SIXTH AMENDMENT AND AGREEMENT
TO
CONSIGNMENT AGREEMENT
THIS SIXTH AMENDMENT AND AGREEMENT TO CONSIGNMENT AGREEMENT is made as of
the 31st day of October, 1996, 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:
All capitalized terms used herein without definition shall have the
meanings assigned by the Consignment Agreement.
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 Million Two Hundred Fifty Thousand
Dollars ($20,250,000); or
(y) the value (as determined pursuant to
Paragraph 2 hereof) of up to Forty-Five
Thousand (45,000) 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")."
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.
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Except as amended hereby, the Consignment Agreement
shall remain in full force and effect and is in all respects hereby ratified
and affirmed.
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 Sixth 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: /s/ Xxxx X. Xxxxxxxxx
Xxxx Xxxxxxxxx
President
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxx X.Xxxxxx
(as to both) Xxxxxxx Xxxxxx
Treasurer
FLEET PRECIOUS METALS INC.
By: /s/ Xxxxxxx X. Xxxxxx Xxx
Title: Vice President
/s/ Xxxx X. Burns_ By:_ /s/Xxxxx X.Xxxxxx
(as to both) Title Vice President
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