c55546_ex10-2.htm








EXHIBIT 10.2


AMENDMENT NO. 8 TO

THE AMENDED AND RESTATED

CREDIT AGREEMENT 


Dated as of June 6, 2008


          AMENDMENT NO. 8 TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) 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, Amendment No. 2 to the Amended and Restated Credit Agreement dated as of May 18, 2006, Amendment No. 3 to the Amended and Restated Credit Agreement dated as of January 2, 2007, Amendment No. 4
to the Amended and Restated Credit Agreement dated as of July 25, 2007, Consent and Amendment No. 5 to the Amended and Restated Credit Agreement dated as of December 17, 2007, Amendment No. 6 to the Amended and Restated Credit Agreement dated as of
January 22, 2008 and Amendment No. 7 to the Amended and Restated Credit Agreement dated as of April 24, 2008 (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 make a certain amendment to the Credit Agreement related to the issuance of the Convertible Notes (as hereinafter defined). 


          SECTION 1. Amendment to Credit Agreement.


          (a)       Section 1.01 of 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 by adding the following defined terms in appropriate alphabetical order: 



“Convertible Notes” means the convertible notes issued by Holdings in an aggregate principal amount not to exceed $250,000,000, which shall constitute New
Senior Notes for all purposes hereof.



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Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement













“Convertible Notes Hedge Counterparties” means those Persons, other than Holdings, that are parties to Convertible Notes Hedge Agreements. 


“Convertible Notes Hedge Agreements” means those certain prepaid hedge transactions, in form and substance reasonably satisfactory to the Administrative Agent,
entered into among Holdings and the Convertible Notes Hedge Counterparties in connection with the issuance of the Convertible Notes. 


“Convertible Notes Indenture” means the New Senior Notes Indenture governing the Convertible Notes. 


“Convertible Notes Warrants” means those warrants for common stock of Holdings, in form and substance reasonably satisfactory to the Administrative Agent, issued
by Holdings to the Convertible Notes Hedge Counterparties in connection with the Convertible Notes Hedge Agreements. 



          (b)       Section 7.02(b) of 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 and restated to read in full as follows: 



“(b)      obligations (contingent or otherwise) existing or arising under the Convertible Notes Hedge Agreements;” 




          (c)       Section 7.06 of 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 by (i) deleting “and” where it appears at the end of clause (e), (ii) deleting “.” where it appears at the end of clause (f), and (iii) adding new clauses (g), (h) and (i) thereto to read in
full as follows: 



“(g)      Upon the conversion of any Convertible Notes in accordance with their terms, Holdings may either (i) issue common stock solely to the extent required by the Convertible Notes Indenture, or (ii) issue common stock and pay
cash to the holders of such Convertible Notes in an aggregate amount not in excess of the applicable conversion obligation, provided that the amount of cash payable under this clause (ii)
shall not exceed the amount received by Holdings from the Convertible Notes Hedge Counterparties upon such conversion; 


(h)      Holdings may issue common stock to the Convertible Notes Hedge Counterparties (i) pursuant to the terms of the Convertible Notes Warrants, and (ii) to the extent required by the Convertible Notes Hedge Agreements; and


(i)      Holdings may (i) issue the Convertible Notes Warrants to the Convertible Notes Hedge Counterparties, (ii) make cash payments to the Convertible Notes Hedge Counterparties upon any termination of the Convertible Notes Warrants
in an amount not in excess of that required by the Convertible Notes Warrant, and (iii) make cash payments to the




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Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement













Convertible Notes Hedge Counterparties upon termination of the Convertible Notes Hedge Agreements.” 



          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, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a certificate signed by a duly authorized officer
of each Borrower stating that (A) 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), and (B) no event has occurred and is
continuing that constitutes a Default. 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. 


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          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
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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Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement













          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: 	
Executive Vice President	
	 	 		
and Chief Financial Officer	
	 	
	 	SOTHEBY’S, INC.
	 	
