Exhibit 10.12
AMENDED AND RESTATED LETTER AGREEMENT
June 25, 1999
Snap! LLC
▇ ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Operating Officer
Dear Sir or Madam:
Bank of America National Trust and Savings Association (the "Bank") is
pleased to make available to Snap! LLC (the "Borrower") the following facilities
subject to the following terms and conditions:
I. Definitions.
BUSINESS DAY: means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City, San Francisco or Los
Angeles are authorized or required by law to close and, if the applicable
such Business Day relates to (a) any Offshore Rate Loan, also means such a
day on which dealings are carried on in the applicable offshore dollar
interbank market, (b) a foreign domestic currency advance, also means such
a day on which dealings are carried on at the office(s) of the Bank in the
country of such currency, and (c) an SBLC, also means such a day on which
dealings are carried on at the office of the Bank where such SBLC is to be
issued.
BASE RATE: A floating rate equal to the higher of (a) the rate as
publicly announced from time to time by Bank of America NT&SA as its
"Reference Rate" or (b) the Federal Funds Rate plus 0.5%.
REFERENCE RATE: means the higher of: (a) the rate of interest
publicly announced from time to time by Bank in San Francisco, California,
as its "reference rate." It is a rate set by Bank based upon various
factors including Bank's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate;
and (b) one-half percent per annum above the latest 3-week moving average
of secondary market morning offering rates in the United States for 3-month
certificates of deposit of major U.S. money market banks, determined by
Bank weekly and adjusted to the nearest basis point. Any change in the
reference rate announced by Bank shall take effect at the opening of
business on the day specified in the public announcement of such change.
LIBOR: The London Interbank Offered Rate for 1-, 3-, 6-month (each,
an "Interest Period") dollar deposits for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Dow ▇▇▇▇▇ Market screen as of 11:00 a.m. London time two
Business Days prior to the first day of the Interest Period, adjusted for
reserve requirements.
II. FACILITIES:
A. The aggregate principal amount of all advances PLUS the undrawn and
the drawn and unreimbursed amount of all standby letters of credit
(each, a "SBLC" and any extensions of credit outstanding under the
Guidance Lines (as described and defined below)), outstanding under
this revolving facility of credit may not exceed at any one time
$45,000,000 (the "Commitment").
B. In addition, the Bank may agree from time to time, in its sole
discretion, to extend credit to the Borrower in support of (i) the
Borrower's payroll activities and (ii) the Borrower's business credit
cards with the Bank (the "Guidance Lines"). Outstandings under the
Guidance Lines shall in no event exceed $275,000 and $100,000,
respectively, and shall reduce availability under the Commitment in
the amount of such outstandings. Outstandings under the Guidance
Lines shall bear interest and be repaid in accordance with the terms
to be agreed upon by the Bank and the Borrower.
III. AVAILABILITY:
A. LIBOR advances with interest periods of one, three or six months and
Base Rate advances.
B. SBLCs with up to two-year expiration dates or, at Bank's sole
discretion, longer maturities.
C. Extensions of credit shall be available hereunder until June 15, 2001
(the "Termination Date"). Advances made under this facility shall
mature no later than July 15, 2001. SBLCs issued under this facility
with fixed expiration dates shall expire no later than July 15, 2000
or, at Bank's sole discretion, a later expiration date.
D. Each LIBOR advance shall be repaid in full on the last day of its
respective interest period. Base Rate advances shall be payable
monthly. All drawings on SBLCs shall be reimbursed immediately on
demand.
E. Principal, interest and all other sums due Bank hereunder shall be
evidenced by entries in records maintained by Bank. In addition, Bank
may at any time, in its discretion, require the Borrower to sign one
or more promissory notes in the form annexed hereto as Attachment 1 as
further evidence of such indebtedness. The Borrower's Obligations
with respect to SBLCs issued hereunder shall be set forth in
Attachment 2.
F. Bank shall apply partial payments and credits first to accrued
interest, next to any charges and fees due, and then to outstanding
principal balances.
G. The exact duration of interest periods shall be subject to the customs
and practices of the LIBOR interbank funding markets.
H. Advances (other than under the Guidance Lines) shall be in minimum
amounts of $500,000 and increments of $100,000.
I. Advances under the Guidance Lines shall be available at the discretion
of the Bank and subject to interest, maturity and other terms and
conditions to be agreed upon between the Bank and the Borrower at the
time of each request for an extension of credit.
