EXHIBIT 10(a)
AMENDMENT NO. 2 dated as of July 30, 2002 to the Amended
and Restated Credit Agreement dated as of July 10, 2001 (as amended,
restated or otherwise modified from time to time, the "CREDIT
AGREEMENT") among Sotheby's Holdings, Inc., a Michigan corporation
("HOLDINGS"), Sotheby's, Inc., a New York corporation, Oatshare
Limited, a company registered in England, Sotheby's, a company
registered in England, Sotheby's Global Trading GmbH, a company
organized in Switzerland (each referred to individually as a
"BORROWER" and collectively as the "BORROWERS"); the lenders from
time to time party thereto (the "LENDERS"); and JPMorgan Chase Bank
(f/k/a The Chase Manhattan Bank), a New York banking corporation, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT")
and as collateral agent (in such capacity, the "COLLATERAL AGENT")
for the Lenders and as the issuing bank.
WHEREAS, the Borrowers are currently contemplating the sale of the
property subject to the Lien of the Chicago Mortgage (the "CHICAGO PROPERTY") to
a buyer to be determined for approximately $3,000,000 and have requested that
the Chicago Property be released from the Lien of the Collateral Agent upon such
sale;
WHEREAS, the Borrowers have requested that the Lenders approve
certain amendments to the Credit Agreement;
WHEREAS, the Borrowers have indicated that, concurrent with the
effectiveness of this Amendment, certain of the Borrowers will prepay Term Loans
in an aggregate principal amount of $30,000,000;
WHEREAS, the undersigned Lenders are willing, on the terms and
subject to the conditions set forth herein, to approve such amendment to the
Credit Agreement;
NOW, THEREFORE, in consideration of these premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrowers and the undersigned Lenders hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
SECTION 2. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended, effective as of the Amendment Effective Date (as defined in
Section 6), as follows:
(a) AMENDMENT OF SECTION 1.01. (i) The definition of "CHICAGO
MORTGAGE" is hereby deleted in its entirety.
(ii) The definition of "MORTGAGE" is hereby amended by removing the
reference therein to ", the Chicago Mortgage".
(iii) The definition of "MORTGAGED PROPERTY" is hereby amended by
removing the reference therein to ", the property subject to the Chicago
Mortgage".
(iv) The definition of "REVOLVING MATURITY DATE" is hereby amended
by replacing the reference therein to "August 11, 2002" with a reference to
"February 11, 2003".
(v) The definition of "TERM MATURITY DATE" is hereby amended by
replacing the reference therein to "August 11, 2002" with a reference to
"February 11, 2003".
(b) AMENDMENT OF SECTION 2.08. (i) Each reference in Section 2.08(a)
to "3.00" is hereby replaced with a reference to "3.50".
(ii) Each reference in Section 2.08(b) to "2.00" is hereby replaced
with a reference to "2.50".
(c) AMENDMENT OF SECTION 3.14. Paragraph (d) of Section 3.14 is
hereby amended and restated in its entirety as follows:
"(d) The York Avenue Mortgage is, and the other Mortgages when
executed and delivered will be, effective to create in favor of the
Collateral Agent legal, valid and enforceable Liens on all right, title
and interest of the grantors thereunder in and to the Mortgaged Properties
and the proceeds thereof, and the York Avenue Mortgage constitutes, and
the other Mortgages when filed in the appropriate offices will constitute,
perfected first priority Liens on and security interests in, all right,
title and interest of such grantors in and to the Mortgaged
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Properties and the proceeds thereof, subject only to Liens existing on the
date hereof and expressly permitted by Section 6.01."
(d) AMENDMENT OF SECTION 6.08. Section 6.08 is hereby amended and
restated in its entirety as follows:
"SECTION 6.08. ADJUSTED CONSOLIDATED NET WORTH. Permit Adjusted
Consolidated Net Worth to be less than $160,000,000 on or prior to
December 30, 2002 or less than $175,000,000 on and after December 31,
2002."
SECTION 3. RELEASE OF CHICAGO PROPERTY. The undersigned Lenders
hereby instruct the Collateral Agent to release the Chicago Property from the
Lien of the Chicago Mortgage upon the sale of such property.
SECTION 4. PREPAYMENT OF TERM LOANS. The Borrowers hereby
acknowledge and agree that certain of the Borrowers have provided the
Administrative Agent with a notice of prepayment of Term Loans pursuant to
Section 2.12 of the Credit Agreement, which notices indicate that Term Loans in
an aggregate principal amount of $30,000,000 shall be prepaid concurrent with
the effectiveness of this Amendment.
SECTION 5. REPRESENTATIONS AND WARRANTIES. To induce the other
parties hereto to enter into this Amendment, each of the Borrowers represents
and warrants to each of the Lenders and the Administrative Agent that, as of the
Amendment Effective Date:
(a) this Amendment has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms;
(b) after giving effect to this Amendment, the representations and
warranties of each of the Borrowers set forth in the Loan Documents are true and
correct on and as of the Amendment Effective Date with the same effect as though
made on and as of the Amendment Effective Date, except for representations and
warranties that expressly relate to an earlier date, which representations and
warranties were true and correct as of such earlier date; and
(c) after giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
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SECTION 6. EFFECTIVENESS. This Amendment shall become effective on
August 12, 2002 (the "AMENDMENT EFFECTIVE DATE"), provided that each of the
following conditions is satisfied:
(a) The Administrative Agent (or its counsel) shall have received
copies hereof that, when taken together, bear the signatures of the Borrowers
and each of the Lenders.
