EXHIBIT 10.20
THIRD AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT ("Third
Amendment") is made and entered into this 15
day of November 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 (collectively, 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 Third
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) (i) prior to December 1, 1994, thirty-one thousand (31,000) troy
ounces of fine gold; (ii) as of December 1, 1994, twenty-four thousand five
hundred (24,500) troy ounces of fine gold; (iii) as of January 1, 1995,
twenty-three thousand seven hundred and fifty (23,750) troy ounces of fine gold;
and (iv) as of February 1, 1995 and at all times thereafter, twenty-three
thousand (23,000) troy ounces of find [sic] gold;
(b) subject to 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 (i) prior to December
1, 1994, Thirteen Million One Hundred Seventy-five Thousand Dollars
($13,175,000); (ii) as of December 1, 1994, Ten Million Four Hundred Twelve
Thousand Five Hundred Dollars ($10,412,500); (iii) as of January 1, 1995, Ten
Million Ninety-three Thousand Seven Hundred Fifty Dollars ($10,093,750); and
(iv) as of February 1, 1995, Nine Million Seven Hundred Seventy-Five Thousand
Dollars ($9,775,000); or
(c) eighty-three percent (83%) (provided, however, that for a period
of 90 consecutive days during the period from December 1, 1994 through February
28, 1995, 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.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
2. 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 Third
Amendment.
3. To induce Consignor to enter into this Third 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 covenant 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
4. 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.
5. 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 Third Amendment.
6. This Third Amendment shall be governed and construed in accordance with
the substantive laws, and not the law of conflicts, of the State of Rhode
Island.
7. The Third 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 Third 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: VP & Treasurer
L.G. BALFOUR COMPANY, INC.
By:_/s/ Francis X. Correra ____
Name: Francis X. Correra
Title: Executive VP & Treasurer
GOLD LANCE, INC.
By:_/s/ Francis X. Correra ____
Name: Francis X. Correra
Title: Treasurer
PH1\96674.1