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EXHIBIT 10.7
FIFTH AMENDMENT TO ASSIGNMENT OF
TRADEMARKS AND SERVICE MARKS AS COLLATERAL
THIS FIFTH AMENDMENT is made as of the 20 day of October, 1995, among
XXXXXXX XXXXXXX JEWELERS, INC., a Delaware corporation (the "Company"), each of
the Lenders (as defined below) and RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, a
national banking association (the "Agent"), individually and as agent for each
of the following: RHODE ISLAND HOSPITAL TRUST NATIONAL BANK; ABN AMRO BANK
N.V., NEW YORK BRANCH; THE MOCATTA GROUP, A DIVISION OF STANDARD CHARTERED
BANK; FLEET PRECIOUS METALS INC.; CREDIT SUISSE, NEW YORK BRANCH (Credit
Suisse"); DEUTSCHE BANK AG, NEW YORK BRANCH (AS ASSIGNEE OF DEUTSCHE BANK
SHARPS XXXXXX INC.) ("DBSPI"); UNION BANK OF SWITZERLAND ("UBS") and CHEMICAL
BANK ("Chemical") (jointly and severally, the "Lenders").
W I T N E S S E T H T H A T:
WHEREAS, the Lenders (other than UBS), the Agent and the Company are
parties to a certain Assignment of Trademarks and Service Marks as Collateral
dated as of July 12, 1990 (hereinafter, as amended by a certain First Amendment
dated as of June 5, 1992, a certain Second Amendment dated as of August 20,
1993, a certain Third Amendment dated as of May 16, 1994, and a certain Fourth
Amendment dated as of September 1, 1994, the "Assignment"), pursuant to which
the Company assigned, transferred and granted the Lenders (other than UBS) and
the Agent an interest in certain Trademarks (as defined therein and as
described in Exhibit A attached hereto and thereto), which Assignment was
recorded with the United States Patent and Trademark Office on May 11, 1992 at
Reel 0864, Frame 0966; and
WHEREAS, the Company and UBS desire to add UBS as a "Lender" pursuant
to the terms of the Assignment as UBS will be entering into a consignment
arrangement with the Company; and
WHEREAS, UBS is willing to comply with the covenants and terms of such
Assignment and any documents executed by the Agent and/or the Lenders in
connection with the Assignment;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth and for good and valuable consideration, the receipt
whereof is hereby acknowledged, the parties hereto agree as follows:
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1. The Agent, the Lenders and the Company hereby consent to the
addition of UBS as a party to the Assignment, with UBS to be included as a
Lender pursuant to the terms of the Assignment.
2. The Assignment is hereby amended from and after the date
hereof so that the term "Lenders" as used therein and herein shall include UBS
and UBS shall be entitled to all of the rights and benefits as a Lender
thereunder and hereby assumes full liability for the performance and observance
of all and singular of the covenants, agreements and conditions of the
Assignment which are to be performed by the Lenders thereunder.
3. The first "RECITAL" of the Assignment is hereby amended to
read as follows:
"WHEREAS, the Company and each of the Lenders (other
than Chemical) are parties to certain Consignment Agreements
or Amended and Restated Consignment Agreements dated as of
August 20, 1993, (January 31, 1994 in the case of Credit
Suisse, September 1, 1994 in the case of DBSPI and October 20,
1995 in the case of UBS) (hereinafter, as the same may be
amended, modified or restated hereafter from time to time, the
"Consignment Agreements"); and"
4. Any necessary, conforming changes to the Assignment occasioned
by reason of this Fifth Amendment shall be deemed to have been made.
5. This Fifth Amendment shall be binding upon the parties and
their respective successors and assigns.
6. Each of the Company, each Lender and the Agent acknowledge and
agree that, except as expressly provided herein, the terms and provisions of
the Assignment remain unchanged and the Assignment remains in full force and
effect in accordance with its terms. The term "Assignment" as used in the
Assignment and all references to the Assignment in any other documents or
agreements between any of the parties hereto which relate to the Company shall
refer, from and after the date hereof, to the Assignment as amended and
supplemented by this Fifth Amendment.
7. This Fifth Amendment shall be construed in accordance with and
governed by the laws of the State of New York, without giving effect to the
conflict of laws principles thereof.
8. This Fifth Amendment may be executed with one or more
counterparts hereof, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be executed by their duly authorized officers as of the date
first above written.
XXXXXXX XXXXXXX JEWELERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK, INDIVIDUALLY AND AS
AGENT FOR EACH OF THE LENDERS
By: /s/ Xxxxxx Xxxxx
Title: Senior Vice President
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxx Xxxxxxxxx
Title: Vice President
THE MOCATTA GROUP, A DIVISION OF
STANDARD CHARTERED BANK
By: /s/ Xxxxxx X. Xxxxxxxx
Title: SVP-CFO
By: /s/ ?????
Title: Vice President
FLEET PRECIOUS METALS INC.
By: /s/ Xxxxxxx Xxxxxx Xxx
Title: Vice President
By: /s/ ?????
