EXHIBIT NO. 10.2
SEVENTH AMENDMENT TO
AMENDED AND RESTATED
GOLD CONSIGNMENT AGREEMENT
DATED AS OF MARCH 30, 2001
THIS SEVENTH AMENDMENT is made as of the 22nd day of November, 2004,
among SOVEREIGN BANK (formerly known as Rhode Island Hospital Trust National
Bank), a Federal Savings Bank with an office at 00 Xxxxxxxxxxx Xxxxxx,
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 and as further amended by a Sixth Amendment to Amended
and Restated Gold Consignment Agreement dated August 20, 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 8.2.4 of the Consignment Agreement is hereby amended by
deleting Section 8.2.4(C) (3) in its entirety and replacing it with the
following:
"(3) Finlay may declare or pay dividends to the Parent
commencing on the date hereof until September 30, 2005 in an
aggregate amount not to exceed $12,600,000 in order to enable the
Parent to repurchase up to $12,600,000 of its own common stock in
either open market transactions or privately negotiated
transactions (which may be with affiliates of the Parent and
Consignees) so long as, at the time of the consummation of any
such transaction, no Default or Event of Default has occurred and
is continuing, the purchase price for any such common stock does
not exceed fair market value thereof as of the date of
purchase, and such transaction otherwise complies with the
requirements of the Agreement (as modified through the date
hereof);"
2. Finlay and eFinlay each hereby grant and reconfirm the security
interest granted to Agent pursuant to the Security Agreement.
3. The effectiveness of the transactions described herein shall be
subject to delivery to LLC of this Seventh Amendment.
4. 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 Seventh Amendment.
5. 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.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Seventh
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
----------------------------------------
Title: Vice President
SOVEREIGN PRECIOUS METALS, LLC, as
Agent and a Lender
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------------------------
Title: Vice President
COMMERZBANK INTERNATIONAL S.A.
By: /s/ X. Xxxxx /s/ X. Xxxxxxx
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Title: Vice President Vice President
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Senior Vice President, Treasurer and
Chief Financial Officer
EFINLAY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Senior Vice President, Treasurer and
Chief Financial Officer
[Signature page to Seventh Amendment to Gold Consignment Agreement]
