FIFTH AMENDMENT TO REVOLVING CREDIT, TRANCHE B LOAN AND SECURITY AGREEMENT

EXHIBIT 4.33

FIFTH AMENDMENT TO REVOLVING CREDIT,

TRANCHE B LOAN AND SECURITY AGREEMENT

FIFTH AMENDMENT TO REVOLVING CREDIT, TRANCHE B LOAN AND SECURITY AGREEMENT, dated as of September 25, 2007 (this “Amendment”), by and among (i) MAYOR’S JEWELERS, INC., a Delaware corporation (the “U.S. Borrower”) and BIRKS & MAYORS INC. (f/k/a Xxxxx Xxxxx & Sons Inc.), a Canadian corporation (the “Canadian Borrower” and, together with the U.S. Borrower, the “Borrowers”), (ii) the lenders party to the Credit Agreement referred to below (collectively, the “Lenders”), (iii) BANK OF AMERICA, N.A., in its capacity as administrative agent (the “Administrative Agent”), and (iv) BANK OF AMERICA, N.A. (acting through its Canada branch), as Canadian agent (the “Canadian Agent”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement referred to below.

WHEREAS, the Borrowers, the Lenders, the Administrative Agent and the Canadian Agent are parties to a Revolving Credit, Tranche B Loan and Security Agreement, dated as of January 19, 2006 (as amended and in effect from time to time, the “Credit 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, on August 18, 2006, pursuant to the terms of Section 2.17 of the Credit Agreement, the U.S. Borrower elected to increase the U.S. Total Commitment by an amount equal to $12,500,000, such that after giving effect to such request (and all other elections under Section 2.17), the U.S. Total Commitment was increased from $110,000,000 to $122,500,000; and

WHEREAS, on November 10, 2006, pursuant to the terms of Section 2.17 of the Credit Agreement, the U.S. Borrower elected to increase the U.S. Total Commitment by an amount equal to $12,500,000, such that after giving effect to such request (together with all such elections), the U.S. Total Commitment was increased from $122,500,000 to $135,000,000; and

WHEREAS, on the date hereof, immediately prior to the effectiveness of this Amendment, pursuant to the terms of Section 2.18 of the Credit Agreement, the U.S. Borrower requested to increase the U.S. Total Commitment by an amount equal to $10,000,000, such that after giving effect to such request (together with all such requests), the U.S. Total Commitment was increased from $135,000,000 to $145,000,000; and

WHEREAS, the Borrowers have requested, among other things, that (i) the U.S. Total Commitment under the Credit Agreement may be further increased by up to an additional $25,000,000 from $145,000,000 to $170,000,000 and (ii) the Canadian Commitment Sublimit be increased by CD$5,000,000 from CD$125,000,000 to CD$130,000,000, in each case subject to the terms and conditions provided in the Credit Agreement; and

WHEREAS, the Borrowers, the Lenders, and the Administrative Agent have agreed, on the terms and conditions set forth herein, to amend certain provisions of the Credit 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. Amendments to Section 1.1 of the Credit Agreement.

(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new definitions in the appropriate alphabetical order:

Fifth Amendment. The Fifth Amendment to Revolving Loan, Tranche B Loan and Security Agreement, dated as of September 25, 2007, among the Borrowers, the Lenders, the U.S. Administrative Agent and the Canadian Agent.

Fifth Amendment Effective Date. The date on which the conditions precedent to effectiveness to the Fifth Amendment have been satisfied or waived.

(b) Section 1.1 of the Credit Agreement is hereby further amended by amending and restating the following definition:

Canadian Commitment Sublimit. CD$130,000,000.

§2. Amendment to Section 2.18.1 of the Credit Agreement. Section 2.18.1 of the Credit Agreement is hereby amended by (a) deleting the text “Third Amendment Effective Date” in the first sentence therein and substituting in lieu thereof the text “Fifth Amendment Effective Date” and (b) inserting immediately at the end of such Section the following sentence: “For the avoidance of doubt, (i) the accession of National City Business Credit, Inc. as a U.S. Lender and National City Bank, Canada Branch as a Canadian Lender and (ii) the increase in the U.S. Total Commitment to the U.S. Borrower made on September 25, 2007 in the amount of $10,000,000, such that after giving effect to such increase the U.S. Total Commitment shall equal $145,000,000, shall be deemed to have been made immediately prior to the Fifth Amendment Effective Date.”

