Exhibit 10.1
SIXTH AMENDMENT TO
AMENDED AND RESTATED
GOLD CONSIGNMENT AGREEMENT
DATED AS OF MARCH 30, 2001
THIS SIXTH AMENDMENT is made as of the 20th of August, 2004, among
SOVEREIGN BANK (formerly known as Rhode Island Hospital Trust National Bank), a
Federal Savings Bank with an office at Xxx Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxx 00000, as agent ("Agent") and as a bank ("Sovereign"
and together with the other lending institutions from time to time collectively,
the "Institutions"), SOVEREIGN PRECIOUS METALS, LLC, a Pennsylvania limited
liability company ("LLC"), FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation ("Finlay") and EFINLAY, INC. a Delaware corporation ("eFinlay").
WITNESSETH THAT:
WHEREAS, Sovereign, Finlay and eFinlay are parties to a certain Amended
and Restated Gold Consignment Agreement dated as of March 30, 2001, as amended
by a First Amendment to Amended and Restated Gold Consignment Agreement dated as
of December 31, 2001, as further amended by a Second Amendment to Amended and
Restated Gold Consignment Agreement dated as of September 30, 2002, as further
amended by a Third Amendment to Amended and Restated Gold Consignment Agreement
dated as of April 4, 2003, as further amended by a Fourth Amendment to Amended
and Restated Gold Consignment Agreement dated as of July 6, 2003 and as further
amended by a Fifth Amendment to Amended and Restated Gold Consignment Agreement
dated as of May 27, 2004 (as amended, the "Consignment Agreement"), relating to
the consignment by the Institutions to Finlay;
WHEREAS, the parties desire to further amend and modify the Consignment
Agreement in certain respects;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section 8.3 of the Consignment Agreement is hereby amended by
deleting sections 8.3.2 and 8.3.3 and replacing them with the following:
"8.3.2 Indebtedness to EBITDA. No Consignee will, and where
applicable, will not permit its Subsidiaries to permit the ratio of (i)
the aggregate principal amount of all Indebtedness for Borrowed Money
of the Parent and its Subsidiaries on a consolidated basis as of any
fiscal quarter ending date set forth in the table below to (ii)
Consolidated EBITDA of the parent and its Subsidiaries for the period
of four consecutive fiscal quarters ending on such fiscal quarter
ending date in such table, to exceed the ratio set forth opposite such
date in such table:
Fiscal Quarter
Ending Date: Ratio:
------------ ------
4/30/04 4.44:1.00
7/31/04 4.44:1.00
10/31/04 4.44:1.00
1/31/05 3.30:1.00
4/30/05 4.11:1.00
7/31/05 4.11:1.00
"8.3.3 MINIMUM EBITDA. No Consignee will, and where
applicable, will not permit its Subsidiaries to permit Consolidated EBITDA of
the Parent and its Subsidiaries for any period of four consecutive fiscal
quarters ending on any date set forth in the table below to be less that the
amount set forth opposite such date in such table:
Date: Amount:
----- -------
4/30/04 $67,450,000
7/31/04 $64,600,000
10/31/04 $63,650,000
1/31/05 $63,650,000
4/30/05 $64,600,000
7/31/05 $64,600,000."
2. Each of Finlay and eFinlay and the Agent hereby agree that, except
as expressly provided herein, the terms and provisions of the Consignment
Agreement remain unchanged and the Consignment Agreement remains in full force
and effect in accordance with its terms. The term "Agreement" as used in the
Consignment Agreement and all references to the Consignment Agreement in any
other documents or agreements among any of the parties hereto which relate to
either Finlay or eFinlay shall refer, from and after the date hereof, to the
Consignment Agreement as amended and supplemented by this Sixth Amendment.
3. Each of Finlay and eFinlay hereby ratifies and reaffirms that (i)
the representations and warranties contained in the Consignment Agreement, as
amended by the terms hereof, are true and correct as of the date hereof, except
that references to financial statements shall refer to the latest financial
statements furnished pursuant to the Consignment Agreement and (ii) no Event of
Default (as defined in the Consignment Agreement) nor any event which with
notice or the lapse of time, or both, would constitute an Event of Default
exists as of the date hereof.
[Remainder of the Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, each of the parties hereto has caused this Fourth
Amendment to be executed in several counterparts, each of which shall be deemed
to be an original as of the day and year first above written.
SOVEREIGN BANK, as Agent and a Lender
By: /s/ Xxx Xxxxxxxxxxx
---------------------------
Name: Xxx Xxxxxxxxxxx
Title: Vice President
SOVEREIGN PRECIOUS METALS, LLC, as
Agent and a Lender
By: /s/ Xxx Xxxxxxxxxxx
---------------------------
Name: Xxx Xxxxxxxxxxx
Title: Vice President
COMMERZBANK INTERNATIONAL S.A.
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ X. Xxxxxxx
---------------------------
Name: X. Xxxxxxx
Title: Vice President
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and CFO
EFINLAY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and CFO
[Signature page to Sixth Amendment to Amended and
Restated Gold Consignment Agreement]
