AMENDMENT TO SELLERS’ SECURITIES AGREEMENT
Exhibit 4.49
EXECUTION VERSION
INTERACTIVE NETWORK, INC.
AMENDMENT TO SELLERS’ SECURITIES AGREEMENT
This AMENDMENT TO SELLERS’ SECURITIES AGREEMENT (this “Amendment”), dated as of December 6, 2008, is entered into by and among Interactive Network, Inc., a Nevada corporation (the “Issuer”) and the holders whose names appear on the signature pages hereto (the “Holders”) of the Issuer’s outstanding Subordinated Secured Notes due 2011 (the “Sellers’ Secured Notes”).
RECITALS
WHEREAS, this Amendment is being entered into with reference to the Sellers’ Securities Agreement (Sellers’ Secured Notes Due 2011) dated as of December 6, 2007, among the Issuer, the Senior Subordinated Guarantors whose names appear on the signature pages thereto (the “Senior Subordinated Guarantors”), the Junior Subordinated Guarantors whose names appear on the signatures pages thereto (the “Junior Subordinated Guarantors”, and together with the Senior Subordinated Guarantors, the “Guarantors”), the Holders as “Holders” defined therein and party thereto, and the U.S. Bank National Association (the “Agent”), as “Administrative Agent” and “Collateral Agent” defined therein and party thereto (the “SSA”) and the Sellers’ Secured Notes issued pursuant thereto.
WHEREAS, the Issuer and the Holders wish to amend the SSA to correct the number of Warrant Shares listed on Schedule 2.02 thereto; and
WHEREAS, Section 12.02 of the SSA permits the amendment of the SSA and the Holders have agreed to such amendment; and
NOW, THEREFORE, in consideration of the foregoing premises, the agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.
Definitions.
Capitalized terms used herein without other definition shall have the respective meanings herein assigned to such terms in the SSA.
Section 2.
Amendment to Schedule 2.02 to the SSA.
Schedule 2.02 to the SSA is hereby deleted in its entirety and replaced with Schedule 2.02 attached to this Amendment.
Section 3.
Affirmation of Obligations.
The Issuer hereby ratifies, affirms and confirms all of the Note Documents and each and every Obligation, covenant and agreement of the Issuer thereunder in all respects, except as otherwise expressly modified or waived by this Amendment upon the terms set forth herein. In addition, the Issuer hereby represents and warrants that, as of the date hereof, no counterclaim, right of set-off, claim or defense of any kind exists or is outstanding with respect to any of the Obligations or against any of the Holders of any Sellers’ Secured Notes.
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Section 4.
Reaffirmation of Guarantees.
Each Guarantor hereby agrees and acknowledges that such Guarantor’s guarantee of all Obligations of the Issuer under the Note Documents remains and continues in full force and effect and is hereby ratified and reaffirmed in all respects.
Section 5.
Miscellaneous.
5.1.
Headings. Section and subsection headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect.
5.2.
Funding Documents Ratified. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Holders under the SSA, the Security Agreements or any other Funding Documents; or be construed to alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the SSA, the Security Agreements or any other Funding Documents, all of which are hereby confirmed and ratified in all respects and shall continue in full force and effect.
5.3.
Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Amendment shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Amendment.
5.4.
Note Documents. From and after the date of this Amendment, this Amendment shall be considered a Note Document for all purposes of the SSA, entitled to all of the benefits and protections thereof, and all references to the Note Documents shall thereafter be construed to include this Amendment.
5.5.
Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
5.6.
Counterparts; Facsimile Signatures. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Facsimile signatures shall be considered originals for all purposes.
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EXECUTION VERSION
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
ISSUER
INTERACTIVE NETWORK, INC.
By: /s/ Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Secretary
HOLDERS
XXXXXX X. XXXXX TRUST AGREEMENT
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
XXXXXXXX TRUST,
CREATED ON APRIL 16, 2002
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, Trustee
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Trustee
[signatures continue on following page]
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ACKNOWLEDGED AND AGREED:
SENIOR SUBORDINATED GUARANTORS:
VARIOUS, INC.
By:
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Chief Financial Officer
GLOBAL
ALPHABET, INC.
SHARKFISH, INC.
TRAFFIC CAT, INC.
BIG ISLAND TECHNOLOGY
GROUP, INC.
FASTCUPID, INC.
XXXXXX.XXX INCORPORATED
PPM TECHNOLOGY
GROUP, INC.
FRIENDFINDER NETWORK, INC.
By:
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Chief Financial Officer
FRIENDFINDER PROCESSING LTD.
By:
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Chief Financial Officer
STREAMRAY, INC.
By:
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Chief Financial Officer
CONFIRM
ID, INC.
FRNK TECHNOLOGY GROUP
TRANSBLOOM, INC.
STREAMRAY INC.
By:
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title:
Chief Executive Officer
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JUNIOR SUBORDINATED GUARANTORS:
PENTHOUSE
MEDIA GROUP INC.
GENERAL MEDIA ART HOLDING, INC.
GENERAL MEDIA
COMMUNICATIONS, INC.
GENERAL MEDIA ENTERTAINMENT, INC.
GENERAL MEDIA UK
LIMITED
GMCI INTERNET OPERATIONS, INC.
GMI ON-LINE VENTURES,
LTD.
PENTHOUSE CLUBS INTERNATIONAL ESTABLISHMENT
PENTHOUSE IMAGES
ACQUISITIONS, LTD.
WEST COAST FACILITIES INC.
PMGI HOLDINGS INC.
PURE
ENTERTAINMENT TELECOMMUNICATIONS, INC.
By:
/s/ Xxxx X. Xxxx
Name: Xxxx
X. Xxxx
Title:
President
PENTHOUSE FINANCIAL SERVICES N.V.
By:
/s/ Xxxx X. Xxxx
Name: Xxxx
X. Xxxx
Title:
Managing Director
PENTHOUSE
DIGITAL MEDIA PRODUCTIONS INC.
VIDEO BLISS, INC.
XXXXX XXXX, INC.
By:
/s/ Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title:
President
SNAPSHOT PRODUCTIONS, LLC
By:
/s/ Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title:
Manager
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Schedule 2.02
ALLOCATION OF SELLERS’ SECURED NOTES AND WARRANTS
Holder | Principal Amount of Sellers’ Secured Note | Number of Warrant Shares |
XXXXXX X. XXXXX TRUST AGREEMENT, Xxxxxx X. Xxxxx, Trustee Address: 000 Xx Xxxx Xxxxxx Xxxxxx, XX 00000 | $72,814,104 | 21,625,418 |
XXXXXXXX TRUST, CREATED ON APRIL 16, 2002, Xxxx Xxxxxxxx and Xxxxx X. Xxxxxxxx, Trustees Address: 000 Xxxxxxx Xxx Xxxxx, XX 00000 | $7,185,896 | 2,134,175 |
Total | $80,000,000 | 23,759,593 |
Amendment to Sellers’ Securities Agreement – Schedule 2.02
