Exhibit 10.28(g)
AMENDMENT NO. 7
AND LIMITED CONSENT
THIS AMENDMENT NO. 7 AND LIMITED CONSENT (this "Amendment") is made as of
October 28, 1998, 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 BANKBOSTON, N.A., as successor in interest to Rhode
Island Hospital Trust National Bank, a national banking association with its
principal office at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 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, and certain of the
other Consignment Documents (as defined in the Consignment Agreement).
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 and certain of the other Consignment
Documents in certain respects as hereinafter more fully set forth;
WHEREAS, the Consignor is willing to amend the terms of the Consignment
Agreement and such other Consignment Documents 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:
S1. Amendment of S1 of the Consignment Agreement. Section 1 of the
Consignment Agreement is hereby amended by:
(a) inserting, in the places required by alphabetical order, the following
new definitions:
"Finlay Merchandising. Finlay Merchandising and Buying, Inc., a Delaware
corporation."
"Finlay Merchandising Contribution Agreement. The Contribution Agreement
dated as of October 28, 1998 between Finlay Merchandising and the Consignee, as
in effect on the
Seventh Amendment Effective Date."
"Finlay Merchandising License Agreement. The Trade Name License Agreement
dated as of October 28, 1998 between Finlay Merchandising and the Consignee, as
in effect on the Seventh Amendment Effective Date."
"Finlay Merchandising Services Agreement. The Services Agreement dated as
of October 28, 1998 between Finlay Merchandising and the Consignee, as in effect
on the Seventh Amendment Effective Date."
"Intercompany Subordination Agreement. The Intercompany Subordination
Agreement dated as of October 28, 1998 among the Consignor, the Consignee and
Finlay Merchandising."
"Seventh Amendment Effective Date. The "Effective Date" as defined in
Amendment No. 7 and Limited Consent dated as of October 28, 1998 between the
Consignor and the Consignee."
(b) deleting the definition of "Consignment Documents" in its
entirety and substituting in lieu thereof the following new
definition:
"Consignment Documents. This Agreement, the Security Documents, the
Intercreditor Agreement and the Intercompany Subordination Agreement, in each
case as from time to time amended, restated, modified or supplemented."
S2. Amendment of S8.1 of the Consignment Agreement. Section 8.1 of the
Consignment Agreement is hereby amended by:
(a) deleting the word "and" at the end of subsection (i) thereof;
(b) deleting the period (".") at the end of subsection (j) thereof
and substituting the text "; and"; and
(c) inserting, immediately after subsection (j) thereof and
immediately before S8.2, the following new subsection (k):
"(k) cause (i) all payments (net of amounts (which amounts may be paid
in cash) equal to the reasonable, ordinary course operating
expenses of Finlay Merchandising for the then current and
immediately succeeding fiscal months, including, without
limitation, payroll expenses for employees of Finlay
Merchandising), from the Consignee to Finlay Merchandising in
respect of amounts owed under the Finlay Merchandising License
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Agreement and the Finlay Merchandising Services Agreement to be
made by means of appropriate intercompany book entries, (ii)
Finlay Merchandising to declare and distribute to the Consignee
as a dividend, within thirty (30) days following the end of each
fiscal quarter during which payments described in clause (i) of
this subsection (k) are made, an amount equal to the amount of
such payments (net of amounts (which amounts may be paid in cash)
equal to the reasonable, ordinary course operating expenses of
Finlay Merchandising for the then current and immediately
succeeding fiscal months, including, without limitation, payroll
expenses for employees of Finlay Merchandising), and (iii) all
obligations of the Consignee to Finlay Merchandising under and in
respect of the Finlay Merchandising License Agreement and/or the
Finlay Merchandising Services Agreement to be subordinated
(subject to the Intercreditor Agreement) to the Obligations upon
terms and conditions, and pursuant to documentation, in each case
satisfactory to the Consignor."
S3. Amendment of S8.2(c)(vi) of the Consignment Agreement. Section
8.2(c)(vi) of the Consignment Agreement is hereby deleted in its entirety, and
the following new S8.2(c)(vi) is hereby substituted in lieu thereof:
(vi)(A) in the capital stock of Subsidiaries existing on the Closing Date,
Finlay Merchandising or any other Subsidiary created with the prior written
consent of the Consignor and (B) in the case of Finlay Merchandising,
consisting of those items set forth and described on Schedule I to of the
Contribution Agreement; provided, however, that for each of the foregoing
clauses (A) and (B), the Consignee shall not make any additional
investments therein other than additional investments approved in advance
in writing by the Consignor and other than increases in such investments
arising solely by reason of increases in the retained earnings of any such
Subsidiary;".
S4. Amendment of S8.2(d) of the Consignment Agreement. Section 8.2(d) of
the Consignment Agreement is hereby amended by:
(a) deleting the word "and" at the end of clause (F) thereof;
(b) deleting the period at the end of clause (G) thereof and substituting
in lieu thereof the text "; and"; and
(c) inserting the following new clause (H) immediately following
subsection (G) and immediately before S8.2(e):
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"(H) The Consignee may purchase all, but not less than all, of the capital
stock of Finlay Merchandising in connection with the creation thereof
by the Consignee."
