Exhibit 10(a)
AGREEMENT
This Agreement is made as of December 26, 2000 by and
between Xxxxx Interactive Corporation ("Xxxxx") and Xxxxx X. Xxxxxxx
("Gabelli"), effective only on and after effectiveness of amendments to the
Option to Sell Agreement referred to below that are consistent with the
provisions referred to below.
WHEREAS, Xxxxx wishes to acquire in installments not earlier
than February, 2001 and December, 2002 any portion Gabelli may become
obligated to acquire of a convertible promissory note (the "Note") made by
Xxxxx in favor of Cascade Investment L.L.C., a Washington limited liability
company ("Cascade"), in the original principal amount of $25 million;
WHEREAS, Gabelli has entered into an Option to Sell
Agreement (as amended through the date hereof and as the same may be
amended hereafter to reflect the following desired changes, the "Option
Agreement") dated as of December 10, 1999 with Cascade pursuant to which,
as amended, Cascade has the right to put to Gabelli up to the entire
principal amount of the Note at any time between January 15, 2001 and
January 31, 2001 and is seeking to enter into a further amendment thereto
pursuant to which Cascade will have the right to put to Gabelli up to $15
million in principal amount of the Note for $15,750,000 plus accrued and
unpaid interest at any time between January 15, 2001 and January 31, 2001
(with settlement in February, 2001) and up to $10 million in principal
amount of the Note for $10,500,000 plus accrued and unpaid interest at any
time between November 15, 2002 and December 1, 2002 (with settlement in
December, 2002); and
WHEREAS, the Option Agreement requires Gabelli to
collateralize his obligations under the Option Agreement with an
Irrevocable Standby Letter of Credit of Xxxxxx Guaranty Trust Company of
New York (the "Letter of Credit") and Xxxxxx has required Gabelli to
collateralize the Letter of Credit with U.S. Treasury Securities;
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, the parties hereto agree as follows:
1. If Cascade provides notice of exercise of either of its
options to sell a portion of the Note to Gabelli, Gabelli will provide a
copy of such notice to Xxxxx on the same day Gabelli receives such notice.
2. Upon receipt of such copy of Cascade's notice, Xxxxx will
acquire the portion of the Note being sold by Cascade for the price
specified in the Option Agreement by wiring immediately available funds
therefor to the account specified by Cascade on the closing date for such
sale against delivery by Gabelli of an instrument of transfer, in a form
reasonably acceptable to Xxxxx, assigning to Xxxxx all of Gabelli's right,
title and interest in and to such portion of the Note.
3. If Gabelli receives a notice of exercise from Cascade,
Gabelli will deliver to Xxxxx the foregoing instrument of transfer on the
closing date for the purchase of the related portion of the Note against
delivery by Xxxxx of evidence that it has wired immediately available funds
to Cascade in the amount of the price for such portion of the Note under
the Option Agreement.
4. Xxxxx will reimburse Gabelli for his costs of extending
and maintaining the Letter of Credit through its expiration and will pay
Gabelli or assigns a collateral maintenance fee of 10% per year of the
unexpired amount of the Letter of Credit. Xxxxx will have the right,
subject to any required consent by, or other arrangements with, Xxxxxx
Guaranty Trust Company of New York, to substitute its collateral for all
but not less than all of the collateral currently being provided by Gabelli
or his assigns. If Xxxxx substitutes collateral, the maintenance fee will
be terminated and any excess amount previously paid by Xxxxx will be
refunded.
5. This Agreement has been approved by a committee of
independent directors of Xxxxx satisfying the requirements of Rule 16b-3
under the Securities Exchange Act of 1934.
6. This Agreement will be governed by the laws of the State
of New York applicable to contracts made and performed entirely in the
State of New York.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement.
XXXXX INTERACTIVE CORPORATION
By: s/ Xxxxxx X. Xxxxx s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
