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Exhibit 10.3
SIXTH AMENDMENT TO AMENDED AND
RESTATED INTERCREDITOR AGREEMENT
THIS SIXTH AMENDMENT dated as of October 23, 1998, among RELIASTAR LIFE
INSURANCE COMPANY, formerly known as Northwestern National Life Insurance
Company, a Minnesota corporation, NORTHERN LIFE INSURANCE COMPANY, a Washington
corporation and RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK successor by merger
to The North Atlantic Life Insurance Company Of America, a New York corporation,
each having a mailing address at x/x Xxxxxxxxxx Xxxxxx Xxxxxxx, Xxx., 0000
Xxxxxxxxx Xxxx, 000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
(collectively, in their capacity as lenders under the First Note Purchase
Agreement referred to below, 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,
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK, successor by merger to 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., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000
(collectively, in their capacity as lenders under the Second Note Purchase
Agreement referred to below, the "Second Insurance Companies", and individually,
a "Second Insurance Company"; NORTHERN LIFE INSURANCE COMPANY, a Washington
corporation and RELIASTAR LIFE INSURANCE COMPANY, formerly known as NORTHWESTERN
NATIONAL LIFE INSURANCE COMPANY, a Minnesota corporation (collectively, in their
capacities 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 and the Second Insurance Companies, sometimes
collectively referred to herein as the "Insurance Companies" and individually as
an "Insurance Company"); ABN AMRO BANK N.V., NEW YORK BRANCH; FLEET PRECIOUS
METALS INC.; CREDIT SUISSE FIRST BOSTON, f/k/a Credit Suisse, New York Branch
and PARIBAS ("Paribas"); BANKBOSTON, N.A., f/k/a Rhode Island Hospital Trust
National Bank ("BankBoston") (collectively, in their capacity as consignors
under the Consignment Agreements referred to below, the "Consignors", and
individually, a "Consignor") and THE CHASE MANHATTAN BANK (as successor in
interest to Chemical Bank ("Chase")).
W I T N E S S E T H:
WHEREAS, the Insurance Companies, the Consignors (other than Paribas)
and Chase 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, a certain Third Amendment dated as of
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September 1, 1994, a certain Fourth Amendment dated as of February 15, 1995, and
a certain Fifth Amendment dated October 20, 1995 the "Intercreditor Agreement"),
pursuant to which the Insurance Companies, the Consignors and Chase 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 have provided for the enforcement of such security
interests; and
WHEREAS, Paribas has requested that it be added as a "Consignor"
pursuant to the terms of the Intercreditor Agreement as Paribas will be entering
into a consignment arrangement with Debtor; and
WHEREAS, Paribas 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; and
WHEREAS, the First Insurance Companies have been paid in full; and
WHEREAS, BankBoston has terminated the consignment arrangement between
BankBoston and the Debtor; and
WHEREAS, each of The Mocatta Group, a Division of Standard Chartered
Bank, Deutsche Bank, A.G., New York Branch and Union Bank of Switzerland, by
their execution of letters dated October 14, 1998, October 14, 1998 and October
20, 1998, respectively, have each acknowledged that they have terminated their
consignment relationships with the Debtor and, accordingly, are no longer a
party to the Intercreditor Agreement;
WHEREAS, Debtor has requested, and Consignors have agreed, that Debtor
may assign the Marks (as defined in that certain Security Agreement (Trademarks
and Service Marks) dated October 23, 1998, 1998 ("MAJ Delaware Security
Agreement") among Debtor and the Consignors) to MA BRANDS, INC., a Delaware
corporation, a newly-formed, wholly-owned subsidiary of Debtor ("MAJ Delaware");
and
WHEREAS, MAJ Delaware and Debtor are entering into a certain License
Agreement whereby MAJ Delaware grants to Debtor certain rights to use the Marks;
and
WHEREAS, MAJ Delaware has agreed to enter into the MAJ Delaware
Security Agreement; and
WHEREAS, the parties hereto wish to reflect the relationship of the
parties with respect to the Marks;
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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. Paribas is hereby added as a party to the Intercreditor Agreement,
with Paribas 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, Paribas and Paribas 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.
4. The First Insurance Companies are hereby deleted as parties to the
Intercreditor Agreement and the First Insurance Companies are hereby released of
any and all 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 First Insurance Companies thereunder. All references
to "the First Insurance Company Agreements" in the Intercreditor Agreement are
hereby deleted from the Intercreditor Agreement. The First Insurance Companies
shall no longer be entitled to any of the benefits of the Intercreditor
Agreement.
5. BankBoston is hereby deleted as a party to the Intercreditor
Agreement and BankBoston is hereby released of any and all 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. BankBoston shall no longer be entitled to any of the
benefits of the Intercreditor Agreement.
6. The first "WHEREAS" clause of the Intercreditor Agreement is hereby
deleted.
