NINTH AMENDMENT TO
AMENDED AND RESTATED
GOLD CONSIGNMENT AGREEMENT
DATED AS OF MARCH 30, 2001
THIS NINTH AMENDMENT is made as of the 7th day of April, 2006, 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, as further
amended by a Fifth Amendment to Amended and Restated Gold Consignment Agreement
dated as of May 27, 2004, as further amended by a Sixth Amendment to Amended and
Restated Gold Consignment Agreement dated August 20, 2004, as further amended by
a Seventh Amendment to Amended and Restated Gold Consignment Agreement dated as
of November 22, 2004, as further amended by a Consent and Amendment dated as of
May 19, 2005 and as further amended by an Eighth Amendment to Amended and
Restated Gold Consignment Agreement dated as of July 29, 2005 (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. Article 1 of the Consignment Agreement is hereby amended by deleting
the defined term "Maturity Date" and replacing it with the following:
"Maturity Date: the earliest of (a) October 31, 2007;
provided, however, if the Dollar Facility is extended through at
least October 31, 2008 (on terms acceptable to the Institutions)
such date in clause (a) should be October 31, 2008,
(b) the maturity date from time to time in effect under the Dollar
Facility, or (c) such other date on which all Obligations may become
due and payable pursuant to the terms hereof."
2. Section 8.3 of the Consignment Agreement is hereby amended by
deleting Section 8.3.1 in its entirety and replacing it with the following:
"Consolidated EBITDA to Consolidated Periodic Financial
Obligations. Consignee will and where applicable, each Consignee
will cause its Subsidiaries on a consolidated basis to maintain as
of the end of each period of four consecutive fiscal quarters the
ratio of (a) the excess, if any, of (i) Consolidated EBITDA of the
Parent and its Subsidiaries for such period less (x) the amount of
cash applied by the Parent to the payment of income taxes of the
Parent and its Subsidiaries in respect of such period, whether
directly or pursuant to the Tax Allocation Agreement less (y) the
amount of Capital Expenditures made by the Parent and its
Subsidiaries during such period to (b) the amount of Consolidated
Periodic Financial Obligations (inclusive of interest and cash
dividend payments) of the Parent and its Subsidiaries of not less
than the ratio opposite such date in such table:
For Fiscal Quarter
Ending on or About: Ratio:
------------------- ---------
1/31/06 1.53:1.00
4/30/06 1.53:1.00
7/31/06 1.53:1.00
10/31/06 1.35:1.00
1/31/07 1.08:1.00
4/30/07 1.53:1.00
7/31/07 1.53:1.00
3. Section 8.3 of the Consignment Agreement is hereby further amended
by deleting Section 8.3.2 in its entirety and replacing it with the following:
"8.3.2. Indebtedness to EBITDA. No Consignee will and where
applicable, each Consignee 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:
-------------- ---------
1/31/06 3.30:1.00
4/30/06 4.18:1.00
7/31/06 4.62:1.00
10/31/06 4.95:1.00
1/31/07 4.29:1.00
4/30/07 3.85:1.00
7/31/07 3.85:1.00
4. Section 8.3 of the Consignment Agreement is hereby further amended
by deleting Section 8.3.3 in its entirety and replacing it with the following:
"8.3.3. Minimum EBITDA. No Consignee will and where applicable, each
Consignee 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
than the amount set forth opposite such date in such table:
Date: Amount:
-------- -----------
1/31/06 $68,400,000
4/30/06 $66,500,000
7/31/06 $61,750,000
10/31/06 $58,235,000
1/31/07 $48,640,000
4/30/07 $74,100,000
7/31/07 $74,100,000
5. Finlay and eFinlay each hereby grant and reconfirm the security
interest granted to Agent pursuant to the Security Agreement.
6. The effectiveness of the transactions described herein shall be
subject to delivery to LLC of this Ninth Amendment.
7. 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 Ninth Amendment.
8. 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 page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Ninth
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/Xxxxxx Xxxxxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
SOVEREIGN PRECIOUS METALS, LLC,
as Agent and a Lender
By: /s/Xxxxxx Xxxxxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
COMMERZBANK INTERNATIONAL S.A.
By: /s/X. Xxxx
------------
Name: X. 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, Chief
Financial Officer and Treasurer
EFINLAY, INC.
By: /s/Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
