SIXTH AMENDMENT, CONSENT AND WAIVER TO TERM LOAN AND SECURITY AGREEMENT
Exhibit 4.42
Execution Version
SIXTH AMENDMENT, CONSENT AND WAIVER TO
TERM LOAN AND SECURITY AGREEMENT
SIXTH AMENDMENT, CONSENT AND WAIVER TO TERM LOAN AND SECURITY AGREEMENT, dated as of April , 2011 (this “Amendment”), by and among (i) MAYOR’S JEWELERS, INC., a Delaware corporation (the “US Borrower”) and BIRKS & MAYORS INC., a Canadian corporation (the “Canadian Borrower” and, together with the US Borrower, the “Borrowers”), (ii) the guarantors party to the Loan Agreement referred to below (the “Guarantors” and, together with the Borrowers, the “Loan Parties”), (iii) the lenders party to the Loan Agreement referred to below (collectively, the “Lenders”), and (iv) GB MERCHANT PARTNERS, LLC, in its capacity as administrative agent (the “Administrative Agent”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Loan Agreement referred to below.
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Administrative Agent are parties to the Term Loan and Security Agreement, dated as of December 17, 2008 (as amended, amended and restated, modified and in effect from time to time, the “Loan Agreement”), pursuant to which the Lenders have extended credit to the Borrowers on the terms and subject to the conditions set forth therein; and
WHEREAS, the Borrowers have requested, among other things, that the Lenders (a) consent to the formation of new subsidiaries (collectively, the “Excluded Subsidiaries”) and Investments therein, in each case in connection with the transactions described in greater detail on Schedule A hereto, (b) consent to the Borrowers making a payment in respect of the ▇▇▇▇▇▇▇▇▇ Debt, (c) waive certain Events of Default arising as a result of the Borrowers’ failure to comply with the requirements of Section 10.2.16 of the Loan Agreement, and (d) amend certain provisions of the Loan Agreement, in each case, subject to the terms and conditions set forth herein; and
WHEREAS, the Lenders have agreed, on the terms and conditions set forth herein, to consent to the formation of the Excluded Subsidiaries and the related Investments therein, in each case subject to the terms and conditions set forth herein; and
WHEREAS, the Lenders have agreed, on the terms and conditions set forth herein, to consent to the Borrowers making a payment in respect of the ▇▇▇▇▇▇▇▇▇ Debt;
WHEREAS, the Lenders have agreed, on the terms and conditions set forth herein, to waive the Specified Defaults (as defined below); and
WHEREAS, the Borrowers, the Lenders, and the Agents have agreed, on the terms and conditions set forth herein, to amend certain provisions of the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
§1. Amendment to Section 1.1 of the Loan Agreement. Section 1.1 of the Loan Agreement is hereby amended as follows:
(a) By adding the following new definitions thereto in appropriate alphabetical order:
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“Excluded Subsidiaries – as defined in the Sixth Amendment. For purposes of this Agreement, the Excluded Subsidiaries shall be deemed Affiliates of the Loan Parties.
“Sixth Amendment – that certain Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement dated as of March , 2011, by and among the Loan Parties, the Lenders and the Administrative Agent.”
(b) By deleting the definition of “Subsidiary” in its entirety therefrom and substituting the following new definition in its stead:
“Subsidiary - of a Person means a corporation, partnership, joint venture, limited or unlimited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to any Subsidiary or Subsidiaries of any Borrower. None of the Excluded Subsidiaries shall be a “Subsidiary” for purposes hereof.”
§2. Amendment to Section 10.2.6 of the Loan Agreement. Section 10.2.6(b) of the Loan Agreement is hereby amended by deleting such section in its entirety and inserting in lieu thereof the following text:
“(b) The Borrowers shall be permitted to (i) pay to any of Regaluxe S.r.L., Montrovest B.V. or Gestofi SA, an aggregate amount not to exceed $250,000 in any Fiscal Year (or such greater amount to the extent consented to in writing by the Administrative Agent in its sole discretion) for expenses incurred by any of Regaluxe S.r.L., Montrovest B.V. or Gestofi SA on behalf of the Chairman of the Canadian Borrower in connection with carrying out his duties as Chairman of the Canadian Borrower in the ordinary course of business and (ii) (x) pay Regaluxe S.r.L. a fee of not more than 3.5% of the total price of the goods sold to Regaluxe S.r.L. in the form of a discount (which fee shall be payable to cover import duties and the carrying costs of value-added taxes financing), and (y) reimburse Regaluxe S.r.L. for other reasonable costs and expenses incurred by Regaluxe S.r.L. in connection with the importation by Regaluxe S.r.L. of goods of the Canadian Borrower and the subsequent sale of such goods by Regaluxe S.r.L. to certain Italian jewellery stores (so long as, to the extent requested by the Administrative Agent, the Administrative Agent is provided with satisfactory documentation supporting such costs and expenses)), provided that in each case, no Default or Event of Default shall have occurred and be continuing at the time of such payment or would result therefrom.”