S5. Amendment of S8.2(e)(ii) of the Consignment Agreement. Section
8.2(e)(ii) of the Consignment Agreement is hereby amended by inserting,
immediately after the text "property being sold or transferred" and immediately
before the text "; or", the following text: "; provided, however, that
notwithstanding the foregoing, the Consignee may transfer, sell or assign its
trade name "Finlay Fine Jewelry Corporation," as well as certain of its
marketing operations, to Finlay Merchandising and such of its assets to Finlay
Merchandising as are set forth on Schedule I to the Contribution Agreement, and
may lease such trade name from Finlay Merchandising pursuant to the Finlay
Merchandising License Agreement and may enter into the Services Agreement with
Finlay Merchandising; or".
S6. Amendment of S8.2(e)(iii) of the Consignment Agreement. Section
8.2(e)(iii) of the Consignment Agreement is hereby amended by:
(a) inserting a comma (",") and a new clause "(G)", immediately before the
word "or" and existing clause (G), with the following text:
", (G) in connection with the transfer of the Consignee's "buying
and merchandising functions" to Finlay Merchandising pursuant to
the Contribution Agreement, transfer from the Consignee to Finlay
Merchandising of the assets described in on Schedule I to the
Contribution Agreement,"; and
(b) changing the lettering of existing clause "(G)" to clause "(H)".
S7. Amendment of S13 of the Consignment Agreement. Section 13 of the
Consignment Agreement is hereby amended by deleting the last three sentences
thereof and substituting in lieu thereof the following text:
"THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL BE CONSTRUED IN ACCORDANCE THEREWITH AND GOVERNED
THEREBY. THE CONSIGNEE AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF ANY OF THE
CONSIGNMENT DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN. THE CONSIGNEE, AS AN
INDUCEMENT TO THE CONSIGNOR TO ENTER INTO THIS AGREEMENT, HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT
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TO ANY ACTION ARISING IN CONNECTION WITH ANY CONSIGNMENT DOCUMENTS."
S8. Amendment to Schedule XI to the Consignment Agreement. Schedule XI to
the Consignment Agreement is hereby amended by adding thereto the information
contained on Schedule XI-A hereto with respect to the transfer of the
Consignee's "buying and merchandising functions" to Finlay Merchandising.
S9. Amendment to S19 of the Security Agreement. Section 19 of the Security
Agreement is hereby amended by deleting the first two sentences thereof and
substituting, in lieu thereof the following text:
"THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS. The Company agrees that any suit for the enforcement of this
Agreement may be brought in the courts of the Commonwealth of Massachusetts or
any federal court sitting therein and consents to the non-exclusive jurisdiction
of such court and to service of process in any such suit being made upon the
Company by registered or certified mail at the Company's Principal Office."
S10. Amendment of Cash Collateral Agreement. The Cash Collateral Agreement
is hereby amended by deleting the penultimate paragraph thereof (i.e., the final
paragraph on page 2 thereof) and substituting in lieu thereof the following new
paragraph:
"This agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute one agreement. This
agreement shall be governed by the laws of the Commonwealth of Massachusetts and
shall be construed as a sealed instrument under law."
S11. Limited Consent. Subject to the satisfaction of the conditions
precedent set forth in S13 hereof, the Consignor hereby consents to the
execution and delivery by the Consignee of Amendment No. 4 to the Amended and
Restated Credit Agreement dated as of October 28, 1998, among the Consignee, the
Parent, the Dollar Agent and the lenders party thereto, such Amendment No. 4
being in substantially the form attached hereto as Exhibit A.
S12. Representations and Warranties. The Consignee hereby represents and
warrants to the Consignor as follows:
(a) Representations and Warranties in Consignment
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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 (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 Section 13 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. 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
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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.
S13. Conditions to Effectiveness. This Amendment shall be effective as of
October 28, 1998 (the "Effective Date") upon the Consignor's receipt of each of
following conditions precedent, in each case in form and substance satisfactory
to the Consignor:
(a) this Amendment duly executed by each of the Consignee and the
Consignor;
(b) evidence of the Consignee's receipt of all necessary or appropriate
third party consents or approvals to the transactions contemplated
hereby, including, without limitation, consents or approvals from the
Dollar Agent and each of the lenders under the Dollar Facility;
(c) evidence of the filing with the Delaware Secretary of State of the
certificate of incorporation of Finlay Merchandising;
(d) fully executed copies of the Finlay Merchandising Contribution
Agreement, the Finlay Merchandising License Agreement and the Finlay
Merchandising Services Agreement (as each such term is defined in the
Consignment Agreement, as amended hereby), each duly certified by an
officer of the Consignee as being true and correct and in full force
and effect; and
(e) a certificate of an officer of the Consignee certifying that the
transactions contemplated by the Finlay Merchandising Contribution
Agreement, the Finlay Merchandising License Agreement and the Finlay
Merchandising Services Agreement have been consummated.
S14. 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
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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.
S15. Expenses. Without limiting the expense reimbursement requirements set
forth in S11 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.
S16. 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.
S17. 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.
S18. 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.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
BANKBOSTON, N.A., as successor in
interest to RHODE ISLAND HOSPITAL
TRUST NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
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