AMENDMENT No. 8 AND CONSENT
AMENDMENT AGREEMENT No. 8 AND CONSENT (this "Amendment") dated as of March
30, 2000 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");
WHEREAS, the Company proposes to acquire certain assets pursuant to that
certain Asset Purchase Agreement dated as of February 10, 2000 (the "JBR Asset
Purchase Agreement") by and among the Company, as Buyer, Xxx X. Xxxxxxx, as
Seller, and Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx, the sole stockholders of
the Seller (the "JBR Acquisition");
WHEREAS, subject to the terms and conditions contained herein the parties
hereto desire that the Lenders consent to the consummation of the JBR
Acquisition and that certain provisions of the Credit Agreement be amended in
connection therewith;
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 JBR Asset Purchase Agreement. The Lenders hereby consent to
the transactions contemplated by the JBR Asset Purchase Agreement as in effect
on the date hereof, without any waivers or modifications thereof not consented
to by the Majority Lenders, provided that such transaction is consummated by no
later than April 30, 2000. This Consent shall become effective as provided in
Section 4 hereof. In connection with the JBR 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, and to deliver to the Agent revised schedules to
the Credit Agreement reflecting the locations of 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) Section 1.1 of the Credit Agreement is hereby amended to add the
following definitions in their proper alphabetical sequence: "JBR Asset Purchase
Agreement" means that certain Asset Purchase Agreement dated as of February 10,
2000 by and among the Company, as Buyer, Xxx X. Xxxxxxx, as Seller, and Xxxxxxx
X. Xxxxxxx and Xxxxxx X. Xxxxxxx, the sole stockholders of the Seller, as in
effect on the date of Amendment No. 8 to this Agreement." "JBR Acquisition"
means the acquisition contemplated by the JBR Asset Purchase Agreement.
(b) Clause (iii) of Section 9.1 of the Credit Agreement is hereby amended
by adding the following parenthetical to the end thereof: "(except for the
Fiscal Year ending in 2001, in which Fiscal Year $19,000,000 of Capital
Expenditures shall be permitted)".
(c) Clause (b)(i) of Section 9.16 of the Credit agreement is hereby amended
by adding the words "or the JBR Acquisition" after the words "Diamond Park
Acquisition" appearing therein.
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.
(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.
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(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. This Amendment shall not become effective (the
"Effective Date") until (i) this Amendment has been duly executed and delivered
by the Company, the Parent, the Majority Lenders and the Agent; (ii) the
acknowledgement attached hereto shall have been executed and delivered by each
of the Subsidiaries; and (iii) the transactions contemplated by the JBR Asset
Purchase Agreement shall have been consummated by no later than April 30, 2000
and a letter from the Company to that effect shall have been delivered to the
Agent.
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, including any 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. Gold Consignment Agreement. The Lenders hereby consent to the execution
and delivery by the Company of an amendment to the Gold Consignment Agreement
consistent with the terms of this Amendment.
9. 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.
10. 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.
* * *
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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 Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
Individually and as Agent
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Duly Authorized Signatory
FLEET PRECIOUS METALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Singatory
ABN AMRO BANK N.V.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Francesca Cirazier
---------------------------------------
Name: Francesca Cirazier
Title: Vice President
BANK LEUMI
By: /s/ X. Xxxxxx
---------------------------------------
Name: X. Xxxxxx
Title: Vice President
By: /s/ X. Xxxxxxx
---------------------------------------
Name: X. Xxxxxxx
Title: Senior Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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. 8 and Consent relating to the 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 s uch Guaranty shall continue in full force and effect,
subject to the terms thereof.
FINLAY JEWELRY, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief Financial Officer
SONAB HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief Financial Officer
SONAB INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief Financial Officer
SOCIETE NOUVELLE D'ACHAT DE BIJOUTERIE - S.O.N.A.B.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Attorney-in-Fact
FINLAY MERCHANDISING & BUYING, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief Financial Officer
