COVENANTS
----------------------------------------------
MTVA hereby represents, warrants and covenants (as applicable) to 4MCA as
follows:
17.1. MTVA has the full corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
17.2. MTVA will be in compliance, as of the Actual Commencement Date
(or, if applicable as of the Pre-Commencement Date), and will continue to
comply, with all applicable governmental laws, rules, regulations and
administrative requirements to the extent necessary to perform its obligations
in connection with this Agreement without any material adverse effect on 4MCA's
rights or obligations hereunder.
30
17.3. To the best of MTVA's knowledge, (a) none of the programming
content provided by MTVA and/or its suppliers to 4MCA for the purposes of this
Agreement shall infringe upon the rights of third parties, (b) MTVA owns,
licenses or otherwise has the right to use, and will continue to own, license,
or otherwise have the right to use all such programming content, and (c) all
necessary consents, approvals, licenses and other rights from third parties
(including governmental agencies) required for the production and transmission
of such programming content pursuant to this Agreement have been obtained.
17.4. During the Term, MTVA will not, directly or indirectly, employ
or solicit, or receive or accept the performance of services by, any employee of
4MCA, or directly or indirectly assist any other person, firm or entity in the
solicitation of 4MCA's employees, without 4MCA's prior written approval.
17.5. MTVA will procure a valid broadcasting license issued by the
appropriate governmental authorities prior to the Actual Commencement Date (or
the Pre-Commencement Date, if applicable), and all other material licenses,
permits or other similar authorizations or exemptions necessary for carrying on
its broadcasting business (collectively "Broadcasting Licenses") and otherwise
to effectuate the terms of this Agreement. MTVA shall deliver copies of the
Broadcasting Licenses and all such other licenses, such permits and other
similar authorizations to 4MCA, upon 4MCA's written request. MTVA shall
maintain the Broadcasting Licenses and all such other licenses, permits and
other similar authorizations in good standing with the appropriate governmental
authorities.
17.6. During the Term, MTVA will not operate and/or use the Premises
and the Equipment provided by 4MCA to transmit or in any other way assist in the
transmission of a foreign broadcasting service, unless MTVA has obtained prior
written approval from the Singapore Broadcasting Authority to receive and
transmit such foreign broadcasting service.
17.7. MTVA shall not be deemed to be in breach of any representation,
warranty or covenant contained herein on account of any withdrawal or revocation
of the Broadcasting Licenses (or agreements in principle with the relevant
Singapore broadcasting authorities with respect to the same) (any such
withdrawal or revocation, a "Revocation"), so long as the Revocation was beyond
the reasonable control of MTVA to prevent. MTVA acknowledges and agrees that,
notwithstanding any Revocation which was beyond the reasonable control of MTVA
to prevent, MTVA shall be obligated to continue to pay the Monthly Base Fee to
4MCA; provided however, 4MCA shall use reasonable efforts to mitigate MTVA's
payment obligations hereunder in the event of a Revocation which was beyond the
reasonable control of MTVA to prevent, which efforts may result in a reduction
of MTVA's payment obligations hereunder. Notwithstanding the foregoing, MTVA
shall not be obligated to continue to pay the Monthly Base Fee to 4MCA upon a
Revocation if and only if such Revocation is caused solely and directly by any
act or omission of 4MCA: (a) which is either (i) not expressly authorized by
MTVA or (ii) not performed in a manner consistent with the authority implied in
MTVA's grant
31
to 4MCA of the right to provide the Premises, Crews, Services and/or Equipment
hereunder; and (b) which is either (i) performed in a grossly negligent manner
---
or (ii) performed with the knowledge that such act violates the Broadcasting
Licenses.
