EXHIBIT 10.27
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FOURTH AMENDMENT TO AMENDED AND
RESTATED INTERCREDITOR AGREEMENT
THIS FOURTH AMENDMENT dated as of _JANUARY 31 , 2002, among ABN AMRO
BANK N.V., NEW YORK BRANCH, CREDIT SUISSE FIRST BOSTON INTERNATIONAL, FLEET
PRECIOUS METALS INC., COMMERZBANK INTERNATIONAL S.A., MITSUI & CO., PRECIOUS
METALS INC., and SOVEREIGN PRECIOUS METALS, LLC ("Sovereign") (collectively, in
their capacity as consignors under the Consignment Agreements referred to below,
the "Consignors", and individually, a "Consignor"); JPMORGAN CHASE BANK
("Chase"); and GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION (the
"Lender").
W I T N E S S E T H:
WHEREAS, the Consignors (other than Sovereign), Chase and the Lender
are parties to a certain Amended and Restated Intercreditor Agreement dated as
of January 28, 1999, as amended from time to time (as amended hereinafter, the
"Intercreditor Agreement"), pursuant to which the Consignors (other than
Sovereign), Chase and the Lenders have established among themselves the priority
of their security interests in the Collateral (as defined therein) of XXXXXXX
XXXXXXX JEWELERS, INC., a Delaware corporation ("Debtor") and MA BRANDS, INC.
("MAJ Delaware") and have provided for the enforcement of such security
interests; and
WHEREAS, Sovereign has requested that it be added as a "Consignor"
pursuant to the terms of the Intercreditor Agreement as Sovereign will be
entering into a consignment arrangement with Debtor; and
WHEREAS, Sovereign 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. Sovereign is hereby added as a party to the Intercreditor Agreement,
with Sovereign to be included as a Consignor pursuant to the terms of the
Intercreditor Agreement.
3. The Consignors, Chase, the Lender, the Debtor and MAJ Delaware
hereby each consent to the addition of Sovereign as a party to the Intercreditor
Agreement, with Sovereign to be included as a Consignor pursuant to the terms of
the Intercreditor Agreement and all
references in the Intercreditor Agreement to "the Consignment Agreements" shall
include the Consignment Agreement between Sovereign and the Debtor.
4. The first "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 XXXXXXX XXXXXXX JEWELERS, INC., a Delaware
corporation (the "Debtor") pursuant to certain Consignment
Agreements or Amended and Restated Consignment Agreements,
dated August 20, 1993 in the case of Fleet Precious Metals
Inc. and ABN AMRO Bank N.V., New York Branch, January 31, 1994
in the case of Credit Suisse First Boston International,
November 29, 1999 in the case of Mitsui & Co., Precious Metals
Inc., January 22, 2001 in the case of Commerzbank
International S.A., and _JANUARY 31, 2002, in the case of
Sovereign Precious Metals, LLC, between the Debtor and each of
the Consignors (as amended and as the same may be amended from
time to time, the "Consignment Agreements"); and"
5. 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, Sovereign and Sovereign 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.
6. Any necessary, conforming changes to the Intercreditor Agreement
occasioned by reason of this Fourth Amendment are hereby deemed to be made.
7. This Fourth Amendment shall be binding upon the parties and their
respective successors and assigns.
8. Each of the Consignors, Chase and the Lenders 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 terms "Agreement" as
used in the Intercreditor Agreement and all references to the Intercreditor
Agreement in any other documents or agreements by and between any of the parties
hereto which related to Debtor shall refer, from and after the date hereof, to
the Intercreditor Agreement, as previously amended and as amended and
supplemented by this Fourth Amendment.
9. 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.
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10. 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.
FLEET PRECIOUS METALS INC.
By
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Title
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By /s/: Xxxxx X. Xxxxx
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Title Vice President
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Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
ABN AMRO BANK N.V., NEW YORK BRANCH
By /s/: Xxxxxxx Xxxxxxx
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Title V.P.
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By Xxx Xxxxxxxx
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Title VP
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Address: 000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
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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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Address: One Xxxxx Xxxxxx
Xxxxxx X00 0XX, Xxxxxxx
Attn: (1) Head of Credit Risk Management,
(2) Managing Director - Operations
Department, and
(3) Managing Director - Legal Department
Telecopier: 000-00(00) 0 000 0000
COMMERZBANK INTERNATIONAL S.A.
By /s/: Xxxxxx East /s/: Xxxxxxx Xxxxx
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Title Vice President Vice President
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Address:
Attention:
Telecopier:
MITSUI & CO., PRECIOUS METALS INC.
By
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Title
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Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
SOVEREIGN PRECIOUS METAL, LLC
By /s/: Xxxxx X. Xxxxxx
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Title Vice President
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Address: XX0 XXX XX-00
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
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JPMORGAN CHASE BANK
By /s/: Xxxxxx Xxxxx
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Title Vice President
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Address: 0000 Xxxxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
GENERAL ELECTRIC CAPITAL BUSINESS ASSET
FUNDING CORPORATION
By
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Title Vice President
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Address: 00000 X.X. 0xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telecopier: (000) 000-0000
Consented and agreed to:
XXXXXXX XXXXXXX JEWELERS, INC.
By /s/: Xxxxxxx X. Xxxxxxxxx
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Title Sr. Vp, Treasurer
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MA BRANDS, INC.
By /s/: Xxxxxxx X. Xxxxxxxxx
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Title Asst. Treasurer
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