AMENDMENT NO. 10
AND LIMITED CONSENT
THIS AMENDMENT NO. 10 AND LIMITED CONSENT (this "Amendment") is made as of
April 21, 2000, by and between FINLAY FINE JEWELRY CORPORATION, a Delaware
corporation with its principal office at 521 Fifth Avenue, New York, New York
10175 (the "Consignee") and SOVEREIGN BANK, as successor to Fleet National Bank,
formerly known as BankBoston, N.A., as successor to Rhode Island Hospital Trust
National Bank (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 meanings
herein as therein.
WHEREAS, the Consignee wishes to sell certain assets to Ultra Stores, Inc.,
an Illinois corporation ("Ultra Stores"), pursuant to a Purchase and Sale
Agreement dated as of April 18, 2000 between the Consignee and Ultra Stores in
the form attached hereto as Exhibit A (the "New York Jewelry Outlet Purchase and
Sale Agreement");
WHEREAS, the Consignee has requested that the Consignor agree to amend the
terms of the Consignment Agreement in certain respects as hereinafter more fully
set forth so as, among other things, to permit the sale of such assets;
WHEREAS, the Consignor is willing to amend the terms of the Consignment
Agreement in such respects upon the terms and subject to the conditions
contained herein;
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 OF SECTION 1 OF THE CONSIGNMENT AGREEMENT. Section 1
of the Consignment Agreement is hereby amended by deleting the dollar amount
"$27,000,000" from subsection (f) of the definition of Consolidated EBITDA and
substituting in lieu thereof the dollar amount "$28,631,000".
SECTION 2. LIMITED CONSENT TO TRANSFER OF ASSETS. The Consignee has
informed the Consignor that it wishes to sell certain assets (other than
inventory) located at and/or used in connection with its chain of outlet stores
known as the New York Jewelry Outlet to Ultra Stores. The Consignee has further
requested that
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the Consignor consent to such disposition of assets pursuant to the terms and
conditions of the New York Jewelry Outlet Purchase and Sale Agreement. Subject
to the terms and conditions contained herein, the Consignor hereby consents to
the transfer of the Assets (as defined in the New York Outlet Purchase and Sale
Agreement) on the terms and conditions of the New York Outlet Purchase and Sale
Agreement; PROVIDED, HOWEVER, that (a) the closing of such transfer of the
Assets shall occur on or before May 31, 2000; (b) such transfer shall take place
in accordance with the terms and conditions set forth in the New York Outlet
Purchase and Sale Agreement; and (c) the aggregate consideration to be paid to
the Consignee by Ultra Stores pursuant to the New York Outlet Purchase and Sale
Agreement (in cash and in the form of a promissory note issued by Ultra Stores
in favor of the Consignee) shall be at least $900,000.
SECTION 3. LIMITED CONSENT. Subject to the satisfaction of the conditions
set forth in section 5 hereof, the Consignor hereby consents to the execution
and delivery by the Consignee of Amendment No. 9, amending the Amended and
Restated Credit Agreement dated as of September 11, 1997 among the Consignee,
the Parent, the Dollar Agent and the Lenders party thereto, such Amendment being
in substantially the form attached hereto as Exhibit B.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Consignee hereby represents
and warrants to the Consignor as follows:
(a) Representations and Warranties. The representations and warranties
of the Consignee contained in the Consignment Agreement and the
other Consignment Documents 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. The representations
and warranties of the Consignee and, to the best of the Consignee's
knowledge, Ultra Stores contained in the New York Jewelry Outlet
Purchase and Sale Agreement were true and correct in all material
respects when made, are true and correct in all material respects on
the date hereof and shall be true and correct in all material
respects on the date of the closing of the sale of the Assets,
except 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 New York
Jewelry Outlet Purchase and Sale Agreement and the consummation of
the transactions contemplated hereby and thereby (i) are within the
corporate power of the Consignee and have been duly authorized by
all
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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
(except for the consent of the Dollar Agent and the lenders under
the Dollar Facility, which consent is being obtained concurrently
herewith as required by section 5 hereof), 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 or entity, (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. Each of this Amendment and the New
York Jewelry Outlet Purchase and Sale Agreement 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, fraudulent conveyance or transfer, 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 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall be effective
as of the date first above written (the "Effective Date") upon the Consignor's
receipt of each of the following, in each case in form and substance
satisfactory to the Consignor:
(a) this Amendment duly executed by each of the Consignee and the
Consignor;
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(b) a copy of the New York Jewelry Outlet Purchase and Sale Agreement,
duly executed by each of the parties thereto and duly certified by
the Secretary or Assistant Secretary of the Consignee as being true,
correct, complete and in full force and effect, without further
amendment or modification;
(c) evidence of the Consignee's receipt of all necessary or appropriate
third party consents or approvals to the amendments contemplated
hereby, including, without limitation, consents or approvals from
the Dollar Agent and each of the applicable lenders under the Dollar
Facility; and
(d) such other documents or items as the Consignor may request.
SECTION 6. 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.
SECTION 7. EXPENSES. Without limiting the expense reimbursement
requirements set forth in section 11 of the Consignment Agreement, the Consignee
agrees to pay on demand all costs and expenses, including reasonable attorneys'
fees, of the Consignor incurred in connection with this Amendment.
SECTION 8. 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 9. 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 Commonwealth of Massachusetts.
SECTION 10. 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/Bruce Zurlnick
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Name: Bruce Zurlnick
Title: Senior Vice President, Treasurer
and Chief Financial Officer
SOVEREIGN BANK, as successor to FLEET
NATIONAL BANK, formerly known as BANKBOSTON,
N.A., as successor in interest to RHODE
ISLAND HOSPITAL TRUST NATIONAL BANK
By: /s/ Albert L. Brown
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Name: Albert L. Brown
Title: Senior Vice President