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III. PRICING:
A. with respect to Base Rate Advances, the Base Rate, payable on the date
payment of such Advance is due;
B. with respect to LIBOR Advances, LIBOR plus 0.25% per annum, payable
on the last day of the Interest Period for such Advance.
C. Fees on Standby Letters of Credit shall accrue 25 basis points per
annum ($450 minimum).
Fees on Standby Letters of Credit shall be payable quarterly in
advance. Minimum fees shall be payable in full in advance.
D. The Borrower shall pay a commitment fee of 10 basis points per annum
on the daily average unutilized portion of the Commitment for the
period commencing on the date this letter is executed by the Borrower
and ending on the Termination Date, payable quarterly in arrears and
on the Termination Date.
E. All LIBOR interest and commissions shall be calculated on the basis of
a year of 360 days and actual days elapsed which results in greater
interest and higher commissions than if a 365 day were used. All Base
Rate interest shall be calculated on the basis of a year of 365/366
days and actual days elapsed.
F. Any amount not paid when due, including reimbursement obligations
under any Letter of Credit, shall bear interest at a rate per annum
equal to the sum of the Base Rate plus two (2) percentage points.
G. Advances under the Guidance Lines shall be available at the discretion
of the Bank and subject to interest, maturity and other terms and
conditions to be agreed upon between the Bank and the Borrower at the
time of each request for an extension of credit.
IV. Conditions for use of Facility:
A. INITIAL EXTENSION OF CREDIT. As a condition precedent to the first
use of this facility, the Bank must have received:
1. A corporate resolution to borrow and an incumbency certificate
(or equivalent) of the Borrower in form and substance
satisfactory to Bank.
2. A Continuing Guaranty in form and substance satisfactory to Bank,
duly executed by General Electric Company ("General Electric");
3. A corporate resolution or other appropriate evidence of the
authority of the officer(s) executing the Continuing Guaranty on
behalf of General Electric, together with an incumbency
certificate with respect to the officers signing; and
4. The Borrower shall have duly executed and delivered this
Agreement.
5. The Borrower shall have paid an upfront fee to the Bank in the
amount of $30,000.
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B. AVAILABILITY OF EACH EXTENSION OF CREDIT. As a condition precedent to
the each extension of credit, the following conditions precedent must
be satisfied:
1. Advances other than extensions of credit under the Guidance Lines
shall be available on any day the Bank is open in San Francisco,
California and New York, New York (except Saturdays) upon giving
notice before 10:00 a.m. San Francisco time three Business Days
prior to requested borrowing date for LIBOR advances and on the
same Business Day for Base Rate advances, specifying the amount
and length of interest period for such advance;
2. SBLCs shall be available on any Business Day upon delivering a
fully-executed application for standby letter of credit before
10:00 local time one Business Day prior to requested issuance
date.
3. No Event of Default or event which, with the giving of notice or
lapse of time would become an Event of Default, shall have
occurred and be continuing, and the Borrower's request for an
extension of credit hereunder shall be deemed a representation
and warranty by the Borrower to such effect as of the date of
such extension of credit.
V. INCREASED COSTS. In the event that by reason of any change in applicable
law or regulation or in the interpretation thereof by any governmental
authority charged with the administration, application or interpretation
thereof, or by reason of any requirement or directive (whether or not
having the force of law) of any governmental authority:
A. The Bank should, with respect to this Agreement, be subject to any
tax, levy impost, charge, fee, duty, deduction or withholding of any
kind whatsoever; or
B. any change should occur in the taxation of the Bank with respect to
the principal or interest payable under this Agreement (other than any
change which affects solely the taxation of the total income of the
Bank); or
C. any reserve requirements should be imposed on either the commitments
to lend or the foregoing claims or dollar deposits of the Bank; or
D. the amount of capital required to be maintained by the Bank or any
corporation controlling the Bank is increased as a result of the
Bank's obligations under this Note;
and if any of the above-mentioned measures should result in an increase in
the cost to the Bank of making or maintaining its loans or commitments to
lend hereunder or a reduction in the amount of principal or interest
received or receivable by the Bank in respect thereof, then upon prompt
written notification and demand being made by the Bank for such additional
cost or reduction, the Borrower shall pay to the Bank, upon demand being
made by the Bank, such additional cost or reduction; provided, however,
that the Borrower shall not be responsible for any such cost or reduction
that may accrue to the Bank with respect to the period between the
occurrence of the event which gave rise to such cost or reduction and the
date on which notification if given by the Bank to the applicable Borrower.