§3. Consents under Loan Agreement.
(a) Consent Regarding Excluded Subsidiaries. Notwithstanding anything to the contrary contained in the Loan Agreement, the Lenders hereby consent to (a) the
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formation of the Excluded Subsidiaries, (b) Investments by the Borrowers in the Excluded Subsidiaries not to exceed $300,000 in the aggregate outstanding at any time, and (c) the grant by the Canadian Borrower to the Excluded Subsidiaries of the exclusive right to use the trademarks identified on Schedule B annexed hereto (the “Birks Marks”) in Hong Kong, People’s Republic of China and/or Macau (collectively, the “Territory”) and the making available by the Canadian Borrower to the Excluded Subsidiaries of the Canadian Borrower’s know-how, confidential or proprietary information and similar Intellectual Property related to the business of the Canadian Borrower solely for use in the Territory.
(b) Consent Regarding ▇▇▇▇▇▇▇▇▇ Subordinated Debt Payment. Notwithstanding anything to the contrary contained in the Loan Agreement, the Lenders hereby consent to Borrowers making a one-time principal payment on the date hereof in respect of the ▇▇▇▇▇▇▇▇▇ Debt in an amount equal to Cdn. $1,700,000 so long as (i) no Default or Event of Default exists at the time of the making of such payment or would (after taking into consideration the payment to be made) result therefrom and (ii) the Administrative Agent shall have received evidence satisfactory to the Administrative Agent that (A) the Aggregate Excess Availability (calculated on a pro forma basis after taking into consideration the payment to be made) shall be not less than $12,000,000 and (B) upon the making of such payment, the ▇▇▇▇▇▇▇▇▇ Debt shall be satisfied in full and any guarantees and Liens in support of the ▇▇▇▇▇▇▇▇▇ Debt shall have been terminated and released.
§4. Waiver under Loan Agreement.
(a) The Borrowers have informed the Administrative Agent and the Lenders that the Borrowers have committed to close the retail locations identified on Schedule C attached hereto (collectively, the “Retail Locations”) in 2011 and, accordingly, such commitment to close the Retail Locations constitutes an Event of Default under Section 11.1(c) of the Loan Agreement as a result of the breach of Section 10.2.16 of the Loan Agreement and an Event of Default under Section 11.1(m) of the Loan Agreement as a result of the corresponding events of default arising under the Revolving Loan Documents (collectively, the “Specified Defaults”). The Borrowers have requested that the Administrative Agent and the Required Lenders (i) consent to the closing of the Retail Locations, notwithstanding the limitations on the number of retail locations that may be closed in any calendar year under Section 10.2.16 of the Loan Agreement, and (ii) waive the Specified Defaults.
(b) Subject to the satisfaction of the conditions precedent described in Section 6 below, the Administrative Agent and the Lenders hereby (i) consent to the closing of the Retail Locations, notwithstanding the limitations on the number of retail locations that may be closed in any calendar year under Section 10.2.16 of the Loan Agreement, and (ii) waive the Specified Defaults. The waiver provided herein is a limited waiver and the execution and delivery of this Amendment does not (i) constitute a waiver by the Administrative Agent or any Lender of any other term or condition under the Loan Agreement or any other Loan Documents, including, without limitation, any right, power, or remedy of Administrative Agent or any Lender under any of the Loan Documents (all such rights, powers and remedies being expressly reserved), (ii) establish a custom or a course of dealing or conduct among the Administrative Agent, any Lender or any member of the Loan Parties, or (iii) prejudice any rights which the Administrative Agent or any Lender now has or may have in the future under or in connection with the Loan Documents.
