Common use of Most Favored Nations Clause in Contracts

Most Favored Nations. If Wink has agreed to provide, at any time agrees to provide or at any time provides a license to deliver Interactive Wink Programs to any third party, directly or indirectly, pursuant to any agreement, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributor, on any day during the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which are more favorable to such other distributor than those set forth in this Agreement, Wink shall give written notice thereof to Affiliate and, at Affiliate's election, this Agreement shall be deemed to have been modified so that, from the date on which such more favorable Provision is first so provided (or, if such more favorable Provision is now being provided, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only to the following: If such more favorable Provision is a Financial Provision (as hereinafter defined), Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 of this Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereon.

Most Favored Nations. If Wink has agreed If, during the continuation of the Covenant Relief Period, the Approved Bonds Amendment, or any future amendment or modification of any of the Private Placement Bonds (a “Material Credit Facility”), shall include any financial or other material covenant that is not contained in Section 9.1 or in this Agreement is more restrictive than the analogous provision contained in Section 9.1 or otherwise in this Agreement (any such covenant, together with any related definitions (including any components of such definitions) (including, without limitation, any term defined therein with reference to providethe application of GAAP, at as identified in such applicable Material Credit Facility), an “Additional or More Restrictive Covenant”; provided that the different methodology in calculating the financial covenants under the Private Placement Bonds in effect prior to the execution of the Approved Bonds Amendment shall not constitute an Additional or More Restrictive Covenant), then the Borrower shall promptly, and in any time agrees event within 10 Business Days thereof, provide a written notice to provide the Agent (a “Most Favored Lender Notice”) with respect to each such Additional or at any time provides a license to deliver Interactive Wink Programs to any third partyMore Restrictive Covenant. Thereupon, directly unless waived in writing by the Required Lenders within 10 days of the Agent’s receipt of such notice, such Additional or indirectlyMore Restrictive Covenant shall be deemed incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, effective as of the earliest date when such Additional or More Restrictive Covenant became effective under such Material Credit Facility. Any Additional or More Restrictive Covenant incorporated into this Agreement pursuant to this provision, (1) shall be deemed automatically waived herein to reflect any agreementwaiver of such Additional or More Restrictive Covenant under the applicable Material Credit Facility, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis2) (a "Third Party Agreement") shall be deemed automatically amended herein to reflect any distributor, on any day during the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which are more favorable subsequent amendments agreed and implemented in relation to such other distributor than those Additional or More Restrictive Covenant under the applicable Material Credit Facility; and (3) shall be deemed deleted from this Agreement at such time as such Additional or More Restrictive Covenant is deleted or otherwise removed from or is no longer in effect under or pursuant to each Material Credit Facility; provided that in no event shall the effect of any event contemplated by clause (1), (2) or (3) above result in any covenant set forth in this AgreementSection 9.1 being less restrictive than it was on Amendment No. 1 Effective Date; provided further in each case that any consideration paid or provided to any holder of Indebtedness under any Material Credit Facility in connection with an event contemplated by clause (1), Wink (2) or (3) above (other than reimbursement of expenses and repayment in full of such Material Credit Facility in connection with its termination) is paid to each Lender at the same time and on equivalent terms; and provided further that no Additional or More Restrictive Covenant shall give written notice thereof to Affiliate andbe so deemed automatically waived, at Affiliate's election, amended or deleted during any time that a Default or Event of Default has occurred and is continuing. In determining whether a breach of any financial covenant incorporated by reference into this Agreement pursuant to this Section 7.20 shall be deemed to have been modified so thatconstitute an Event of Default, from the date on which such more favorable Provision is first so provided (orperiod of grace, if any, applicable to such more favorable Provision is now being provided, from Additional or More Restrictive Covenant in the date hereofapplicable Material Credit Facility shall apply. (s) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only to Article VII of the following: If such more favorable Provision is a Financial Provision (as hereinafter defined), Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 of this Agreement. The determination of whether a Provision in a Third Party Existing Credit Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on hereby modified by inserting a new Section 7.22 at the Third Party Agreement end thereof as a whole or the effect of such Provision thereon.follows:

