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Exhibit 10.2
FIFTH AMENDMENT TO AMENDED AND
RESTATED SECURITY AGREEMENT
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THIS FIFTH AMENDMENT is made as of the 23rd day of October, 1998, among
XXXXXXX XXXXXXX JEWELERS, INC., a Delaware corporation (the "Debtor"), each of
the Secured Parties (as defined below) and FLEET PRECIOUS METALS INC. (the
"Agent"), individually and as agent (as successor to BANKBOSTON, N.A., f/k/a
Rhode Island Hospital Trust National Bank, pursuant to that certain Collateral
Sharing Agreement dated as of August 20, 1993, as amended from time to time) for
each of the following: ABN AMRO BANK N.V., NEW YORK BRANCH ("ABN"); CREDIT
SUISSE FIRST BOSTON, f/k/a Credit Suisse, New York Branch ("Credit Suisse"),
FLEET PRECIOUS METALS INC. ("FPM"), and PARIBAS ("Paribas") (jointly and
severally, the "Secured Parties"); and BANKBOSTON, N.A., f/k/a Rhode Island
Hospital Trust National Bank ("BankBoston").
W I T N E S S E T H T H A T:
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WHEREAS, the Secured Parties (other than Paribas), BankBoston, the
Agent and the Debtor are parties to a certain Amended and Restated Security
Agreement dated as of August 20, 1993 (hereinafter, as amended by a certain
First Amendment dated as of May 16, 1994, a certain Second Amendment dated as of
September 1, 1994, a certain Third Amendment dated as of January 15, 1995, and a
certain Fourth Amendment dated as of October 20, 1995, the "Security Agreement")
pursuant to which the Debtor granted to the Secured Parties (other than
Paribas), BankBoston and the Agent a security interest in the Collateral (as
defined therein) and provided for the enforcement of such security interest; and
WHEREAS, the Debtor and Paribas desire to add Paribas as a "Secured
Party" pursuant to the terms of the Security Agreement as Paribas will be
entering into a Consignment Agreement dated as of October 23, 1998 (hereinafter,
as amended or modified from time to time, the "Paribas Agreement") with the
Debtor; and
WHEREAS, Paribas is willing to comply with the covenants and terms of
such Security Agreement and any documents executed by the Secured Parties in
connection with the Security Agreement; and
WHEREAS, BankBoston and the Debtor have terminated the Amended and
Restated Consignment Agreement between BankBoston and the Debtor dated as of
August 20, 1993 and all obligations of the Debtor to BankBoston have been
satisfied in full; and
WHEREAS, each of The Mocatta Group, a Division of Standard Chartered
Bank, Deutsche Bank, A.G., New York Branch and Union Bank of Switzerland, by
their execution of letters dated as of October 14, 1998, October 14, 1998 and
October 20, 1998, respectively, have each acknowledged that they have terminated
their consignment relationships with the Debtor and, accordingly, are no longer
a party to the Security Agreement;
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NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth and for other good and valuable consideration, the receipt
whereof is hereby acknowledged, the parties hereto agree as follows:
1. The Secured Parties, the Agent and the Debtor hereby consent to the
addition of Paribas as a party to the Security Agreement, with Paribas to be
included as a Secured Party pursuant to the terms of the Security Agreement and
all references in the Security Agreement to "the Consignment Agreements" shall
include the Paribas Agreement.
2. The Security Agreement is hereby amended so that the term "Secured
Parties" as used therein and herein shall include, from and after the date
hereof, Paribas and Paribas shall be entitled to all of the rights and benefits
of a Secured Party thereunder.
3. BankBoston is hereby deleted as a party to the Security Agreement
and BankBoston is hereby released of any and all liability for the performance
and observance of all and singular of the covenants, agreements, and conditions
of the Security Agreement which are to be performed by the Secured Parties
thereunder. BankBoston shall no longer be entitled to any of the benefits of the
Security Agreement and all references in the Security Agreement to "the
Consignment Agreements" shall no longer include the Amended and Restated
Consignment Agreement dated as of August 20, 1993 between BankBoston and the
Debtor.
