EXHIBIT 10.12
FIRST AMENDMENT TO AMENDED AND RESTATED
CONSIGNMENT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT is made
as of the 20th day of October, 1993, by and between
FLEET PRECIOUS METALS INC., a Rhode Island corporation
("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").
W I T N E S S E T H T H A T:
WHEREAS, Consignor and Buyer are parties to a certain Amended and Restated
Consignment Agreement dated as of May 14, 1993 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as
hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. The definition of "Consignment Limit" set forth in Section 1 of the
Agreement is hereby amended to read in its entirety as follows:
""Consignment Limit" shall mean that amount calculated from time to
time as (1) the least of (a) forty-two thousand seven hundred ninety-seven
(42,797) 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
Eighteen Million One Hundred Eighty-eight Thousand Seven Hundred Twenty-five
Dollars ($18,188,725), 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, minus (2) twenty percent
(20%) of the aggregate face amount of all outstanding Forward Contracts."
2. Section 1 of the Agreement is hereby further amended by adding after the
definition of "Foothill Loan Agreement" appearing on page 6 of the Agreement,
the following new definition:
""Forward Contracts" shall mean the Forward Contracts entered into
from time to time by Buyer and Consignor as contemplated by and in accordance
with Section 5 hereof."
3. Section 5 of the Agreement (entitled "Purchase Price; Payments.") is
hereby amended by inserting the following between the second and third
paragraphs of Section 5:
"In addition to the foregoing, Consignor agrees that, until further
notice from Consignor, Buyer may from time to time purchase Consigned Precious
Metal from Consignor and fix the Purchase Price therefor pursuant to forward
contracts in form and substance, and on terms, satisfactory to Consignor
("Forward Contracts"), so long as the aggregate unpaid balance of all
obligations outstanding thereunder does not exceed at any time Five Million
Dollars ($5,000,000). Unless otherwise agreed by Consignor, no Forward Contract
shall have a maturity in excess of ninety (90) days. Until further notice from
Consignor, the unpaid principal balance of all Forward Contracts will bear
interest at an annual rate of interest equal to one percent (1%) above the
floating Prime Rate, as in
effect from time to time, calculated on the basis of a 360-day year counting the
actual number of days elapsed, with each change in the rate charged being
effective upon each date the Prime Rate changes. All Precious Metal subject to a
Forward Contract shall remain Consigned Precious Metal hereunder until Consignor
has received payment in full of the Purchase Price of such Precious Metal and
all interest charges in respect thereof."
4. (a) Buyer and Consignor hereby acknowledge and agree that all
obligations, indebtedness and liabilities of Buyer to Consignor under any and
all Forward Contracts, whether now existing or hereafter arising, are secured by
and entitled to the benefits of the Security Documents as defined in the
Agreement.
(b) Section 16(m)(i) of the Agreement is hereby amended by
inserting in the fourth line thereof after the words "arising
under or pursuant to" the words: "...Forward Contracts or ...".
5. Exhibit A to the Agreement is hereby amended to correspond in its
entirety with Exhibit A attached hereto and made a part hereof.
6. To induce Consignor to enter into this 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 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 Agreement, except
that for the purposes of such incorporation by reference, the term "this
Agreement" shall be amended to refer to "this Amendment".
7. Except as amended hereby, the Agreement shall remain in full force and
effect and is in all respects hereby ratified and affirmed.
8. Buyer hereby covenants and agrees to pay all out-of-pocket expenses,
costs and charges incurred by Consignor (including the reasonable fees and
disbursements of its counsel) in connection with the preparation and
implementation of this Amendment.
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment to
be executed by their respective duly authorized officers as of the date first
above written.
FLEET PRECIOUS METALS INC.
By:__/s/ Anthony J. Capuano_______
Title: Vice President
By:__/s/ _______ _______ _______
Title: A.V.P.
TOWN & COUNTRY CORPORATION
By:__/s/ Francis X. Correra_______
Title: Sr. Vice President & CFO
TOWN & COUNTRY FINE JEWELRY
GROUP, INC.
By:__/s/ Francis X. Correra_______
Title: Vice President
L.G. BALFOUR COMPANY, INC.
By:__/s/ Francis X. Correra_______
Title: Executive Vice President
GOLD LANCE, INC.