Most Favored Nations. If Wink Network agrees that if it grants or has agreed granted (including without limitation, any grant by Network's acquiescence in a third party's exercise of rights not expressly granted to provideit), at any time agrees to provide or at any time provides a license to deliver Interactive Wink Programs to any third party, directly or indirectly, pursuant to any agreement, understanding or arrangement : (A) a lower net effective rate per Service Subscriber for the Services than EchoStar is paying hereunder (whether oral calculated on the basis of a packaged or written"tiered" rate or on an stand alone or "a-la-carte" basis), whether formal (B) an▇ ▇▇▇▇▇▇ing or informaladvertising support or reimbursements, whether now launch support or hereafter effectivereimbursements, whether on a long termfree or discounted marketing materials or any other support, short term basis) (a "Third Party Agreement") to any distributorcredits, on any day during the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissionsreimbursements, rebates, allowancescontributions, fees adjustments or rates incentives related to the marketing of the Services, whether given directly or indirectly to such third party grantee, or (collectivelyC) any other economic or non-economic term, "Provisions") which provision, covenant or consideration, that are or is more favorable to such other distributor third party grantee than those set forth in this AgreementEchoStar is receiving hereunder ((A), Wink shall give written notice thereof to Affiliate and(B) and (C) above, at Affiliate's electionindividually and collectively, this Agreement shall be deemed referred to have been modified so thatherein as "More Favorable Provision(s)"), from Network will promptly offer such More Favorable Provisions to EchoStar both orally and in writing for the date on which same amount of time that such more favorable More Favorable Provision is first so provided is, was, or will be available to such third party. A More Favorable Provision shall include any pertinent term, provision, covenant or consideration, regardless of whether the term, provision, covenant or consideration concerning the subject matter of such More Favorable Provision whether such term, provision, covenant or consideration relates to such third party's entire subscriber base or less than the entire base (ore.g. a More Favorable Provision relating to a "test" or "sample" group of subscribers). For purposes of this paragraph, if such more favorable Provision is now being providedthe calculation of net effective rate shall include all economic and non-economic terms and provisions of any agreement that involve financial or other outlays (excluding contingent liabilities) by either party for the benefit of the other or in direct or indirect connection with the rates for the Service, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only or that involve direct or indirect consideration paid by either party to the following: If such more favorable Provision is a Financial Provision other including without limitation rebates, investments, discounts, credits, adjustments of any kind, actual per subscriber rates, volume or other discounts, ad buys, reimbursements, channel position fees, pre-payment of loans, deductions for uncollected accounts, incentives, cash payments (as hereinafter definedwhether conditional or not), Wink sales or leases of equipment, studio facility discounts, payment terms and other financing terms. In determining net effective rates, the parties agree and acknowledge that neither the number of subscribers to the Service nor the number of subscribers availed of the Service shall offer be relevant. For clarity, the parties agree and acknowledge that EchoStar shall not be required to Affiliate in writing such more favorable Financial perform any obligation, term and/or condition, regardless of whether any third party grantee of a the More Favorable Provision together with all other Financial Provision(s) contained in such Third Party Agreementhas agreed to perform the obligation, it being agreed that term and/or condition in order to receive the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 of this Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereonMore Favorable Provision(s).

Most Favored Nations. If Wink (a) If: (i) the Closing has agreed occurred; and (ii) MSN remains a business unit, or otherwise is an Affiliate, of Microsoft (for the purposes of this ARTICLE 2, to providethe extent that MSN becomes an Affiliate of Microsoft, use of the term "Microsoft" shall be deemed to include MSN) at all times from the date hereof through the Third Party Access Agreement Date; then Parent agrees that if, at any time agrees during the period from the date hereof through the fifth anniversary of the Closing Date (the "MFN PERIOD"), any Parent Party enters into or is bound by (or, upon consummation of the Mergers, any Parent Party is party to or is bound by) an Access Agreement (a "THIRD PARTY ACCESS AGREEMENT") with a third party other than Microsoft or any of its Controlled Affiliates (a "THIRD PARTY") (each date a Third Party Access Agreement is entered into referred to herein as a "THIRD PARTY ACCESS AGREEMENT DATE"), then within ten (10) Business Days of each Third Party Access Agreement Date (provided the Closing has previously occurred) or within ten (10) days of the Closing Date (if one or more Third Party Access Agreement Dates have preceded the Closing Date), whichever then is applicable, the Parent Party will provide Microsoft with an Access Agreement (the "MICROSOFT ACCESS AGREEMENT") with respect to the relevant Parent Parties on the same terms and conditions (including with respect to: (I) the specific cable system or systems, applications and functionality for which access is provided and the specific dates on which access is provided; and (II) any rights to sell or market the products or services of any Parent Party in conjunction with the sale or marketing of the HSD Service in question), as those contained in the Third Party Access Agreement in question (provided that if more than one Third Party Access Agreement Date has preceded the Closing Date, then such offer will give Microsoft the right to enter into any or all such Third Party Access Agreement as it elects); provided that: (1) if the terms and conditions contained in any other agreement (an "OTHER THIRD PARTY AGREEMENT") between a Parent Party and the Third Party in question (or any of such Third Party's Affiliates) provided consideration to the Third Party in question (or any of such Third Party's Affiliates) for entering into the Third Party Access Agreement in question, then the terms and conditions of the Microsoft Access Agreement offered to