AMENDMENT NO. 8
AND LIMITED CONSENT
THIS AMENDMENT NO. 8 AND LIMITED CONSENT (this "Amendment") is made as of
December 30, 1999, by and between FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation with its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Consignee") and 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 and its wholly owned Subsidiary, Societe Nouvelle
D'Achat De Bijouterie-S.O.N.A.B., a French "societe en nom collectif" ("Sonab"),
wish to sell certain of the assets of Sonab, including substantially all of the
inventory of Sonab, pursuant to the terms and conditions of that certain Asset
Purchase Agreement dated December 23, 1999 among Sonab, Histoire d'Or, a French
"societe anonyme", and Cogestand, a French "societe anonyme" and wholly owed
Subsidiary of Histoire d'Or, a copy of which is attached hereto as Exhibit A
(such agreement in the form attached hereto as Exhibit A, together with the
ancillary documents attached hereto respectively as Exhibits ▇-▇, ▇-▇, ▇-▇ and
A-4, the "Sonab Purchase Agreement");
WHEREAS, the Consignee has requested that the Consignor consent to the
transactions contemplated by the Sonab Purchase Agreement and agree to amend the
terms of the Consignment Agreement in certain respects as hereinafter more fully
set forth;
WHEREAS, the Consignor is willing to consent to such transactions and amend
the terms of the Consignment Agreement and such other Consignment Documents 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) inserting immediately before the period (".") at the end of the first
sentence of the definition of "Consolidated EBITDA" the following
text: "plus (f) to the extent deducted in calculating such net income,
the gross amount of the write-off associated with the Sonab Transfer,
the liquidation of the balance of the net assets of Sonab following
the Sonab Transfer and the closure of the Sonab operation following
the Sonab Transfer, with the amounts contemplated by this subsection
(f) not to exceed $27,000,000 in the aggregate."
(b) inserting, in the order required by alphabetical order, the following
new definitions:
"Histoire d'Or: Collectively, Histoire d'Or, a French "societe
anonyme", and its wholly owned Subsidiary, Cogestand, a French
"societe anonyme"."
"Sonab Purchase Agreement: The Asset Purchase Agreement dated December
23, 1999 among Sonab and Histoire d'Or, and the ancillary documents
associated therewith, each respectively in the forms attached to
Amendment No. 8 and Limited Consent dated as of December 30, 1999
between the Consignor and the Consignee as Exhibits A, ▇-▇, ▇-▇, ▇-▇
and A-4."
"Sonab Transfer: The sale by Sonab to Histoire d'Or of certain of its
assets pursuant to and on the terms and conditions set forth in the
Sonab Purchase Agreement. Without limiting the foregoing, the
aggregate purchase price received or to be received by Sonab pursuant
to the Sonab Purchase Agreement shall be at least $7,500,000, and
neither Sonab nor the Consignee shall retain any liabilities or
obligations with respect to such assets other than such liabilities or
obligations as are specifically set forth in the Sonab Purchase
Agreement."
S2. Amendment of S8.1(c) of the Consignment Agreement. Section 8.1(c) of
the Consignment Agreement is hereby amended by deleting the parenthetical
contained in subsection (i) in its entirety and substituting in lieu thereof the
following text: "(except for the abandonment of intellectual property rights of
the Consignee or such Subsidiary permitted by S8.2(e)(iii)(E) and for the
dissolution of Sonab following the consummation of the transactions contemplated
by the Sonab Purchase Agreement and the liquidation of any remaining assets of
Sonab)".
S3. Amendment of S8.2(a) of the Consignment Agreement. Section 8.2(a) of
the Consignment Agreement is hereby amended by:
(a) inserting at the beginning of subsection (A) of subsection (xvi) the
following text:
"prior to the consummation of the Sonab Transfer, the liquidation of
the balance of the net assets of Sonab following the Sonab Transfer
and the closure of the Sonab operation following the Sonab Transfer,";
(b) deleting the word "and" between subsections (A) and (B) of subsection
(xvi) thereof;
(c) deleting existing subsection (B) thereof in its entirety; and
(d) inserting, immediately before the semicolon (";") at the end of
subsection (xvi) thereof, the following text:
", and (B) to Histoire d'Or consisting of indemnification obligations,
purchase price adjustments and other similar obligations incurred or
assumed in connection with the Sonab Transfer in accordance with the
terms and conditions of the Sonab Purchase Agreement".
