EXHIBIT 10.19
SECOND AMENDMENT TO
AMENDED AND RESTATED CONSIGNMENT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT
("Second Amendment") is made and entered into this thirteenth day of July 1994
(the "Closing Date") by and between RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, a
national banking association with its principal office at One Hospital Trust
Plaza, Providence, Rhode Island 02903 ("Consignor") and TOWN & COUNTRY
CORPORATION, a Massachusetts corporation ("T&C"), TOWN & COUNTRY FINE JEWELRY
GROUP, INC., a Massachusetts corporation ("Group"), L.G. BALFOUR COMPANY, INC.,
a Delaware corporation ("Balfour"), and GOLD LANCE, INC., a Massachusetts
corporation ("GLI") (T&C, Group, Balfour and GLI are herein referred to, jointly
and severally, as "Buyer").
BACKGROUND
A. Buyer and Consignor are parties to that certain Amended and Restated
Consignment Agreement dated as of May 14, 1993 (as it has been amended from time
to time, the "Existing Consignment Agreement") and certain related security and
other documents (the "Consignment Documents") pursuant to which Consignor has
provided Buyer with a gold consignment facility.
B. Buyer and Consignor desire to amend and modify the terms of
the Existing Consignment Agreement in certain respects.
C. In order to document these amendments and modifications,
Consignor and Buyer have agreed to enter into this Second
Amendment.
NOW, THEREFORE, incorporating the foregoing Background by reference, for
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, Consignor and Buyer agree as follows:
AMENDMENTS TO EXISTING AGREEMENT
1. The definition of "Consignment Limit" contained in Section 1 of the
Existing Consignment Agreement is hereby deleted in its entirety and a new
definition is hereby added as follows:
"Consignment Limit" shall mean the least of (a) thirty-one thousand
(31,000) troy ounces of fine gold, (b) subject to the provisions of Section 5
hereof, 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 as to which payment has not been received by Consignor) equal to
Thirteen Million One Hundred Seventy-five Thousand Dollars ($13,175,000), or (c)
eighty-three percent (83%) (provided, however, that for a period of 90
consecutive days during the period from December 1, 1993 through February 28,
1994, such percentage shall be eighty-five percent (85%)) of Buyer's inventory
of Precious Metal (including, for such purpose, Consigned Precious Metal and,
for the purposes of paragraph 1 of Section 2 hereof, the Precious Metal
requested by Buyer but excluding (i) Precious Metal owned, leased or consigned
by any other party (Precious Metal purchased by Buyer pursuant to term
receivable or other financing arrangements which remain unpaid shall be included
as Consigned Precious Metal), (ii) the amount of Precious Metal necessary to
satisfy the aggregate Precious Metal equity requirements of other consignors,
(iii) Precious Metal included in Balfour Purchased Inventory or the Zale
Consigned Inventory (as each such term is defined in the Intercreditor
Agreement), and (iv) the amount of Buyer's Precious Metal, if any, outstanding
in the possession of foreign Subsidiaries or foreign sales representatives in
excess of the amount permitted by Section 12(h) hereof.
2. Section 12(m) of the Agreement is hereby amended to read in
its entirety as follows:
(m) Have more than thirteen thousand (13,000) troy ounces of Precious
Metal in the aggregate at any one time at, or in transit to or from, fabricators
and refiners;
3. Section 12(n) of the Agreement is hereby amended to read in
its entirety as follows:
(n) Permit at any time its Consolidated Tangible Net Worth to be less
than (i) Forty-three Million Dollars ($43,000,000) through June 30, 1994, or
(ii) Forty Million Dollars ($40,000,000) from July 1, 1994 through November 26,
1994, or (iii) Forty-three Million Dollars ($43,000,000) thereafter;
4. Section 12 of the Agreement is hereby further amended by
adding thereto the following new subsection:
(x) Deliver Precious Metal to fabricators, refiners and subcontractors
not identified on Exhibit A attached hereto in an amount at any time: (i) in the
case of any individual fabricator, refiner or subcontractor, not to exceed one
hundred (100) troy ounces; and (ii) in the aggregate, not to exceed the
difference (if any) between (x) Equity Precious Metal of the Buyer, and (y)
Equity Precious Metal required to be maintained pursuant to Section 11(p)
hereof.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
5. Within one week of submission to the Buyer from Consignor of an invoice
therefore, Buyer covenants and agrees, to deliver to Consignor a check made
payable to Consignor in an amount equal to the attorneys fees and costs incurred
by Consignor in connection with the negotiation and preparation of this Second
Amendment.
6. To induce Consignor to enter into this Second Amendment, Buyer hereby
(a) represents and warrants to Consignor that on and as of the date hereof,
Buyer is not in material default of any covenants set forth in the Existing
Consignment Agreement, and (b) except as disclosed in writing to Consignor
contemporaneously with Buyer's execution hereof, restates as of the date hereof
and incorporates herein by reference all representations and warranties set
forth in the Existing Consignment Agreement.
MISCELLANEOUS
7. Except as expressly amended herein, the Existing Consignment Agreement
shall remain in full force and effect and Buyer and Consignor hereby ratify and
confirm their rights, duties, obligations, representations and warranties under
the Existing Consignment Agreement.
8. Buyer agrees to take such further action to execute and deliver to
Consignor such additional agreements, instruments and documents as may
reasonably be required to carry out the purposes of this Second Amendment.
9. This Second Amendment shall be governed and construed in accordance with
the substantive laws, and not the law of conflicts, of the State of Rhode
Island.
10. The Second Amendment contains the entire agreement among the parties
hereto with respect to the subject matter hereof and may not be modified or
changed in any way except in writing signed by all parties.
IN WITNESS WHEREOF, Consignor and Buyer have caused this Second
Amendment to be duly executed by their duly authorized officers, all as of the
day and year first above written.
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
By:_/s/ Jerry Zimmerman________
Name: Jerry Zimmerman
Title: Vice President
TOWN & COUNTRY CORPORATION
By:_/s/ Francis X. Correra ____
Name: Francis X. Correra
Title: SVP & CFO
TOWN & COUNTRY FINE JEWELRY GROUP, INC.
By:_/s/ Francis X. Correra ____
Name: Francis X. Correra
Title: V.P.
L.G. BALFOUR COMPANY, INC.
By:_/s/ Francis X. Correra ____
Name: Francis X. Correra
Title: Executive V.P.
GOLD LANCE, INC.
By:_/s/ Francis X. Correra ____
Name: Francis X. Correra
Title: Treasurer
65455.2