SEVENTH AMENDMENT AND AGREEMENT
TO
CONSIGNMENT AGREEMENT
THIS SEVENTH AMENDMENT AND AGREEMENT TO CONSIGNMENT AGREEMENT
is made as of the second day of October, 1997, 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-Two Million Dollars ($22,000,000); or
(y) the value (as determined pursuant to
Paragraph 2 hereof) of up to Fifty-Five Thousand
(55,000) 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")."
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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 Seventh 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
------------------------------
By:____________________________
(as to both) Xxxxxxx Xxxxxx
Treasurer
FLEET PRECIOUS METALS INC.
By:____________________________
Title:
------------------------------
By:___________________________
(as to both) Title:
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