EIGHTH AMENDMENT AND AGREEMENT
TO
CONSIGNMENT AGREEMENT
THIS EIGHTH AMENDMENT AND AGREEMENT TO CONSIGNMENT AGREEMENT is
made as of the fifth day of May, 1998, by and between FLEET PRECIOUS METALS
INC., a Rhode Island corporation with its principal offices at 000
Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (the "Consignor"), and
PIERCING PAGODA, INC., a Delaware corporation, with its principal office at
0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 and with a mailing address
of X.X. Xxx 00000, Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000 (the "Customer").
WITNESSETH THAT:
WHEREAS, the Consignor and the Customer are parties to a certain
Consignment Agreement dated as of November 30, 1990, as previously amended
(as amended, the "Consignment Agreement") pursuant to which the Consignor
agreed to consign precious metals to the Customer for use in its operations;
WHEREAS, the Consignor and the Customer desire to amend the
Consignment Agreement on the terms and conditions hereinafter contained;
NOW, THEREFORE, for value received, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein without definition shall
have the meanings assigned by the Consignment Agreement.
2. Effective the date hereof, the third sentence of Section 1(b)
of the Consignment Agreement is amended to read in its entirety as follows:
"It is understood that at no time shall the value of commodities
on consignment to the Customer exceed:
(i) the least of:
(x) Twenty-Eight Million Dollars ($28,000,000); or
(y) the value (as determined pursuant to Paragraph 2
hereof) of up to Seventy Thousand (70,000) xxxx ounces of
gold; or
(z) an amount equal to one hundred percent (100%) of
the stated amount of the irrevocable standby letter of
credit (the "Letter of Credit") described in Section 12
hereof; or
(ii) such limit as the Consignor and the Customer may
agree upon from time to time as evidenced by an amendment in
substantially the form of Exhibit B
attached hereto and made a part hereof or in such other form as the
Consignor shall require (collectively, the "Consignment
Limit")."
3. All references to the "Consignment Agreement" in any
documents or agreements by and between the parties hereto, shall from and
after the effective date hereof refer to the Consignment Agreement, as
amended hereby, and all obligations of the Customer under the Consignment
Agreement, as amended hereby, shall be secured by and entitled to the
benefits of the Letter of Credit hereinabove referred to.
4. Except as amended hereby, the Consignment Agreement shall
remain in full force and effect and is in all respects hereby ratified and
affirmed.
5. The Customer covenants and agrees to pay all out-of-pocket
expenses, fees and charges incurred by the Consignor (including reasonable
fees and disbursements of outside counsel) in connection with the
preparation and implementation of this Eighth Amendment and Agreement to
Consignment Agreement.
IN WITNESS WHEREOF, the undersigned parties have caused this
Amendment to be executed by their duly authorized officers as of the date
first above written.
WITNESS: PIERCING PAGODA, INC.
By:____________________________
Xxxx Xxxxxxxxx
Executive Vice President
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By:____________________________
(as to both) Xxxxxxx Xxxxxx
Treasurer
FLEET PRECIOUS METALS INC.
By:____________________________
Title:
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By:____________________________
(as to both) Title:
