AMENDMENT NO. 10
AND LIMITED CONSENT
THIS AMENDMENT NO. 10 AND LIMITED CONSENT (this "Amendment") is made as of
April 21, 2000, by and between FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation with its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Consignee") and SOVEREIGN BANK, as successor to Fleet National Bank,
formerly known as BankBoston, N.A., as successor to Rhode Island Hospital Trust
National Bank (the "Consignor"), amending certain provisions of the Gold
Consignment Agreement dated as of June 15, 1995 (as amended, modified or
supplemented and in effect, the "Consignment Agreement"), by and between the
Consignee and the Consignor. Capitalized terms used herein which are defined in
the Consignment Agreement and not defined herein shall have the same meanings
herein as therein.
WHEREAS, the Consignee wishes to sell certain assets to Ultra Stores, Inc.,
an Illinois corporation ("Ultra Stores"), pursuant to a Purchase and Sale
Agreement dated as of April 18, 2000 between the Consignee and Ultra Stores in
the form attached hereto as Exhibit A (the "New York Jewelry Outlet Purchase and
Sale Agreement");
WHEREAS, the Consignee has requested that the Consignor agree to amend the
terms of the Consignment Agreement in certain respects as hereinafter more fully
set forth so as, among other things, to permit the sale of such assets;
WHEREAS, the Consignor is willing to amend the terms of the Consignment
Agreement in such respects upon the terms and subject to the conditions
contained herein;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Consignment Agreement, herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ss.1. Amendment of ss.1 of the Consignment Agreement. Section 1 of the
Consignment Agreement is hereby amended by deleting the dollar amount
"$27,000,000" from subsection (f) of the definition of Consolidated EBITDA and
substituting in lieu thereof the dollar amount "$28,631,000".
ss.2. Limited Consent To Transfer of Assets. The Consignee has informed the
Consignor that it wishes to sell certain assets (other than inventory) located
at and/or used in connection with its chain of outlet stores known as the New
York Jewelry Outlet to Ultra Stores. The Consignee has further requested
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that the Consignor consent to such disposition of assets pursuant to the terms
and conditions of the New York Jewelry Outlet Purchase and Sale Agreement.
Subject to the terms and conditions contained herein, the Consignor hereby
consents to the transfer of the Assets (as defined in the New York Outlet
Purchase and Sale Agreement) on the terms and conditions of the New York Outlet
Purchase and Sale Agreement; provided, however, that (a) the closing of such
transfer of the Assets shall occur on or before May 31, 2000; (b) such transfer
shall take place in accordance with the terms and conditions set forth in the
New York Outlet Purchase and Sale Agreement; and (c) the aggregate consideration
to be paid to the Consignee by Ultra Stores pursuant to the New York Outlet
Purchase and Sale Agreement (in cash and in the form of a promissory note issued
by Ultra Stores in favor of the Consignee) shall be at least $1,000,000.
ss.3. Limited Consent. Subject to the satisfaction of the conditions set
forth in ss.5 hereof, the Consignor hereby consents to the execution and
delivery by the Consignee of Amendment No. 9, amending the Amended and Restated
Credit Agreement dated as of September 11, 1997 among the Consignee, the Parent,
the Dollar Agent and the Lenders party thereto, such Amendment being in
substantially the form attached hereto as Exhibit A.
ss.4. Representations and Warranties. The Consignee hereby represents and
warrants to the Consignor as follows:
(a) Representations and Warranties. The representations and warranties of
the Consignee contained in the Consignment Agreement and the other
Consignment Documents were true and correct in all material respects
when made and continue to be true and correct in all material respects
on the date hereof, except to the extent of changes resulting from
transactions contemplated or permitted by the Consignment Documents
and this Amendment and changes occurring in the ordinary course of
business that do not result in a Materially Adverse Effect, and to the
extent that such representations and warranties relate expressly to an
earlier date. The representations and warranties of the Consignee and,
to the best of the Consignee's knowledge, Ultra Stores contained in
the New York Jewelry Outlet Purchase and Sale Agreement were true and
correct in all material respects when made, are true and correct in
all material respects on the date hereof and shall be true and correct
in all material respects on the date of the closing of the sale of the
Assets, except to the extent that such representations and warranties
relate expressly to an earlier date.
