AMENDMENT Xx. 0
XXXXXXXXX XXXXXXXXX Xx. 0 dated as of September 11, 1997 among
FINLAY ENTERPRISES, INC. a Delaware corporation (the "Parent"), FINLAY FINE
JEWELRY CORPORATION, a Delaware corporation (the "Company"), the lenders named
herein and signatory hereto (the "Lenders") and GENERAL ELECTRIC CAPITAL
CORPORATION, as agent (the "Agent"), for the Lenders.
W I T N E S S E T H :
WHEREAS, the Parent, the Company, the Lenders and the Agent are
parties to an Amended and Restated Credit Agreement dated as of September 11,
1997 (as heretofore and hereafter amended, modified or supplemented from time to
time in accordance with its terms, the "Credit Agreement") and;
WHEREAS, the Company desires to fund its proposed acquisition of
certain assets pursuant to that certain Asset Purchase Agreement (as defined
herein) by amending the terms of the Credit Agreement; and
WHEREAS, subject to the terms and conditions contained herein the
parties hereto desire to amend certain provisions of the Credit Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and subject to the fulfillment of the conditions
set forth below, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise specifically defined herein, all capitalized
terms used herein shall have the respective meanings ascribed to such terms in
the Credit Agreement.
2. Consent to Asset Purchase Agreement. The Lenders hereby consent
to the transactions contemplated by that certain Asset Purchase Agreement dated
as of September 3, 1997 by and among the Parent, the Company, Xxxx Corporation
and Zale Delaware Inc. (the "Asset Purchase Agreement"), as in effect on the
date hereof, without any waivers or modifications not consented to by the
Majority Lenders, provided that such transaction is consummated by no later than
November 14, 1997. This consent shall become
effective upon the due execution and delivery of this Amendment by each of the
Company, the Parent and each of the Lenders. In connection with such
acquisition, the Company agrees to execute, deliver and file at the Company's
expense all financing statements requested by the Agent to be filed to perfect
the Agent's and the Lenders' Liens on the assets to be purchased.
3. Amendments to Credit Agreement. Upon the Effective Date (as
defined herein), the Credit Agreement shall be amended as follows:
(a) The definition of "Revolving Credit Facility Commitment"
contained in Section 1.1 of the Credit Agreement is hereby amended by deleting
the amount "$175,000,000" appearing therein, and substituting "$225,000,000"
therefor.
(b) Section 3.1(c)(i) of the Credit Agreement is hereby amended by
deleting the amount "$10,000,000" appearing therein and substituting
"$50,000,000" therefor.
(c) Section 9.1(ii) of the Credit agreement is hereby amended by
deleting the amount "$18,500,000" appearing therein and substituting
"$19,500,000" therefor.
(d) Exhibit A to the Credit Agreement is hereby amended in its
entirety to read as set forth on Exhibit A hereto.
4. Representations and Warranties. Each of the Parent and the
Company represents and warrants as follows (which representations and warranties
shall survive the execution and delivery of this Amendment):
(a) Each of the Parent and the Company has taken all necessary
action to authorize the execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by the
Parent and the Company and the acknowledgement attached hereto has been duly
executed and delivered by each Subsidiary. This Amendment and the Credit
Agreement as amended hereby constitute the legal, valid and binding obligation
of the Parent and the Company, enforceable against them in accordance with their
respective terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting the enforcement of creditors' rights
generally and by general equity principles.
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(c) No consent or approval of any person, firm, corporation or
entity, and no consent, license, approval or authorization of any governmental
authority is or will be required in connection with the execution, delivery,
performance, validity or enforcement of this Amendment other than any such
consent, approval, license or authorization which has been obtained and remains
in full force and effect or where the failure to obtain such consent, approval,
license or authorization would not result in a Material Adverse Effect.
(d) After giving effect to this Amendment, each of the Company and
the Parent is in compliance with all of the various covenants and agreements set
forth in the Credit Agreement and each of the other Loan Documents.
(e) After giving effect to this Amendment, no event has occurred and
is continuing which constitutes a Default or an Event of Default.