Microsoft will be modified by the Parent Party as required to include the economic benefits of such consideration (net of any consideration provided to any Parent Party under any such Other Third Party Agreements); (2) if any terms and conditions of the Third Party Access Agreement in question are dependent on the unique characteristics of the Third Party in question or its assets (or of its Affiliates or their assets) or the identity of specific cable systems of the Parent Parties, and therefore cannot reasonably apply to or be complied with by Microsoft (or its Affiliates), the Microsoft Access Agreement offered to Microsoft will be modified by the Parent Party as required to provide Microsoft with economic and non-economic terms and conditions that can apply to or be complied with by Microsoft and which, taken as a whole, are no less favorable and no more burdensome to Microsoft than those applicable to the Third Party in question under the Third Party Access Agreement in question; (3) if the effectiveness of a right or benefit of the Third Party in question under the Third Party Access Agreement in question, or if the price or other economic consideration payable by the Third Party in question for a specified level of service or other right or benefit, is conditioned upon volume-based commitments or volume-based performance by the Third Party in question, then the terms and conditions of the Microsoft Access Agreement offered to Microsoft will be modified by the Parent Party as required to make such effectiveness or economic consideration available to Microsoft without meeting the volume-based commitment or volume-based performance in question, if it both (x) makes at least the Threshold Percentage of the volume-based commitment or volume-based performance in question, and (y) makes the Parent Party whole for any actual out-of-pocket costs incurred as a result of providing the right or benefit based on volume-based commitments or volume-based performance of Microsoft that are less than 100% of that contained in the Third Party Access Agreement in question; and (4) Parent will include with such notice: (x) a statement indicating the number, based upon the then current technical capacity of the infrastructure of the cable system or cable systems in question, of Access Agreements (in addition to the Third Party Access Agreement in question) that can be entered into with respect to the cable system or cable systems in which access is provided under the Third Party Access Agreement in question (an "ACCESS SLOT"); and (y) a certification from its chief financial officer that the terms and conditions of the Microsoft Access Agreement offered to Microsoft are in compliance with the terms hereof; and provided further that, if Microsoft has previously entered into an Access Agreement with the Parent Party with respect to the same cable system or systems, applications and functionality that is in effect at the time of such offer, then the Microsoft Access Agreement (if accepted by Microsoft pursuant to subsection (b) below) will replace and supercede such existing Access Agreement when the Microsoft Access Agreement is entered into. No Parent Party will enter into or be bound by: (A) any exclusive Access Agreement during the MFN Period; or (B) a Third Party Access Agreement with AOL Time Warner, Inc. or any of its Affiliates during the MFN Period if no Access Slots would be available to Microsoft, or any Parent Party would otherwise be prevented from complying with the obligations of this Article, as a result of entering into or being bound by such Third Party Access Agreement. (b) Microsoft will have the right, at any time provides during a license period of ninety (90) days following the date Microsoft received the proposed Microsoft Access Agreement from a Parent Party, to deliver Interactive Wink Programs exercise such right by signing the proposed Microsoft Access Agreement in the form offered to Microsoft in whole only, so long as the proposed Microsoft Access Agreement complies with the provisions of this Article II. If Microsoft does not sign the proposed Microsoft Access Agreement within the initial thirty (30) days (excluding the period of any third party, directly or indirectly, dispute resolution undertaken pursuant to any Section 2.04) following receipt of such proposed agreement, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "the Parent Party will be permitted to initiate service under the Third Party Agreement") to any distributor, on any day during the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which are more favorable to such other distributor than those set forth in this Access Agreement, Wink unless Microsoft has informed the relevant Parent Party that in its view the proposed Microsoft Access Agreement does not comply with the provisions of this Article II, in which event the dispute resolution provisions shall give written notice thereof apply. If within ninety (90) Business Days (excluding the period of any dispute resolution undertaken pursuant to Affiliate andSection 2.04) following Microsoft's receipt of the proposed Microsoft Access Agreement, at Affiliate's electionMicrosoft has not signed such Microsoft Access Agreement, this Agreement shall Microsoft will be deemed to have been modified so thatelected not to exercise such right, from unless Microsoft has informed the date on which such more favorable Provision is first so provided (or, if such more favorable Provision is now being provided, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only to the following: If such more favorable Provision is a Financial Provision (as hereinafter defined), Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third relevant Parent Party Agreement, it being agreed that in order to receive its view the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept proposed Microsoft Access Agreement does not comply with the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 provisions of this Agreement. The determination of whether a Provision Article II, in a Third Party Agreement is more favorable which event the dispute resolution provisions shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereonapply.

