EXHIBIT 10.29
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NINTH AMENDMENT TO AMENDED AND
RESTATED SECURITY AGREEMENT
THIS NINTH AMENDMENT is made as of the 31st day of January, 2002, 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 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 INTERNATIONAL ("Credit Suisse"), FLEET PRECIOUS METALS INC. ("FPM"),
MITSUI & CO. PRECIOUS METALS, INC. ("Mitsui"), COMMERZBANK INTERNATIONAL S.A.
("Commerzbank") and SOVEREIGN PRECIOUS METALS, LLC ("Sovereign")(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 Sovereign), 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, a certain Fourth Amendment
dated as of October 20, 1995, a certain Fifth Amendment dated October 23, 1998,
a certain Sixth Amendment dated March 1, 2000, a certain Seventh Amendment dated
March 1, 2001, and a certain Eighth Amendment dated March 23, 2001 (the
"Security Agreement") pursuant to which the Debtor granted to the Secured
Parties (other than Sovereign), 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 Sovereign desire to add Sovereign as a "Secured
Party" pursuant to the terms of the Security Agreement as Sovereign has entered
into a Consignment Agreement dated as of January 31, 2002 (hereinafter, as
amended or modified from time to time, the "Sovereign Agreement") with the
Debtor; and
WHEREAS, Sovereign is willing to assume all obligations and liabilities
under the Security Agreement as a Security Party thereunder and 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 Sovereign as a party to the Security Agreement, with Sovereign 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 Sovereign
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, Sovereign and Sovereign shall be entitled to all of the rights and
benefits of a Secured Party thereunder.
3. 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, November 29, 1999 in
the case of Mitsui, January 22, 2001 in the case of
Commerzbank, and JANUARY 31, 2002 in the case of Sovereign)
(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
Sovereign 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 Sovereign 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
Sovereign and to Sovereign, 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.
5. Any necessary, conforming changes to the Security Agreement
occasioned by reason of this Ninth Amendment shall be deemed to have been made.
6. This Ninth Amendment shall be binding upon the parties and their
respective successors and assigns.
7. 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
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Security Agreement as previously amended and as amended and supplemented by this
Ninth Amendment.
8. 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.
9. This Ninth 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.
10. This Ninth 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 Ninth 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: SVP and Treasurer
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FLEET PRECIOUS METALS INC., individually and as
Agent for each of the Secured Parties
By: /s/: Xxxxx X. Xxxxx
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Title: Vice President
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By: /s/: Xxxxxxx X. Xxxxxxx
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Title: SVP
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ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/: Xxxxxxx Xxxxxxx
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Title: VP
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By: /s/: Xxx Xxxxxxxx
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Title: VP
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CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By:
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Title:
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By:
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Title:
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COMMERZBANK INTERNATIONAL S.A.
By: /s/: Xxxxxx East /s/: Xxxxxxx Xxxxx
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Title: Vice President Vice President
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MITSUI & CO., PRECIOUS METALS INC.
By:
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Title:
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SOVEREIGN PRECIOUS METALS, LLC
By: /s/: Xxxxx X. Xxxxxx
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Title: Vice President
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