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§5. Representations and Warranties. Each of the Loan Parties hereby represents and warrants to the Administrative Agent and the Lenders as of the date hereof as follows:
(a) The execution and delivery by each of the Loan Parties of this Amendment and all other instruments and agreements required to be executed and delivered by such Loan Party in connection with the transactions contemplated hereby or referred to herein (collectively, the “Amendment Documents”), and the performance by each of the Loan Parties of any of its obligations and agreements under the Amendment Documents and the Loan Agreement and the other Loan Documents, as amended hereby, are within the corporate or other authority of such Loan Party, have been authorized by all necessary corporate proceedings on behalf of such Loan Party and do not and will not contravene any provision of law or such Loan Party’s charter, other incorporation or organizational papers, by-laws or any stock provision or any amendment thereof or of any indenture, agreement, instrument or undertaking binding upon such Loan Party.
(b) Each of this Amendment, the other Amendment Documents, the Loan Agreement and the other Loan Documents, as amended hereby, to which any Loan Party is a party constitute legal, valid and binding obligations of such Loan Party, enforceable in accordance with their terms, except as limited by the Bankruptcy Code, any Canadian Debtor Relief Law, any other insolvency, debtor relief or debt adjustment law or similar laws relating to or affecting generally the enforcement of creditors’ rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefore may be brought.
(c) No approval or consent of, or filing with, any governmental agency or authority is required to make valid and legally binding the execution, delivery or performance by the Loan Parties of this Amendment, the Amendment Documents, the Loan Agreement or any other Loan Documents, as amended hereby, or the consummation by the Loan Parties of the transactions among the parties contemplated hereby and thereby or referred to herein.
(d) The representations and warranties contained in Section 9 of the Loan Agreement and in the other Loan Documents were true and correct as of the date made. Except to the extent of changes resulting from transactions contemplated or permitted by the Loan Agreement and the other Loan Documents and except to the extent that any representations and warranties relate expressly to an earlier date, after giving effect to the provisions hereof, such representations and warranties, both before and after giving effect to this Amendment, also are correct as of the date hereof.
(e) Each of the Loan Parties has performed and complied in all respects with all terms and conditions herein required to be performed or complied with by it prior to or at the time hereof, and as of the date hereof, both before and after giving effect to the provisions of this Amendment and the other Amendment Documents, there exists no Default or Event of Default.
(f) Each of the Loan Parties hereby acknowledges and agrees that the representations and warranties contained in this Amendment shall constitute representations and warranties as referred to in Section 11.1(b) of the Loan Agreement, a breach of which shall constitute an Event of Default.
§6. Effectiveness. This Amendment shall become effective upon the satisfaction of each of the following conditions, in each case in a manner satisfactory in form and substance to the Administrative Agent and the Lenders:
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(a) This Amendment shall have been duly executed and delivered by each of the Borrowers, each of the Guarantors, the Administrative Agent and each of the Lenders and shall be in full force and effect.
(b) All amounts due or outstanding with respect to the ▇▇▇▇▇▇▇▇▇ Debt shall have been (or shall simultaneously be) paid in full, any commitments thereunder terminated and any and all guarantees and Liens in support thereof discharged and released, and the Administrative Agent shall have received satisfactory evidence thereof.
(c) The Administrative Agent shall have received a duly executed Seventh Amendment and Consent to Amended and Restated Revolving Credit and Security Agreement (the “Seventh Revolver Amendment”) in the form of Exhibit A attached hereto.
(d) The Borrowers shall have paid all reasonable unpaid fees and expenses of the Administrative Agent’s counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP and Osler, ▇▇▇▇▇▇ & Harcort LLP, to the extent that copies of invoices for such fees and expenses have been delivered to the Borrowers.
(e) The Administrative Agent shall have received such other items, documents, agreements, items or actions as the Administrative Agent may reasonably request in order to effectuate the transactions contemplated hereby.
(f) No Default or Event of Default shall have occurred and be continuing.