18. INDEMNITIES
-----------
18.1. In addition to any other indemnification obligations set forth
in this Agreement, 4MCA shall at all times indemnify and hold harmless MTVA, its
parent, subsidiaries, affiliates, successors, licensees, and assigns, and their
respective officers, directors, agents, representatives, employees, and
designees, from and against and from any and all claims, damages, liabilities,
liens, costs and expenses, including reasonable counsel fees (herein
collectively called "claims"), arising out of (a) any material breach by 4MCA of
any representation, warranty, covenant, obligation or agreement made by 4MCA
hereunder, or (b) any grossly negligent acts or omissions of 4MCA, its
employees, representatives, guests, agents or invitees in connection with the
Premises, Services or Crew provided herein.
If a claim by a third party is made against MTVA, and MTVA intends to
seek indemnity with respect thereto under Paragraph 18.1 of this Agreement, MTVA
shall promptly (and in any case within 30 days of such claim being formally
made) give 4MCA written notice of such claim. 4MCA shall have thirty days after
receipt of such notice to assume and control the defense of such claim at its
expense and through counsel of its choice, with the prior written consent of
MTVA. 4MCA's counsel shall be reasonably satisfactory to MTVA. If in MTVA's
reasonable judgment a conflict of interest may exist between MTVA and 4MCA with
respect to such claim, MTVA shall be entitled to select counsel of its own
choosing, in which event 4MCA shall be obligated to pay the fees and expenses of
such counsel, to the extent that the same are reasonable.
If 4MCA elects not to defend against any claim that is brought
pursuant to Paragraph 18.1, then it shall within the 30 days set forth in the
preceding paragraph, promptly so notify MTVA and, in such event, MTVA shall
thereupon again be entitled to assume and control the defense of such a claim
through counsel of its choice. In any circumstance where 4MCA elects not to
defend such claim, 4MCA shall promptly pay all reasonable attorneys',
accountants' and other advisors' fees and expenses of MTVA in connection with
the assumption and defense of such claim. If 4MCA exercises its right to
undertake the defense against any such claim as provided above, MTVA shall
cooperate with 4MCA in such defense and make available to 4MCA, at 4MCA's
expense, all pertinent records, materials and information in its possession or
under its control related thereto as is reasonably requested by 4MCA.
Anything in this Paragraph 18.1 to the contrary notwithstanding, (a)
if there is a reasonable probability in the judgment of MTVA that a claim may
materially and adversely affect MTVA (monetarily or otherwise), MTVA will have
the right to defend and co-defend and with the consent of 4MCA (which consent
shall not be unreasonably withheld) compromise and
32
settle such claim, and (b) 4MCA will not, without the prior written consent of
MTVA, settle or compromise any claim or consent to entry of any judgment
relating to any such claim, which settlement, compromise or judgment does not
include as an unconditional term thereof the giving by the claimant or the
plaintiff to MTVA, a full, complete and unconditional release from all
liabilities in respect of such claim.
18.2. In addition to any other indemnification obligations set forth
in this Agreement, MTVA shall at all times indemnify and hold harmless 4MCA, its
parent, subsidiaries, affiliates, successors, licensees and assigns, and their
respective officers, directors, agents, representatives, employees, and
designees from and against any and all claims, damages, liabilities, liens,
costs and expenses, including reasonable counsel fees (herein collectively
called "claims") arising out of (a) any material breach by MTVA of any
representation, warranty, covenant, obligation or agreement made by MTVA
hereunder, (b) any grossly negligent acts or omissions of MTVA or its employees,
representatives, guests, invitees or agents in connection with performing its
obligations hereunder, (c) the content of any programming delivered by MTVA or
its suppliers to 4MCA pursuant to this Agreement, including without limitation,
any claim for libel, slander, copyright infringement or programming content, or
(d) any Revocation. In connection with subparagraph (d) of this Paragraph 18.2,
4MCA acknowledges that, if such Revocation was beyond the reasonable control of
MTVA to prevent, 4MCA shall use reasonable efforts to mitigate MTVA's payment
obligations hereunder.