(f) All representations and warranties contained in the Credit
Agreement and each of the other Loan Documents are true and correct in all
material respects as of the date hereof, except to the extent that any
representation or warranty relates to a specified date, in which case such are
true and correct in all material respects as of the specific date to which such
representations and warranties relate.
5. Effective Date. The amendments to the Credit Agreement contained herein
shall not become effective (the "Effective Date") until (i) this Amendment has
been duly executed and delivered by the Company, the Parent and each of the
Lenders; (ii) the acknowledgement attached hereto shall have been executed and
delivered by each of the Subsidiaries; (iii) the transactions contemplated by
the Asset Purchase Agreement shall have been consummated by no later than
November 14, 1997 and a letter from the Company to that effect shall have been
delivered to the Agent and (iv) the Parent and the Company shall have delivered
to the Agent for each of the Lenders new Revolving Notes reflecting their new
Revolving Commitments. On the Effective Date, upon the written request of the
Agent, each Lender whose Revolving Commitment has increased on the Effective
Date shall wire transfer immediately available funds to the Agent in an amount
required to purchase such Lender's new pro rata share of the then outstanding
amount of the Revolving Loan. Such funds will be paid by the Agent to each
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Lender whose Revolving Commitment did not increase on the Effective Date so as
to reduce such Lender's pro rata share of the Revolving Loan immediately prior
to the Effective Date to its new pro rata share of the Revolving Loan on the
Effective Date.
6. Expenses. The Company agrees to pay on demand all costs and
expenses, including reasonable attorneys' fees, of the Agent incurred in
connection with this Amendment and related UCC financing statement filings.
7. Continued Effectiveness. The term "Agreement", "hereof", "herein"
and similar terms as used in the Credit Agreement, and references in the other
Loan Documents to the Credit Agreement, shall mean and refer to, from and after
the Effective Date, the Credit Agreement as amended by this Amendment. Each of
the Company and the Parent hereby agrees that all of the covenants and
agreements contained in the Credit Agreement and the Loan Documents are hereby
ratified and confirmed in all respects.
8. Counterparts. This Amendment may be executed in counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute a single instrument. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery of
a manually executed counterpart of this Amendment.
9. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York without giving effect to
the conflict of laws provisions thereof.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to
be duly executed by their respective officers as of the date first written
above.
FINLAY ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
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FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
Individually and as Agent
By: /s/ Xxxx Luck
-------------------------------
Name: Xxxx Luck
Its Duly Authorized Signatory
FLEET PRECIOUS METALS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xx Xxxxx
-----------------------------
Name: Xx Xxxxx
Title: Managing Director
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Each of the Guarantors, by signing below, confirms in favor of the Agent and the
Lenders that it consents to the terms and conditions of the foregoing Amendment
No. 1 to this Amended and Restated Credit Agreement and agrees that it has no
defense, offset, claim, counterclaim or recoupment with respect to any of its
obligations or liabilities under its respective Guaranty and that all terms of
such Guaranty shall continue in full force and effect, subject to the terms
thereof.
FINLAY JEWELRY, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
SONAB HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
SONAB INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
SOCIETE NOUVELLE D'ACHAT DE BIJOUTERIE - S.O.N.A.B.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Attorney-in-Fact
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EXHIBIT A
LENDERS, COMMITMENTS AND INITIAL EURODOLLAR OFFICES
Lender and Initial Revolving
Eurodollar Office Commitment
Amount %
General Electric $75,000,000 33.333%
Capital
Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Fleet Precious Metals, Inc. $50,000,000 22.222%
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Xxxxxxx Xxxxx Credit Partners L.P. $50,000,000 22.222%
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Chase Manhattan Bank $50,000,000 22.222%
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Revolving
Sublimit
Commitment%
-----------
General Electric $8,333,500 33.333%
Capital
Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Fleet Precious Metals, Inc. $5,555,5000 22.222%
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Xxxxxxx Xxxxx Credit Partners $5,555,5000 22.222%
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Chase Manhattan Bank $5,555,500 22.222%
000 Xxxx 00xx Xxxxxx
--------
As such amount may vary pursuant to the definition of Parent Revolving Credit
Facility Sublimit Commitment.
