FOURTH AMENDMENT TO AMENDED AND
RESTATED CONSIGNMENT AGREEMENT
DATED AS OF JULY 26, 1994
THIS FOURTH AMENDMENT is made as of the fifteenth day of May, 0000,
xxxxxxx XXXXX XXXXXX HOSPITAL TRUST NATIONAL BANK, a national banking
association with its principal office at Xxx Xxxxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxx 00000 ("Bank"), and PIERCING PAGODA, INC., a
Delaware corporation with its address at 0000 Xxxxx Xxxxx, X.X. Xxx 00000,
Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000 ("Buyer").
W I T N E S S E T H T H A T:
WHEREAS, Bank and Buyer are parties to a certain Amended and Restated
Consignment Agreement dated as of July 26, 1994, as amended by a certain
First Amendment dated as of December 22, 1994, a certain Second Amendment
dated as of September 11, 1995, and a certain Third Amendment dated as of
December 24, 1996 (as amend and as otherwise amended or modified from time
to time, the "Consignment Agreement"), relating to the consignment by Bank
to Buyer of Precious Metal (as defined therein); and
WHEREAS, Bank and Buyer 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. The definition of "Consignment Limit" in Section 1 of the
Consignment Agreement is hereby amended to read in its entirety as follows:
"`Consignment Limit' shall mean Consigned Precious Metal with a
Fair Market Value (or unpaid Purchase Price in the case of
Consigned Precious Metal for which the Purchase Price has been
agreed but payment has not been received by Bank) equal to
Thirty Million Dollars ($30,000,000)."
2. Section 6 of the Consignment Agreement is hereinafter amended to
read in its entirety as follows:
"6. Commingling; Redelivery of Precious Metal. Buyer may use the
Consigned Precious Metal only in the ordinary course of its
business as now conducted; provided that no Consigned Precious
Metal shall be removed from Buyer's Principal Office or the
retail locations operated by Buyer prior to the fixing of the
Purchase Price for such Consigned Precious Metal.
Notwithstanding contrary provisions in this Section, Buyer shall
have the right:
(i) On terms and conditions approved in writing by Bank, to
remove scrap from its Principal Office for refining in the
ordinary course of its business and to deliver products
containing Consigned Precious Metal to retail locations
operated by Buyer and to vendor locations of Buyer ("Vendor
Locations"), it being agreed that all such scrap and other
Consigned Precious Metal shall be and remain the property of
Bank until purchased and paid for pursuant to Section 5
hereof; and
(ii) As long as (A) Buyer maintains an aggregate Precious
Metal inventory at its Principal Office, the retail locations
operated by Buyer and Vendor Locations which exceeds the
amount of Precious Metal on consignment to Buyer from Bank,
Fleet Precious Metals Inc. and any other Precious Metal
consignors (the "Minimum Precious Metal") and (B) this
Agreement has not been terminated due to the occurrence of an
Event of Default, pursuant to the provisions of Section 14 of
this Agreement or otherwise, then Buyer shall not be required
to purchase Consigned Precious Metal from Bank and withdraw
it from consignment and, upon the sale of inventory
containing Precious Metal by Buyer to its customers in the
ordinary course of business, it shall be deemed that Buyer is
selling Precious Metal it owns and not Consigned Precious
Metal provided that, after giving effect to such sale, Buyer
retains the Minimum Precious Metal in its inventory.
At any time prior to termination of this Agreement, any or all
of the amount of the Consigned Precious Metal may be Redelivered
by Buyer to Bank."
3. Buyer and Bank each 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 by and between any of the parties hereto which
relate to Buyer shall refer, from and after the date hereof, to the
Consignment Agreement as amended and supplemented by this Fourth Amendment.
4. Buyer 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.
Buyer represents and warrants to Bank that it has taken all necessary
and appropriate corporate action to approve the terms of this Fourth
Amendment and that the undersigned has been duly authorized to execute and
deliver to the Bank this Fourth Amendment and any and all other documents
incidental hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this
instrument 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.
WITNESS: Bank:
RHODE ISLAND HOSPITAL TRUST NATIONAL BANK
_____________________________ By:__________________________________
Xxxxxxx X. Xxxxx, First Vice President
Buyer:
PIERCING PAGODA, INC.
______________________________ By: _________________________________
Print Name: __________________________
Title: ________________________________
