FOURTH AMENDMENT TO
AMENDED AND RESTATED CONSIGNMENT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT ("Fourth
Amendment") is made and entered into as of this 27th day of August, 1995 (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 Fourth Amendment.
D. All capitalized terms used herein but not defined herein shall have the
meanings ascribed to them, respectively, in the Existing Consignment Agreement.
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) as of August 31, 1995 and
thereafter, twenty-two thousand three hundred seventy three (22,373) troy ounces
of fine gold; (ii) as of November 15, 1995 and thereafter, twenty-one thousand
nine hundred and two (21,902) troy ounces of fine gold; (iii) as of December 31,
1995 and thereafter, twenty-one thousand four hundred thirty-two (21,432) troy
ounces of fine gold; and (iv) as of February 14, 1996 and thereafter, and at all
times thereafter, twenty-one thousand one hundred nineteen (21,119) troy ounces
of find 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: (i) as of August 31, 1995 and
thereafter, $9,508,525, (ii) as of November 15, 1995 and thereafter, $9,308,350;
(iii) as of December 31, 1995 and thereafter, $9,108,600; and (iv) as of
February 14, 1996, and thereafter, $8,975,575 or;
(c) eighty-three percent (83%) 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. A new Section 11(s) is hereby added to the Existing Consignment Agreement as
follows: (s) Permit consultants retained by Consignor to inspect or conduct
field examinations, at Buyer's sole expense (including, without limitation, the
fees and expenses of such consultants), at any time and from time to time during
normal business hours and without notice, the Buyer's inventory of Precious
Metal and Buyer's books and records and to make abstracts or reproductions of
such books and records. The provisions of this Paragraph 11(s) shall be in
addition to and not in limitation of the provisions of Paragraph 11(g) hereof.
3. Section 12(h) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (h) Consign Precious Metal to foreign Subsidiaries
or deliver Precious Metal to foreign sales representatives;
4. Section 12(j) of the Existing Consignment Agreement is hereby amended by
replacing the phrase "fifteen thousand (15,000)" with the phrase "seven thousand
five hundred (7,500)." The remaining provisions of Section 12(j) of the Existing
Consignment Agreement shall continue in full force an effect.
5. Section 12(k) of the Existing Consignment Agreement is hereby amended by
replacing the phrase "twenty thousand (20,000)" with the phrase "fifteen
thousand (15,000)." The remaining provisions of Section 12(k) of the Existing
Consignment Agreement shall continue in full force and effect.
6. Section 12(m) of the Existing Consignment Agreement is hereby amended by
replacing the phrase "thirteen thousand (13,000)" with the phrase "twelve
thousand (12,000)." The remaining provisions of Section 12(m) of the Existing
Consignment Agreement shall continue in full force and effect.
7. Section 12(n) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (n) Permit at any time its Consolidated Tangible
Net Worth to be less than: (i) from August 27, 1995 through and including
November 25, 1995, $49,000,000; (ii) from November 26, 1995 through and
including February 24, 1996, $56,000,000; or (iii) at all times from and after
February 25, 1996, $55,000,000;
8. Section 12(o) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (o) Permit at any time the ratio of (i) its
Consolidated Total Senior Liabilities to its Consolidated Tangible Capital Base
to exceed 0.75:1.00; or (ii) its Consolidated Adjusted Total Senior Liabilities
to its Consolidated Tangible Capital Base to exceed 1.00:1.00;
9. Section 12(p) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (p) Permit at any time its Working Capital to be
less than $85,000,000;
10. Section 12(q) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (q) Permit at any time the ratio of Buyer's
Consolidated Current Assets divided by its Consolidated Current Liabilities to
be less than 2.20:1.00;
11. Section 12(r) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (r) Permit at any time Buyer's Consolidated
Interest Coverage Ratio to be less than 1.50:1.00 as of August 27, 1995;
1.15:1.00 as of November 26, 1995; or 1.25:1.00 as of February 26, 1996 (for
purposes hereof, the Consolidated Interest Coverage Ratio will be calculated
based upon the most recently completed twelve (12) month period);
12. Section 12(s) of the Existing Consignment Agreement is hereby amended by
replacing the phrase "Six Million Dollars ($6,000,000)" with the phrase "Three
Million Thirty Four Thousand Dollars ($3,034,000)." The remaining provisions of
Section 12(s) shall remain in full force and effect.