Most Favored Nations. If Wink 9.01. Company represents, warrants and covenants that, as of the Effective Date, it has agreed to providenot entered into, at any time agrees to provide agreement or at any time provides a license to deliver Interactive Wink Programs to other understanding with any third partyparty provider of recorded music, directly artwork or indirectly, pursuant to any agreement, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributor, on any day during other assets used in connection with the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which Subscription Video Service that contains terms and conditions that are more favorable to such third party when taken on a “whole agreement basis” than the terms and conditions of this Agreement when taken on a “whole agreement basis” (such agreement or other distributor than those set forth in this understanding with any such third party is sometimes referred to as a “More Favorable Agreement”). Company represents, warrants and covenants that, after the Effective Date, if Company enters into a More Favorable Agreement, Wink then Company shall give written promptly provide notice thereof to Affiliate andSONY BMG of such event and offer to provide to SONY BMG the terms of such More Favorable Agreement in lieu of the terms herein. 9.02. If SONY BMG chooses to accept such offer, at Affiliate's electionthe parties shall promptly amend the agreement for the remainder of the Term to reflect all of the terms and conditions of the More Favorable Agreement. Subject to paragraph 9.01 above, SONY BMG shall have the right, not more than once per year of the Term, upon not less than fifteen (15) business days’ notice to reasonably request that an independent third party determine whether Company has entered into a potential More Favorable Agreement with any such third party. If such independent third party determines that Company has done so, Company shall offer to amend this Agreement to reflect, retroactively to the Amendment Date (as defined below), all of the terms and conditions of the More Favorable Agreement. If accepted by SONY BMG, the parties shall be deemed promptly amend this Agreement to have been modified so that, from reflect all of the terms and conditions of the More Favorable Agreement (the “Amended Agreement”). The date on which such more favorable Provision the agreement is first so provided amended shall be referred to as the “Amendment Date.” Promptly after the Amendment Date, Company shall pay to SONY BMG the amount by which any amounts it owes to SONY BMG under the Amended Agreement (orincluding, if such more favorable Provision is now being providedfor the avoidance of doubt, from the date hereofadvances, non-recoupable sums, service fees (however characterized) and thereafter for so long as equity consideration) exceeds the remuneration paid to SONY BMG under this Agreement due hereunder on and after the Amendment Date. In the event that Company agrees to any provision in any third-party agreement that would have the effect of permitting such more favorable Provision continues third party (each, a “Third Party”) to be so providedcompare any of the terms of this Agreement with any terms in such third-party agreement, Affiliate Company agrees that, in connection with such a comparison, Company (and Participating Systems, as applicablei) shall receive such more favorable Provision, subject will only to the following: If such more favorable Provision is a Financial Provision (as hereinafter defined), Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in permit such Third Party Agreementto review the terms of this Agreement by means of an independent third-party auditor that agrees to maintain the confidentiality of all terms of this Agreement in a manner consistent with the foregoing provisions of this Article 11 and subject to Article 15 below, it being agreed that in order and (ii) will not disclose to receive the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean or to such third-party auditor the software licensing fees and rates for Wink services identity of SONY BMG as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 of a party to this Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereon.

Most Favored Nations. If Wink has agreed (A) So long as any Note remains outstanding, but subject to providethe last paragraph of Article 3, at neither the Company nor any time agrees to provide of its subsidiaries shall enter into any capital markets transaction (whether privately or at publicly offered, syndicated or directly placed and including, without limitation, the issuance or incurrence of any time provides a license to deliver Interactive Wink Programs to note, bond or term or revolving loan but excluding the issuance, sale and/or exchange of any third partysecured debt securities convertible or exchangeable into shares of Common Stock), directly or indirectlyamend or otherwise modify any term of any security, loan or other instrument previously so issued, in each case if such Indebtedness is issued pursuant to Section 3.10(B)(xvi) of this Indenture or any agreementrefinancing thereof, understanding with any individual or arrangement entity (whether oral an “Other Investor”), which, in the case of any such transaction involving the issuance or writtenincurrence of any secured debt that is not convertible or exchangeable into Common Stock, whether formal or informalhas an all-in yield (giving effect to the interest rate, whether now or hereafter effectiveany original issue discount in connection therewith, whether on a long termand any upfront fees and other similar payments of like effect payable in connection therewith; provided that (a) original issue discount, short term basis) (a "Third Party Agreement") to any distributor, on any day during the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, upfront fees or rates (collectively, "Provisions") which are more favorable to such other distributor