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:
1. Amendment to the Consignment Agreement. Subject to the satisfaction of
the conditions precedent set forth in 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:
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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."
2. Limited Consent. Subject to the satisfaction of the conditions precedent
set forth in 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.
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 Consignment Documents and which is required by law or the
regulation or rule of any agency or authority, or other person, association
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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 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.
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.
5. Ratifications, etc. Except as expressly provided in this Amendment, all
of the terms and conditions of the Consignment Agreement and the other
Consignment 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.
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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.
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.
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
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