13. Section 12(w) of the Existing Consignment Agreement is hereby amended in its
entirety to read as follows: (w) Permit at any time the aggregate outstanding
balance of all consigned Precious Metal from the Metal Consignors to exceed (i)
prior to September 29, 1995, 73,347 fine troy ounces; (ii) from September 29,
1995 through and including November 14, 1995, 71,347 fine troy ounces; (iii)
from November 15, 1995 through and including December 30, 1995, 69,847 fine troy
ounces; (iv) from December 31, 1995 through and including February 13, 1996,
68,347 fine troy ounces; (v) after February 13, 1996, 67,347 fine troy ounces;
14. A new Section 12(y) is hereby added to the Existing Consignment Agreement as
follows: (y) Permit Group's cumulative gross profit to be less than $13,700,000
as of August 27, 1995; $27,400,000 as of November 26, 1995, or $34,200,000 as of
February 25, 1996;
15. A new Section 12(z) is hereby added to the Existing Consignment Agreement as
follows: (z) Permit Group's cumulative operating income to be less than
$3,600,000 as of the fiscal quarter ending August 27, 1995; $11,500,000 as of
the fiscal quarter ending November 26, 1995; or $13,000,000 as of the fiscal
quarter ending February 25, 1996;
16. A new Section 12(aa) is hereby added to the Existing Consignment Agreement
as follows: (aa) Incur a cumulative operating loss for Balfour in an amount
greater than $885,000 as of the fiscal quarter ending August 27, 1995; or
$393,000 as of the fiscal quarter ending November 26, 1995; or permit Balfour's
cumulative operating income to be less than $32,000 as of the fiscal quarter
ending February 25, 1996;
17. A new Section 12(bb) is hereby added to the Existing Consignment Agreement
as follows: (bb) Permit its consolidated cumulative operating income to be less
than $800,000 as of the fiscal quarter ending August 27, 1995; $11,600,000 as of
the fiscal quarter ending November 26, 1995; or $13,800,000 as of the fiscal
quarter ending February 25, 1996;
18. A new Section 12(cc) is hereby added to the Existing Consignment Agreement
as follows: (cc) Incur a consolidated cumulative loss before payment of taxes
and Minority Interest in an amount greater than $5,300,000 as of the fiscal
quarter ending August 27, 1995, or permit its consolidated cumulative income
before payment of taxes and Minority Interest to be less than $2,200,000 as of
the fiscal quarter ending November 26, 1995 or $1,400,000 as of February 25,
1996;
19. A new Section 12(dd) is hereby added to the Existing Consignment Agreement
as follows: (dd) Permit the total number of troy ounces of Precious Metal (less
Equity Precious Metal) at, or in transit to or from, fabricators, refiners,
sales representatives, agents or foreign Subsidiaries to be greater than or
equal to ten percent (10%) of total Consigned Precious Metal from the Metal
Consignors;
20. A new Section 12(ff) is hereby added to the Existing Consignment Agreement
as follows:
(ff) Permit aggregate salary, withdrawals, bonuses or other compensation
("Compensation") paid to C. William Carey ("Carey") during the fiscal year
ending February 26, 1996 to exceed the following amount:
(i) in the event that Buyer's consolidated operating income for fiscal year-end
1996 is equal to or greater than ninety-five percent (95%) of that projected in
the Buyer's fiscal plan incorporated by reference in this Agreement as Exhibit
"N" (the "FYE 96 Plan"), the amount as provided under Carey's existing contract
with Buyer;
(ii) in the event that Buyer's consolidated operating income for fiscal year-end
1996 is greater than eighty-five percent (85%) but less than ninety-five percent
(95%) of that projected in the FYE 96 Plan, an amount not to exceed nine-hundred
thirty thousand dollars ($930,000);
(iii) in the event that Buyer's consolidated operating income for fiscal
year-end 1996 is equal to or less than eighty-five percent (85%) of that
projected in the FYE 96 Plan, an amount not to exceed eight- hundred thirty
three thousand dollars ($833,000).
It is hereby agreed that in furtherance of the foregoing, until such time as the
financial statements of Buyer required to be delivered to Consignor pursuant to
this Agreement for the period ending December 26, 1995 (the "December '95
Statements"), are available, Buyer may pay Carey Compensation up to $833,000 in
accordance with his contract. Upon receipt of the December '95 Statements, Buyer
shall calculate (and pay to Carey in accordance with his contract, if
appropriate) the balance of the Compensation permitted to be paid in accordance
with the first sentence of this subsection 12(f)(f) by comparing the amount of
its consolidated operating income year to date as reflected on the December '95
Statements to that projected for the same period in the FYE 96 Plan. Buyer shall
furnish Consignor with a certificate calculating the total amount of
Compensation payable to Carey at the time it furnishes to Consignor the December
'95 Statements.
21. A new Exhibit "N" is hereby added to and incorporated by reference in the
Existing Consignment Agreement in the form of the attached Schedule 1.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
22. Within one week of submission to the Buyer from Consignor of an invoice in
reasonable detail therefor, Buyer covenants and agrees to deliver to Consignor a
check made payable to Consignor in an amount equal to the reasonable attorneys'
fees and costs incurred by Consignor in connection with the negotiation and
preparation of this Fourth Amendment.
