TO: Sotheby’s Bank Group FROM: General Electric Capital Corporation, as Agent RE: Rights Agreement DATE: October 4, 2013
EXHIBIT 10.1
CONSENT MEMORANDUM
TO: | Sotheby’s Bank Group |
FROM: | General Electric Capital Corporation, as Agent |
RE: | Rights Agreement |
DATE: | October 4, 2013 |
Reference is hereby made to that certain Amended and Restated Credit Agreement (as amended, restated or otherwise modified from time to time, the “Credit Agreement”), dated as of December 19, 2012, by and among Sotheby’s, a Delaware corporation (“Parent”), 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”), 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.”), Sotheby’s Financial Services Limited, a company registered in England (“SFS Ltd.”) and Sotheby’s Hong Kong Limited, a company incorporated in Hong Kong (“Sotheby’s H.K.” and, collectively with Parent, Sotheby’s, Inc., SFS Inc., SFS California, Oberon, Ventures LLC, Oatshare, Sotheby’s U.K. and SFS Ltd., the “Borrowers”), the other Credit Parties signatory thereto, General Electric Capital Corporation, as Agent (the “Agent”), and the Lenders from time to time signatory thereto. Capitalized terms used but not defined herein shall have the meanings assigned to them under the Credit Agreement.
Xxxxxx has informed the Agent and the Lenders that on October 4, 2013, the Board of Directors of Parent declared a dividend of one preferred share purchase right for each outstanding share of Parent’s common stock and adopted a shareholder rights plan, as set forth in the Rights Agreement, dated as of October 4, 2013, between Parent and Computershare Inc., as Rights Agent. Parent and the other Credit Parties have therefore requested the Agent and the Lenders to consent (the “Consent”) to the addition of the following item to Disclosure Schedule (3.8) of the Credit Agreement:
9. As publicly disclosed in the Forms 8-K filed with the SEC by Parent and incorporated herein by reference, on October 4, 2013, the Board of Directors of Parent declared a dividend of one preferred share purchase right (each, a “Right”) for each outstanding share of common stock, par value $0.01 per share, and adopted a shareholder rights plan, as set forth in the Rights Agreement, dated as of October 4, 2013 (the “Rights Agreement”), between Parent and Computershare Inc., as Rights Agent. Each Right allows its holder to purchase from Parent one one-hundredth of a share of Series A Junior Participating Preferred Stock for the then-applicable exercise price (initially $200.00, subject to adjustment) once the Rights become exercisable. The Rights will not be exercisable until 10 days after the public announcement that a person or group has become an “Acquiring Person” by obtaining beneficial ownership of 10% (or 20%, in the case of a “13G Investor” (as such term is defined in the Rights Agreement)) or more of the outstanding common stock.
Please indicate your institution’s Consent by sending (via facsimile or email) an executed counterpart of your institution’s signature page hereto to the attention of Sidley Austin LLP, counsel to the Agent (facsimile number: 312.853.7036/Attn: Xxxxx Xxxxxxxx; email: xxxxxxxxx@xxxxxx.xxx) before 5:00 pm (New York time) on Tuesday, October
8, 2013. This Consent Memorandum will be effective as of Tuesday, October 8, 2013 upon Agent’s receipt of facsimile or electronically delivered executed counterparts to the signature pages hereto from the Requisite Lenders, the Agent, the Borrowers, and each of the other Credit Parties.
Except as expressly set forth herein, (i) all of the terms and provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed and (ii) the execution, delivery and effectiveness of this Consent Memorandum shall not operate as a waiver of any right, power or remedy of the Lenders or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
This Consent Memorandum may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Consent Memorandum shall be governed by and construed in accordance with the laws of the State of New York.
* * * *
Acknowledged and Xxxxxx as of the date first above written:
GENERAL ELECTRIC CAPITAL
CORPORATION, as the Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
HSBC BANK USA, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: VP, Relationship Manager
JPMORGAN CHASE BANK, N.A.,
as a Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Northeast Portfolio Manager
THE PRIVATEBANK AND TRUST
COMPANY, as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Managing Director
TD BANK, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX BANK USA, as a Lender
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
Signature Page to
Consent Memorandum
COMERICA BANK, as a Lender
By: /s/ Xxxxxxx X'Xxxxxx
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW
YORK, as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: FVP
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: SVP
Signature Page to
Consent Memorandum
Acknowledged and Agreed
as of the date first above written:
Sotheby’s,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: SVP, Treasurer
Sotheby’s, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: SVP, Treasurer
Sotheby’s Financial Services, Inc.
Sotheby’s Financial Services California, Inc.
Oberon, Inc.
Sotheby’s Ventures, LLC
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: SVP, Treasurer
OATSHARE Limited
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director, Europe
Sotheby’s,
a company registered in England
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director, Europe
Sotheby’s Financial Services limited
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director, Europe
Signature Page to
Consent Memorandum
SOTHEBY’S HONG KONG LIMITED
By: /s/ Xxxxx Xx
Name: Xxxxx Xx
Title: Director
SOTHEBY’S FINE ART HOLDINGS, INC.
SOTHEBY’S ASIA, INC.
YORK WAREHOUSE, INC.
SPTC, INC.
SOTHEBY XXXXX XXXXXX, INC.
YORK AVENUE DEVELOPMENT, INC.
SOTHEBY’S THAILAND, INC.
SOTHEBY’S HOLDINGS INTERNATIONAL, INC.
SOTHEBY’S NEVADA, INC.
XXXXXXXX.XXX LLC
XXXXXXXX.XXX AUCTIONS, INC.
SIBS, LLC
72ND AND YORK, INC.
YORK HOLDINGS INTERNATIONAL, INC.,
each as a Credit Party
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: SVP, Treasurer
CATALOGUE DISTRIBUTION COMPANY LIMITED
SOTHEBY’S SHIPPING LIMITED
YORK UK HOLDCO INTERNATIONAL LIMITED, as a Credit Party
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director, Europe
NOORTMAN MASTER PAINTINGS LTD., as a Credit Party
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Duly Authorized Signatory
Signature Page to
Consent Memorandum