(b) Authority, No Conflicts, Etc. The execution, delivery and performance
by the Consignee of this Amendment and the New York Jewelry Outlet
Purchase and Sale Agreement and the consummation of the transactions
contemplated hereby and thereby (i) are within the corporate power of
the Consignee and have been duly authorized by all
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necessary corporate action on the part of the Consignee, (ii) do not
require any approval or consent of, or filing with, any governmental
agency or authority, or any other person, association or entity
(except for the consent of the Dollar Agent and the lenders under the
Dollar Facility, which consent is being obtained concurrently herewith
as required byss.5 hereof), which bears on the validity of this
Amendment or the Consignment Documents and which is required by law or
the regulation or rule of any agency or authority, or other person,
association or entity, (iii) do not violate any provisions of any law,
rule or regulation or any provision of any order, writ, judgment,
injunction, decree, determination or award presently in effect in
which the Consignee is named in a manner which has or could reasonably
be expected to have a Materially Adverse Effect, (iv) do not violate
any provision of the Charter Documents of the Consignee, (v) do not
result in any breach of or constitute a default under any agreement or
instrument to which the Consignee is a party or by which it or any of
its properties is bound, including without limitation any indenture,
loan or credit agreement, lease, debt instrument or mortgage, in a
manner which has or could reasonably be expected to have a Materially
Adverse Effect, and (vi) do not result in or require the creation or
imposition of any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance of any nature upon any of the
assets or properties of the Consignee except in favor of the Consignor
pursuant to the Security Documents.
(c) Enforceability of Obligations. Each of this Amendment and the New York
Jewelry Outlet Purchase and Sale Agreement has been duly executed and
delivered by the Consignee and constitutes the legal, valid and
binding obligation of the Consignee, enforceable against the Consignee
in accordance with its terms, provided that (a) enforcement may be
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws of
general application affecting the rights and remedies of creditors,
and (b) enforcement may be subject to general principles of equity,
and the availability of the remedies of specific performance and
injunctive relief may be subject to the discretion of the court before
which any proceedings for such remedies may be brought.
ss.5. Conditions to Effectiveness. This Amendment shall be effective as of
the date first above written (the "Effective Date") upon the Consignor's receipt
of each of the following, in each case in form and substance satisfactory to the
Consignor:
(a) this Amendment duly executed by each of the Consignee and the
Consignor;
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(b) a copy of the New York Jewelry Outlet Purchase and Sale Agreement,
duly executed by each of the parties thereto and duly certified by the
Secretary or Assistant Secretary of the Consignee as being true,
correct, complete and in full force and effect, without further
amendment or modification;
(c) evidence of the Consignee's receipt of all necessary or appropriate
third party consents or approvals to the amendments contemplated
hereby, including, without limitation, consents or approvals from the
Dollar Agent and each of the applicable lenders under the Dollar
Facility; and
(d) such other documents or items as the Consignor may request.
ss.6. Ratifications, etc. Except as expressly provided in this Amendment,
all of the terms and conditions of the Consignment Agreement and the other
Consignment Documents shall remain in full force and effect. All references in
the Consignment Agreement or any related agreement or instrument to the
Consignment Agreement shall hereafter refer to the Consignment Agreement as
amended hereby. The Consignee confirms and agrees that the Obligations of the
Consignee to the Consignor under the Consignment Documents, as amended and
supplemented hereby, are secured by and are entitled to the benefits of the
Security Documents.
ss.7. Expenses. Without limiting the expense reimbursement requirements set
forth in ss.11 of the Consignment Agreement, the Consignee agrees to pay on
demand all costs and expenses, including reasonable attorneys' fees, of the
Consignor incurred in connection with this Amendment.
ss.8. No Implied Waiver. Except as expressly provided herein, nothing
contained herein shall constitute a waiver of, impair or otherwise affect any
Obligations, any other obligations of the Consignee or any right of the
Consignor consequent thereon.
ss.9. Governing Law. This Amendment is intended to take effect as an
instrument under seal and shall be construed according to and governed by the
internal laws of the Commonwealth of Massachusetts.
ss.10. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
FINLAY FINE JEWELRY
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
SOVEREIGN BANK, as successor to
FLEET NATIONAL BANK, formerly known
as BANKBOSTON, N.A., as successor in
interest to RHODE ISLAND HOSPITAL
TRUST NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President