Sixth Amendment and Consent to Credit Facility



 Exhibit 4.35 
 [EXECUTION COPY] 
 SIXTH AMENDMENT AND CONSENT TO 

AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT 

SIXTH AMENDMENT AND CONSENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT, dated as of September
[    ], 2010 (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 Credit Agreement referred to below (the “Guarantors” and, together
with the Borrowers, the “Loan Parties”), (iii) the lenders party to the Credit Agreement referred to below (collectively, the “Lenders”), (iv) BANK OF AMERICA, N.A., in its capacity as
administrative agent (the “Administrative Agent”), and (v) BANK OF AMERICA, N.A. (acting through its Canada branch), as Canadian agent (the “Canadian Agent” and, together with the Administrative Agent,
the “Agents”). 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 Guarantors, the Lenders, the Administrative Agent and the Canadian Agent are parties to the Amended and Restated Revolving Credit and Security Agreement, dated as of
December 17, 2008 (as amended, amended and restated, modified 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, the Borrowers have requested, among other things, that the Lenders
(a) consent to a $500,000 prepayment of the principal amount of the Term Loan from the proceeds of the US Revolver Loan notwithstanding the limitations set forth in Section 10.2.12(c) of the Credit Agreement (the “Term Loan
Prepayment”), and (b) amend certain provisions of the Credit 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 Term Loan Prepayment; 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 Credit Agreement; and 

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 Credit
Agreement. Section 1.1 of the Credit Agreement is hereby amended by amending and restating the definition of “Availability Block” as follows: 

“Availability Block – as of any date of determination, the greater of (i) ten percent
(10%) multiplied by the sum of clauses (i) through (iii) of the definition of Term Loan Borrowing Capacity, and (ii) $13,500,000.” 







 §2. Consent. Notwithstanding anything to the contrary contained in the
Credit Agreement (including, without limitation, anything in Sections 10.2.10 or 10.2.12(c) of the Credit Agreement), the Lenders hereby consent to the Term Loan Prepayment. For purposes of clarity, the Lenders acknowledge and agree that the Loan
Parties shall not be required to satisfy any conditions precedent specified in Section 10.2.12(c) of the Credit Agreement or in any other provision of the Credit Agreement with respect to the Term Loan Prepayment. 

§3. Representations and Warranties. Each of the Loan Parties hereby represents and warrants to the Agents 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 Credit 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 Credit 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 Credit 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 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 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 Credit Agreement, a breach of which shall constitute an Event of Default. 

§4. 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: 
 (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 paid in cash to the Administrative Agent, for the pro rata accounts of the Lenders, a fee in
an amount equal to $100,000. 
 (c) The Administrative Agent shall have received a duly executed Fifth Amendment
to Term Loan and Security Agreement (“Fifth Term Loan Amendment”) in the form of Exhibit A attached hereto. 
 (d) The Administrative Agent shall have received a duly executed consent to this Amendment from the Term Loan Agent under the terms of the Intercreditor Agreement. 

(e) The Administrative Agent shall have received evidence that the Term Loan Prepayment shall be made contemporaneously
with the effectiveness hereof. 
 (f) The Borrowers shall have paid all reasonable unpaid fees and expenses of
the Administrative Agent’s counsel, Morgan, Lewis & Bockius, LLP, and the Canadian Agent’s counsel, Ogilvy Renault LLP, to the extent that copies of invoices for such fees and expenses have been delivered to the Borrowers.

 (g) The Administrative Agent and the Canadian Agent shall have received such other items, documents,
agreements, items or actions as the Administrative Agent or the Canadian Agent may reasonably request in order to effectuate the transactions contemplated hereby. 

(h) No Default or Event of Default shall have occurred and be continuing. 

§5. Release. In order to induce the Administrative Agent, the Canadian 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, the Canadian Agent, any Issuing Bank 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) 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, the Canadian 







 
Agent, any Issuing Bank or any Lender; and (iii) each of the Administrative Agent, the Canadian Agent, the Issuing Banks 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, the Canadian Agent’s, the Issuing Banks’ 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, the Canadian Agent, the Issuing Banks or any Lender to any Loan Party, except the obligations to
be performed by the Administrative Agent, the Canadian Agent, the Issuing Banks 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 Loan Party might otherwise have against
the Administrative Agent, the Canadian Agent, any Issuing Bank 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. 
 §6. Miscellaneous Provisions.

