EXHIBIT 10.16
FIFTH AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT is made
as of the _17th_ day of November, 1994, 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.,
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 hereinafter referred to, jointly and
severally, as "Buyer").
W I T N E S S 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, as previously amended by a
certain First Amendment to Amended and Restated Consignment Agreement dated as
of October 20, 1993, a certain Second Amendment to Amended and Restated
Consignment Agreement dated as of December 1, 1993, a certain Third Amendment to
Amended and Restated Consignment Agreement dated as of July 20, 1994, a certain
Fourth Amendment to Amended and Restated Consignment Agreement dated August 31,
1994, (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 agree as follows:
1. The definition of "Consignment Limit" set forth in the
Section one 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) (i) prior to December 1, 1994, Forty-five Thousand (45,000) troy
ounces of fine gold, (ii) from December 1, 1994, through and including December
31, 1994, thirty-eight thousand four hundred two (38,402) troy ounces of fine
gold,
(iii) from January 1, 1995 through and including January 31, 1995, thirty-seven
thousand two hundred twenty-seven (37,227) troy ounces of fine gold, and (iv)
after January 31, 1995, thirty-six thousand fifty-one (36,051) 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 Metals 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, Twenty Million Dollars ($20,000,000); (ii) from December 1, 1994
through and including December 31, 1994, Sixteen Million Three Hundred Twenty
Thousand Eight Hundred Fifty Dollars ($16,320,850); (iii) from January 1, 1995
through and including January 31, 1995, Fifteen Million Eight Hundred Twenty-One
Thousand Four Hundred Seventy-Five Dollars ($15,821,475), and after January 31,
1995, Fifteen Million Three Hundred Twenty-One Thousand Six Hundred Seventy-Five
Dollars ($15,321,675); or
(c) eighty-three percent (83%) of Buyer's inventory of Precious Metals
(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 Metals owned, leased or consigned by any other party
(Precious Metal purchased by Buyer pursuant to term receivable or other
financing arrangement 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 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. 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 covenants 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".
3. Except as amended hereby, the Agreement shall remain in full force and
effect and is in all respects hereby ratified and affirmed.
4. Buyer hereby covenants and agrees to pay all out-of-pocket expenses,
costs and charges incurred by Consignor (including 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 the duly authorized officers as of the date first above written.
L.G. BALFOUR COMPANY, INC.
By:__/s/ Francis X. Correra_______
Title: Exec. V.P. & Director
TOWN & COUNTRY CORPORATION
By:__/s/ Francis X. Correra_______
Title: Sr. Vice President & CFO
GOLD LANCE, INC.
By:__/s/ Francis X. Correra_______
Title: Treasurer & Director
TOWN & COUNTRY FINE JEWELRY
GROUP, INC.
By:__/s/ Francis X. Correra_______
Title: V.P., Treasurer & Director
FLEET PRECIOUS METALS INC.
By:__/s/ Anthony J. Capuano_______
Title: Vice President
U:\MPH\DOCS\TOWN\5AACONAG.WPD