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AMENDMENT NO. 2 AND LIMITED CONSENT
THIS AMENDMENT NO. 2 AND LIMITED CONSENT (this "Amendment") is made as of
September 10, 1997, by and between FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation with its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Consignee") and 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 has requested that the Consignor agree to amend the
terms of the Consignment Agreement in certain respects and consent to certain
actions to be taken by the Consignee, all as hereinafter more fully set forth;
WHEREAS, the Consignor is willing to amend the terms of the Consignment
Agreement in such respects and to grant such consent, upon the terms and subject
to the conditions contained herein; and
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. Amendments to the Consignment Agreement. Subject to
the satisfaction of the conditions precedent set forth in
ss.4 hereof, the Consignment Agreement is hereby amended as
follows:
(a) by deleting the definition of "Second Sonab Intercompany Note"
contained in Section 1 of the Consignment Agreement in its
entirety and substituting in lieu thereof the following new
definition:
"Second Sonab Intercompany Note: The demand promissory note
dated October 28, 1994 executed by Sonab to the order of the
Consignee in the original principal amount of $13,000,000,
together with any replacement or
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substitution thereof and any amendment or modification thereof
provided that the aggregate principal amount in respect thereof shall not exceed
$33,000,000."
(b) by deleting Section 8.2(c)(xx) of the Consignment Agreement in
its entirety and substituting in lieu thereof the following text:
"(xx) by the Consignee in Sonab (A) in amounts up to
$12,000,000 in the aggregate at any time outstanding (1) in the form
of intercompany Indebtedness for Borrowed Money evidenced by the
First Sonab Intercompany Note, or (2) in the form of common equity
existing on or after February 1, 1996 as a result of the conversion
and/or exchange of the First Sonab Intercompany Note into or for
common equity of Sonab, and (B) in the form of intercompany
Indebtedness for Borrowed Money evidenced by the Second Sonab
Intercompany Note (provided that the aggregate unpaid principal
amount of such Indebtedness for Borrowed Money evidenced by the
Second Sonab Intercompany Note shall not at any time exceed
$33,000,000);".
▇▇.▇.▇▇▇▇▇▇▇ Consent. Subject to the satisfaction of the conditions
precedent set forth inss.4 hereof, the Consignor hereby consents
to the execution and delivery by the Consignee of Amendment No. 3
to the Amended and Restated Credit Agreement dated as of March
28, 1995, among the Consignee, the Parent, the Dollar Agent and
the lenders under the Dollar Facility, such Amendment No. 3 being
in substantially the form attached hereto as Exhibit A.
ss.3.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,
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
(except for the consent of the Dollar Agent and each of the lenders
under the Dollar Facility, which consent is being obtained
concurrently herewith as required by ss.4 hereof), (iii) do not
violate any provisions of any law, rule or regulation or any
provision of any order, writ, judgment, injunction, decree,
determination or awar 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, 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.4. Condition to Effectiveness. The effectiveness of this Amendment shall
be subject to the delivery of the following, each in form and substance
satisfactory to the Consignor:
(a) this Amendment executed by each of the Consignee and the
Consignor; and
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(b) evidence of the consent of the Dollar Agent and each of the
lenders under the Dollar Facility to the execution and delivery of
this Amendment by the Consignor and the Consignee.
ss.5. 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.6. 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.7. 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 State of Rhode Island.
ss.8. 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 and
Chief Financial Officer
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President