AMENDMENT NO. 1 TO AMENDED AND RESTATED SERVICES AGREEMENT
AMENDMENT NO. 1
AMENDED AND RESTATED
Amendment No. 1, dated as of _____________, 1999, between Barnes & Noble,
Inc., a Delaware corporation having an office located at 122 Fifth Avenue, New
York, New York 10011 ("B&N"), and barnesandnoble.com llc, a Delaware limited
liability company having an office located at 76 Ninth Avenue, 11th Floor, New
York, New York 10011 (the "LLC"), amending that certain Amended and Restated
Services Agreement dated as of October 31, 1998, by and among B&N, the LLC and
barnesandnoble.com inc. (formerly known as Barnes & Noble Online, Inc.)
("Online") (the "Original Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Original
WHEREAS, B&N, the LLC and Online have entered into the Original Agreement;
WHEREAS, the Original Agreement may be amended upon written consent of B&N
and the LLC;
WHEREAS, B&N and the LLC wish to amend the Original Agreement as set forth
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
1. Amendments to Original Agreement.
(a) The second "Whereas" clause of the Original Agreement is hereby
amended by adding the phrase "as the same may be amended, modified or
supplemented from time to time," immediately before the words "the LLC
Agreement" in the fourth line thereof.
(b) The phrase "Section 4.7(a) of the LLC Agreement" in each of
Sections 6(a) and 6(c)(i) of the Original Agreement is hereby deleted and
replaced in its entirety by the phrase "Section 3.1(d)(i) of the By-laws of
(c) The phrase "a Membership Interest of at least 10% of the
outstanding Membership Interests" in Section 6(c) of the Original Agreement is
deleted and replaced in its entirety by the phrase "Membership Units
constituting at least 10% of the then outstanding Membership Units".
(d) Section 6(c)(ii)(B) of the Original Agreement is hereby deleted
and replaced in its entirety by the following language:
"(B) the LLC is in default of the terms of this Agreement
and such default continues for more than thirty (30) days after
written notice thereof to the LLC;"
2. Original Agreement in Full Force and Effect. Except as herein
expressly amended, all of the provisions of the Original Agreement remain
unchanged and in full force and effect.
3. References in Original Agreement. From and after the date hereof,
all references in the Original Agreement to "this Agreement," "hereof,"
"herein," or similar terms, shall mean and refer to the Original Agreement as
amended by this Amendment.
4. Governing Law. This Amendment shall be construed and interpreted
according to the laws of the State of New York, without regard to the conflicts
of law rules thereof.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
BARNES & NOBLE, INC.