23. On or before October 31, 1995, Buyer shall deliver to Consignor a detailed
plan for the orderly disposition of Balfour (the "Disposition Plan"); which
Disposition Plan shall be available for implementation in the event: (i) the
financial performance of Buyer, or Balfour fails to meet the financial
performance set forth in Buyer's Plan for Fiscal Year 1996 which Buyer submitted
to Consignor on August 3, 1995, or (ii) an Event of Default occurs under this
Agreement.
24. Within forty-five (45) days after the Closing Date, Buyer shall engage the
services of an investment banker (the "Investment Banker") acceptable to
Consignor for the purpose of evaluating the Buyer's operations and financial
performance. Buyer shall cause the Investment Banker to furnish Consignor on or
before November 15, 1995 with a proposed plan outlining (i) a recommended course
of action for the repayment in full on or before February 28, 1996 of all of
Buyer's obligations to Consignor under the Existing Consignment Agreement and
the other Consignment Documents; and (ii) a recommended course of action for
repayment in full of the Buyer's obligations to Consignor through the sale of
all or part of Buyer's assets in the event the Buyer's financial performance
causes an Event of Default related to the failure to meet financial covenants as
set forth in Section 12 of the Consignment Agreement.
25. For purposes of clarification, Buyer and Consignor hereby confirm their
agreement that any expenses or fees paid by Buyer in connection with this
amendment transaction, including fees paid to consultants or investment bankers,
the legal fees paid to Consignor's counsel, the amendment fee payable herewith
or otherwise shall be excluded from the computation made by Buyer in determining
compliance with the financial ratios under the Consignment Agreement, as amended
hereby.
26. To induce Consignor to enter into this Fourth 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 t
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.
27. Consignor covenants and agrees that, so long as Buyer remains in compliance
with all of the terms and conditions of this Fourth Amendment, the Existing
Consignment Agreement and each of the other Consignment Documents, Consignor
will not terminate the Existing Consignment Agreement b sending to Buyer a
Termination Notice pursuant to Section 13(a) of the Existing Consignment
Agreement until February 28, 1996; provided, however, that nothing in this
Section 26 shall be interpreted to limit the right of Consignor to declare an
Event of Default and/or terminate the Existing Consignment Agreement by sending
a Termination Notice to Buyer upon and following the occurrence of an Event of
Default or an event which, but for the passage of time or the giving of notice
or both, would constitute an Event of Default.
CONDITIONS PRECEDENT
28. Consignor's obligations hereunder are subject to and conditioned upon each
of the following: (i) the payment by Buyer to Consignor of a non-refundable
amendment fee in the amount of $97,750.00; (ii) the execution and delivery by
Buyer of this Fourth Amendment and such other documents as Consignor may
reasonably require; and (iii) the delivery to Consignor of executed
documentation by and between Buyer and the other Metal Consignors providing for
amendments to their respective Consignment Agreements which are consistent with
the terms of this Fourth Amendment.
MISCELLANEOUS
29. 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.
30. Buyer hereby releases, waives and forever discharges Consignor of, from and
with respect to any and all manner of action and actions, cause and causes of
actions, suits, disputes, claims, counterclaims and/or liabilities, cross
claims, defenses, and/or any claims for avoidance or other remedies available to
a debtor, its estate and/or any trustee or representatives thereof, pursuant to
the United States Bankruptcy Code (11 U.S.C. 101-1330) or otherwise, whether now
known or unknown, suspected or unsuspected, past or present, asserted or
unasserted, contingent or liquidated, whether or not well founded in fact or
law, whether in contract, in tort or otherwise, at law or in equity, which Buyer
had or now has, claims to have had, now claims to have or hereafter can, shall
or may claim to have based upon, relating to or arising out of any and all
transactions, relationships or dealings with or loans or consignments made to
Buyer at or at any time prior to the execution of this Fourth Amendment.
31. 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 Fourth Amendment.
32. This Fourth Amendment shall be governed and construed in accordance with the
substantive laws, and not the law of conflicts, of the State of Rhode Island.
33. This Fourth 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.
34. This Fourth Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same Fourth Amendment.
IN WITNESS WHEREOF, Consignor and Buyer have caused this Fourth 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/ Thomas F. Lyons
Thomas F. Lyons
First Vice President
TOWN & COUNTRY CORPORATION
By: /s/ Francis X. Correra
Name: Francis X. Correra
Title: Senior Vice President
and Chief Financial Officer
TOWN & COUNTRY FINE JEWELRY GROUP, INC.
By: /s/ Francis X. Correra
Name: Francis X. Correra
Title: Vice President and Treasurer
L.G. BALFOUR COMPANY, INC.
By: /s/ Francis X. Correra
Name: Francis X. Correra
Title: Executive Vice President and Treasurer
GOLD LANCE, INC.
By: /s/ Francis X. Correra
Name: Francis X. Correra
Title: Treasurer