Title: Vice President
(Signatures continued on next page)
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CREDIT SUISSE, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxxxxx
Title: Associate
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Title: Associate
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxx
Title: Vice President
UNION BANK OF SWITZERLAND
By: /s/ Xxxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
CHEMICAL BANK
By: /s/ Xxxx X. Port
Title: Vice President
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XXXXX XX XXX XXXX
XXXXXX XX XXXXXXXXXXX
Xx the 20 day of October, 1995, before me personally appeared
Xxxxxxx X. Xxxxxxxxx, of Xxxxxxx Xxxxxxx Jewelers, Inc., to me known and known
by me to be the person executing the foregoing instrument, and acknowledged
said instrument by him executed to be his free act and deed in said capacity
and the free act and deed of said corporation.
/s/ M. Xxxxxxx Xxxxxx
Notary Public
My commission expires:
M. XXXXXXX XXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 02DU5050792
QUALIFIED IN WESTCHESTER COUNTY
COMMISSION EXPIRES APRIL 4, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx the 10th day of October, 1995, before me personally appeared
XXXXXXX XXXXXXX, VICE PRESIDENT, and
XXX XXXXXXXXX, VICE PRESIDENT of ABN AMRO BANK N.V., New York
Branch, to me known and known by me to be the persons executing the foregoing
instrument, and acknowledged said instrument by them executed to be their free
act and deed in said capacity and the free act and deed of said bank.
/s/ XXXXXXXX XXXXXXXX
Notary Public
My commission expires:
XXXXXXXX XXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01MC5034929
QUALIFIED IN WESTCHESTER COUNTY
CERTIFICATE FILED IN NEW YORK COUNTY
COMMISSION EXPIRES OCTOBER 24, 1996
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XXXXX XX XXX XXXX
XXXXXX XX XXXXXX
Xx the 5 day of October, 1995, before me personally appeared
Xxxxx Westverns, and Xxxxxx X. Xxxxxxxx of The Mocatta Group, a Division
of Standard Chartered Bank, to me known and known by me to be the
persons executing the foregoing instrument, and acknowledged said instrument by
them executed to be their free act and deed in said capacity and the free act
and deed of said bank.
/s/ XXXXX XXXXXXX
Notary Public
My commission expires: 4/4/96
XXXXX XXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01ST5025907
QUALIFIED IN QUEENS COUNTY
COMMISSION EXPIRES APRIL 4, 0000
XXXXX XX XXXXX XXXXXX
XXXXXX XX XXXXXXXXXX
Xx the 6 day of October, 1995, before me personally appeared
Xxxxxxx X. XxxxxxXxx, Vice President, and
Xxxx X. Xxxx, Vice President of Fleet Precious Metals Inc., to
me known and known by me to be the persons executing the foregoing instrument,
and acknowledged said instrument by them executed to be their free act and deed
in said capacity and the free act and deed of said Fleet Precious Metals Inc.
/s/ XXXXX X. XXXXX
Notary Public
My commission expires: 8/30/97
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx the 6 day of October, 1995, before me personally appeared
XXXXXXX XXXXXXXXXX, and XXXXXXX XXXXXXXXX, of Credit Suisse, New York Branch,
to me known and known by me to be the persons executing the foregoing
instrument, and acknowledged said instrument by them executed to be their free
act and deed in said capacity and the free act and deed of said Credit Suisse,
New York Branch.
/s/ XXXXX X. CHI
Notary Public
My commission expires:
XXXXX X. CHI
NOTARY PUBLIC, STATE OF NEW YORK
NO. 00-0000000
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES: MAY 31, 1996
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XXXXX XX XXX XXXX
XXXXXX XX XXXXXXX
Xx the 13th day of October, 1995, before me personally appeared
Xxxxxxx X. Xxxxx, V.P. and Xxxxxxxx X. Xxxx, V.P. of Deutsche Bank AG, New
York Branch (as assignee of Deutsche Bank Sharps Xxxxxx Inc.), to me known and
known by me to be the persons executing the foregoing instrument, and
acknowledged said instrument by them executed to be their free act and deed in
said capacity and the free act and deed of said Deutsche Bank AG, New York
Branch. Notary Public My commission expires
XXX X. XXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 4795014
QUALIFIED IN SUFFOLK COUNTY
COMMISSION EXPIRES MAY 31, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXXX
Xx the day of October, 1995, before me personally appeared
Xxxxxxxx Xxxxxxxx, V.P. and Xxxxxx X. Xxxxxxx, V.P. of Deutsche Bank AG, New
York Branch (as assignee of Deutsche Bank Sharps Xxxxxx Inc.), to me known and
known by me to be the persons executing the foregoing instrument, and
acknowledged said instrument by them executed to be their free act and deed in
said capacity and the free act and deed of said Deutsche Bank AG, New York
Branch. Notary Public My commission expires
/s/ Xxxxx X. Xxxxxxxx
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Notary Public
My commission expires:
XXXXX X. XXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01AL5020142
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES NOVEMBER 8, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXXXXXXXX
Xx the 6 day of October, 1995, before me personally appeared
Xxxx Port, Vice President of Chemical Bank, to me known and known by me to be
the persons executing the foregoing instrument, and acknowledged said
instrument by him executed to be free act and deed in said capacity and the
free act and deed of said Chemical Bank.
/s/ M. Xxxxxxx Xxxxxx
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Notary Public
My commission expires:
M. XXXXXXX XXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 02DU5050792
QUALIFIED IN WESTCHESTER COUNTY
COMMISSION EXPIRES APRIL 4, 1996
MFD/MH
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