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Jackson's $70-Mil Loan...Trustee Malnik, BofA Note and Sony

Jackson's $70-Mil Loan...Trustee Malnik, BofA Note and Sony

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11/17/2012

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ACTION BY WRITTEN CONSENT OF TIIE BENEFICIARY OF MJ PUBLISHING TRUST

(the "Trust) formed The undersigned, being the Beneficiary of MJ Publishing Trust, a trust of September 29' 1999 pursuant to the Third Amended and Restated Trust Agreement, dated as and Myung-Ho (the "Trust Agreement"), between the undersigned, as Beneficiary, John Branca as Administrative Trustee i"" * original Co-Tmstees, and Commonwealth Trust Company, actions authorized thereby does hereby adopt the following resolutions and consent to the
pursuant to the Trust Agreement:

ue the joint duty of the ryHEREAS, Section 5.1(a) of the Trust Agreement provides that it ittatt to execute and deliver Co-Trustees, with the appioval of or at tG direction of the Beneficiary, (as defined in the Trust any amendments, modiications or supplements to the Loan Documents by the Lenders (as Agreement) in the r"qp;ctiv" forms Aeiivered from time to time to the Trust defined in the Trust Agreement);

Agreement (the WHEREAS, the Bank has delivered a Second Amended and Restated Loan and certain related ..Amended Loan Agreement") by and between the Bank and the Trust, Restated Loan Agreement, documents to the Trist which amends and restates the Amended and the Bank; and dated as of January 6,2003,by and between the Trust and of the Trust WHEREAS, the Beneficiary desires to authori ze, approve and direct the Co-Trustees with to enter into, on behalf of tire Trust, the Amended Loan Agreement and related agreements the Bank. NOW, THEREFORE, be it herebY

,

in, the RESOLVED, that the Trust enter into the Amended Loan Agreement in, or substantially form, and containing substantially the terms and provisions of the Amended Loan Agreement Loan annexed hereto as ixhibit A, and that the form terms and provisions of the Amended McClain, Agreement are, in all respects, approved and adopted, and that Alvin Malnik and John -and empowered and directed to they hereby are, authorized, as-Co=Trustees of the Trust, be, of the Trust, the Amended Loan Agreement to the Lenders, as execute and deliver, on behalf well as any agreements, instruments, documents, certificates and reports required or No. contemplat.i uy ttr" Amended Loan Agreement, including, without limitation, Amendment and 2.to Security Agreement (the "security Agreement Amendment"); and the Third Amended therein or modifications thereof as Restated promissory Wote (ttre "Note'), with such changes such Co-Trustees, by their execution and delivery thereof, shall approve, and
Agreement) RESOLVED, that the Co-Trustees, Administrative Trustee (as defined in the Trust Trust be, and they hereby ate, authoized, and other agents, representatives and employees of the

l l 165589.03

I

empowered and directed to take all such action and to certificates and other documents, in the name of and on costs and expenses as they all approve as necessary or accomplish the purpose of the foregoing resolution and the taking of such actions and the execution, delivery, and other documents to be conclusive evidence of such

all such all such intent and

IN WITNESS WHEREOF, the undersigned has ex of August 2003.