4. The second "WHEREAS" clause on page 1 of the Security Agreement is
hereby amended to read as follows:
"WHEREAS, the Debtor and each of the Secured Parties have
entered into Consignment Agreements or Amended and Restated
Consignment Agreements dated as of August 20, 1993 (January
31, 1994 in the case of Credit Suisse and October 23, 1998 in
the case of Paribas) (hereinafter, as amended from time to
time, the "Consignment Agreements") pursuant to which such
Secured Parties may deliver or have delivered gold on
consignment for sale to the Debtor (hereinafter collectively
referred to as the "Precious Metal"), and"
5. In order to secure the due and punctual payment and performance of
all indebtedness, liabilities and obligations of the Debtor contained in the
Paribas Agreement and any related security instruments, and to secure the due
and punctual payment and performance of all indebtedness, liabilities and
obligations of the Debtor to Paribas of every kind and description, direct,
indirect or contingent, now or hereafter existing, secured or unsecured, due or
to become due, including (without limitation) the obligations of the Debtor
under the Security Agreement, obligations with respect to forward contracts for
the purchase or sale of precious metal and obligations of the Debtor relating to
unpaid purchase price for Precious Metal (which indebtedness, liabilities and
obligations shall be deemed to be included as "Obligations" for all purposes of
the Security Agreement), the Debtor hereby grants to the Agent on behalf of
Paribas and to Paribas, and hereby ratifies and affirms its grant to the Agent
on behalf of the other Secured Parties and to each of the other Secured Parties
of, a continuing security interest in and a lien upon the Collateral.
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6. Section 13 of the Security Agreement is amended in its entirety to
read as follows:
Section 13. Notices.
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All notices, communications and distributions hereunder shall
be given or made to the following parties at the following addresses:
(i) if to the Debtor, to it at
Xxxxxxx Xxxxxxx Jewelers, Inc.
000 Xxxxx XxxXxxxxxx Xxxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
(ii) if to the Agent, to it at
Fleet Precious Metals Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
or in any of the foregoing cases at such other address as the addressee
may hereafter specify for the purposes by written notice to the other
party hereto. Such notices and other communications will be effectively
given only if and when given in writing and delivered at the address
set forth in this Section 13 or duly deposited in the mails with first
class postage prepaid, or delivered by a telegraph company with all
charges prepaid, addressed as aforesaid.
7. Exhibit A attached to the Security Agreement is hereby deleted and
Exhibit A attached hereto is hereby added to and made a part of the Security
Agreement as Exhibit A thereto.
8. Any necessary, conforming changes to the Security Agreement
occasioned by reason of this Fifth Amendment shall be deemed to have been made.
9. This Fifth Amendment shall be binding upon the parties and their
respective successors and assigns.
10. Each of the Debtor, each Secured Party and the Agent acknowledge
and agree that, except as expressly provided herein, the terms and provisions of
the Security Agreement remain unchanged and the Security Agreement remains in
full force and effect in accordance with its terms. The term "Security
Agreement" as used in the Security Agreement and all references to the Security
Agreement in any other documents or agreements between any of the parties hereto
which relate to the Debtor shall refer, from and after the date hereof, to the
Security Agreement as amended and supplemented by this Fifth Amendment.
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11. Unless otherwise defined herein or in the context otherwise
requires, all terms and phrases which are defined in the Security Agreement
shall have the same meaning when used herein.
12. 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.
13. 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.
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
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Title: Treasurer
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FLEET PRECIOUS METALS INC., individually and as
Agent for each of the Secured Parties
By: \s\: Xxxxxx XxxXxxx
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Title: Vice President
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By: \s\: Xxxxx X. Xxxxx
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Title: Vice President
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ABN AMRO BANK N.V., NEW YORK BRANCH
By: \s\: Xxxxxxx Xxxxxxx
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Title: Vice President
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By: \s\: Xxx Xxxxxxxx
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Title: Vice President
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CREDIT SUISSE, FIRST BOSTON f/k/a Credit Suisse,
New York Branch
By: \s\: Xxxxxxx X. Xxxxxxxxx
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Title: Director
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By: \s\: Xxxxxx X. Xxxxx
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Title: Vice President
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BANKBOSTON, N.A., formerly known as Rhode
Island Hospital Trust National Bank
By: \s\: Xxxxxx Xxxxx
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Title: Director
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PARIBAS
By: \s\: Xxx Xxxxxxxxx
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Title: Vice President
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By: \s\: X. Xxxxxxx
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Title: Vice President
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