§3. Amendment to Schedule 1 to the Credit Agreement. Schedule 1 to the Credit Agreement is hereby amended by deleting such Schedule 1 in its entirety and substituting therefor Schedule 1 attached hereto as Schedule 1.

§4. Representations and Warranties. Each of the Borrowers 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 Borrowers of this Amendment and all other instruments and agreements required to be executed and delivered by such Borrower in connection with the transactions contemplated hereby or referred to herein (collectively, the “Amendment Documents”), and the performance by each of the Borrowers of any of its obligations and agreements under the Amendment Documents and the Credit Agreement and the other Loan Documents, as amended hereby, are within the corporate or other authority of such Borrower, have been authorized by all necessary corporate proceedings on behalf of such Borrower and do not and will not contravene any provision of law or such Borrower’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 Borrower.

(b) Each of the Amendment Documents, the Credit Agreement and the other Loan Documents, as amended hereby, to which any Borrower is a party constitute legal, valid and binding obligations of such Borrower, enforceable in accordance with their terms, except as limited by any Debtor Relief Laws 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 Borrowers of the Amendment Documents, the Credit Agreement or any other Loan Documents, as amended hereby, or the consummation by the Borrowers of the transactions among the parties contemplated hereby and thereby or referred to herein.

(d) The representations and warranties contained in Section 7 of the Credit 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 Credit Agreement and the other Loan Documents, changes occurring in the ordinary course of business (which changes, either singly or in the aggregate, have not been materially adverse) and to the extent that such representations and warranties relate expressly to an earlier date and 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 Borrowers has performed and complied in all material 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 Borrowers hereby acknowledges and agrees that the representations and warranties contained in this Amendment shall constitute representations and warranties as referred to in Section 13.1(e) of the Credit Agreement, a breach of which shall constitute an Event of Default.

§5. Effectiveness. This Amendment shall become effective upon the satisfaction of each of the following conditions which must occur on or prior to September 25, 2007, in each case in a manner satisfactory in form and substance to the Administrative Agent and the Lenders:

(a) This Amendment shall have been duly executed and delivered by each of the Borrowers, each of the Guarantors, the Administrative Agent, the Canadian Agent and each of the Lenders and shall be in full force and effect;

(b) The Borrowers shall have duly executed and delivered amended and restated, if applicable, Revolving Credit Notes to each of the Lenders requesting such a Revolving Credit Note;

(c) The Administrative Agent shall have received signed original Officer’s Certificates, certified by a duly authorized officer of each Borrower and each Guarantor to be true and complete, (i) of the records of all corporate (or other) action taken by such Borrower or such Guarantor to authorize (A) such Borrower’s or such Guarantor’s execution and delivery of this Amendment and (B) such Borrower’s and such Guarantor’s entry into and carrying out the terms of this Amendment and the Credit Agreement, as amended hereby, (ii) copies, certified to be true, correct and complete, of the Governing Documents of each such Borrower and each Guarantor and (iii) incumbency certificate, giving the name and bearing a specimen signature of each individual who shall be authorized to sign, in the name and on behalf of such Borrower an such Guarantor, this Amendment and any other Loan Documents pursuant to this Amendment;

(d) A favorable legal opinion addressed to the Lenders and the Administrative Agent in form and substance satisfactory to the Lenders and the Administrative Agent, from (i) Holland & Knight LLP, U.S. counsel to the Borrowers and their Subsidiaries and (ii) Stikeman Elliott LLP, Canadian counsel to the Borrowers and their Subsidiaries;

(e) The Borrowers shall have paid all reasonable unpaid fees and expenses of the Administrative Agent’s counsel, Xxxxxxx XxXxxxxxx LLP, and the Canadian Agent’s counsel, Xxxxxx Xxxxxxx LLP, to the extent that copies of invoices for such fees and expenses have been delivered to the Borrowers; and

(f) 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.

