EXHIBIT 10.1
SIXTH AMENDMENT TO
AMENDED AND RESTATED
GOLD CONSIGNMENT AGREEMENT
DATED AS OF MARCH 30, 2001
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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:
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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:
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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:
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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
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Name: Xxx Xxxxxxxxxxx
Title: Vice President
SOVEREIGN PRECIOUS METALS, LLC, as
Agent and a Lender
By: /s/ Xxx Xxxxxxxxxxx
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Name: Xxx Xxxxxxxxxxx
Title: Vice President
COMMERZBANK INTERNATIONAL S.A.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ X. Xxxxxxx
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Name: X. Xxxxxxx
Title: Vice President
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and CFO
EFINLAY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and CFO
[Signature page to Sixth Amendment to Amended and
Restated Gold Consignment Agreement]