	 	By:	/s/
    William S. Sheridan
	 	Name:  	William
    S. Sheridan
	 	Title: 	
Executive Vice President	
	 	 		
and Chief Financial Officer	
	 	
	 	OATSHARE LIMITED
	 	
	 	By:	/s/
    William S. Sheridan
	 	Name:  	William
    S. Sheridan
	 	Title: 	
Executive Vice President	
	 	 		
and Chief Financial Officer	
	 	
	 	SOTHEBY’S
	 	
	 	By:	/s/
    William S. Sheridan
	 	Name:  	William
    S. Sheridan
	 	Title: 	
Executive Vice President	
	 	 		
and Chief Financial Officer	




 

Signature Page


Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement












	 	 	
BANK OF AMERICA, N.A., as	
	 	 	
Administrative Agent, L/C Issuer, Swing Line	
	 	 	
Lender, Foreign Currency Lead Lender and Lender	
	 	 	 	
	 	By:	
/s/ Edwin B. Cox, Jr.	
	 	Name:  	
Edwin B. Cox, Jr.	
	 	Title: 	
Senior Vice President	




 

 

 

Signature Page


Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement












	 	
    HSBC BANK PLC,	
	 	
    as Lender	
	 	By:	
/s/ Paul Hagger	
	 	Name:  	
Paul Hagger	
	 	Title: 	
Corporate Banking Manager	
	 	 	 	
	 	
    THE CIT GROUP/BUSINESS CREDIT, INC.,	
	 	
    as Lender	
	 	 	 	
	 	By:	
/s/ Julianne Low	
	 	Name:  	
Julianne Low	
	 	Title: 	
Vice President	
	 	 	 	
	 	 	 	
	 	
    CITIBANK, N.A.,	
	 	
    as Lender	
	 	 	 	
	 	By	 
	 	 	Name:	
	 	 	Title:	
	 	 	 	
	 	 	 	
	 	
    UNITED OVERSEAS BANK LIMITED,	
	 	
    NEW YORK AGENCY, as Lender	
	 	 	 	
	 	By	 
	 	 	Name:	
	 	 	Title:	
	 	 	 	
	 	By	 
	 	 	Name:	
	 	 	Title:	
	 	 	 	
	 	 	 	
	 	
    COMERICA BANK,	
	 	
    as Lender	
	 	 	 	
	 	By:	
/s/ Sarah R. West	
	 	Name:  	
Sarah R. West	
	 	Title: 	
Assistant Vice President	





Consent


Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement













CONSENT


Dated as of June 6, 2008


          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: 	Executive Vice President	
	 	 	and Chief Financial Officer	
	 	 	 	
	 	
    SOTHEBY’S	
	 	 	 	
	 	   By:	 /s/ William S. Sheridan	
	 	   Name:  	 William S. Sheridan	
	 	   Title: 	Executive Vice President	
	 	 	and Chief Financial Officer	





Consent

 Sotheby’s – Amendment
    No. 8 to Amended and Restated Credit Agreement











	 	
    SOTHEBY’S, INC.	
	 	 	 	
	 	   By:	 /s/ William S. Sheridan	
	 	   Name:  	 William S. Sheridan	
	 	   Title: 	Executive Vice President
	 	 	
    and Chief Financial Officer 

	 	 	 	
	 	 	 	
	 	
    OATSHARE LIMITED	
	 	 	 	
	 	   By:	 /s/ William S. Sheridan	
	 	   Name:  	 William S. Sheridan	
	 	   Title: 	Executive Vice President
	 	 	
    and Chief Financial Officer 

	 	 	 	
	 	 	 	
	 	
    SOTHEBY’S FINANCIAL SERVICES LTD.	
	 	 	 	
	 	   By:	 William S. Sheridan	
	 	   Name:  	 William S. Sheridan	
	 	   Title: 	Executive Vice President
	 	 	
    and Chief Financial Officer 

	 	 	 	
	 	 	 	
	 	
    CATALOGUE DISTRIBUTION COMPANY	
	 	
    LIMITED	
	 	 	 	
	 	   By:	 /s/ William S. Sheridan	
	 	   Name:  	 William S. Sheridan	
	 	   Title: 	Executive Vice President
	 	 	
    and Chief Financial Officer 






Consent


Sotheby’s – Amendment No. 8 to Amended and Restated Credit Agreement