than those set forth in this Agreement, Wink shall give written notice thereof to Affiliate and, at Affiliate's election, this Agreement and similar payments shall be deemed equated to have been modified so that, from the date on which such more favorable Provision is first so provided interest rate assuming a 4-year life to maturity (or, if such more favorable Provision is now being providedless, from the date hereofstated life to maturity at the time of its incurrence of the applicable Indebtedness) and thereafter for so long as such more favorable Provision continues to be so provided(b) “all-in yield” shall not include any arrangement fees, Affiliate (and Participating Systemsstructuring fees, as applicable) shall receive such more favorable Provisionunderwriting fees, subject only commitment fees, amendment fees, ticking fees or any other fees similar to the following: If foregoing (regardless of how such more favorable Provision fees are computed or to whom paid) that is a Financial Provision greater than 11% per annum (as hereinafter definedsuch greater rate, the “MFN Rate”), Wink unless (i) the Company shall offer promptly notify each of the Holders thereof, and (ii) at the request of the Holders of not less than 25% in aggregate principal amount of the Notes, the Company shall enter into, and agrees to Affiliate in writing cause all necessary third parties to agree to enter into, such more favorable Financial Provision together amendments to the Notes Documents as are necessary to increase the Stated Interest on the Notes to the MFN Rate. (B) In connection with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive exercise of the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as rights set forth in Sections A and B clause (A)(ii) above, the Company agrees to reimburse single external legal counsel for all the Holders for the reasonable expenses incurred by such external counsel (which shall in no event exceed $200,000) in entering into any such amendment or other agreement, which shall be dated or drafted such that the economic benefits that may be conferred pursuant clause (A) above will be provided to the Holders as of Exhibit D and the System Transaction Revenue Share described date of the incurrence of such Indebtedness. Notwithstanding anything to the contrary in this Article 3, the foregoing covenants in Section 4.4 3.08 through Section 3.22 (other than Section 3.14, Section 3.16, Section 3.17, Section 3.18, Section 3.19 and Section 3.21) will immediately and automatically terminate, and any then Existing Default or Event of this Agreement. The determination of whether a Provision Default in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on connection therewith will immediately and automatically be deemed cured, upon the Third Party Agreement as a whole or the effect occurrence of such Provision thereontime as less than $[ ● ]†† aggregate principal amount of Notes are outstanding. † † Insert 25% of the initial principal amount of the Notes.

Most Favored Nations. If Wink Guarantor or any of its Subsidiaries has agreed to provideor incurs additional Indebtedness, at any time agrees to provide or at any time provides a license to deliver Interactive Wink Programs to any third party, directly or indirectly, pursuant to any agreement, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributoror, on or after the Closing Date, amends, or permits any day during of its Subsidiaries to amend, the term hereof under termsdocumentation for any such Indebtedness, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees so as to either (i) require or rates incorporate additional financial covenants on Guarantor (collectively, "Provisions") which are more favorable to such other distributor than beyond those set forth in this Agreement, Wink shall give written notice thereof to Affiliate and, at Affiliate's election, this Agreement shall be deemed to have been modified so that, from the date on which such more favorable Provision is first so provided (or, if such more favorable Provision is now being provided, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only to the following: If such more favorable Provision is a Financial Provision (as hereinafter definedSection 4.11), Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(sor (ii) contained in such Third Party Agreement, it being agreed that in order to receive amend covenants of the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as type set forth in Sections A Section 4.11 in such a way as to make any such covenant more restrictive than provided for herein, Guarantor shall promptly (but in no event later than three (3) Business Days thereafter) notify Buyer of such occurrence and B of Exhibit D such revised and/or additional financial covenants shall automatically be incorporated by reference into this Guaranty without the need for further action by any party whatsoever (provided, however, Buyer may require that Guarantor amend this Guaranty to reflect such changes and the System Transaction Revenue Share described other Repurchase Parties shall consent thereto). Thereafter, Buyer shall have a separate and independent right to enforce such revised and/or additional covenants. If such Indebtedness is repaid in Section 4.4 of this Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole full or the effect documentation of such Provision thereonIndebtedness terminates and is no longer binding upon Guarantor or any of its Subsidiaries, then Guarantor may deliver a notice to Buyer with evidence satisfactory to Buyer to confirm that such Indebtedness has been repaid in full or otherwise terminated and may request that Buyer confirm that such additional financial covenants previously incorporated into this Guaranty no longer apply to this Guaranty and such financial covenants shall revert back to the financial covenants set forth in this Guaranty prior to the Indebtedness that has been repaid in full or otherwise terminated.