§7. Release. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, each Loan Party acknowledges and agrees that: (i) no Loan Party has any claim or cause of action against the Administrative Agent or any Lender (or, with respect to the Loan Agreement and the other Loan Documents and the administration of the credit facilities thereunder, any of their respective directors, officers, employees, agents or representatives); (ii) no Loan Party has any offset or compensation right, counterclaim, right of recoupment or any defense of any kind against any Loan Party’s obligations, indebtedness or liabilities to the Administrative Agent or any Lender; and (iii) each of the Administrative Agent and the Lenders has heretofore properly performed and satisfied in a timely manner all of its obligations to the Borrowers and, as applicable, the Guarantors. Each Loan Party wishes to eliminate any possibility that any past conditions, acts, omissions, events, circumstances or matters would impair or otherwise adversely affect any of the Administrative Agent’s and the Lenders’ rights, interests, contracts, collateral security or remedies. Therefore, each Loan Party unconditionally releases, waives and forever discharges (A) any and all liabilities, obligations, duties, promises or indebtedness of any kind of the Administrative Agent or any Lender to any Loan Party, except the obligations to be performed by the Administrative Agent or any Lender on or after the date hereof as expressly stated in this Amendment, the Loan Agreement and the other Loan Documents, and (B) all claims, counterclaims, offsets, compensation rights, causes of action, right of recoupment, suits or defenses of any kind whatsoever (if any), whether arising at law or in equity, whether known or unknown, which any Loan Party might otherwise have against the Administrative Agent or any Lender (or, with respect to the Loan Agreement and the other Loan Documents and the administration of the credit facilities thereunder, any of their respective directors, officers, employees or agents), in either case (A) or (B), on account of any past or presently existing (as of the date hereof) condition, act, omission, event, contract, liability, obligation, indebtedness, claim, cause of action, defense, counterclaims, compensation rights, circumstance or matter of any kind.
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§8. Miscellaneous Provisions.
(a) Each of the Loan Parties hereby ratifies and confirms all of its Obligations to the Administrative Agent and the Lenders under the Loan Agreement, as amended hereby, and the other Loan Documents, including, without limitation, the Loans, and each of the Loan Parties hereby affirms its absolute and unconditional promise to pay to the Lenders and the Administrative Agent, as applicable, the Loans, reimbursement obligations and all other amounts due or to become due and payable to the Lenders and the Administrative Agent, as applicable, under the Loan Agreement and the other Loan Documents, as amended hereby and it is the intent of the parties hereto that nothing contained herein shall constitute a novation or accord and satisfaction. Each of the Loan Parties hereby acknowledges and confirms that the liens, hypothecs, pledges and security interests granted pursuant to the Loan Documents are and continue to be valid, perfected and enforceable first priority liens, hypothecs, pledges and security interests (subject only to Permitted Liens) that secure all of the Obligations on and after the date hereof. Except as expressly amended hereby, each of the Loan Agreement and the other Loan Documents shall continue in full force and effect. This Amendment and the Loan Agreement shall hereafter be read and construed together as a single document, and all references in the Loan Agreement, any other Loan Document or any agreement or instrument related to the Loan Agreement shall hereafter refer to the Loan Agreement as amended by this Amendment.
(b) Without limiting the expense reimbursement requirements set forth in Section 3.4 of the Loan Agreement, the Borrowers agree to pay on demand all reasonable costs and expenses, including reasonable attorneys’ fees, of the Administrative Agent incurred in connection with this Amendment.
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW (OTHER THAN THE NEW YORK GENERAL OBLIGATIONS LAW §§5-1401 AND 5-1402)).
(d) EACH LOAN PARTY PARTY HERETO HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT SITTING IN OR WITH JURISDICTION OVER THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ SITTING IN THE COUNTY OF MANHATTAN, IN ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH LOAN PARTY PARTY HERETO IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. Nothing herein shall limit the right of the Administrative Agent or any Lender to bring proceedings against any Loan Party in any other court. Nothing in this Agreement shall be deemed to preclude enforcement by the Administrative Agent of any judgment or order obtained in any forum or jurisdiction.
(e) This Amendment may be executed in any number of counterparts, and all such counterparts shall together constitute but one instrument. In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought. Delivery of a signature page hereto by electronic transmission shall constitute the delivery of an original signature page hereof.
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[Remainder of Page Intentionally Left Blank]
[Signature Pages follow]
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set forth above.