r I I 65589.03

THIRD AMENDED AND RESTATED PROMISSORY NOTE

$70,000,000

Dated August 18,2003

Originally Issued September 29, 1999 First Amendment and Restatement as of December 15, 2000 Second Amendment and Restatement January 6,2003
FOR VALUE RECEIVED, the undersigned, MJ Publishing Trust (the "Eggower"), HEREBY PROMISES TO PAY to the order of BANK OF AMERICA, N.A., its successors and assigns (the "B44!"), at the Bank's office at767 Fifth Avenue, Floor 12A, New York, New York 10153, or at such other place as may be designated by the Bank, without setoff, the principal amount of Seventy Million Dollan ($70,000,000) or, if less, the aggregate principal amount of the then outstanding Loans (as defined in the Loan Agreement hereinafter referred to) made by the Bank to the Borrower pursuant to the Loan Agreement (as defined below), together with all accrued and unpaid interest thereon, on the Termination Date (as defined in the Loan Agreement). Capitalized terms used herein without definition are used herein as defined in the Second Amended and Restated Loan Agreement, dated as of August 18,2003, between the Bank and the Borrower, as the same may be amended, restated, modified or supplemented from time to time (the "LeAllAgrcgmen!"). The rate at which interest shall accrue hereunder shall be equal to the sum of (i) Adjusted LIBOR and (ii) the Applicable Margin (the "Rate"); provided, however, that after the occurrence and during the continuance of an Event of Default, the principal of and interest on each Loan and any other amounts owing hereunder or under the other Loan Documents shall bear interest, payable on demand, at a rate per annum equal to the sum of (x) the Prime Rate and four percent(4%) per annum. The "Prime Rate" is the flucfuating "prime rate" of interest established by the Bank from time to time, at its discretion, whether or not such rate shall be otherwise published. The Prime Rate is established by the Bank as an index and miy or may not at any time be the best or lowest rate charged by the Bank on any loan. Each change in the Rate shall take effect simultaneously with the corresponding change in Adjusted LIBOR or in the Prime Rate, as the case may be.
.

Notwithstanding any provision of this Note, the Bank does not intend to charge and the Borrower shall not be required to pay any amount of interest or other charges in excess of the maximum permitted by the applicable laws of the State of New York; or, if any higher rate ceiling is lawful, such higher rate ceiling. Any payment in excess of such maximum shall be refunded to the Borrower or credited against principal, at the option of the Bank.
Unless otherwise indicated, interest at the Rate set forth above shall be calculated year of 360 days for the actual number of days for which any principal amount is based on a outstanding hereunder. Interest accrued on the principal amount of each Loan shall be paid on the last Business Day of each Interest Period, with a final payment of all unpaid interest due on the Termination Date.

Doc #:NY6:526583.3

.,

B6th principal and interest are payable in lawful money of the United States of America to the Bank's account maintained at its address at 767 Fiftli Avenue, Floor l2A, New York, New York 10153, in same day funds. All payments made on account of the principal amount hereof shall be recorded by the Bank, or by any pledgee thereof and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note.
The Borrower hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The non-exercise by the holder of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.

This Third Amended and RestatedPromissory Note (this 'ljqlle") is the Note referred to in, and is entitled to the benefits of, the Loan Agreement and the Guaranty, Security Agreement and other Loan Documents referred to therein. The Loan Agreement, among other things, contains provisioni for acceleration of the maturify hereofupon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified. THIS NOTE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS (OTHER THAN NEW YORK GENERAL OBLIGATTONS LAW SECTION 5-1401).

EACH OF THE BANK AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY ruRY IN ANY ACTION, PROCEEDING OR COLTNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE), WHETHER AT LAW OR EQUITY, BROUGHT BY ANY PARTY AGAINST ANY OTHER ON MATTERS ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH THIS NOTE, THE OTHER LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED BY, OR ANY ACTION OR INACTION BY ANY PARTY UNDER THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS.

[This space left intentionally blank]

Doo #:NY6:526583.3

THIS NOTE AND THE LOAN DOCUMENTS CONSTITUTE THE ENTIRE AND FINAL AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR WRITTEN AGREEMENTS AND ALL PRIO& CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES REGARDING ALL ISSUES ADDRESSED IN THE LOAN DOCUMENTS. MJ PUBLISHING TRUST

