Exhibit 10.2
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment"), dated as
of March 22, 2004, by and among Sotheby's Holdings, Inc., a Michigan corporation
("Holdings"), Sotheby's, Inc., a New York corporation ("Sotheby's, Inc."),
Sotheby's Financial Services, Inc., a Nevada corporation ("SFS Inc."), Sotheby's
Financial Services California, Inc., a Nevada corporation ("SFS California"),
Oberon, Inc., a Delaware corporation ("Oberon"), Theta, Inc., a Delaware
corporation ("Theta"), Sotheby's Ventures, LLC, a New York limited liability
company ("Ventures LLC"), Oatshare Limited, a company registered in England
("Oatshare"), Sotheby's, a company registered in England ("Sotheby's U.K."), and
Sotheby's Financial Services Limited, a company registered in England ("SFS
Ltd." and, collectively with Holdings, Sotheby's, Inc., SFS Inc., SFS
California, Oberon, Theta, Ventures LLC, Oatshare and Sotheby's U.K., the
"Borrowers"), General Electric Capital Corporation, a Delaware corporation ("GE
Capital"), as a Lender, as the Fronting Lender and as Agent for the Lenders (in
such capacity, "Agent"), and the other Lenders, amends that certain Credit
Agreement dated as of March 4, 2004 (as so amended, the "Credit Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in Annex A to the Credit Agreement.
RECITALS
A. The Borrowers have requested that the Lenders amend the Credit
Agreement as set forth herein.
B. The Lenders have agreed, on the terms and conditions set forth
below, to so amend the Credit Agreement.
C. GE Capital has agreed, on the terms and conditions set forth below,
to become the Fronting Lender under (as defined in) the Credit Agreement as
amended hereby.
AGREEMENT
NOW, THEREFORE, in consideration of the continued performance by the
Borrowers and each other Credit Party of their respective promises and
obligations under the Credit Agreement and the other Loan Documents, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrowers, the other Credit Parties signatory hereto,
the Lenders, the Fronting Lender and Agent hereby agree as follows:
1. Amendment to Credit Agreement. Subject to the satisfaction of the
conditions precedent set forth in Paragraph 2 of this Amendment, the Credit
Agreement is hereby amended as follows:
(a) The Credit Agreement is hereby amended to incorporate solely the
blacklined changes shown on the marked pages attached hereto as Exhibit A.
(b) Annex A to the Credit Agreement is hereby amended to incorporate
solely the blacklined changes shown on the marked pages attached hereto as
Exhibit B.
(c) Annex B to the Credit Agreement is hereby amended to incorporate
solely the blacklined changes shown on the marked pages attached here to as
Exhibit C.
(d) The Credit Agreement is hereby amended by removing Exhibit
1.1(a)(ii)-B to the Credit Agreement and replacing it with Exhibit D to this
Amendment.
(e) The Credit Agreement is hereby amended to attach thereto as
Exhibit 1.1(a)(ii)-C the form of Fronting Lender Note attached hereto as Exhibit
E.
(f) Exhibit 1.1(b)(ii) to the Credit Agreement is hereby (i)
renumbered as Exhibit 1.1(b)(ii)-A to the Credit Agreement and (ii) relabeled as
"Form of Swing Line Note (U.S. Borrowers)".
(g) The Credit Agreement is hereby amended to attach thereto as
Exhibit 1.1(b)(ii)-B the form of Swing Line Note (U.K. Borrowers) attached
hereto as Exhibit F.
2. Effectiveness of this Amendment; Conditions Precedent. The
provisions of Paragraph 1 of this Amendment shall be deemed to have become
effective as of the date of this Amendment, but such effectiveness shall be
expressly conditioned upon Agent's receipt of (i) a counterpart of this
Amendment executed and delivered by duly authorized officers of each Borrower,
each Credit Party, the Fronting Lender, the Requisite Lenders and Agent, (ii) an
originally-executed copy of the Fronting Lender Note executed by each U.K.
Borrower in accordance with Section 1.1(a)(ii) of the Credit Agreement and (iii)
an originally-executed copy of a Swing Line Note executed by each U.K. Borrower
in accordance with Section 1.1(b)(ii) of the Credit Agreement.
3. Miscellaneous.
(a) Headings. The various headings of this Amendment are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
(b) Counterparts. This Amendment may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
(c) Interpretation. No provision of this Amendment shall be construed
against or interpreted to the disadvantage of any party hereto by any court or
other governmental or judicial authority by reason of such party's having or
being deemed to have structured, drafted or dictated such provision.
(d) Complete Agreement; Conflict of Terms . This Amendment constitutes
the complete agreement between the parties with respect to the subject matter
hereof, and
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supersedes any prior written or oral agreements, writings, communications or
understandings of the parties with respect thereto. In the event of any
inconsistency between the provisions of this Amendment and any provision of the
Credit Agreement, the terms and provisions of this Amendment shall govern and
control.
(e) Reaffirmation, Ratification and Acknowledgment; Reservation. Each
Borrower and each Credit Party hereby (a) ratifies and reaffirms all of its
payment and performance obligations, contingent or otherwise, and each grant of
security interests and liens in favor of Agent, under each Loan Document to
which it is a party, (b) agrees and acknowledges that such ratification and
reaffirmation is not a condition to the continued effectiveness of such Loan
Documents, and (c) agrees that neither such ratification and reaffirmation, nor
Agent's, the Fronting Lender's, or any Lender's solicitation of such
ratification and reaffirmation, constitutes a course of dealing giving rise to
any obligation or condition requiring a similar or any other ratification or
reaffirmation from such Borrower or such Credit Party with respect to any
subsequent modifications to the Credit Agreement or the other Loan Documents.