Upon receipt of such notification, the Borrower will pay such additional
costs as may be applicable to the period subsequent to notification or
prepay in full all loans outstanding under this Agreement so affected by
such additional costs, together with interest and fees accrued thereon to
the date of prepayment in full.
VI. DEFAULT. If any of the following events ("Events of Default") shall
occur:
A. The Borrower fails to pay (1) any principal to Bank when due and
payable or (2) any interest, fee or other sum to Bank within 3
Business Days when due and payable; or
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B. The representation or warranty made by the Borrower to Bank in any
documents or agreements relating to this facility proves to be in any
material sense false or misleading; or
C. The Borrower fails to comply with any other condition, covenant or
obligation contained herein or in any agreements or instruments
related hereto; or
D. Any default occurs under any agreement involving the extension of
credit to which the Borrower may be obligated as borrower or guarantor
(if such default gives the holder of the obligation the right to
accelerate the indebtedness); or
E. Neither General Electric Company nor NBC Inc. owns either directly or
indirectly at least 12% of the Borrower; or
F. Any guaranty or other agreement or instrument required hereunder is
terminated, breached or ceases to be effective; or
G. Any bankruptcy, reorganization, arrangement, insolvency, dissolution
or similar proceeding is instituted by or against the Borrower under
the laws of any jurisdiction;
THEN, the Bank may (i) declare any Commitment by the Bank to extend additional
credit hereunder to be terminated, whereupon any such Commitment shall be
terminated, (ii) declare all sums outstanding hereunder or under any instrument
executed in connection herewith to be immediately due and payable together with
all interest thereon, and/or (iii) require the Borrower to deposit with the Bank
as cash collateral for application against drawings under outstanding SBLCs, an
amount equal to the face amount of all such undrawn SBLCs (and the Borrower
hereby grants a security interest to the Bank in any such account(s) established
by the Bank for such purpose to secure reimbursement obligations hereunder), all
without notice of default, presentment or demand for payment, protest or notice
of nonpayment or dishonor, or other notices or demands of any kind or character,
all of which are hereby expressly waived; PROVIDED, HOWEVER, that upon the
occurrence of any event specified in paragraph G above, any Commitment by the
Bank to extend additional credit hereunder shall automatically terminate, all
sums outstanding hereunder or under any instrument executed in connection
herewith shall become immediately due and payable together with all interest
thereon, and the Borrower shall be obligated to deposit with the Bank as cash
collateral for application against drawings under outstanding SBLCs, an amount
equal to the face amount of all such undrawn SBLCs, all without notice of
default, presentment or demand for payment, protest or notice of nonpayment or
dishonor, or other notices or demands of any kind or character, all of which are
hereby expressly waived.
VII. Miscellaneous.
A. The Borrower shall pay Bank, on demand, all reasonable out-of-pocket
expenses and legal fees (including the allocated cost of internal
legal services and all disbursements of internal counsel) incurred by
Bank in connection with the enforcement of this agreement and any
instruments or agreements executed in connection with this agreement.
The Borrower shall also pay legal fees associated with the preparation
of this document (not to exceed $5,000).
B. This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York, to the jurisdiction of whose
courts, both state and federal all signatories hereto submit.
C. Except as may be specifically provided herein, this letter supersedes
all prior agreements and oral negotiations with respect to the subject
matter of this letter. This agreement is not assignable by the
Borrower or the Bank, except in the latter case, with the consent of
the Borrower, which shall not be unreasonably withheld.
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D. All payments to Bank shall be made at its Global Payments Operations,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in same day funds to ABA
#▇▇▇▇▇▇▇▇▇.
E. No delay or omission by Bank to exercise any right under this letter
or under any document related hereto shall impair such right, nor
shall it be construed as a waiver thereof. No waiver of any breach or
default shall be deemed a waiver of any subsequent breach or default.
Any waiver, consent or approval under this letter must be in writing
to be effective.
F. Section headings in this letter are for reference only and shall not
affect the interpretation of any provision of this letter.
This Amended and Restated Letter Agreement replaces that certain Letter
Agreement dated as of August 18, 1998 between SNAP! LLC and Bank of America
National Trust and Savings Association and acknowledged and agreed by General
Electric Company, as amended and restated on April 27, 1999, and further amended
and restated on May 11, 1999.
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Please indicate your acceptance of the foregoing terms and conditions by
signing and returning a copy of this letter to my attention no later than June
25, 1999.