If a claim by a third party is made against 4MCA, and 4MCA intends to
seek indemnity with respect thereto under Paragraph 18.2 of this Agreement, 4MCA
shall promptly (and in any case within 30 days of such claim being formally
made) give MTVA written notice of such claim. MTVA shall have thirty days after
receipt of such notice to assume and control the defense of such claim at its
expense and through counsel of its choice, with the prior written consent of
4MCA. MTVA's counsel shall be reasonably satisfactory to 4MCA. If in 4MCA's
reasonable judgment a conflict of interest may exist between MTVA and 4MCA with
respect to such claim, 4MCA shall be entitled to select counsel of its own
choosing, in which event MTVA shall be obligated to pay the fees and expenses of
such counsel, to the extent that the same are reasonable.
If MTVA elects not to defend against any claim that is brought
pursuant to Paragraph 18.2, then it shall within 30 days set forth above,
promptly so notify 4MCA and, in such event, 4MCA shall thereupon again be
entitled to assume and control the defense of such claim through counsel of its
choice. In any circumstance where MTVA elects not to defend such claim MTVA
shall promptly pay all reasonable attorneys', accountant' and other advisors'
fees and expenses of 4MCA in connection with the assumption and defense of such
claim. If MTVA exercises its right to undertake the defense against any such
claim as provided above, 4MCA shall cooperate with MTVA in such defense and make
available to MTVA, at MTVA's expense, all pertinent records, materials and
information in its possession or under its control related thereto as is
reasonably requested by MTVA.
33
Anything in this Paragraph 18.2 to the contrary notwithstanding, (a)
if there is a reasonable probability in the judgment of 4MCA that a claim may
materially and adversely affect 4MCA (monetarily or otherwise), 4MCA will have
the right to defend and co-defend and with the consent of MTVA (which consent
shall not be unreasonably withheld) compromise and settle such claim, and (b)
MTVA will not, without the prior written consent of 4MCA, settle or compromise
any claim or consent to entry of any judgment relating to any such claim, which
settlement, compromise or judgment does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to 4MCA, a full, complete
and unconditional release from all liabilities in respect of such claim.
19. FORCE MAJEURE
-------------
19.1. For the purposes of this Paragraph 19, a "Force Majeure Event"
shall be deemed to be any acts of God; natural catastrophes; governmental acts,
omissions or enactments; national emergencies; insurrections; riots; wars; fire;
flood; explosion; or strikes; lock-outs or other labor difficulties beyond the
control of the parties hereto. Governmental action which prohibits MTVA from
broadcasting any or all of its programming shall not be deemed a Force Majeure
Event.
19.2. If either 4MCA or MTVA is unable to timely perform any of its
obligations hereunder because of a Force Majeure Event, then 4MCA or MTVA, as
the case may be, shall not be deemed in breach or in default hereunder by reason
thereof (such party to be referred to hereunder as the "Non-Performing Party"
and the other party to be referred to as the "Terminating Party").
19.3. If a Force Majeure Event prevents the timely performance of any
of the obligations of 4MCA or MTVA hereunder, then:
(a) Only if 4MCA is the Non-Performing Party, the Term shall be
automatically extended for a period equal to the period of the delay without
payment of any additional compensation (so long as such extension does not
violate the terms of the Lease), subject to the provisions of subparagraph (b)
below.
(b) If the delay lasts more than twenty (20) days or if it is
reasonably apparent that such a delay will last for twenty (20) or more days,
then the Terminating Party shall have the right, by written notice given to the
Non-Performing Party, to immediately terminate this Agreement as of the date the
notice is received as set forth in Paragraph 22. If the Force Majeure Event
ceases prior to the expiration of the twenty (20)-day period, and such notice
has been delivered to the Non-Performing Party, then such notice shall be deemed
rescinded.
