AMENDMENT NO. 3 TO THE AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.3
EXECUTION COPY
AMENDMENT NO. 3 TO
THE AMENDED AND RESTATED
CREDIT AGREEMENT
| Dated as of January 2, 2007 |
AMENDMENT NO. 3 TO THE AMENDED AND RESTATED CREDIT AGREEMENT among SOTHEBY’S, a Delaware corporation (“Holdings”), SOTHEBY’S, INC., a New York corporation (the “Company” and, together with Holdings, the “U.S. Borrowers”), OATSHARE LIMITED, a company registered in England and Wales with registration number 01737495 (“Oatshare”), SOTHEBY’S, a company registered in England and Wales with registration number 00874867 (“Sotheby’s” and, together with Oatshare, the “U.K. Borrowers”, and collectively with the U.S. Borrowers, the “Borrowers”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender, L/C Issuer and Foreign Currency Lead Lender.
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Lenders and the Administrative Agent have entered into the Amended and Restated Credit Agreement dated as of November 14, 2005, as amended by Amendment No. 1 to the Amended and Restated Credit Agreement dated as of February 3, 2006 and by Amendment No. 2 to the Amended and Restated Credit Agreement dated as of May 18, 2006 (as so amended, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrowers and the Lenders have agreed to amend the Credit Agreement to permit a trustee, on behalf of the Company, to invest certain funds contributed to a grantor trust established by the Company for purposes of setting aside assets to meet its obligations under the Sotheby’s Defined Contribution Plan (as defined below).
SECTION 1. Amendment to Credit Agreement. The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2, hereby amended as follows:
(a) The defined term “Sotheby’s Deferred Compensation Plan” is hereby inserted in Section 1.01 after the defined term “Sotheby’s” to read as follows: “‘Sotheby’s Deferred Compensation Plan’ means the Sotheby’s Deferred Compensation Plan dated as of January 1, 2007.”
(b) Section 7.03 is hereby amended by (x) deleting the “and” at the end of clause (h), (y) deleting the “.” at the end of clause (i) and substituting therefore “; and” and (z) adding at the end of such Section a new clause (j) to read as follows:
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“(j) Investments by the trustee of the grantor trust established for purposes of setting aside assets to meet obligations of the Company under the Sotheby’s Deferred Benefits Compensation Plan.”
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of the date first above written when, and only when, the Administrative Agent shall have received (i) counterparts of this Amendment executed by each Borrower and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment and (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 10.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants that the representations and warranties contained in each of the Loan Documents (as amended or supplemented to date, including pursuant to this Amendment) are true and correct on and as of the date hereof, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to an earlier date, in which case as of such earlier date).
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, the Notes, and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs, Expenses, Etc. Each Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 10.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature
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page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| SOTHEBY’S | |
| By: /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| SOTHEBY’S, INC. | |
| By: /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| OATSHARE LIMITED | |
| By: /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| SOTHEBY’S | |
| By: /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer |
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| BANK OF AMERICA, N.A., as Administrative Agent, L/C Issuer, Swing Line Lender, Foreign Currency Lead Lender and Lender | |
| By: /s/ John Walkiewicz Name: John Walkiewicz Title: Vice President |
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| LASALLE BANK N.A., as Lender By /s/ Steve Friedlander Name: Steve Friedlander Title: S.V.P. | |
| HSBC BANK PLC, as Lender By /s/ Paul Hagger Name: Paul Hagger Title: Corporate Banking Manager | |
| THE CIT GROUP/BUSINESS CREDIT, INC., as Lender as Lender By /s/ Julianne Low Name: Julianne Low Title: Vice President | |
| CITIBANK, N.A., as Lender By /s/ Alan Ackbarali Name: Alan Ackbarali Title: Vice President | |
| UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY, as Lender By Name: Title: | |
| By Name: Title: |
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| COMERICA BANK, as Lender By /s/ Sarah R. West Name: Sarah R. West Title: Assistant Vice President | |
| ISRAEL DISCOUNT BANK OF NEW YORK, as Lender By /s/ Andy Ballta Name: Andy Ballta Title: First Vice President | |
| By /s/ Patrick Doran Name: Patrick Doran Title: Assistant Vice President | |
| NORTH FORK BUSINESS CAPITAL CORPORATION, as Lender By /s/ Ron Walker Name: Ron Walker Title: Vice President | |
| WEBSTER BUSINESS CREDIT CORPORATION, as Lender as Lender By /s/ Joe Zautro Name: Joe Zautro Title: Vice President |
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CONSENT
Dated as of January 2, 2007
Each of the undersigned, as a Guarantor under the Credit Agreement referred to in the foregoing Amendment, hereby consents to such Amendment and hereby confirms and agrees that notwithstanding the effectiveness of such Amendment, the Guaranty contained in the Credit Agreement is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as amended by such Amendment.
| GUARANTORS: | |
| SOTHEBY’S FINE ART HOLDINGS, INC. | |
| SOTHEBY’S FINANCIAL SERVICES, INC. | |
| SOTHEBY’S FINANCIAL SERVICES | |
| CALIFORNIA, INC. OBERON, INC. | |
| THETA, INC. | |
| SOTHEBY’S VENTURES, LLC | |
| SOTHEBY’S ASIA, INC. | |
| YORK WAREHOUSE, INC. | |
| SPTC, INC. | |
| SOTHEBY’S 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 | |
| SOTHEBY’S.COM LLC | |
| SOTHEBY’S RES, INC. | |
| By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| SOTHEBY’S By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer |
| Consent | |||
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| SOTHEBY’S, INC. By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officert | |
| OATSHARE LIMITED By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| SOTHEBY’S By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| SOTHEBY’S FINANCIAL SERVICES LTD. By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer | |
| CATALOGUE DISTRIBUTION COMPANY LIMITED By /s/ William S. Sheridan Name: William S. Sheridan Title: EVP & Chief Financial Officer |
| Consent | |||
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