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EXHIBIT 10.5
FOURTH AMENDMENT TO AMENDED AND
RESTATED SECURITY AGREEMENT
THIS FOURTH AMENDMENT is made as of the 20 day of October,
1995, among XXXXXXX XXXXXXX JEWELERS, INC., a Delaware corporation
(the "Debtor"), each of the Secured Parties (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"); and UNION
BANK OF SWITZERLAND ("UBS") (jointly and severally, the "Secured
Parties).
W I T N E S S E T H T H A T:
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WHEREAS, the Secured Parties (other than UBS), 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 and a certain Third Amendment
dated as of January 15, 1995, the "Security Agreement"), pursuant to
which the Debtor granted to the Secured Parties (other than UBS) and
the Agent a security interest in the Collateral (as defined therein)
and provided for the enforcement of such security interests; and
WHEREAS, the Debtor and UBS desire to add UBS as a "Secured
Party" pursuant to the terms of the Security Agreement as UBS will be
entering into a Consignment Agreement dated as of October 20, 1995
(hereinafter, as amended or modified from time to time, the "UBS
Agreement") with the Debtor; and
WHEREAS, UBS 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;
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 UBS as a party to the Security Agreement, with UBS 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 UBS Agreement.
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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, UBS and UBS shall be entitled to all of the rights and
benefits of a Secured Party thereunder.
3. The second "WHEREAS" clause on page 1 in 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, September 1,
1994 in the case of DBSPI and October 20, 1995 in the case of
UBS) (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"
4. In order to secure the due and punctual payment and performance of all
indebtedness, liabilities and obligations of the Debtor contained in
the UBS 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 UBS 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 UBS and to UBS, and
hereby ratifies and reaffirms 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.
5. 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.
6. Any necessary, conforming changes to the Security Agreement occasioned
by reason of this Fourth Amendment shall be deemed to have been made.
7. This Fourth Amendment shall be binding upon the parties and their
respective successors and assigns.
8. 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
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hereto which relate to the Debtor shall refer, from and after the date
hereof, to the Security Agreement as amended and supplemented by this
Fourth Amendment.
9. Unless otherwise defined herein or the context otherwise requires, all
terms and phrases which are defined in the Security Agreement shall
have the same meaning when used herein.
10. This Fourth 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.
11. This Fourth 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 Fourth
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
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK, INDIVIDUALLY AND AS
AGENT FOR EACH OF THE SECURED PARTIES
By: /s/ Xxxxxx Xxxxx
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Title: Senior Vice President
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
By: /s/ Xxx Xxxxxxxxx
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Title: Vice President
THE MOCATTA GROUP, A DIVISION OF
STANDARD CHARTERED BANK
By: /s/ Xxxxxx Xxxxxxxx
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Title: SVP-CFO
(Signatures continued on page 4)
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FLEET PRECIOUS METALS, INC.
By: /s/ Xxxxxxx Xxxxxx Xxx
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Title: Vice President
By:
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Title:
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CREDIT SUISSE, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Associate
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title: Associate
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx
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Title: Vice President
By: /s/ Xxxxxxxx X. Xxxx
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Title: Vice President
UNION BANK OF SWITZERLAND
By: /s/ Xxxxxxxx Xxxxxxxx
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Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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