34
(c) If MTVA terminates this Agreement as provided in subparagraph (b)
above, 4MCA shall immediately return to MTVA all amounts paid by MTVA for
Services and/or Crew not yet actually furnished by 4MCA (provided that MTVA
shall be responsible for all amounts due for Premises, Services, Crews and/or
Equipment actually provided during the period prior to termination for such
Force Majeure Event). If 4MCA terminates this Agreement as provided in
subparagraph (b) above, MTVA shall immediately pay to 4MCA all amounts due for
Premises, Services, Crews and/or Equipment actually provided during the period
prior to termination for such Force Majeure Event.
20. ASSIGNMENT
----------
MTVA and 4MCA may each assign this Agreement to any party which, at the
time of such transfer, (a) owns or controls MTVA or 4MCA, as the case may be,
(b) which MTVA or 4MCA, as the case may be, owns or controls, or (c) with which
MTVA or 4MCA, as the case may be, is under common ownership or control, or as
part of the sale or transfer of all or substantially all of the assets or equity
of MTVA or 4MCA, respectively. In addition, in connection with financing to be
obtained by 4MCA, MTVA hereby consents to 4MCA's assignment of 4MCA's rights to
the payments contemplated under this Agreement to any bank or other financing
source. In any other case, neither party may otherwise assign any of its
rights, benefits or obligations hereunder without the prior written consent of
the other party, which consent shall not be unreasonably withheld (it being
understood and agreed that 4MCA shall not assign its rights hereunder in
violation of Paragraph 9.1(e)). A party's failure to respond in writing to a
request for consent to assignment within five (5) business days after receipt of
such request shall be deemed consent to such assignment. The provisions of
Paragraph 12 hereof shall remain in effect in the event of any assignment
hereof. Any purported assignment and/or transfer in violation of this paragraph
shall be null and void.
21. WAIVER NOT CONSENT
------------------
Any waiver of any breach of this Agreement shall not be construed to be a
continuing waiver or consent to any subsequent breach by any party hereto.
22. NOTICES
-------
Any and all notices or demands under this Agreement shall be served either
by messenger (i.e., delivered to the business of the party but not necessarily
placed in the party's hands or delivered in the presence of the party) or by
registered or certified mail, postage prepaid, overnight mail or express courier
service or by facsimile or telecopy transmission. If served by messenger,
service conclusively shall be deemed received on the date of service. If served
by registered or certified mail, postage prepaid, service conclusively shall be
deemed received three business days after deposit with the United States or the
Singapore postal service (provided however, that if service is to be effected
from the United States to Singapore or vice versa,
35
service shall conclusively be deemed received ten business days after deposit
with the United States or the Singapore postal service, as the case may be). If
served by overnight mail or express courier service, service shall conclusively
be deemed received three business days after prepaid dispatch with an
internationally recognized overnight mail or express courier service. If served
by facsimile or telecopy transmission, service shall conclusively be deemed made
on the date and at the time imprinted on any such notice by the receiving
facsimile or telecopy machine.
To MTVA: Xxxxx Xxxxx
Executive Vice President
Viacom Network Operations
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax No. (000) 000-0000
With copies to: Xxxx Xxxx Xxxxxxxxxx, Esq.
Senior Vice President
Business Affairs and General Counsel
MTV Networks
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax No. (000) 000-0000
Regional Counsel - MTV Asia LDC
Treasury Building
0 Xxxxxxx Xxx #00-00
Xxxxxxxx xx Xxxxxxxxx 0106
Fax No. 00-000-0000
To 4MCA: Director of Technical Operations
Four Media Company Asia PTE Ltd.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx xx Xxxxxxxxx 0207
Fax No. 00-000-0000
36
With copies to: Xxxxxx X. Xxxxxxx
Four Media Company
000 X. Xxxxxxxx Xxxx.
0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Fax No. (000) 000-0000
and Xxxx X. Xxxxxxx, Esq.
