AMENDMENT NO. 9
AND LIMITED CONSENT
THIS AMENDMENT NO. 9 AND LIMITED CONSENT (this "Amendment") is made as of
March 23, 2000, by and between FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation with its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Consignee") and FLEET NATIONAL BANK, formerly known as BankBoston,
N.A., as successor in interest to Rhode Island Hospital Trust National Bank, a
national banking association with its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (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 meaning
herein as therein.
WHEREAS, the Consignee wishes to purchase certain assets from ▇▇▇ ▇.
▇▇▇▇▇▇▇, Inc. pursuant to an Asset Purchase Agreement dated as of February 10,
2000 among the Consignee, ▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc., a Florida corporation, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the form attached hereto as Exhibit A (the
"JBR Asset Purchase 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 to permit the purchase 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:
S1. Amendment of S1 of the Consignment Agreement. Section 1 of the
Consignment Agreement is hereby amended by:
(a) deleting the ▇▇▇▇ ounce figure "85,000" contained in clause (a) of the
definition of "Consignment Limit" and substituting in lieu thereof the
▇▇▇▇ ounce figure "100,000";
(b) inserting, in the order required by alphabetical order, the following
new definitions:
"JBR Acquisition: The acquisition by the Consignee of the JBR Assets on the
terms and conditions set forth below:
(a) the closing of the JBR Acquisition shall occur on or before, but not
after, April 30, 2000;
(b) the terms and conditions of the JBR Acquisition shall be substantially
those set forth in the JBR Asset Purchase Agreement. Without limiting
the generality of the foregoing, (i) the Maximum Inventory Price (as
defined in the JBR Asset Purchase Agreement) shall not exceed
$23,000,000 in the aggregate, (ii) the Purchase Price (as defined in
the JBR Asset Purchase Agreement) shall not exceed $28,000,000 in the
aggregate; and (iii) the Consignee shall not assume any liabilities in
connection with the JBR Acquisition other than the Assumed Liabilities
(as defined in the JBR Asset Purchase Agreement);
(c) there shall be no material misstatements in or omissions from the
materials furnished to the Consignor for its review in connection with
the JBR Acquisition;
(d) upon consummation of the JBR Acquisition, the JBR Assets shall be free
and clear of any and all Liens other than Liens permitted by S8.2(b)
of the Consignment Agreement;
(e) all parties to the JBR Asset Purchase Agreement shall have received
all necessary third party consents and approvals.
"JBR Asset Purchase Agreement: The Asset Purchase Agreement dated as of
February 10, 2000 among the Consignee, ▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc., a Florida
corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in the form attached
to Amendment No. 9 and Limited Consent dated as of March 23, 2000 between
the Consignor and the Consignee as Exhibit A.
"JBR Assets: The "Assets", as defined in the JBR Asset Purchase Agreement."
S2. Amendment of S8.1 of the Consignment Agreement. Section 8.1 of the
Consignment Agreement is hereby amended by:
(a) relettering subsection "(k)" thereof (as added by Amendment No. 7 and
Limited Consent dated as of October 28, 1998 between the Consignor and
the Consignee) to subsection "(m)"; and
(b) inserting the word "and" at the end of subsection (l) thereof,
immediately before subsection (m) described in subsection (a) of this
S2.
S3. Amendment of S8.2(a) of the Consignment Agreement. Section 8.2(a)(vii)
of the Consignment Agreement is hereby amended by:
(a) deleting the proviso contained in clause (a)(vii)(B)(1) thereof and
substituting in lieu thereof the following proviso:
"provided, however, that the amount set forth in this clause (B)(1) shall
not include (x) rental obligations incurred by the Consignee with respect
to factory outlet stores permitted to be opened by the Consignee pursuant
to S8.2(j) hereof, (y) rental obligations resulting from the acquisition of
the Diamond Park Fine Jewelry division of Zale Delaware, Inc. pursuant to
the terms of a certain Asset Purchase Agreement dated September 3, 1997
among the Parent, the Consignee, Zale Delaware, Inc. and ▇▇▇▇ Corporation,
or (z) rental obligations incurred by the Consignee under leases referred
to in the JBR Asset Purchase Agreement,";
(b) deleting the word "and" at the end of clause (xviii) thereof;
(c) deleting subsection (xix) thereof and substituting in lieu thereof the
following new subsections (xix) and (xx):
"(xix) Indebtedness of the Consignee consisting of indemnification
obligations to the Sellers (as defined in the JBR Asset Purchase
Agreement) incurred in connection with the JBR Acquisition in
accordance with the terms and conditions of the JBR Asset Purchase
Agreement; and
(xx) Indebtedness of the Consignee and its Subsidiaries not included in
subsections (i) - (xix) above and not in excess of $15,000,000 in
aggregate principal amount at any time outstanding;"
S4. Amendment of S8.2(e)(i) of the Consignment Agreement. Section 8.2(e)(i)
of the Consignment Agreement is hereby amended to insert the following text at
the end thereof:
"provided, however, that the Consignor may acquire the JBR Assets pursuant
to and in accordance with the terms of the JBR Acquisition;".
S5. Limited Consent. Subject to the satisfaction of the conditions set
forth in S7 hereof, the Consignor hereby consents to the execution and delivery
by the Consignee of Amendment No. 8 and Consent, 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.
S6. 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, ▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ contained in the JBR Asset
Purchase 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 JBR Acquisition, 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 JBR Asset Purchase
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 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 by S7 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 JBR
Asset Purchase 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.
S7. 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;
(b) a copy of the JBR Asset Purchase 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) a certificate of the Secretary or Assistant Secretary of the Consignee
specifying each jurisdiction in which any of the JBR Assets (as
defined in the Consignment Agreement, as amended hereby) is or is to
be located, together with such duly executed UCC-1 and consignment
financing statements as the Consignee may request for filing in
jurisdictions referenced on such certificate and as to which the
Consignee has not previously made filings;
(d) evidence, satisfactory in form and substance to the Consignee, that
there are no Liens on any of the JBR Assets other than Liens permitted
by S8.2(b) of the Consignment Agreement or Liens which will be
discharged and terminated on or prior to the closing of the JBR
Acquisition (as defined in the Consignment Agreement, as amended
hereby);
(e) 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
(f) such other documents or items as the Consignor may request.
S8. 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.
S9. Expenses. Without limiting the expense reimbursement requirements set
forth in S11 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.
SS0. 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.
S11. 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.
S12. 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.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
FINLAY FINE JEWELRY
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
FLEET NATIONAL BANK, formerly
known as BANKBOSTON, N.A., as
successor in interest to RHODE ISLAND
HOSPITAL TRUST NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director