Letter Agreement Extending Payment Deadlines under Compensation Agreement between D. E. Shaw Laminar Lending, Inc. and The Parent Company et al.
This agreement, effective September 1, 2008, is between D. E. Shaw Laminar Lending, Inc. and several affiliated companies including The Parent Company, BabyUniverse, eToys Direct, PoshTots, Dreamtime Baby, and My Twinn. It extends the due date for certain payments owed by the borrowers to October 31, 2008, increases interest rates on overdue amounts, and clarifies that this extension does not waive any other rights or obligations under the original Compensation Agreement. The agreement is governed by New York law.
EXHIBIT 10.2
October 31, 2008
The Parent Company
717 17th Street, Suite 1300
Denver, CO 80202
Attention: Chief Executive Officer and Chief Financial Officer
Re: | Compensation Agreement |
Ladies and Gentlemen:
Reference is made to that certain Compensation Agreement dated as of February 1, 2008 (as amended or modified from time to time, the Compensation Agreement) by and among The Parent Company, a Colorado corporation (Parent), BabyUniverse, Inc., a Colorado corporation (BabyUniverse), eToys Direct, Inc., a Colorado corporation (eToys Direct), PoshTots, Inc., a Colorado corporation (PoshTots), Dreamtime Baby, Inc., a Colorado corporation (Dreamtime), My Twinn, Inc., a Colorado corporation (My Twinn, and collectively with Parent, BabyUniverse, eToys Direct, PoshTots and Dreamtime, the Borrowers) and D. E. Shaw Laminar Lending, Inc., a Delaware corporation (Laminar). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Compensation Agreement.
At the Borrowers request, and notwithstanding any provision of the Compensation Agreement to the contrary, Laminar hereby consents and agrees, on a one-time basis and subject to the terms hereof, to extend the due date to October 31, 2008 for each of the following: (a) the installment payment of $112,500 payable to Laminar on September 1, 2008 pursuant to Section 1(a) of the Compensation Agreement (the Installment Payment) and (b) the fees payable to Laminar on September 1, 2008 and October 1, 2008 pursuant to Section 1(b) of the Compensation Agreement (the Cash Collateral Fees). The Borrowers and Laminar agree that (i) the Installment Payment shall bear interest at the rate of 14.00% per annum from September 1, 2008 until the Installment Payment is made and (ii) the Applicable Margin for the Cash Collateral Fees shall be increased to 8.50% and interest shall accrue on the Cash Collateral Fees at a rate per annum equal to the LIBOR Rate plus 8.50% from the date each such Cash Collateral Fee payment was originally due until each such Cash Collateral Fee payment is made.
The consent and agreement set forth herein shall be effective as of September 1, 2008 and shall not (a) be construed as a consent to or waiver of any breach or default other than to the extent specifically consented to herein, (b) affect the right of Laminar to demand compliance by the Borrowers with all terms and conditions of the Compensation Agreement which terms and conditions shall continue in full force and effect, except as specifically modified hereby, (c) be deemed a consent to or waiver of any other transaction or future action on the part of the Borrowers requiring Laminars consent or approval under the Compensation Agreement, or (d) except as consented to or waived hereby, be deemed or construed to be a waiver or release of, or a limitation upon, Laminars exercise of any rights or remedies under the Compensation Agreement, whether arising as a consequence of any breach which may now exist or otherwise, all such rights and remedies hereby being expressly reserved.
This letter shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made or to be performed in the State of New York.
Very truly yours, | ||||
D. E. SHAW LAMINAR LENDING, INC. | ||||
By: | /s/ Daniel Posner | |||
Name: | Daniel Posner | |||
Title: | Authorized Signatory |
Accepted and agreed as of the date first above written:
THE PARENT COMPANY | ||||
By: | /s/ Michael Wagner | |||
Name: | Michael Wagner | |||
Title: | CEO | |||
BABYUNIVERSE, INC. | ||||
By: | /s/ Michael Wagner | |||
Name: | Michael Wagner | |||
Title: | CEO | |||
ETOYS DIRECT, INC. | ||||
By: | /s/ Michael Wagner | |||
Name: | Michael Wagner | |||
Title: | CEO | |||
POSHTOTS, INC. | ||||
By: | /s/ Michael Wagner | |||
Name: | Michael Wagner | |||
Title: | CEO | |||
DREAMTIME BABY, INC. | ||||
By: | /s/ Michael Wagner | |||
Name: | Michael Wagner | |||
Title: | CEO | |||
MY TWINN, INC. | ||||
By: | /s/ Michael Wagner | |||
Name: | Michael Wagner | |||
Title: | CEO |