| US BORROWER AND BORROWER AGENT: | ||||
| MAYOR’S JEWELERS, INC. | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior VP & CFO | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Group VP, Finance & Treasurer | |||
| CANADIAN BORROWER: | ||||
| BIRKS & MAYORS INC. | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior VP & CFO | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Group VP, Finance & Treasurer | |||
Signature Page to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
| GUARANTORS: | ||||
| CASH, GOLD & SILVER USA, INC. (formerly known as ▇▇▇▇▇ ▇▇▇▇▇ & Sons U.S., Inc.) | ||||
| MAYOR’S JEWELERS OF FLORIDA, INC. | ||||
| JBM RETAIL COMPANY, INC. JBM VENTURE CO., INC. MAYOR’S JEWELERS INTELLECTUAL PROPERTY HOLDING COMPANY | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior VP & CFO | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Group VP, Finance & Treasurer | |||
| CASH, GOLD & SILVER INC. – OR ET ARGENT, COMPTANT INC. | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
Signature Page to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
| ADMINISTRATIVE AGENT: | ||||
| GB MERCHANT PARTNERS, LLC | ||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Principal & Managing Director | |||
Signature Page to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
| LENDERS: | ||
| 1903 ONSHORE FUNDING, LLC | ||
| By: | GB Merchant Partners, LLC | |
| Its Investment Manager | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Principal & Managing Director | |
| 1903 OFFSHORE LOANS SPV LIMITED | ||
| By: | GB Merchant Partners, LLC | |
| Its Investment Manager | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Principal & Managing Director | |
Signature Page to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
RATIFICATION OF GUARANTY
Without limiting the provisions of the foregoing Amendment and any agreement of any Guarantor made therein, each of the undersigned Guarantors hereby (a) acknowledges and consents to the foregoing Amendment and the Borrowers’ execution thereof; (b) ratifies and confirms all of their respective obligations and liabilities under the Loan Documents to which any of them is a party and ratifies and confirms that such obligations and liabilities extend to and continue in effect with respect to, and continue to guarantee and secure, as applicable, the Obligations of the Borrowers under the Loan Agreement; (c) joins the foregoing Amendment for the purpose of consenting to and being bound by the provisions of Section 5 and Section 7 thereof; and (d) acknowledges and confirms that the liens, hypothecs, pledges and security interests granted pursuant to the Loan Documents are and continue to be valid, perfected and enforceable first priority liens, hypothecs, pledges and security interests (subject only to Permitted Liens) that secure all of the Obligations on and after the date hereof.
| GUARANTORS: | ||||
| CASH, GOLD & SILVER USA, INC. (formerly known as ▇▇▇▇▇ ▇▇▇▇▇ & Sons U.S., Inc.) | ||||
| MAYOR’S JEWELERS OF FLORIDA, INC. | ||||
| JBM RETAIL COMPANY, INC. JBM VENTURE CO., INC. MAYOR’S JEWELERS INTELLECTUAL PROPERTY HOLDING COMPANY | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior VP & CFO | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Group VP, Finance & Treasurer | |||
| CASH, GOLD & SILVER INC. – OR ET ARGENT, COMPTANT INC. | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
Guarantor Acknowledgment Page to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
SCHEDULE A
Description of Investment
The Canadian Borrower, alone or together with third party investors, will establish a holding company in Hong Kong (“HK Holdco”) that will hold a contractual right to develop the Birks trademark in the People’s Republic of China (“PRC”), Hong Kong and/or Macau (collectively, the “Territory”).
HK Holdco will establish one or more subsidiaries (as needed) registered in the Territory to conduct all of its proposed business activities in the Territory.
Schedule A to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
SCHEDULE B
Birks Marks
The Canadian Borrower is in the process of filing or will file trademark or word ▇▇▇▇ applications in relation to the following trademarks in the Territory:
1. Birks
2. Birks & lion design
3. The Amorique Diamond
4. Caresse
5. Other trademarks or word marks related to the Canadian Borrower to be used in the Territory that may be necessary or useful in connection with the activities of the Canadian Borrower and/or the Excluded Subsidiaries in the Territory.
Schedule B to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
SCHEDULE C
Retail Locations
| Store # |
Store Name |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
▇▇▇▇ |
▇▇▇ | ||||
| ▇▇▇▇ | ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ | ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ | ▇▇▇ ▇▇▇ | ||||
| ▇▇▇▇ | ▇▇▇ ▇▇▇▇▇▇▇ | ▇▇▇▇ ▇▇▇ ▇▇▇▇. | ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ | ▇▇▇▇▇ | ||||
| ▇▇▇▇ | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ | ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ | ▇▇▇▇▇ | ||||
| 4129 | Seminole Towne Center | ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇ | ▇▇▇▇▇▇▇, ▇▇ | ▇▇▇▇▇ | ||||
| 4149 | ▇▇▇▇ Tower Shops | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ #▇▇▇ | ▇▇. ▇▇▇▇▇, ▇▇ | ▇▇▇▇▇ | ||||
Schedule C to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement
EXHIBIT A
Seventh Revolver Amendment
[See Attached]
Exhibit A to Sixth Amendment, Consent and Waiver to Term Loan and Security Agreement