By:__/s/ Francis X. Correra_______
Title: Treasurer
WPPAJC-2388
EXHIBIT A
PERMITTED LOCATIONS
Buyer Locations
Vendors Name Address Address
L.G. Balfour Company, Inc. 10610 Bluegrass Parkway Louisville, KY
L.G. Balfour Company, Inc. 2621 Lone Star Drive Dallas, TX
L.G. Balfour Company, Inc. 30 Frank Mossberg Dr. Attleboro, MA
L.G. Balfour Company, Inc. 25 County Street Attleboro, MA
Feature Enterprises, Inc. 130 West 46th Street New York, NY
Gold Lance, Inc. 1920 North Memorial Dr. Houston, TX
Town & Country Fine
Jewelry Group, Inc. 25 Union Street Chelsea, MA 02150
L.G. Balfour Company, Inc. 100 Messina Dr. Braintree, MA
Town & Country Fine
Jewelry Group, Inc. 14812 Venture Dr. Dallas, TX
Anju Jewelry Limited Block B2, 1/F Hungham, Kowloon,
Kaiser Estate Hong Kong
SUBCONTRACTORS, FABRICATORS, REFINERS
Vendors Name Address Address
ASA Manufacturing 1350 39th Street Brooklyn, NY 11223
Advanced Chemical 105 Bellows Street Warwick, RI 02888
Almond Jewelers 16 West 46th Street New York, NY 10036
AmGold Products 15 West 37th Street New York, NY 10018
Angel Manufacturing 712 S. Olive Street Los Angeles, CA 90014
Anzor 48 W. 48th Street New York, NY 10036
Artamer Co. 205 West 2nd Street Bethlehem, PA 18015
Astro Lite, Inc. P.O. Box 385 Morton Grove, IL 60053
Atamian 910 Plainfield St. Providence, RI 02909
Ben-gee Industries Ltd. 48 West 48th St., New York, NY 10036
Suite 705
Boliden Metech, Inc. P.O. Box 500 Mapleville, RI 02839
Champion Chains, Inc. 2115 Lake Avenue Scotch Plains, NJ 07076
Charms Unlimited 227 West 29th Street New York, NY 10001
Engelhard 101 Wood Avenue Iselin, NJ 08830-0770
Eurospark P.O. Box 8369 Long Island City, NJ
11101
Foreway Products 102 Ocean Avenue Bellmore, NY 11710
General Findings 57 John Dietsch Sq. North Attleboro, MA
02761-0200
Glines and Rhodes 189 East Street Attleboro, MA 02703
Goldring 200 Eighth Street Brooklyn, NY 11215
Grassant (Heraeus) 48-50 Main Street Newark, NJ 071030
Grassmen Blake Inc. 44 Brown Avenue Springfield, NJ 07081
Hallmark Healy Group 50 Colorado Avenue Warwick, RI 02888
Handy & Harmon 850 Third Avenue New York, NY 10022
Heraeus, Inc. 24 Union Hill Road West Conshohocken, PA
19428
Hereaus Precious Metals 111 Albert Ave. Newark, NJ 07105
Kemp Metal Products, Inc. 2300 Shames Drive Westbury, NY 11590
L.S. Plate & Wire Corp. 70-17 51st Avenue Woodside, NY 11377
Lee's Manufacturing 1700 Smith Street No. Providence, RI
02911
Liberty Plate & Wire 2478 MacDonald Ave. Brooklyn, NY 11223
Loren Castings 2801 Greene Street Hollywood, FL 33020
Marsella Findings 26 Lockhard Ave. Warwick, RI 02886
Metalor 225 John Dietsch Blvd. N. Attleboro, MA
02761
Mid State Recycling 5561 Milton Parkway Rosemont, IL 60018
National Plumb Jewelry Co. 625 S. Hill St. Los Angeles, CA
90014
J.C. Nordt P.O. Box 25549 Richmond, VA 23278
Olef Creations Inc. 75 Varik Street, 7th Flr New York, NY 10014
Omega Casting Corporation 129 West 29th Street New York, NY 10001
PM Refining 505 Pearl Street Buffalo, NY 14202
PPM Industries, Ltd. P.O. Box 5 Albion, RI 02802
Pease & Curran 75 Pennsylvania Ave. Warwick, RI 02888
RFE Industries Foot of Jersey Ave. Jersey City, NJ 07302
Robert Baxter & Associates 200 Jefferson Blvd. Warwick, RI 02888
Ronald Litoff 49 West 45th Street New York, NY 10036
Samuel Moore Company, Inc. 4 Edward Street Providence, RI 02904
SO Metals Refining Co. 245 West 29th Street New York, NY 10001
Stamprite 620 West 39th Street New York, NY 10018
Stern Metal/Stern Leach 320 Washington Street Mt. Vernon, NY 10553
Stern Leach 49 Pearl Street Attleboro, MA 02703
Stuller Settings P.O. Box 52583 Lafayette, LA
70505-2583
Suraj Diamond Ind. Ltd. 1212 Avenue of the New York, NY 10036
Americas
Taylor Stamping 250 West Broadway New York, NY 10013
Volk 55 Access Road Warwick, RI 02886