§6. Release. In order to induce the Administrative Agent, the Canadian Agent and the Lenders to enter into this Amendment, the Borrowers and the Guarantors each acknowledges and agrees that: (i) such Borrower and such Guarantor do not have any claim or cause of action against the Administrative Agent, the Canadian Agent, any Applicable L/C Issuer or any Lender (or, with respect to the Credit 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) such Borrower and such Guarantor does not have any offset or compensation right, counterclaim, right of recoupment or any defense of any kind against such Borrower’s or such Guarantor’s obligations, indebtedness or liabilities to the Administrative Agent, the Canadian Agent, any Applicable L/C Issuer or any Lender; and (iii) each of the Administrative Agent, the Canadian Agent, the Applicable L/C Issuers 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 Borrower and each Guarantor 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, the Canadian Agent’s, any Applicable L/C Issuer’s and the Lenders’ rights, interests, contracts, collateral security or remedies. Therefore, each Borrower and each Guarantor unconditionally releases, waives and forever discharges (A) any and all liabilities, obligations, duties, promises or indebtedness of any kind of the Administrative Agent, the Canadian Agent, the Applicable L/C Issuers or any Lender to the Borrowers or the Guarantors, except the obligations to be performed by the Administrative Agent, the Canadian Agent, the Applicable L/C Issuer or any Lender on or after the date hereof as expressly stated in this Amendment, the Credit 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 Borrower or any Guarantor might otherwise have against the Administrative Agent, the Canadian Agent, any Applicable L/C Issuer or any Lender (or, with respect to the Credit 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.

§7. Miscellaneous Provisions.

(a) Each of the Borrowers hereby ratifies and confirms all of its Obligations to the Administrative Agent, the Canadian Agent and the Lenders under the Credit Agreement, as amended hereby, and the other Loan Documents, including, without limitation, the Loans, and each of the Borrowers hereby affirms its absolute and unconditional promise to pay to the Lenders, the Administrative Agent and the Canadian Agent, as applicable, the Loans, reimbursement obligations and all other amounts due or

to become due and payable to the Lenders, the Administrative Agent and the Canadian Agent, as applicable, under the Credit 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 Borrowers 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 Credit Agreement and the other Loan Documents shall continue in full force and effect. This Amendment and the Credit Agreement shall hereafter be read and construed together as a single document, and all references in the Credit Agreement, any other Loan Document or any agreement or instrument related to the Credit Agreement shall hereafter refer to the Credit Agreement as amended by this Amendment.

(b) Without limiting the expense reimbursement requirements set forth in Section 16.2 of the Credit Agreement, the Borrowers agree to pay on demand all reasonable costs and expenses, including reasonable attorneys’ fees, of the Administrative Agent and the Canadian Agent, as applicable, 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.

(d) 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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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set forth above.

U.S. BORROWER AND BORROWER’S REPRESENTATIVE
MAYOR’S JEWELERS, INC.
By:		/s/ Xxxxxx X. Xxxxxxxxxxxx
Name:		Xxxxxx X. Xxxxxxxxxxxx
Title:		President & CEO
By:		/s/ Xxxxx Xxxxxxxx
Name:		Xxxxx Xxxxxxxx
Title:		Group VP, Finance and Treasurer
CANADIAN BORROWER
BIRKS & MAYORS INC.
By:		/s/ Xxxxxx X. Xxxxxxxxxxxx
Name:		Xxxxxx X. Xxxxxxxxxxxx
Title:		President & CEO
By:		/s/ Xxxxx Xxxxxxxx
Name:		Xxxxx Xxxxxxxx
Title:		Group VP, Finance and Teasurer

ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
By:		/s/ Xxxxx Xxxxxxxxxxx
Name:		Xxxxx Xxxxxxxxxxx
Title:		Managing Director
CANADIAN AGENT
BANK OF AMERICA, N.A. (acting through its Canada branch)
By:		/s/ Xxxxxx Xxx
Name:		Xxxxxx Xxx
Title:		Vice President

REVOLVING CREDIT LENDERS
BANK OF AMERICA, N.A.
By:		/s/ Xxxxx Xxxxxxxxxxx
Name:		Xxxxx Xxxxxxxxxxx
Title:		Managing Director
BANK OF AMERICA, N.A. (acting through its Canada branch)
By:		/s/ Xxxxxx Xxx
Name:		Xxxxxx Xxx
Title:		Vice President

XX XXXXXXXXX LLC
BY: GMAC COMMERCIAL FINANCE LLC (servicer)
By:		/s/ Xxxxxx Xxxxx
Name:		Xxxxxx Xxxxx
Title:		Vice President