Sincerely yours,
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇
Vice President
Agreed and Accepted: Acknowledged and Agreed:
SNAP! LLC GENERAL ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ J.R. Bunt
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Title: Controller, Assistant Treasurer Title: Vice President & Treasurer
-------------------------------- ---------------------------------
Date: June 24, 1999 Date: June 24, 1999
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SNAP! LLC
PROMISSORY NOTE
U.S.$ 45,000,000 DATE: June 25, 1999
For value received SNAP! LLC (the "Borrower") hereby promises to pay to the
order of Bank of America National Trust and Savings Association (the "Bank") at
North America Division Corporate Services (1233), ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as the Bank may from time to
time designate, in lawful money of the United States of America, the total
unpaid principal amount advanced by the Bank from time to time to or for the
benefit of or at the request of the Borrower from and after the date of this
Note through July 15, 2001, together with any interest thereon at the times and
at the rates specified in the Amended and Restated Letter Agreement between the
Bank and the Borrower dated June 25, 1999. No advance shall be made under this
Note if, as a result of such advance, the total principal amount outstanding
under this Note plus the total principal amount of any standby letter(s) of
credit issued pursuant to the Letter Agreement would exceed Forty-Five Million
Dollars (U.S.$45,000,000).
The undersigned waives presentment for payment, protest, notice of protest, and
notice of non-payment of this Note.
This Note evidences a borrowing under and is subject to the terms (including,
but not limited to, provisions for prepayment and acceleration) of a Letter
Agreement dated August 25, 1998 as amended and restated as of April 27, 1999
between SNAP! LLC and Bank of America National Trust and Savings Association, as
amended and restated on May 11, 1999 and further amended and restated as of June
25, 1999.
SNAP! LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Controller, Assistant Treasurer
--------------------------------
By:
--------------------------------
Title:
--------------------------------
GUARANTY
General Electric Company, a New York corporation, located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Guarantor"), in consideration of the
U.S. Dollars Forty-Five Million (U.S. $45,000,000) loan, with a term of three
years, made or extended, or to be made or extended by Bank of America, with
its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
(the "Bank"), to SNAP!LLC, with its principal offices at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Borrower"), a Delaware Limited Liability Company,
and for other good and valuable consideration, hereby unconditionally
guarantees to the Bank and its successors and assigns, the full and prompt
payment of all obligations and indebtedness of the Borrower when due (whether
at maturity, by acceleration or otherwise), under the Promissory Note dated
as of June 25, 1999 executed by the Borrower and in favor of the Bank (the
"Obligations").
The liability of the Guarantor hereunder shall be absolute and
unconditional, irrespective of (a) any lack of validity or enforceability of
the instruments evidencing the obligations; (b) any change in the time,
manner or place of payment of, amount of credit available to the Borrower
under, or in any other term of, or any other amendment or waiver of or any
consent to or departure from any instrument evidencing the Obligations; (c)
any change in the name, capital stock or Certificate of Incorporation or
bylaws of the Borrower; or (d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of the Guarantor in respect
of this Guaranty.
This Guaranty is a guaranty of payment and not of collection.
The Guarantor hereby waives presentment, demand, protest, and all
notices in connection herewith, except as otherwise expressly provided
herein. It shall not be necessary for the Bank to exercise any remedy against
the Borrower before seeking payment under this Guaranty. This Guaranty shall
continue to be effective or be reinstated as the case may be, if at any time
any payment of any Obligation is rescinded or otherwise must be returned to
the Borrower or the Guarantor due to the bankruptcy or insolvency of the
Borrower.
The Bank shall give the Guarantor prompt written notice of the
Borrower's failure to pay all or part of the Obligations, and forthwith upon
receipt of such notice, the Guarantor will pay to the Bank the amount due and
unpaid by the Borrower, provided however, that the failure of the Bank to
give such notice shall not relieve the Guarantor of its obligations hereunder.
The Guarantor agrees to pay to the Bank all reasonable out-of-pocket
costs and expenses paid by the Bank in enforcing this Guaranty.
This Guaranty shall be governed and construed under the laws of the
State of New York. The Guarantor hereby waives its right to jury trial with
respect to any matter arising out of or related to this Guaranty.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed as of the 25th day of June, 1999.
GENERAL ELECTRIC COMPANY
By: /s/ J.R. Bunt
--------------------------
J.R. Bunt
Vice President & Treasurer