(b) The Administrative Agent shall have received all amounts due and
payable by the Borrowers under the Credit Agreement on or prior to the date
hereof, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees and disbursements of Cravath, Swaine &
▇▇▇▇▇, counsel to the Administrative Agent).
(c) The Borrowers shall have prepaid Term Loans in an aggregate
principal amount of $30,000,000 pursuant to the terms of Section 2.12 of the
Credit Agreement.
(d) Each Lender shall have received an amendment fee in an amount
equal to 0.50% of the Revolving Commitment and outstanding Term Loans of such
Lender after giving effect to the prepayment of Term Loans referred to in
Section 4 hereof.
Notwithstanding anything contained in this Amendment or any other Loan Document
to the contrary, the amendments set forth in Sections 2(a)(i), 2(a)(ii),
2(a)(iii) and 2(c) shall become effective on the first date upon which each of
the conditions set forth in paragraphs (a)-(d) of this Section 6 is satisfied
and on which the sale of the Chicago Property is consummated.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 8. EFFECT OF AMENDMENT. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, amend or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent under the Credit Agreement or any other Loan
Document, and shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any party to any Loan Document to a
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consent to, or a waiver, amendment, modification or other change of, any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein. After the Amendment
Effective Date, any reference to the Credit Agreement shall mean the Credit
Agreement, as amended hereby. This Amendment shall constitute a "LOAN DOCUMENT"
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 9. COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which when so executed and delivered shall constitute
an original, but all of which when taken together shall constitute but one and
the same instrument. Delivery of an executed counterpart of a signature page of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 10. COSTS AND EXPENSES. Holdings agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
SECTION 11. HEADINGS. Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
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IN WITNESS WHEREOF, the Borrowers and the undersigned Lenders have
caused this Amendment to be duly executed by their duly authorized officers, all
as of the date first above written.
SOTHEBY'S HOLDINGS, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
SOTHEBY'S, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
OATSHARE LIMITED,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SOTHEBY'S,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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SOTHEBY'S GLOBAL TRADING GmbH,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Controller and Chief
Accounting Officer
JPMORGAN CHASE BANK (F/K/A THE
CHASE MANHATTAN BANK),
individually and as Administrative
Agent,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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SIGNATURE PAGE TO AMENDMENT NO. 2
DATED AS OF JULY 30, 2002 TO THE
SOTHEBY'S AMENDED AND RESTATED
CREDIT AGREEMENT
Name of Institution: HSBC BANK PLC
by /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Business Banking
Manager
Name of Institution: COMERICA BANK
by /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
Name of Institution: BATTERY PARK,
CDO LIMITED
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Name of Institution: CLYDESDALE
CLO 2001-1, LTD
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
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Name of Institution: NOMURA BOND AND LOAN
FUND
By: UFJ Trust Company of New York as
Trustee
By: Nomura Corporate Research and
Asset Management, Inc.
Attorney in Fact
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Name of Institution: KATONAH II, LTD
by /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Officer, Katonah
Capital, L.L.C. as Manager
Name of Institution: FRANKLIN
FLOATING RATE TRUST
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
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Name of Institution: FRANKLIN
FLOATING RATE MASTER SERVICES
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution: FRANKLIN
FLOATING RATE DAILY ACCESS FUND
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution: FRANKLIN CLO I, LTD
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution: FRANKLIN CLO II, LTD
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
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Name of Institution: FRANKLIN CLO III, LTD
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution: ▇▇▇▇▇▇ FINANCIAL, INC.
by /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Duly Authorized
Signatory
Name of Institution: GENERAL
ELECTRIC CAPITAL CORPORATION
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Duly Authorized
Signatory
Name of Institution: BLACK DIAMOND
CLO 2000-1 LTD
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
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Name of Institution: BLACK DIAMOND
INTERNATIONAL FUNDING, LTD
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Name of Institution: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ & COMPANY, INC. AS
COLLATERAL MANAGER FOR ELC
(CAYMAN)LTD. 1999-II
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Name of Institution: THE BANK OF
NOVA SCOTIA
by /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Managing Director
Name of Institution: LONG LANE
MASTER TRUST IV
By: Fleet National Bank as
Trust Administrator
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
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Name of Institution: CANADIAN
IMPERIAL BANK OF COMMERCE
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
Name of Institution: THE BANK OF NEW YORK
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution: SENIOR DEBT PORTFOLIO
By: Boston Management and
Research as Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution: ▇▇▇▇▇ ▇▇▇▇▇
SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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Name of Institution: ▇▇▇▇▇ ▇▇▇▇▇
INSTITUTIONAL SENIOR LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution: OXFORD
STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution: ▇▇▇▇▇ ▇▇▇▇▇
CDO III, LTD
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution: ▇▇▇▇▇▇▇ & CO.
By: Boston Management and
Research as Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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Name of Institution: ▇▇▇▇▇ ▇▇▇▇▇
CDO IV, LTD
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution: FIRST
DOMINION FUNDING, I
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Name of Institution: FIRST
DOMINION FUNDING, II
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Name of Institution: FIRST
DOMINION FUNDING, III
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
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Name of Institution: CSAM FUNDING II
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
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