AMENDMENT NO. 4 AND LIMITED CONSENT
THIS AMENDMENT NO. 4 AND LIMITED CONSENT (this "Amendment") is made as
of October 6, 1997, by and between FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation with its principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Consignee") and RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, a
national banking association with its principal office at Xxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (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:
Section 1. Amendment to the Consignment Agreement. Subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof, the
Consignment Agreement is hereby amended by deleting Section 8.3(b) of the
Consignment Agreement in its entirety and substituting in lieu thereof the
following new text:
"(b) 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:
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Fiscal Quarter
Ending Date: Ratio:
----------- -----
10/31/97 6.30:1
01/31/98 4.70:1
;provided, however, that in calculating the above ratio as of October
31, 1997 only, there shall be excluded from such calculation any effect
upon Indebtedness for Borrowed Money of the Parent and its Subsidiaries
and on Consolidated EBITDA of the Parent and its Subsidiaries resulting
from the acquisition by the Consignee of the assets and business being
acquired from the Diamond Park Fine Jewelry division of Zale Delaware,
Inc. (the "Seller") pursuant to the terms of a certain Asset Purchase
Agreement dated September 3, 1997 among the Parent, the Consignee, the
Seller and Xxxx Corporation, as in effect on the date hereof (the
"Acquisition"), or from the related financing of such Acquisition under
the Dollar Facility."
Section 2. Limited Consent. Subject to the satisfaction of the
conditions precedent set forth in Section 4 hereof, the Consignor hereby
consents to the execution and delivery by the Consignee of Amendment No. 1 and
Amendment No. 2 to the Amended and Restated Credit Agreement dated as of
September 11, 1997, among the Consignee, the Parent, the Dollar Agent and the
lenders parties thereto, such Amendment No. 1 and Amendment No. 2 being in
substantially the forms attached hereto as Exhibits A and B, respectively.
Section 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
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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 award 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.
Section 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
(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.
Section 5. Ratifications, etc. Except as expressly provided in this
Amendment, all of the terms and conditions of the Consignment Agreement and the
other Consignment
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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.
Section.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.
Section.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.
Section 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/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