Greenberg, Glusker, Fields,
Claman & Machtinger
1900 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No. (000) 000-0000
and Leow Su Xxx
Xxx & Xxx
Xxxxx 00, XXX Xxxxxxxx
Xx. 0 Xxxxxxx Xxx
Xxxxxxxxx 0000
Fax No. 00-0000000
Either party may change the name and/or address to which notices are to be sent
hereunder by giving written notice of such change in accordance with this
Paragraph 22.
23. APPLICABLE LAW; JURISDICTION
----------------------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York and the federal laws of the
United States of America, without regard to conflict of laws principles. Any
legal action or proceeding with respect to this Agreement shall be subject to
the non-exclusive jurisdiction of any courts located in New York, New York, and,
by execution and delivery of this Agreement, both paries hereby irrevocably
accept for themselves and in respect of their property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of 4MCA and
MTVA hereby irrevocably designates, appoints and empowers Steinhardt Partners,
L.P. (or any affiliate or successor thereof) and MTV Networks, respectively,
with offices on the date hereof at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, respectively, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, in
respect of its property, service of any and all legal process, summons, notices
and documents which may be served in any such action or proceeding. Each of
4MCA and MTVA hereby waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement brought in the courts
37
referred to above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient form.
24. PROPRIETARY INFORMATION
-----------------------
24.1. 4MCA and MTVA acknowledge that in the course of 4MCA's
provision of services to MTVA hereunder, either party may become acquainted with
certain "Proprietary Information" of the other party. "Proprietary Information"
of either party shall mean any information relating to such party's business,
business concepts, and/or ideas relating to programming and/or other products,
including all intellectual property pertaining to the foregoing (regardless of
the stage of development of such) (collectively the "Products"), which is not
generally known other than by such party. Proprietary Information may include,
without limitation, the concepts, ideas, designs, formats, and contents of the
Products and the overall marketing and business plan with respect to the
Products; and may include, without limitation, plot lines, designs, devices,
characters, stories, treatments, outlines, sketches, videos, copyrights, and any
actual or contemplated trademark, trade name or service xxxx. Each party agrees
that it shall not use, disclose, disseminate or otherwise communicate, directly
or indirectly, in whole or in part, during the term of this Agreement, any
Proprietary Information of the other party, except as necessary to implement the
terms of this Agreement, without the other party's prior written consent, nor
shall either party permit any of its representatives, subsidiaries, parent
entity, or any third party person acting for or on its behalf, to do any of the
foregoing. In addition, neither party shall reproduce or copy or summarize any
Proprietary Information of the other party without such other party's prior
written consent in each instance. 4MCA shall cause each and every Crew member
employed by 4MCA pursuant to this Agreement, as well as any other 4MCA employee
who may have access to MTVA's Proprietary Information, to agree to be bound by
this Paragraph 24. The obligations set forth in this Paragraph 24.1 shall
survive the termination or cancellation of this Agreement.
24.2. As a pre-condition to the employment of any Crew member, each
such Crew member shall execute a "work made for hire" agreement in a form
acceptable to MTVA. In addition, 4MCA and its employees hereby acknowledge and
agree that (a) all artistic, literary, dramatic, musical and other materials
created by 4MCA hereunder, together with the results and proceeds of 4MCA's
provision of the Services, Premises, Equipment and Crews hereunder (the
"Materials"), are "works made for hire" (as such term is defined in the United
States Copyright Act) for MTV Networks ("MTVN"), and (b) MTVN is the owner of
the Materials under copyright, in and for all means of exploitation now known or
hereinafter devised, upon creation of such Materials. To the extent that any of
the Materials are not deemed to be "works made for hire" for MTVN, 4MCA hereby
assigns to MTVN all rights for all purposes throughout the world for the full
period of copyright and all extensions and renewals thereof in and for all means
of exploitation now known or hereinafter devised. 4MCA acknowledges and agrees
that neither it nor any third party or person (other than MTVN) has any
copyrights in the Materials
38
and any copyright resides in MTVA as the sole owner of such rights, and 4MCA
hereby quitclaims and assigns any rights in the copyright and hereby waives any
and all moral rights with respect thereto. If requested by MTVN, 4MCA shall
execute and deliver to MTVN an acknowledgment, quitclaim and assignment
necessary to give effect to the foregoing in a form approved in advance by MTVN.