The Credit Agreement is in all respects ratified and confirmed. Each of the Loan
Documents shall remain in full force and effect and is hereby ratified and
confirmed. Neither the execution, delivery nor effectiveness of this Amendment
shall operate as a waiver of any right, power or remedy of Agent, the Fronting
Lender or the Lenders, or of any Default or Event of Default (whether or not
known to Agent or the Lenders) under any of the Loan Documents, all of which
rights, powers and remedies, with respect to any such Default or Event of
Default or otherwise, are hereby expressly reserved by Agent and the Lenders.
This Amendment shall constitute a Loan Document for purposes of the Credit
Agreement.
(f) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS
OF THE UNITED STATES OF AMERICA.
(g) Effect. Upon the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of
like import shall mean and be a reference to the Credit Agreement as amended
hereby and each reference in the other Loan Documents to the Credit Agreement,
"thereunder," "thereof," or words of like import shall mean and be a reference
to the Credit Agreement as amended hereby. Except as expressly provided in this
Amendment, all of the terms, conditions and provisions of the Credit Agreement
and the other Loan Documents shall remain the same. Each Borrower hereby
represents and warrants to each Lender, the Fronting Lender and Agent that all
authorizations, consents and approvals of such Borrower's board of directors and
shareholders, and all other Persons, necessary to permit such Borrower to
execute and deliver this Amendment and to perform its obligations hereunder and
under the Credit Agreement as amended hereby, and to permit the Lenders, the
Fronting Lender and the Agent to enforce such obligations, have been obtained.
(h) No Novation or Waiver. Except as specifically set forth in this
Amendment, the execution, delivery and effectiveness of this Amendment shall not
(a) limit, impair, constitute a waiver by, or otherwise affect any right, power
or remedy of, Agent, the Fronting Lender or any Lender under the Credit
Agreement or any other Loan Document, (b)
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constitute a waiver of any provision in the Credit Agreement or in any of the
other Loan Documents or of any Default or Event of Default that may have
occurred and be continuing or (c) alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or in any of the other Loan Documents, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect.
(i) Agent's Expenses. The Borrowers hereby jointly and severally agree
to promptly reimburse Agent for all of the reasonable out-of-pocket expenses,
including, without limitation, attorneys' and paralegals' fees, it has
heretofore or hereafter incurred or incurs in connection with the preparation,
negotiation and execution of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
SOTHEBY'S HOLDINGS, INC. OATSHARE LIMITED
By: /s/ William S. Sheridan By: /s/ George Bailey
---------------------------------- -----------------------------------
Name: William S. Sheridan Name: George Bailey
Title: Chief Financial Officer Title: Director
SOTHEBY'S, INC. SOTHEBY'S
By: /s/ William S. Sheridan By: /s/ George Bailey
---------------------------------- -----------------------------------
Name: William S. Sheridan Name: George Bailey
Title: Executive Vice President Title: Director
SOTHEBY'S FINANCIAL SERVICES, INC. SOTHEBY'S FINANCIAL SERVICES LIMITED
SOTHEBY'S FINANCIAL SERVICES
CALIFORNIA, INC. By: /s/ George Bailey
OBERON, INC. -----------------------------------
THETA, INC. Name: George Bailey
SOTHEBY'S VENTURES, LLC Title: Director
By: /s/ William S. Sheridan
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Name: William S. Sheridan
Title: Vice President
Signature Page to
Amendment No. 1
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent, a Lender and the Fronting
Lender
By: Phillip Carfora
-----------------------------------
Duly Authorized Signatory
Acknowledged and Agreed
as of the date first above written:
SOTHEBYS.COM LLC, as a Credit Party
By: /s/ William S. Sheridan
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Name: William S. Sheridan
Title: Senior Vice President
SOTHEBY'S FINE ART HOLDINGS, INC.
SOTHEBY'S ASIA, INC.
YORK WAREHOUSE, INC.
SPTC, INC.
SOTHEBY PARKE BERNET, INC.
YORK AVENUE DEVELOPMENT, INC.
SOTHEBY'S THAILAND, INC.
SOTHEBY'S HOLDINGS INTERNATIONAL, INC.
SOTHEBY'S NEVADA, INC.
SOTHEBYS.COM AUCTIONS, INC.
SIBS, LLC,
each as a Credit Party
By: /s/ William S. Sheridan
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Name: William S. Sheridan
Title: Vice President
Signature Page to
Amendment No. 1
EXHIBIT A
See attached.
EXHIBIT B
See attached.
EXHIBIT C
See attached.
EXHIBIT D
See attached.
EXHIBIT E
See attached.
EXHIBIT 1.1(a)(ii)-C
to
CREDIT AGREEMENT
FORM OF FRONTING LENDER NOTE
See attached.
EXHIBIT F
See attached.
EXHIBIT 1.1(b)(ii)-B
to
CREDIT AGREEMENT
FORM OF SWING LINE NOTE
(U.K. BORROWERS)
See attached.