Most Favored Nations. If Wink has agreed So long as any obligations of the Company under the Note or Warrant are outstanding, upon any issuance of (or announcement of intent to provideeffect an issuance of) any security, at or amendment to (or announcement of intent to effect an amendment to) any time agrees to provide security that was originally issued before the Issue Date, by the Company or at any time provides a license to deliver Interactive Wink Programs to Subsidiary, with any third party, directly or indirectly, pursuant to any agreement, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributor, on any day during that the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which are Buyer reasonably believes is more favorable to the Buyer of such other distributor security than those set forth to the Buyer in this Agreementthe Subscription Documents, Wink or with a term in favor of the Buyer of such security that the Buyer reasonably believes was not similarly provided to the Buyer in the Subscription Documents, then (i) the Company shall give written notice thereof to Affiliate and, at Affiliate's election, this Agreement shall be deemed to have been modified so that, from notify the date on which Buyer of such additional or more favorable Provision is first so provided term within three (or, if such more favorable Provision is now being provided, from 3) business days of the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate issuance and/or amendment (and Participating Systems, as applicable) of the respective security, and (ii) such term, at Buyer’s option, shall receive such become a part of the Subscription Documents with the Buyer (regardless of whether the Company complied with the notification provision of this Section 5.13). The types of terms contained in another security that may be more favorable Provision, subject only to the following: Buyer of such security include, but are not limited to, terms addressing conversion price, conversion price discounts and adjustments, prepayment rate, conversion lookback periods, interest rates, original issue discounts, stock sale price, private placement price per share, commitment shares, warrant coverage, and warrant exercise price. If Buyer elects to have the term become a part of the Subscription Documents with the Buyer, then the Company shall immediately deliver acknowledgment of such more favorable Provision is a Financial Provision adjustment in form and substance reasonably satisfactory to the Buyer (as hereinafter definedthe “Acknowledgment”) within three (3) business days of Company’s receipt of request from Buyer (the “Adjustment Deadline”), Wink provided that Company’s failure to timely provide the Acknowledgement shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive not affect the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreementautomatic amendments contemplated hereby. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 The provisions of this Agreement. The determination Section 5(k) shall also apply to the terms of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereonWarrant.

Most Favored Nations. If Wink has agreed The Borrower hereby represents and warrants to providethe Lender that the "Applicable Margin," the "Commitment Fee Rate," the "Default Rate" in this Agreement, the pricing terms set forth in Schedule III, the terms for payment and prepayment, the financial covenants in Paragraph 12 of Schedule II hereto, the other covenants corresponding to those set forth in Article 5 hereof and the Events of Default corresponding to those set forth in Article 7 hereof are the same as in each other Bi-Lateral Term Loan Agreement existing on the date of this Agreement. Notwithstanding any provision of this Agreement to the contrary, and without any further action on the part of any party, if at any time agrees to provide or at any time provides a license to deliver Interactive Wink Programs to any third partythe definitions of "Applicable Margin," the "Commitment Fee Rate," the "Default Rate", directly or indirectlythe pricing terms set forth in Schedule III, pursuant to any agreementthe terms for payment and prepayment, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributor, on any day during the term hereof under terms, provisions, conditions, financial covenants, commitments, concessions, commissions, rebates, allowances, fees other covenants corresponding to those set forth in Article 5 hereof or rates (collectively, "Provisions") which the Events of Default corresponding to those set forth in Article 7 hereof provided for in any Bi-Lateral Term Loan Agreement are more favorable to such the lender thereunder than definitions of "Applicable Margin," the "Commitment Fee Rate," the "Default Rate" payable to the Lender under this Agreement, the pricing terms set forth in Schedule III and the terms for payment and prepayment, the financial covenants in Section 5.13 or the other distributor than covenants corresponding to those set forth in Article 5 hereof and the Events of Default corresponding to those set forth in Article 7 hereof, or any new or additional consideration is provided to the lender under any such Bi-Lateral Term Loan Agreement that is not provided to the Lender under this Agreement, Wink shall give written notice thereof whether by modification to Affiliate andor amendment of any Bi-Lateral Term Loan Agreement or pursuant to any Bi-Lateral Term Loan Agreement entered into subsequent to the date of this Agreement, at Affiliate's electionthen the definitions of "Applicable Margin," the "Commitment Fee Rate," the "Default Rate" under this Agreement, the pricing terms set forth in Schedule III, the terms for payment and prepayment, the financial covenants, other covenants set forth in Article 5 hereof and the Events of Default set forth in Article 7 hereof and other payment terms of this Agreement shall be deemed automatically amended to have been modified so that, from the date on which such more favorable Provision is first so provided (or, if such more favorable Provision is now being provided, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only conform to the following: If such more favorable Provision is a Financial Provision (as hereinafter defined)corresponding definition of "Applicable Margin," the "Commitment Fee Rate," the "Default Rate", Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as pricing terms set forth in Sections A Schedule III, the terms for payment and B of Exhibit D prepayment, the financial covenants, other covenants set forth in Article 5 hereof and the System Transaction Revenue Share described Events of Default set forth in Section 4.4 of this Article 7 hereof and other payment terms payable to the lender under such Bi-Lateral Term Loan Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereon.

