Exhibit 10.25(f)
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of October 28, 1998 among FINLAY
ENTERPRISES, INC. a Delaware corporation (the "Parent"), FINLAY FINE JEWELRY
CORPORATION, a Delaware corporation (the "Company"), the lenders named herein
and signatory hereto (the "Lenders") and GENERAL ELECTRIC CAPITAL CORPORATION,
as agent (the "Agent"), for the Lenders.
W I T N E S S E T H :
WHEREAS, the Parent, the Company, the Lenders and the Agent are parties to
an Amended and Restated Credit Agreement dated as of September 11, 1997 (as
heretofore and hereafter amended, modified or supplemented from time to time in
accordance with its terms, the "Credit Agreement") and;
WHEREAS, subject to the terms and conditions contained herein the parties
hereto desire to amend certain provisions of the Credit Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and subject to the fulfillment of the conditions set forth
below, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise specifically defined herein, all
capitalized terms used herein shall have the respective meanings ascribed to
such terms in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement shall be amended as
follows upon the Effective Date (as defined herein):
(a) Section 1.1 of the Credit Agreement is hereby amended to delete the
definitions of "Borrowing Base", "Tranche 1 Advance" and "Tranche 2 Advance"
respectively contained therein and to add the following definitions in lieu
thereof:
"Borrowing Base" shall mean, at any time, the sum of (i) an amount equal to
sixty percent (60%) of the aggregate value (lower of cost (on a specific
identification or first-in-first-out basis consistent with the Company's
practices) and current market value) of Eligible Inventory plus (ii) an amount
equal to eighty-five percent (85%) of
the Net Amount of Eligible Receivables; in each case as indicated on the most
recent weekly Borrowing Base Certificate delivered to the Agent by the Company
as of such time, unless a more recent Borrowing Base Certificate has been
requested by the Agent and delivered by the Company to the Agent, in which case
as indicated on such more recent Borrowing Base Certificate. Notwithstanding the
foregoing, for the purposes of making any Tranche 1 Advance, the reference to
sixty percent contained in clause (i) hereof shall be replaced with an amount
from sixty and one one-hundredth percent (60.01%) up to and including sixty-five
percent (65.00%), and for the purposes of making any Tranche 2 Advance, the
reference to sixty percent contained in clause (i) hereof shall be replaced with
an amount from sixty-five and one one-hundredth percent (65.01%) up to and
including seventy percent (70.00%). In no event shall any Borrowing Base be
attributable to Foreign Inventory and Foreign Receivables.
The Agent reserves the right to adjust the Borrowing Base in its reasonable
judgment by revising standards of eligibility, establishing reserves, and/or
subject to the following sentence increasing or decreasing from time to time the
percentages set forth above, in which case "Borrowing Base" shall be defined to
include such revisions, reserves or altered percentages. Notwithstanding the
foregoing, any increase in the percentages set forth above shall require the
consent of the Majority Lenders.
"Tranche 1 Advance" shall mean any Acquisition Facility Advance made based
upon a Borrowing Base comprised of 60.01% to 65.00% of Eligible Inventory and
85% of Eligible Receivables as provided herein.
"Tranche 2 Advance" shall mean any Acquisition Facility Advance made based
upon a Borrowing Base comprised of 65.01% to 70.00% of Eligible Inventory and
85% of Eligible Receivables and as provided herein.
(b) Section 8.17(d) of the Credit Agreement is hereby deleted in its
entirety, effective as of the date hereof.
(c) Section 8.1(i) of the Credit Agreement is hereby amended to delete the
reference to "February 15" contained therein and to substitute "March 1" in lieu
thereof.
2
(d) Section 8.1(p) of the Credit Agreement is hereby amended in its entirety
to read as follows:
"(p) (x) On the Closing Date, (y) not later than Monday, 12:00 noon (New
York time) of each week, and (z) within three (3) days following the written
request of the Agent, a certificate dated Friday of the previous week just ended
(or with respect to a request made under clause (z) above, an estimated
certificate dated the date of delivery) from the Company, in each case
substantially in the form of Exhibit 8.1(p) hereto, each such certificate to be
signed by the Designated Officer of the Company (each such certificate, a
"Borrowing Base Certificate"). The delivery of the Borrowing Base Certificate
pursuant to clause (y) of this Section 8.1(p) shall be accompanied by the
following, each of which shall be in form, scope and substance satisfactory to
the Agent, (i) a copy of the receivables aging trial balances of the Company and
each of its Subsidiaries as of the end of the prior month, together with an
accounts receivable reconciliation to the Borrowing Base Certificate date, and
(ii) a schedule of Eligible Inventory, valued at the lesser of cost (on a
specific identification basis) or current market value and setting forth the
locations of all such Eligible Inventory (which may be done by reference to the
computer information to which the Agent has on-line access to the extent
required by Section 8.7(b) hereof), including, without limitation, Domestic
Inventory in transit and Domestic Inventory not in the possession of the Company
and the name of the Person in possession thereof. In addition to the foregoing,
each Borrowing Base Certificate shall set forth (or shall be accompanied by a
certificate of a Designated Officer of the Company setting forth) the aggregate
unpaid principal balance of all loans or advances from the Company to Sonab at
such time."