7. 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 Agreement dated
as of August 20, 1993 (January 31, 1994 in the case of Credit
Suisse and October ___, 1998 in the case of Paribas) between
Debtor and each of the Consignors (as amended, and as the same
may be amended from time to time, the "Consignment
Agreements"); and"
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8. The fifth "WHEREAS" clause of the Intercreditor Agreement is hereby
amended to read as follows:
"WHEREAS, Debtor, the Consignors and Fleet Precious Metals
Inc., for itself and as agent for the Consignors (the
"Agent"), have entered into a Security Agreement dated August
20, 1993 (as amended and as the same may be amended from time
to time, the "Consignor Security Agreement'); and"
9. The Marks are hereby included in the definition of "Collateral" for
purposes of the Intercreditor Agreement and shall be included in the definition
of "Consignor Primary Collateral" for all purposes of the Intercreditor
Agreement.
10. All references set forth in the Intercreditor Agreement to
"Chemical Bank" or "Chemical" or the "Chemical Security Agreement" shall be
deemed to mean and refer to "The Chase Manhattan Bank" and "Chase" and the
"Chase Security Agreement", respectively.
11. Section 15 of the Intercreditor Agreement is amended to read as
follows:
"All notices to be given hereunder shall be given at the
address for a party set forth on the first page hereof or the
signature page hereof or, if a party is added to this
Intercreditor Agreement by an amendment hereto, then for such
party, at the address set forth on the signature page to the
applicable amendment to the Intercreditor Agreement, or to
such other address as a party may designate for itself by like
notice and shall be deemed to have been validly served, given
or delivered (i) on the fourth (4th) day following deposit in
the United States mails (by registered or certified mail),
with proper postage prepaid, (ii) on the day of transmittal by
telex, cable or other electronic communication device capable
of providing a written document, or (iii) if sent by overnight
delivery service, when received or when delivery is refused."
12. Any necessary, conforming changes to the Intercreditor Agreement
occasioned by reason of this Sixth Amendment are hereby deemed to be made.
13. This Sixth Amendment shall be binding upon the parties and their
respective successors and assigns.
14. Each of the Insurance Companies, each of the Consignors and Chase
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 amended and supplemented by
this Sixth Amendment.
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15. This Sixth 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.
16. This Sixth 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 Sixth Amendment
to be executed by their duly authorized officers as of the date first above
written.
RELIASTAR LIFE INSURANCE COMPANY,
formerly known as
NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By \s\: Xxxxx X. Xxxxxxx
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Title Authorized Representative
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NORTHERN LIFE INSURANCE COMPANY
By \s\: Xxxxx X. Xxxxxxx
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Title Assistant Treasurer
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ROYAL MACCABEES LIFE INSURANCE COMPANY
By \s\: Xxxxxxx X. Xxxxxxxxx
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Title Director of Fixed Income
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RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK,
successor by merger to
THE NORTH ATLANTIC LIFE INSURANCE
COMPANY OF AMERICA
By \s\: Xxxxx X. Xxxxxxx
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Title Vice President, Investments
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FARM BUREAU LIFE INSURANCE
COMPANY OF MICHIGAN
By \s\: Xxxxxx X. Xxxxxxxx
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Title Portfolio Manager
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FB ANNUITY COMPANY
By \s\: Xxxxxx X. Xxxxxxxx
---------------------------------
Title Portfolio Manager
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FARM BUREAU MUTUAL INSURANCE
COMPANY OF MICHIGAN
By \s\: Xxxxxx X. Xxxxxxxx
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Title Portfolio Manager
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FLEET PRECIOUS METALS INC.
By: \s\: Xxxxxx XxxXxxx
---------------------------------
Title: Vice President
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By: \s\: Xxxxx X. Xxxxx
---------------------------------
Title: Vice President
Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
ABN AMRO BANK N.V., NEW YORK BRANCH
By: \s\: Xxxxxxx Xxxxxxx
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Title: Vice President
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By: \s\: Xxx Xxxxxxxx
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Title: Vice President
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Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
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CREDIT SUISSE FIRST BOSTON
formerly known as
CREDIT SUISSE, NEW YORK BRANCH
By: \s\: Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Director
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By: \s\: Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
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Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
PARIBAS
By: \s\: Xxx Xxxxxxxxx
---------------------------------
Title: Vice President
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By: \s\: X. Xxxxxxx
---------------------------------
Title: Vice President
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Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
BANKBOSTON, N.A., f/k/a Rhode Island Hospital
Trust National Bank
By \s\: Xxxxxx Xxxxx
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Title Director
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THE CHASE MANHATTAN BANK
By \s\: Xxxxx Xxxxxxx
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Title Vice President
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By
---------------------------------
Title
-------------------------------
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
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Consented and agreed to:
XXXXXXX XXXXXXX JEWELERS, INC.
By \s\: Xxxxxxx X. Xxxxxxxxx
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Title Treasurer
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