Exhibit 10.19 (d)
THIRD AMENDMENT TO
AMENDED AND RESTATED
GOLD CONSIGNMENT AGREEMENT
DATED AS OF MARCH 30, 2001
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THIS THIRD AMENDMENT is made as of the 4th day of April, 2003, among
SOVEREIGN BANK (formerly known as Rhode Island Hospital Trust National Bank), a
Federal Savings Bank with an office at 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000, as a bank ("Sovereign" and together with the other lending
institutions from time to time collectively, the "Institutions"), SOVEREIGN
PRECIOUS METALS, LLC, a Pennsylvania limited liability company ("LLC"), FINLAY
FINE JEWELRY CORPORATION, a Delaware corporation ("Finlay"), and EFINLAY, INC. a
Delaware corporation ("eFinlay").
W I T N E S S E T H T H A T:
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WHEREAS, Sovereign, Finlay and eFinlay are parties to a certain Amended
and Restated Gold Consignment Agreement dated as of March 30, 2001, as amended
by a First Amendment to Amended and Restated Gold Consignment Agreement dated as
of December 31, 2001 and as further amended by a Second Amendment to Amended and
Restated Gold Consignment Agreement dated as of September 30, 2002 (as amended,
the "Consignment Agreement"), relating to the consignment by the Institutions to
Finlay;
WHEREAS, Sovereign, Finlay and eFinlay desire to further amend and
modify the Consignment Agreement in certain respects;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section 8.3 of the Consignment Agreement is hereby amended by
deleting Section 8.3.1 in its entirety and replacing it with the following:
"Consolidated EBITDA to Consolidated Periodic Financial Obligations.
Consignee will and where applicable, each Consignee will cause its Subsidiaries
on a consolidated basis to maintain as of the end of each period of four
consecutive fiscal quarters the ratio of (a) the excess, if any, of (i)
Consolidated EBITDA of the Parent and its Subsidiaries for such period less (x)
the amount of cash applied by the Parent to the payment of income taxes of the
Parent and its Subsidiaries in respect of such period, whether directly or
pursuant to the Tax Allocation
Agreement less (y) the amount of Capital Expenditures made by the Parent and its
Subsidiaries during such period to (b) the amount of Consolidated Periodic
Financial Obligations (inclusive of interest and cash dividend payments) of the
Parent and its Subsidiaries of not less than the ratio opposite such date in
such table:
For Fiscal Quarter
Ending on or About: Ratio:
------------------ -----
4/30/03 1.44:1.00
7/31/03 1.44:1.00
10/31/03 1.44:1.00
1/31/04 1.53:1.00
4/30/04 1.49:1.00
7/31/04 1.49:1.00
10/31/04 1.49:1.00
1/31/05 1.53:1.00
4/30/05 1.49:1.00
7/31/05 1.49:1.00."
2. Section 8.3 of the Consignment Agreement is hereby further amended
by deleting Section 8.3.2 in its entirety and replacing it with the following:
"8.3.2. Indebtedness to EBITDA. No Consignee will and where applicable,
each Consignee will not permit its Subsidiaries to, 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:
Fiscal Quarter
Ending Date: Ratio:
----------- -----
4/30/03 4.78:1.00
7/31/03 4.78:1.00
10/31/03 4.78:1.00
1/31/04 3.39:1.00
4/30/04 4.44:1.00
7/31/04 4.44:1.00
10/31/04 4.44:1.00
1/31/05 3.17:1.00
4/30/05 4.11:1.00
7/31/05 4.11:1.00."
3. Section 8.3 of the Consignment Agreement is hereby further amended
by deleting Section 8.3.3 in its entirety and replacing it with the following:
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"8.3.3. Minimum EBITDA. No Consignee will and where applicable, each
Consignee will not permit its Subsidiaries to, permit Consolidated
EBITDA of the Parent and its Subsidiaries for any period of four
consecutive fiscal quarters ending on any date set forth in the table
below to be less than the amount set forth opposite such date in such
table:
Date: Amount:
----- -------
4/30/03 $65,000,000
7/31/03 $65,000,000
10/31/03 $65,000,000
1/31/04 $66,600,000
4/30/04 $67,500,000
7/31/04 $67,500,000
10/31/04 $68,400,000
1/31/05 $71,100,000
4/30/05 $72,000,000
7/31/05 $72,900,000."
4. Finlay and eFinlay each hereby grant and reconfirm the security
interest granted to Agent pursuant to the Security Agreement.
5. The effectiveness of the transactions described herein shall be
subject to (i) delivery to LLC of this Third Amendment and (ii) payment of all
outstanding legal fees due and owing to counsel to Sovereign and LLC.
6. Each of Finlay and eFinlay and the Agent hereby agree that, except
as expressly provided herein, the terms and provisions of the Consignment
Agreement remain unchanged and the Consignment Agreement remains in full force
and effect in accordance with its terms. The term "Agreement" as used in the
Consignment Agreement and all references to the Consignment Agreement in any
other documents or agreements among any of the parties hereto which relate to
either Finlay or eFinlay shall refer, from and after the date hereof, to the
Consignment Agreement as amended and supplemented by this Third Amendment.
7. Each of Finlay and eFinlay hereby ratifies and reaffirms that (i)
the representations and warranties contained in the Consignment Agreement, as
amended by the terms hereof, are true and correct as of the date hereof, except
that references to financial statements shall refer to the latest financial
statements furnished pursuant to the Consignment Agreement and (ii) no Event of
Default (as defined in the Consignment Agreement) nor any event which with
notice or the lapse of time, or both, would constitute an Event of Default
exists as of the date hereof.
8. Each of Finlay and eFinlay and the Agent hereby agree that all
references in the Intercreditor Agreement (as defined in the Consignment
Agreement) as amended through the date hereof to Sovereign Bank, shall for
purposes therein refer to Sovereign Bank and Sovereign Precious Metals, LLC.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
amendment to be executed in several counterparts, each of which shall be deemed
to be an original as of the day and year first above written.
SOVEREIGN BANK, as Agent and a Lender
By /s/ Xxxxxxxxx Xxxxx
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Title Vice President
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SOVEREIGN PRECIOUS METALS, LLC, as
Agent and a Lender
By /s/ Xxxxxxxxx Xxxxx
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Title Vice President
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COMMERZBANK INTERNATIONAL S.A.
By /s/ Xxxx Xxxxxxxxxxx
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Title Senior Vice President
By /s/ Xxxxxxx Xxxxx
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Title Vice President
FINLAY FINE JEWELRY CORPORATION
By /s/ Xxxxx Xxxxxxxx
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Title Senior Vice President,
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Treasurer and Chief
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Financial Officer
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EFINLAY, INC.
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Title Senior Vice President,
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Treasurer and Chief
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Financial Officer
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