S4. Amendment of S8.2(c) of the Consignment Agreement. Section 8.2(c) of
the Consignment Agreement is hereby amended by:
(a) inserting, at the beginning of subsection (xx) thereof, the following
text:
"prior to the consummation of the Sonab Transfer, the liquidation of
the balance of the net assets of Sonab following the Sonab Transfer
and the closure of the Sonab operation following the Sonab Transfer,";
(b) deleting the word "and" from the end of subsection (xxii) thereof;
(c) inserting the word "and" at the end of subsection (xxiii) thereof; and
(d) inserting, immediately after subsection (xxiii) thereof and
immediately before the proviso at the end thereof a new subsection
(xxiv) with the following text:
"(xxiv) investments by Sonab consisting of that portion of the
aggregate purchase price of the Sonab Transfer to be paid to Sonab on
a deferred basis or to be held in escrow, in each case pursuant to the
terms and conditions of the Sonab Purchase Agreement;".
S5. Amendment of S8.2(e)(iii) of the Consignment Agreement. Section
8.2(e)(iii) of the Consignment Agreement is hereby amended by:
(a) inserting a comma (",") and a new subsection "(H)" immediately before
the word "or" and existing subsection "(H)", with the following text:
", (H) the Sonab Transfer pursuant to the Sonab Purchase Agreement";
and
(b) changing the lettering of existing subsection "(H)" to subsection
"(I)".
S6. Amendment of S8.2(f) of the Consignment Agreement. Section 8.2(f) of
the Consignment Agreement is hereby amended by inserting, immediately before the
semicolon (";") at the end of subsection (ii) thereof the following text:
"; provided, however, that Sonab may effect the Sonab Transfer as
contemplated by the Sonab Purchase Agreement and may thereafter
provide transition services as required by the Sonab Purchase
Agreement, liquidate its remaining assets and close its operations".
S7. Amendment of S8.2(i) of the Consignment Agreement. Section 8.2(i) of
the Consignment Agreement is hereby amended by inserting, immediately before the
period (".") at the end thereof, the following text:
"; provided, however, that, if otherwise prohibited by this subsection
(i), the Borrower and the Parent may make severance payments to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the Sonab
Transfer".
S8. Amendment of Section 8.3(a) of the Consignment Agreement. Section
8.3(a) of the Consignment Agreement is hereby amended by inserting the following
text immediately after subsection (i)(C):
"plus (D) the amount of the tax credit to the Parent and its
Subsidiaries as a result of the write-off associated with of the Sonab
Transfer, the subsequent liquidation of the balance of the net assets
of Sonab and the closure of the Sonab operation".
S9. Limited Consent. Subject to the satisfaction of the conditions
precedent set forth in S11 hereof, the Consignor hereby consents to the
execution and delivery by the Consignee of Amendment Agreement No. 7 and Waiver,
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 No. 7 being in substantially the form attached hereto as
Exhibit B.
S10. Representations and Warranties. The Consignee hereby represents and
warrants to the Consignor as follows:
(a) Representations and Warranties in Consignment Agreement. The
representations and warranties of the Consignee contained in the
Consignment Agreement 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.
(b) Authority, No Conflicts, Etc. The execution, delivery and performance
by the Consignee of this Amendment and the consummation of the
transactions contemplated hereby (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 S11
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. This Amendment 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.
S11. 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 Sonab Purchase Agreement, including the ancillary
documents related thereto, in the respective forms attached hereto as
Exhibits A, ▇-▇, ▇-▇, ▇-▇ and A-4, 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; and
(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.
S12. 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.
S13. 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.
S14. 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.
S15. 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.
S16. 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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
BANKBOSTON, N.A., as successor in
interest to RHODE ISLAND HOSPITAL
TRUST NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President