FIRST AMENDMENT TO INVESTMENT AGREEMENT
Exhibit 10.7
FIRST
AMENDMENT TO INVESTMENT AGREEMENT
This First Amendment (this “Amendment”) to the
Investment Agreement by and between FX Real Estate and
Entertainment Inc., a Delaware corporation (the
“Company”), and Xxxxxx F.X. Sillerman (the
“Investor”) is made and effective as of
March 31, 2008. All capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to
them in the Investment Agreement (as defined below).
RECITALS
WHEREAS, the Company and the Investor entered into that
certain Investment Agreement, dated as of January 9, 2008
(the “Investment Agreement”); and
WHEREAS, the Company and the Investor desire to make
certain amendments to the Investment Agreement pursuant to
Section 9.4 thereof as set forth herein.
NOW, THEREFORE, for the consideration set forth herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendment to Section 1.2(b) of the
Investment Agreement. Section 1.2(b) of
the Investment Agreement is hereby amended by deleting the
defined term “$15 Million Tranche Number”
appearing therein in its entirety and inserting the defined term
“Initial Tranche Number” in lieu thereof.
2. Amendment to Section 8 of the
Investment Agreement. Section 8 of the
Investment Agreement is hereby amended by deleting the
definitions of “Xxxx Investment Agreement” and
“$15 Million Tranche Number” appearing
therein in their entirety and inserting the following
definitions in lieu thereof, each of which is to be added in
alphabetical order:
“Xxxx Investment Agreement” means that
certain Investment Agreement by and between the Company and The
Xxxx Alternative Fund, L.P. and The Xxxx Alternative Parallel
Fund, L.P. dated as of January 9, 2008, as amended
effective as of March 31, 2008 by the First Amendment and
as may be further amended from time to time.”
“Initial Tranche Number” has the
meaning assigned to it in the Xxxx Investment Agreement.”
3. Effect of Amendment. The
Company hereby represents and warrants to the Investor that each
of the Company’s representations and warranties set forth
in the Investment Agreement is true and correct in all respects
as of the date hereof as though made on as of the date hereof,
except for each of the Company’s representations and
warranties set forth in Section 2.5 of the Agreement to the
extent so specifically reported in the Company’s Annual
Report on
Form 10-K
for the year ended December 31, 2007, as filed with the SEC
on March 24, 2008. Except as expressly set forth in this
Amendment, the Investment Agreement shall remain in full force
and effect as originally written, and shall constitute the
legal, valid, binding and enforceable obligation of the parties
thereto.
4. Governing Law; Jurisdiction; Venue;
Process. This Amendment shall be governed by
and construed in accordance with the laws of the State of New
York without regard to any choice of law or conflict of law
provision or rule that would cause the application of the laws
of any jurisdiction other than the State of New York. Each party
hereby irrevocably submits, for itself and its property, to the
exclusive jurisdiction of the Supreme Court of the State of New
York located in New York, New York or the United States District
Court for the Southern District of New York, and any appellate
court from any such court (as applicable, a “New York
Court”), in any suit, action or proceeding arising out
of or relating to this Amendment, or for recognition or
enforcement of any judgment resulting from any such suit, action
or proceeding, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such
suit, action or proceeding may be heard and determined in the
New York Court. Each party hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, (i) any objection which it may now or
hereafter have to the laying of
venue of any suit, action or proceeding arising out of or
relating to this Amendment in the New York Court, (ii) the
defense of an inconvenient forum to the maintenance of such
suit, action or proceeding in any such court, and (iii) the
right to object, with respect to such suit, action or
proceeding, that such court does not have jurisdiction over such
party. Each party irrevocably consents to service of process in
any manner permitted by law. The foregoing consents to
jurisdiction and service of process shall not constitute general
consents to service of process in the State of New York for any
purpose except as relates to this Amendment, and shall not be
deemed to confer rights on any Person other than the respective
parties to this Amendment.
5. Execution in
Counterparts. This Amendment may be executed
in two or more counterparts, each of which shall be considered
an original instrument, but all of which shall be considered one
and the same agreement, and shall become binding when one or
more counterparts have been signed by each of the parties hereto
and delivered to the parties. Copies of executed counterparts
transmitted by facsimile or other electronic transmission shall
be considered original executed counterparts for the purposes of
this Amendment, provided that receipt of copies of such
counterparts is confirmed. Originals of any counterparts
transmitted by facsimile or other electronic transmission shall
be promptly provided to the other parties hereto.
6. Headings. The headings in
this Amendment are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Amendment.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
2
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their authorized representatives on the date first
above written.
FX REAL ESTATE AND ENTERTAINMENT INC.
| By: |
/s/ Xxxxxxxx
X. Xxxxxx
|
Name: Xxxxxxxx X. Xxxxxx
| Title: | Executive Vice President |
XXXXXX F.X. SILLERMAN
/s/ Xxxxxx
F.X. Xxxxxxxxx
Xxxxxx F.X. Sillerman