Alvin Malnik,

as Co-Trustee

Doc #:NY6:526583.3

F

AMENDMENT NO.3 TO SOITYMUSIC

MAGREEMENT

AMENDMENT NO. 3, dated as of August/6, 2003 (this "Alqggdrqent'), to the INTERCREDITORAGREEMENT, dated as of September29,1999, as amended (the "IntercreditorAgreemenf'), among BANK OF AMERICA, N.A- (the "Bank"), SOIry MUSIC, A GROUP OF SONY MUSIC ENTERTAINMENT, INC.("Sq!y') and MJ PUBLISHING TRUST (the "Deblqr").
WHEREAS, the Bank and the Debtor, a trust of which Michael Jackson is the sole beneficiary, entered into a Loan Agreement dated as of September 29,1999 (the "Bank Loan Agreement"), pursuant to which the Bank fuas.agreed to extend certain loans to the Debtor from time to time; WHEREAS, the Bank and Sony and the Debtor entered into the Intercreditor Agreement to speciff their relative priorities in the Collateral (as defined in the Intercreditor Agreement); WHEREAS, the Bank has agreed to increase the amount of the facility extended under the Bank Loan Agreement from $35,000,000 to $70,000,000 subject to the conditions set forth in the Bank Loan Agreement, including that Sony agree to increase the Maximum Loan Amount (as defined in the Intercreditor Agreement) from $35,000,000 to $70,000,000, and Sony has agteed to such increase;

NOW THEREFORE, in consideration of the premises and the agreements herein, and for other good and valuable consideration, the suffrciency of which is hereby acknowledged, the parties hereto agree as follows: Definitions. All terms used herein which are defined in the Intercreditor Agreement and not otherwise defined herein are used herein as defined therein.

1.

2. 3.

hereby amended with the dollar amount "$70,000,000".

Amendment. Paragraph 3 of the Intercreditor Agreement is by replacing the dollar amount "$35,000,000" in the sixthline thereof

Conditions to Effectiveness. This Amendment shall be effective on and as of the date of this Amendment set forth above.
Outstanding Balance of Sony Loan. The Debtor hereby represents to the Bank that the aggregate principal amount of the Sony Loan outstanding on the date hereof is approximately $12,800,000. The Debtor covenants that it will confirm such amount in writing to the Bank as soon as is practicable, but in any event not later than

4.

October 5,2003.

Doc #:NY6:526585.3

2

Continued Effectiveness of the Intercreditor Asreement. Except as otherwise expressly provided herein, the Intercreditor Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that on and after the date hereof all references in the Intercreditor Agreement to "this Agreemenf', "hereto", 'hereof', "hereunder" or words of like import referring to the Intercreditor Agreement shall mean the Intercreditor Agreement as amended by this Amendment.

5.

Counterparts. Thls Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the
same agreement.

6.

'Headings. Section headings herein are included for convenience reference only and shall not constitute apart of this Amendment for any other purpose.

7. 8.

of

Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

9.
Agreements.

Amendment as Loan Document. The Debtor hereby acknowledges

and agrees that this Amendment constifutes a "Loan Document" under the Bank

[This space left intentionally blank.]

3

IN WffNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered aS of the date first above written.

R. Hel

SONY MUSIC, a Group of Sony Music
Entertainment Inc.

By:
Name:

Title:
MJ PUBLISHING TRUST

By:
John McCIain, as Co-Trustee

By:

Alvin Malnik,

as Co-Trustee

Doc #:NIY6:526585-2

J

IN WITNESS WHEREOF, the parties hereto have caused this Amendfhent to be executed and delivered as of the date first above written. BANK OF AMERICA, N.A.
By: Name: Jane R. Heller Title: Senior Vice President

SONY MUSIC, a Group of Sony Music Entertainment Inc.

By:

MJ PUBLISHING TRUST

By:
John McClain, as Co-Trustee

By:

Alvin Malnik,

as Co-Trustee

Doc #:NY5:526585-3

/z/

3

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first above written. BANK OF AMERICA, N.A.
By:
Name: Jane R. Heller Title: Senior Vice President

SONY MUSIC, a Group of Sony Music Entertainment Inc.

By:
Name:

Title:
MJ PUBLISHING TRUST

cClain, as Co-Trustee

Alvin Malnik,

as Co-Trustee

Doc #:NY6:5265853

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