AMENDMENT NO. 1
TO
AMENDED AND RESTATED
DATABASE AND SOFTWARE LICENSE AGREEMENT
Amendment No. 1 , dated as of _______________, 1999, between ▇▇▇▇▇▇ &
▇▇▇▇▇, Inc., a Delaware corporation having an office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Licensor"), and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ llc, a
Delaware limited liability company having an office located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Licensee"), amending that certain Amended
and Restated Database and Software License Agreement dated as of October 31,
1998, by and among the Licensor, Licensee and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ inc. (formerly
known as ▇▇▇▇▇▇ & 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 Agreement.
WHEREAS, Licensor, Licensee and Online have entered into the Original
Agreement;
WHEREAS, the Original Agreement may be amended upon written consent of the
Licensor and Licensee; and
WHEREAS, Licensor and Licensee wish to amend the Original Agreement as set
forth herein.
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
follows:
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 "BN Managers" in Section 1(b) of the Original Agreement
is hereby deleted and replaced by the phrase "BN Directors".
(c) Section 2(a) of the Original Agreement is hereby deleted and
replaced in its entirety by the following language:
"2. Term; Effects of Termination. (a) The term of this Agreement (the
"Term") shall commence on the date hereof and shall continue until terminated as
provided herein. Licensor may terminate this Agreement, on prior written notice
to Licensee: (i) if Licensee is in default of the terms of this Agreement and
such default continues for more than thirty (30) days after written notice
thereof to Licensee; (ii) if Licensee files a petition in bankruptcy or is
adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant to any bankruptcy law, or if Licensee
discontinues or dissolves its business or if a receiver is appointed for
Licensee or for Licensee's business and such receiver is not discharged within
30 days; or (iii) at any time beginning one year after a transfer by BAG (or any
successor in interest) of any of its Membership Units to any third party
deriving more than 50% of its revenue from book sales at the time of the
transfer."
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.
▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By:________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ llc
By:________________________
Name:
Title:
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