Most Favored Nations. If Wink has agreed to provide, at In the event PIONEER shall enter during the Term hereof any time agrees to provide or at any time provides a license to deliver Interactive Wink Programs to any third party, directly or indirectly, pursuant to any agreement, understanding licensing agreement or arrangement (whether oral written or writtenoral) with any non-affiliated third party pursuant to which PIONEER is granted exclusive Laser Videodisc distribution rights in the Territory (or at least the United States) in and to fifty (50) or more motion pictures, whether formal and in the event any such agreement or informalarrangement contains any financial provisions (other than in respect of the amount of any recoupable advances being paid by PIONEER thereunder) including, whether now without limitation, the royalty rates, minimum royalty amounts payable thereunder, any limitations or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributor, restrictions on any day during cross-collateralization between motion pictures licensed thereunder and/or the term hereof under termsfrequency of the rendition of accounting statements or royalty payments thereunder, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which are more favorable to such other distributor non-affiliated third party than those contained in this Agreement, then PIONEER shall immediately notify LIVE of such more favorable financial provisions and LIVE shall have the right, but not the obligation, to modify this Agreement to include any of such more favorable provisions retroactively to the date upon which such more favorable provisions first become effective in any such third party agreement. PIONEER shall and does hereby agree to be bound by any such modifications which LIVE elects to make. No further document or written instrument between PIONEER and LIVE shall be necessary or required to effectuate such modifications. PIONEER shall provide LIVE or its designee with access to such third party agreements for the purpose of verifying the matters set forth in this Agreement, Wink shall give written notice thereof to Affiliate and, at Affiliate's election, this Agreement shall be deemed to have been modified so that, from the date on which such more favorable Provision is first so provided (or, Paragraph N except if such more favorable Provision is now being provided, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate (and Participating Systems, as applicable) shall receive such more favorable Provision, subject only to the following: If such more favorable Provision extent PIONEER is a Financial Provision (as hereinafter defined), Wink shall offer precluded from doing so by reason of any third party contractual restrictions placed upon PIONEER requiring PIONEER to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive keep the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 of this Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect terms of such Provision thereonagreements confidential. At LIVE's request, PIONEER will provide LIVE with copies of any such third party contractual restrictions requiring such confidentiality.

Most Favored Nations. If Wink has agreed (A) So long as any Note remains outstanding, but subject to providethe last paragraph of Article 3, at neither the Company nor any time agrees to provide of its subsidiaries shall enter into any capital markets transaction (whether privately or at publicly offered, syndicated or directly placed and including, without limitation, the issuance or incurrence of any time provides a license to deliver Interactive Wink Programs to note, bond or term or revolving loan but excluding the issuance, sale and/or exchange of any third partysecured debt securities convertible or exchangeable into shares of Common Stock), directly or indirectlyamend or otherwise modify any term of any security, loan or other instrument previously so issued, in each case if such Indebtedness is issued pursuant to Section 3.10(B)(xvi) of this Indenture or any agreementrefinancing thereof, understanding with any individual or arrangement entity (whether oral an “Other Investor”), which, in the case of any such transaction involving the issuance or writtenincurrence of any secured debt that is not convertible or exchangeable into Common Stock, whether formal or informalhas an all-in yield (giving effect to the interest rate, whether now or hereafter effectiveany original issue discount in connection therewith, whether on a long termand any upfront fees and other similar payments of like effect payable in connection therewith; provided that (a) original issue discount, short term basis) (a "Third Party Agreement") to any distributor, on any day during the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, upfront fees or rates (collectively, "Provisions") which are more favorable to such other distributor than those set forth in this Agreement, Wink shall give written notice thereof to Affiliate and, at Affiliate's election, this Agreement and similar payments shall be deemed equated to have been modified so that, from the date on which such more favorable Provision is first so provided interest rate assuming a 4-year life to maturity (or, if such more favorable Provision is now being providedless, from the date hereofstated life to maturity at the time of its incurrence of the applicable Indebtedness) and thereafter for so long as such more favorable Provision continues to be so provided(b) “all-in yield” shall not include any arrangement fees, Affiliate (and Participating Systemsstructuring fees, as applicable) shall receive such more favorable Provisionunderwriting fees, subject only commitment fees, amendment fees, ticking fees or any other fees similar to the following: If foregoing (regardless of how such more favorable Provision fees are computed or to whom paid) that is a Financial Provision greater than 11% per annum (as hereinafter definedsuch greater rate, the “MFN Rate”), Wink unless (i) the Company shall offer promptly notify each of the Holders thereof, and (ii) at the request of the Holders of not less than 25% in aggregate principal amount of the Notes, the Company shall enter into, and agrees to Affiliate in writing cause all necessary third parties to agree to enter into, such more favorable Financial Provision together amendments to the Notes Documents as are necessary to increase the Stated Interest on the Notes to the MFN Rate. (B) In connection with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive exercise of the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as rights set forth in Sections A and B clause (A)(ii) above, the Company agrees to reimburse single external legal counsel for all the Holders for the reasonable expenses incurred by such external counsel (which shall in no event exceed $200,000) in entering into any such amendment or other agreement, which shall be dated or drafted such that the economic benefits that may be conferred pursuant clause (A) above will be provided to the Holders as of Exhibit D and the System Transaction Revenue Share described date of the incurrence of such Indebtedness. Notwithstanding anything to the contrary in this Article 3, the foregoing covenants in Section 4.4 3.08 through Section 3.22 (other than Section 3.14, Section 3.16, Section 3.17, Section 3.18, Section 3.19 and Section 3.21) will immediately and automatically terminate, and any then Existing Default or Event of this Agreement. The determination of whether a Provision Default in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on connection therewith will immediately and automatically be deemed cured, upon the Third Party Agreement as a whole or the effect occurrence of such Provision thereontime as less than $[●]†† aggregate principal amount of Notes are outstanding.