LASALLE RETAIL FINANCE, a division of LASALLE BUSINESS CREDIT, LLC, as Agent for LASALLE BANK MIDWEST NATIONAL ASSOCIATION
By:		/s/ Xxxxx Xxxxxxxxxxx
Name:		Xxxxx Xxxxxxxxxxx
Title:

NATIONAL CITY BUSINESS CREDIT, INC.
By:		/s/ Xxxxx X. Xxxxxxxx
Name:		Xxxxx X. Xxxxxxxx
Title:		Director

GMAC COMMERCIAL FINANCE CORPORATION – CANADA
By:		/s/ Xxxxxx Xxxxx
Name:		Xxxxxx Xxxxx
Title:		Authorized Representative

LASALLE BUSINESS CREDIT, a division of ABN AMRO BANK N.V., CANADA BRANCH
By:		/s/ Xxxx Xxxxxx
Name:		Xxxx Xxxxxx
Title:		Vice President
By:		/s/ Xxxxx Xxxx
Name:		Xxxxx Xxxx
Title:		First Vice President

NATIONAL CITY BANK, CANADA BRANCH
By:		/s/ Xxxxxxxx Xxxxx
Name:		Xxxxxxxx Xxxxx
Title:		Senior Vice President

RATIFICATION OF GUARANTY

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 Credit Agreement; (c) acknowledge and confirm that the liens and security interests granted pursuant to the Loan Documents are and continue to be valid and perfected first priority liens and security interests (subject only to Permitted Liens) that secure all of the Obligations on and after the date hereof; (d) acknowledges and agrees that, as of the date hereof, such Guarantor does not have any claim or cause of action against any Agent or any Lender (or, with respect to the Credit Agreement and the other Loan Documents and the administration of the credit facilities thereunder, any of its respective directors, officers, employees or agents); and (e) acknowledges, affirms and agrees that, as of the date hereof, such Guarantor does not have any defense, claim, cause of action, counterclaim, offset or right of recoupment of any kind or nature against any of their respective obligations, indebtedness or liabilities to any Agent or any Lender.

GUARANTORS
XXXXX XXXXX & SONS U.S., INC.
By:		/s/ Xxxxxx X. Xxxxxxxxxxxx
Name:		Xxxxxx X. Xxxxxxxxxxxx
Title:		President & CEO
MAYOR’S JEWELERS OF FLORIDA, INC.
JBM RETAIL COMPANY, INC.
JBM VENTURE CO., INC.
MAYOR’S JEWELERS INTELLECTUAL PROPERTY HOLDING COMPANY
XXX XXXX MARKETING-PUERTO RICO, INC.
By:		/s/ Xxxxx Xxxxxxxx
Name:		Xxxxx Xxxxxxxx
Title:		Group VP, Finance and Treasurer
By:		/s/ Xxxxxx X. Xxxxxxxxxxxx
Name:		Xxxxxx X. Xxxxxxxxxxxx
Title:		President & CEO

Schedule 1

Schedule 1

Lenders and Commitments

U.S. Total Commitment

U.S. Lenders		U.S. Total Commitment			Applicable Percentage
Bank of America, N.A. 00 Xxxxx Xxxxxx Xxxxxx, XX 00000		$	50,000,000.00		34.482758621	%
XX Xxxxxxxxx LLC 0000 Xxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000		$	50,000,000.00		34.482758621	%
LaSalle Retail Finance, a division of LaSalle Business Credit, LLC, as Agent for LaSalle Bank Midwest National Association 00 Xxxxxxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000		$	35,000,000.00		24.137931034	%
National City Business Credit, Inc. 0000 Xxxx 0xx Xxxxxx – 0xx Xxxxx Xxxxxxxxx, XX 00000		$	10,000,000.00		6.896551724	%
Total:		$	145,000,000.00		100	%

Canadian Total Commitment

Canadian Lenders		Canadian Total Commitment			Applicable Percentage
Bank of America, N.A. (acting through its Canada branch) 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx		CD$	44,827,586.21		34.482758624	%
GMAC Commercial Finance Corporation - Canada 000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx X0X0X0, Xxxxxx		CD$	44,827,586.21		34.482758624	%
LaSalle Business Credit, a division of ABN AMRO Bank N.V., Canada Branch 00 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000 P.O. Box 114, Toronto Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx		CD$	31,379,310.33		24.137931024	%
National City Bank, Canada Branch 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx		CD$	8,965,517.25		6.896551728	%
Total:		CD$	130,000,000.00		100	%