 (a) Each of the Loan Parties hereby ratifies and confirms all of its Obligations to the Administrative
Agent, the Canadian Agent, the Issuing Banks and the Lenders under the Credit 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, 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
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 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 3.4 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, INCLUDING, WITHOUT LIMITATION, NEW YORK GENERAL 







 
OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402 (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS). 
 (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 STATE COURT OF THE
STATE OF NEW YORK 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 any 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 any 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. 
 [Remainder of Page Intentionally
Left Blank] 
 [Signature Pages follow] 







 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/ Michael Rabinovitch

		 	Name:	 	Michael Rabinovitch
		 	Title:	 	Senior VP and CFO
		
	By:	 	 /s/ Marco Pasteris

		 	Name:	 	Marco Pasteris
		 	Title:	 	Group VP, Finance & Treasurer
	
	CANADIAN BORROWER:
	
	BIRKS & MAYORS INC.
		
	By:	 	 /s/ Michael Rabinovitch

		 	Name:	 	Michael Rabinovitch
		 	Title:	 	Senior VP and CFO
		
	By:	 	 /s/ Marco Pasteris

		 	Name:	 	Marco Pasteris
		 	Title:	 	Group VP, Finance & Treasurer



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	GUARANTORS:
	
	CASH, GOLD & SILVER USA, INC. (formerly known as Henry Birks & 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/ Michael Rabinovitch

		 	Name:	 	Michael Rabinovitch
		 	Title:	 	Senior VP and CFO
		
	By:	 	 /s/ Marco Pasteris

		 	Name:	 	Marco Pasteris
		 	Title:	 	Group VP, Finance & Treasurer
	
	CASH, GOLD & SILVER INC. – OR ET ARGENT, COMPTANT INC.
		
	By:	 	 /s/ Michael Rabinovitch

		 	Name:	 	Michael Rabinovitch
		 	Title:	 	Vice President
		
	By:	 	 /s/ Marco Pasteris

		 	Name:	 	Marco Pasteris
		 	Title:	 	Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	ADMINISTRATIVE AGENT:
	
	BANK OF AMERICA, N.A.
		
	By:	 	 /s/ Mark Twomey

		 	Name:	 	Mark Twomey
		 	Title:	 	SVP



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	CANADIAN AGENT:
	
	BANK OF AMERICA, N.A. (acting through its Canada branch)
		
	By:	 	 /s/ Clara McGibbon

		 	Name:	 	Clara McGibbon
		 	Title:	 	Assistant Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	US LENDERS:
	
	BANK OF AMERICA, N.A.
		
	By:	 	 /s/ Mark Twomey

		 	Name:	 	Mark Twomey
		 	Title:	 	SVP



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	US LENDERS:
	
	WELLS FARGO RETAIL FINANCE, LLC
		
	By:	 	 /s/ Connie Liu

		 	Name:	 	Connie Liu
		 	Title:	 	Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	US LENDERS:
	
	BANK OF MONTREAL CHICAGO BRANCH
		
	By:	 	 /s/ Larry Allan Swiniarski

		 	Name:	 	Larry Allan Swiniarski
		 	Title:	 	Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	CANADIAN LENDERS:
	
	BANK OF AMERICA, N.A. (acting through its Canada branch)
		
	By:	 	 /s/ Clara McGibbon

		 	Name:	 	Clara McGibbon
		 	Title:	 	Assistant Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	CANADIAN LENDERS:
	
	WELLS FARGO FOOTHILL CANADA ULC
		
	By:	 	 /s/ David Lipkin

		 	Name:	 	David Lipkin
		 	Title:	 	SVP



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	CANADIAN LENDERS:
	
	BANK OF MONTREAL
		
	By:	 	 /s/ Gary Karges

		 	Name:	 	Gary Karges
		 	Title:	 	Director – Corporate Finance
		
	By:	 	 /s/ John J. Kennedy

		 	Name:	 	John J. Kennedy
		 	Title:	 	Director – Operations



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	TRANCHE A-1 LENDERS:
	
	BANK OF AMERICA, N.A.
		
	By:	 	 /s/ Mark Twomey

		 	Name:	 	Mark Twomey
		 	Title:	 	SVP



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	TRANCHE A-1 LENDERS:
	
	WELLS FARGO RETAIL FINANCE, LLC
		
	By:	 	 /s/ Connie Liu

		 	Name:	 	Connie Liu
		 	Title:	 	Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 
					
	TRANCHE A-1 LENDERS:
	
	BANK OF MONTREAL CHICAGO BRANCH
		
	By:	 	 /s/ Larry Allan Swiniarski

		 	Name:	 	Larry Allan Swiniarski
		 	Title:	 	Vice President



  
 Signature
Page to Sixth Amendment and Consent to Amended and Restated 
 Revolving Credit and Security Agreement 








 EXHIBIT A 

Fifth Term Loan Amendment 
 Please see attached.