Exhibit 10.2
CONFIDENTIAL
July 30, 2001
Jupiter Media Metrix, Inc.
00 Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I am pleased to offer to provide to Jupiter Media Metrix, Inc.
(the "Company") a $25,000,000 letter of credit (the "LOC") under the terms and
subject to the conditions described in the attached Terms and Conditions (the
"Terms and Conditions"). It is intended that the LOC will provide credit support
for the Company if it decides to obtain third party debt financing.
My commitment to make this letter of credit available to the
Company is subject to the negotiation, execution and delivery of a definitive
letter of credit, in form and substance satisfactory to me.
The Company agrees that this letter and the transactions
described in the Terms and Conditions are confidential, and it shall not
disclose any of the terms of such transactions to any other person or entity
("Person") without my prior written consent, except that the Company may
disclose this letter to the Company's employees, attorneys or accountants or as
may be required by law or any court or any regulatory body having jurisdiction
over it.
Whether or not the transactions contemplated hereby are
consummated, the Company agrees (i) to pay on demand all my reasonable costs and
expenses and the fees and disbursements of my counsel incurred in connection
with this letter and the matters related thereto and the negotiation,
documentation and closing of the transactions contemplated hereby; and (ii) to
indemnify me, and my agents, counsel and other advisors against, and hold such
Persons harmless from, any and all losses, costs, damages (whether general,
punitive or otherwise), liabilities, indebtedness, claims, causes of action,
judgments, court costs and legal or other expenses, including fees and
disbursements of separate counsel selected by any such Person to represent any
such Person, which such Persons may suffer or incur in any way relating to or
arising out of the transactions contemplated hereby or the proposed use of the
proceeds of the transaction. The foregoing obligations of the Company shall
survive the termination of this letter as provided below or the consummation of
the transactions contemplated hereby, as the case may be. Should any amount
required to be paid pursuant to this paragraph not be paid on demand, interest
shall accrue thereon at ten percent (10%) per annum (360-day year, actual days
elapsed).
This commitment letter shall be governed by and construed in
accordance with the laws of the State of New York.
This commitment letter, together with the Terms and Conditions,
contains the entire and exclusive agreement of the parties with reference to the
matters discussed herein and
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therein and supersedes all prior drafts, communications, discussions and
understandings, oral or written, with respect thereto.
This commitment is intended solely for the Company's benefit and
shall not be for the benefit of any other Person. The description of terms set
forth in the Terms and Conditions does not purport to, nor shall it be construed
as an attempt to, define all of the terms, conditions, covenants,
representations, warranties, events of default and other provisions usual and
customary in transactions of this type which may be contained in definitive
legal documentation for the transaction. Rather, it is intended only to outline
basic points of business understanding around which the legal documentation may
be structured.
Please indicate the Company's acceptance of this commitment and
its agreement to the above provisions by causing this letter to be signed on
behalf of the Company in the place provided below and returning a copy of this
commitment letter so executed to me, whereupon this commitment letter shall
become a binding agreement between the Company and me subject to the terms and
conditions set forth herein and the Terms and Conditions. Even if this
commitment is accepted by the Company, such commitment shall expire upon the
earlier of (i) the close of business in New York, New York on July 31, 2002 or
(ii) a Change of Control (as defined in the Terms and Conditions), if a
definitive letter of credit satisfactory to me has not been executed prior to
such time.
Very truly yours,
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Agreed and Accepted:
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JUPITER MEDIA METRIX, INC.
By /s/ Xxxxxx Xxxxxx
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Title: Chief Executive Officer
Date: July 30, 2001
JUPITER MEDIA METRIX, INC.
PROPOSED TERMS AND CONDITIONS*
ISSUER: Xxxxxx Guaranty Trust Company of New York
BENEFICIARY: Jupiter Media Metrix, Inc. (the "Company")
AMOUNT: $25,000,000
COMMITMENT EXPIRATION DATE: The earlier of (i) July 31, 2002 or (ii) a sale,
merger or other business combination in one or a
series of transactions resulting in a third
party acquiring 50% or more of the Company's
voting stock or assets ("Change of Control").
TERM OF LETTER OF CREDIT: The letter of credit will terminate upon the
earlier of (i) one year from the date of
issuance or (ii) a Change of Control.
PURPOSE OF LETTER OF CREDIT: To provide credit support for borrowing from a
third party lender.
LOAN DOCUMENTS: Loan documents between the Company and an
institutional lender ("Loan Documents") shall be
subject to the approval of Xx. Xxxxxxx.
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* These Proposed Terms and Conditions are subject to the provisions of
an accompanying letter agreement dated July 30, 2001.
LETTER OF CREDIT FEES: During the term of the letter of credit, the
Company will, on a quarterly basis in arrears,
either (i) pay to Xx. Xxxxxxx an amount in cash
equal to .25% of the amount of the letter of
credit or (ii) issue warrants to Xx. Xxxxxxx to
purchase 125,000 shares of Common Stock of the
Company. At each quarterly interval, the Company
may pay cash or issue warrants at its option.
The warrants would have an exercise price of
$.01 per share and a term of 5 years from the
date of issuance. The Warrants would also be
entitled to registration rights.
The Company shall pay all fees and expenses
incurred by Xx. Xxxxxxx in connection with the
letter of credit, including any issuance fees
and commission charges.
In the event of a drawdown on the Letter of
Credit, interest will accrue at the default
interest rate set forth in the Loan Documents.
REIMBURSEMENT: Xx. Xxxxxxx shall be reimbursed for all
reasonable costs and expenses incurred in
connection with this letter.
CONDITIONS PRECEDENT TO Drawdowns may only occur upon the occurrence of
DRAWDOWNS: an Event of Default under the Loan Documents.
COLLATERAL: Xx. Xxxxxxx to receive an assignment of all
collateral held by the Lender in the event of a
drawdown of the letter of credit by the Lender.
The Loan Documents will provide that Xx. Xxxxxxx
be subrogated to the rights of the Lender upon
an event of default under the Loan Documents.
GOVERNING LAW: New York