Most Favored Nations. If Wink has agreed So long as any obligations of the Company under the Transaction Documents are outstanding, upon any issuance of (or announcement of intent to provideeffect an issuance of) any security or amendment to (or the Company’s announcement of intent to effect an amendment to) any security that was originally issued before the date hereof by the Company or any Subsidiary, at with any time agrees to provide or at any time provides a license to deliver Interactive Wink Programs to any third party, directly or indirectly, pursuant to any agreement, understanding or arrangement (whether oral or written, whether formal or informal, whether now or hereafter effective, whether on a long term, short term basis) (a "Third Party Agreement") to any distributor, on any day during that the term hereof under terms, provisions, conditions, covenants, commitments, concessions, commissions, rebates, allowances, fees or rates (collectively, "Provisions") which are Lead Investor reasonably believes is more favorable to the purchaser(s) of such other distributor security than those set forth to the Investors under the Transaction Documents, or with a term in this Agreementfavor of the purchaser(s) of such security that the Lead Investor reasonably believes was not similarly provided to the Investors under the Transaction Documents, Wink then: (i) the Company shall give written notice thereof to Affiliate andnotify the Investors of such additional or more favorable term within three (3) Business Days of the issuance and/or amendment (as applicable) of the respective security; and (ii) such term, at Affiliate's electioneach Investor’s option, shall become a part of the Transaction Documents with such Investor(s) (regardless of whether the Company complied with the notification provision of this Section 4.06). The types of terms contained in another security that may be more favorable to the purchaser(s) of such security include, but are not limited to, terms addressing conversion price, discounts and adjustments thereof, prepayment rate, conversion lookback periods, interest rates, original issue discounts, stock sale price, private placement price per share, commitment shares, warrant coverage and warrant exercise price. If any Investor elects to have the term become a part of the Transaction Documents with such Investor, then the Company shall immediately deliver acknowledgment of such adjustment in form and substance reasonably satisfactory to such Investor (the “Acknowledgment”) within three (3) business days of Company’s receipt of request from Purchaser (the “Adjustment Deadline”), provided that Company’s failure to timely provide the Acknowledgement shall not affect the automatic amendments contemplated hereby. Notwithstanding the foregoing, if and whenever on or after the date of this Agreement shall be the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 4.06 is deemed to have granted, issued or sold, any shares of Common Stock (including the granting, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, issued or sold or deemed to have been modified so thatgranted, from issued or sold) for a consideration per share (the date on which “New Issuance Price”) less than a price equal to the Conversion Price and/or Exercise Price in effect immediately prior to such more favorable Provision granting, issuance or sale or deemed granting, issuance or sale (such Conversion Price then in effect is first so provided referred to herein as the “Applicable Price”) (orthe foregoing a “Dilutive Issuance”), if then, immediately after such more favorable Provision is now being providedDilutive Issuance, from the date hereof) and thereafter for so long as such more favorable Provision continues to be so provided, Affiliate Conversion Price and/or Exercise Price (and Participating Systems, as applicable) then in effect shall receive such more favorable Provision, subject only be reduced to an amount equal to the following: If such more favorable Provision is a Financial Provision (as hereinafter defined), Wink shall offer to Affiliate in writing such more favorable Financial Provision together with all other Financial Provision(s) contained in such Third Party Agreement, it being agreed that in order to receive the more favorable Financial Provision, Affiliate (or any participating System, as applicable) must also accept the other Financial Provisions contained in such Third Party Agreement. For purposes hereof, "Financial Provision" shall mean the software licensing fees and rates for Wink services as set forth in Sections A and B of Exhibit D and the System Transaction Revenue Share described in Section 4.4 of this Agreement. The determination of whether a Provision in a Third Party Agreement is more favorable shall focus on such Provision individually for each moment of time during which such Provision is effective rather than on the Third Party Agreement as a whole or the effect of such Provision thereonNew Issuance Price.