24.3. Upon termination of the Term or any earlier termination of this
Agreement pursuant to the terms hereunder, each party shall promptly return to
the other party all manuals, documents, files, reports, programming, videotapes,
Proprietary Information and any other data, materials or property belonging to
such other party.
24.4. MTVA shall cause all of its employees who may have access to
4MCA's Proprietary Information to agree to be bound by Paragraphs 24.1 and 24.3.
25. ADDITIONAL SERVICES
-------------------
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
26. ATTORNEYS' FEES
---------------
In the event of any dispute arising in connection with this Agreement, the
court in such action shall award all costs and expenses of suit and a reasonable
sum as attorneys' fees to the party who, in light of the issues litigated and
the court's decision on those issues, was more successful in the action. The
more successful party need not be the party who recovers a judgment or order
nominally in its favor in the action. If a party voluntarily dismisses an
action, a reasonable sum as attorneys' fees shall be awarded to the other party.
39
27. END OF TERM
-----------
On or before expiration or termination of this Agreement, MTVA shall remove
all of its property from the Premises within ten (10) working days following
termination or expiration of this Agreement, leaving the Premises in
substantially the same condition as of the Commencement Date, ordinary wear and
tear excepted. MTVA shall be liable for actual damages incurred by 4MCA to the
Premises (including any and all equipment) in connection with MTVA's removal of
its property, ordinary wear and tear excepted.
28. ENTIRE AGREEMENT
----------------
This Agreement supersedes any prior agreements or understandings, oral or
written between the parties hereto and represents their entire understanding and
agreement with respect to the subject matter hereof and can be amended,
supplemented or changed, and any provision hereof can be waived, only by a
written instrument signed by the party against whom enforcement of any such
amendment, supplement, modification of waiver is sought.
29. CONSENT NOT UNREASONABLY WITHHELD
---------------------------------
Except as otherwise specifically provided herein, in all instances where
either 4MCA or MTVA has consent or approval rights, such consent or approval
shall not be unreasonably withheld.
30. SURVIVAL OF INDEMNITIES
-----------------------
The indemnities contained herein shall survive the termination or
cancellation of this Agreement.
31. FURTHER INSTRUMENTS
-------------------
Each party agrees to execute any further documents and/or instruments and
perform any further acts deemed necessary or desirable to give full effect to
the provisions of this Agreement.
32. SEVERABILITY
------------
If any term or provision of this Agreement is judged invalid or
unenforceable, such term or provision shall be deemed deleted and shall not
affect the validity or enforceability of the remaining terms and provisions of
this Agreement.
40
33. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and together shall constitute a single instrument.
34. GUARANTIES
----------
MTVA's obligations hereunder shall be guaranteed by Viacom International
Inc. pursuant to the terms of the Guaranty in the form attached hereto on
SCHEDULE I-1. 4MCA's obligations hereunder shall be guaranteed by Four Media
------------
Company pursuant to the terms of the Guaranty in the form attached hereto on
SCHEDULE I-2.
------------
35. CHANGES IN TAX LAW
------------------
To the extent that any Singapore laws, rules and/or regulations concerning
the payment of GST are rescinded or materially modified, the parties shall
appropriately adjust fees to be paid hereunder.
36. REASONABLE EFFORTS
------------------
Unless otherwise provided to the contrary herein, each party shall use all
reasonable efforts to fulfil its obligations hereunder.
37. CONTRAVENTION OF LAWS
---------------------
Notwithstanding any other provision to the contrary herein, neither party
shall be required to undertake any action in order to satisfy its obligations
hereunder, which action would violate the provisions of any Local Laws or
Practice, or any other applicable laws, rules, regulations, statutes and
administrative requirements (unless such violation would have no material
adverse impact on the applicable party hereunder, or on such applicable party's
ability to satisfy or fulfill its obligations hereunder).
