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EXHIBIT 10.6
FIFTH AMENDMENT TO AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
THIS FIFTH AMENDMENT is made as of October 20, 1995, among NORTHWESTERN
NATIONAL LIFE INSURANCE COMPANY, a Minnesota corporation, NORTHERN LIFE
INSURANCE COMPANY, a Washington corporation and THE NORTH ATLANTIC LIFE
INSURANCE COMPANY OF AMERICA, a New York corporation, each having a mailing
address at c/o Washington Square Capital, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, in their capacity as lenders
under the First Note Purchase Agreement, the "First Insurance Companies", and
individually, a "First Insurance Company"); NORTHERN LIFE INSURANCE COMPANY, a
Washington corporation, ROYAL MACCABEES LIFE INSURANCE COMPANY, a Michigan
corporation, THE NORTH ATLANTIC LIFE INSURANCE COMPANY OF AMERICA, a New York
corporation, FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN, a Michigan
corporation, FB ANNUITY COMPANY, a Michigan corporation, and FARM BUREAU MUTUAL
INSURANCE COMPANY OF MICHIGAN, a Michigan corporation, each having a mailing
address at c/o Washington Square Capital, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, in their capacity as lenders
under the Second Note Purchase Agreement the "Second Insurance Companies",
and individually, a "Second Insurance Company"); NORTHERN LIFE INSURANCE
COMPANY, a Washington corporation and NORTHWESTERN NATIONAL LIFE INSURANCE
COMPANY, a Minnesota corporation (collectively, in their capacity as lenders
under the Third Note Purchase Agreement, the "Third Insurance Companies" and
individually, a "Third Insurance Company", and together with the First
Insurance Companies, the Second Insurance Companies and the Third Insurance
Companies sometimes collectively referred to herein as the "Insurance
Companies" and individually as an "Insurance Company"); 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 ▇▇▇▇▇▇ INC.) ("DBSPI"); and UNION BANK OF
SWITZERLAND ("UBS") (collectively, in their capacity as consignors under the
Consignment Agreements referred to below, the "Consignors", and individually a
"Consignor"); and CHEMICAL BANK ("Chemical").
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W I T N E S S E T H T H A T:
WHEREAS, the Insurance Companies, the Consignors (other than UBS) and
Chemical are parties to a certain Amended and Restated Intercreditor Agreement
dated as of August 20, 1993 (hereinafter, as amended by a certain First
Amendment dated as of November 15, 1993, a certain Second Amendment dated as
of May 16, 1994, and a certain Third Amendment dated as of September 1, 1994
and a certain Fourth Amendment dated as of February 15, 1995, the
"Intercreditor Agreement"), pursuant to which the Insurance Companies, the
Consignors (other than UBS) and Chemical have established among themselves the
priority of their security interests in the Collateral (as defined therein) of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ JEWELERS, INC., a Delaware corporation ("Debtor") and have
provided for the enforcement of such security interests; and
WHEREAS, UBS has requested that it be added as a "Consignor" pursuant to the
terms of the Intercreditor Agreement as UBS will be entering into a consignment
arrangement with Debtor; and
WHEREAS, UBS is willing to assume all obligations and liabilities under the
Intercreditor Agreement as a Consignor thereunder and to comply with the
covenants and terms of such Intercreditor Agreement and any documents executed
by the Consignors in connection with the Intercreditor 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. Capitalized terms used herein and not otherwise defined herein shall have
the meanings given to such terms in the Intercreditor Agreement.
2. UBS is hereby added as a party to the Intercreditor Agreement, with UBS to
be included as a Consignor pursuant to the terms of the Intercreditor
Agreement.
3. The Intercreditor Agreement is hereby amended so that the terms "Consignor"
and "Consignors" 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 as
a Consignor thereunder and hereby assumes full liability for the performance
and observance of all and singular of the covenants, agreements and conditions
of the Intercreditor Agreement which are to be performed by the Consignors
thereunder.
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4. The third "WHEREAS" clause of the Intercreditor Agreement is hereby amended
to read as follows:
"WHEREAS, the Consignors, severally and not jointly,
may (in their sole and individual discretion) extend financial
accommodations to Debtor pursuant 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) between Debtor and
each of the Consignors (as amended, and as the same may be amended from
time to time, the "Consignment Agreements"); and"
5. Any necessary, conforming changes to the Intercreditor Agreement occasioned
by reason of this Fifth Amendment shall be deemed to have been made.
6. This Fifth Amendment shall be binding upon the parties and their respective
successors and assigns.
7. Each of the Insurance Companies, each of the Consignors, UBS and Chemical
acknowledge and agree that, except as expressly provided herein, the terms and
provisions of the Intercreditor Agreement remain unchanged and the
Intercreditor Agreement remains in full force and effect in accordance with its
terms. The term "Agreement" as used in the Intercreditor Agreement and all
references to the Intercreditor Agreement in any other documents or agreements
between any of the parties hereto which relate to Debtor shall refer, from and
after the date hereof, to the Intercreditor Agreement as amended and
supplemented by this Fifth Amendment.
8. 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.
9. 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.
NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By: /s/ ?????
-------------------------------------
Title:___________________________________
NORTHERN LIFE INSURANCE COMPANY
By: /s/ ?????
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Title:___________________________________
ROYAL MACCABEES LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, CFA
-------------------------------------
Title: Vice President, Senior Portfolio Manager
THE NORTH ATLANTIC LIFE INSURANCE
COMPANY OF AMERICA
By: /s/ ?????
------------------------------------
Title:__________________________________
FARM BUREAU LIFE INSURANCE
COMPANY OF MICHIGAN
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title:______________________________________
FB ANNUITY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title:_______________________________________
(Signatures continued on page 5)
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FARM BUREAU MUTUAL INSURANCE
COMPANY OF MICHIGAN
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title:______________________________________
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Precious Metals Dept.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
THE MOCATTA GROUP, A DIVISION OF
STANDARD CHARTERED BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: SVP - CFO
By: /s/ ????
-------------------------------------
Title: Vice President
Address: Four ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier:
(Signatures continued on page 6)
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FLEET PRECIOUS METALS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
-------------------------------
Title: Vice President
By: /s/ ?????
---------------------------------
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Associate
Address: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Vice President
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier:
(Signatures continued on page 7)
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▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CHEMICAL BANK
By: /s/ ▇▇▇▇ ▇. Port
----------------------------------
Title: Vice President
By:__________________________________________
Title:_________________________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Port
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CONSENTED AND AGREED TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ JEWELERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Treasurer
MFD/mh:
▇▇▇▇\fifthamd
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