(e) Exhibit A to the Credit Agreement is hereby amended in its entirety to
read as set forth on Exhibit A hereto.
3. Representations and Warranties. Each of the Parent and the Company
represents and warrants as follows (which representations and warranties shall
survive the execution and delivery of this Amendment):
(a) Each of the Parent and the Company has taken all necessary action to
authorize the execution, delivery and performance of this Amendment.
3
(b) This Amendment has been duly executed and delivered by the Parent and
the Company and the acknowledgement attached hereto has been duly executed and
delivered by each Subsidiary. This Amendment and the Credit Agreement as amended
hereby constitute the legal, valid and binding obligation of the Parent and the
Company, enforceable against them in accordance with their respective terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles.
(c) No consent or approval of any person, firm, corporation or entity, and
no consent, license, approval or authorization of any governmental authority is
or will be required in connection with the execution, delivery, performance,
validity or enforcement of this Amendment other than any such consent, approval,
license or authorization which has been obtained and remains in full force and
effect or where the failure to obtain such consent, approval, license or
authorization would not result in a Material Adverse Effect.
(d) After giving effect to this Amendment, each of the Company and the
Parent is in compliance with all of the various covenants and agreements set
forth in the Credit Agreement and each of the other Loan Documents.
(e) After giving effect to this Amendment, no event has occurred and is
continuing which constitutes a Default or an Event of Default.
(f) All representations and warranties contained in the Credit Agreement
and each of the other Loan Documents are true and correct in all material
respects as of the date hereof, except to the extent that any representation or
warranty relates to a specified date, in which case such are true and correct in
all material respects as of the specific date to which such representations and
warranties relate.
4. Effective Date. The amendments to the Credit Agreement contained herein
shall not become effective (the "Effective Date") until (i) this Amendment has
been duly executed and delivered by the Company, the Parent and the Majority
Lenders and (ii) the acknowledgement attached hereto shall have been executed
and delivered by each of the Subsidiaries.
4
5. Expenses. The Company agrees to pay on demand all costs and expenses,
including reasonable attorneys' fees, of the Agent incurred in connection with
this Amendment.
6. Continued Effectiveness. The term "Agreement", "hereof", "herein" and
similar terms as used in the Credit Agreement, and references in the other Loan
Documents to the Credit Agreement, shall mean and refer to, from and after the
Effective Date, the Credit Agreement as amended by this Amendment. Each of the
Company and the Parent hereby agrees that all of the covenants and agreements
contained in the Credit Agreement and the Loan Documents are hereby ratified and
confirmed in all respects.
7. Counterparts. This Amendment may be executed in counterparts, each of
which shall be an original, and all of which, taken together, shall constitute a
single instrument. Delivery of an executed counterpart of a signature page to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to the
conflict of laws provisions thereof.
5
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly
executed by their respective officers as of the date first written above.
FINLAY ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
FINLAY FINE JEWELRY CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION,
Individually and as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FLEET PRECIOUS METALS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By: /s/ Authorized signatory
--------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
BANK LEUMI
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ Authorized signatory
--------------------------------
Name:
Title: Assistant Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: ________________________________
Name:
Title:
7
Each of the Guarantors, by signing below, confirms in favor of the Agent and the
Lenders that it consents to the terms and conditions of the foregoing Amendment
No. 5 to the Amended and Restated Credit Agreement and agrees that it has no
defense, offset, claim, counterclaim or recoupment with respect to any of its
obligations or liabilities under its respective Guaranty and that all terms of
such Guaranty shall continue in full force and effect, subject to the terms
thereof.
FINLAY JEWELRY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
SONAB HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
SONAB INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
SOCIETE NOUVELLE D'ACHAT DE BIJOUTERIE - S.O.N.A.B.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
FINLAY MERCHANDISING & BUYING, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
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EXHIBIT A
LENDERS, COMMITMENTS AND INITIAL EURODOLLAR OFFICES
Revolving
Lender and Initial Commitment
Eurodollar Office Amount %
----------------- ------------ -------
General Electric $91,666,667 33.333%
Capital
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fleet Precious Metals Inc. $61,111,111 22.222%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. $20,000,000 7.272%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Chase Manhattan Bank $30,555,556 11.111%
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank Leumi USA $12,222,222 4.444%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABN AMRO Bank, N.V. $30,555,556 11.111%
(New York Branch)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Transamerica Business Credit $28,888,889 10.505%
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Revolving
Sublimit
Commitment1 %
------------ ------
General Electric $8,333,333 33.333%
Capital
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fleet Precious Metals Inc. $5,555,556 22.222%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Sachs Credit Partners L.P. $1,818,182 7.272%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Chase Manhattan Bank $2,777,778 11.111%
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ $1,111,111 4.444%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABN AMRO Bank, N.V. $2,777,778 11.111%
(New York Branch)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Transamerica Business Credit $2,626,263 10.505%
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
_____________________
1. As such amount may vary pursuant to the definition of Parent Revolving Credit
Facility Sublimit Commitment.