38. CHANGES IN LABOR LAW
--------------------
To the extent that any Local Laws and Practice are modified and/or
rescinded during the Term, and such modification and/or rescission has a
material impact on the Total Compensation payable to Crew members hereunder,
and/or any such modification and/or rescission of any Local Laws and Practice
materially adversely affects 4MCA's ability to provide Crew members during the
hours and at the times set forth in SCHEDULE B, then the parties agree to
----------
negotiate in good faith in order to appropriately adjust the fees payable by
4MCA hereunder and/or the scheduled times and/or hours required to be worked by
Crew members hereunder, as applicable.
41
39. EXECUTION OF LEASE
------------------
4MCA covenants to use all good faith efforts to agree upon and execute the
Lease. The Lease shall contain all terms and conditions necessary to enable
4MCA to fulfil its obligations to MTVA hereunder. If the Lease has not been
fully executed and delivered by 4MCA and the Landlord by February 15, 1995, then
this Agreement shall terminate as of such date and neither 4MCA nor MTVA shall
have any further obligations or liability hereunder. 4MCA shall notify MTVA on
or before February 16, 1995 as to the execution and delivery of the Lease by all
parties. 4MCA's failure to so notify MTVA shall be deemed notice to MTVA that
the Lease has not been executed and delivered by all parties.
40. EMPLOYMENT CONTRACTS AND OTHER EMPLOYMENT DOCUMENTATION
-------------------------------------------------------
40.1. 4MCA shall provide to MTVA copies of all employment
agreements or other documentation reflecting offers of employment or similar
agreements (collectively, "Employment Documents") prior to the Actual
Commencement Date (or prior to the Pre-Commencement Date, if applicable). 4MCA
shall provide to MTVA copies of any and all modifications and/or amendments to
the Employment Documents within 15 business days after the date of such
modification and/or amendment. In connection with any Crew member that is
employed by 4MCA after the Actual Commencement Date, 4MCA shall provide to MTVA
copies of the Employment Documents in connection with such Crew member within 15
days after the commencement of such Crew member's employment.
40.2. In addition to any other rights of MTVA hereunder, MTVA
shall have the right to approve, with respect to any and all existing Crew
members: (a) any renewal of any such Crew member's employment, and (b) any
changes in (i) the duration of any such Crew member's employment or (ii) any
such Crew member's severance arrangement. If 4MCA fails to obtain MTVA's
approval with respect to a particular existing Crew member pursuant to the prior
sentence and MTVA subsequently requests the removal by 4MCA of such Crew member,
then 4MCA shall remove such Crew member, and if such removal leads 4MCA to
terminate such Crew member's employment, then 4MCA shall assume all costs
incurred in connection therewith, including severance, if applicable.
42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"MTVA"
MTV ASIA LDC
By: /s/ Xxxxx Xxxxx
_________________________________
Xxxxx Xxxxx
Title: Executive Vice President
"4MCA"
FOUR MEDIA COMPANY ASIA PTE LTD.
By: /s/ Xxxxxx X. Xxxxxxx
_________________________________
Xxxxxx X. Xxxxxxx
Title: Managing Director
43
SCHEDULES
---------
A PREMISES
B CREWS AND BUDGETED CREW COSTS
B-1 HOLIDAYS
B-2 OVERTIME
C SERVICES
D INITIAL EQUIPMENT, INSTALLATION AND WIRING
EXPENDITURE BUDGET
E [INTENTIONALLY OMITTED]
F FLOOR PLAN
G PRE-COMMENCEMENT FEE SCHEDULE
H TECHNICAL SPECIFICATIONS
I-1 FORM OF GUARANTY FOR VIACOM INTERNATIONAL INC.
I-2 FORM OF GUARANTY FOR FOUR MEDIA COMPANY
44
