Amended and Restated Cash Advance Agreement



 Exhibit 4.65 
 AMENDED AND RESTATED CASH ADVANCE AGREEMENT 
 AMENDED AND RESTATED CASH ADVANCE
AGREEMENT (this “Agreement”) with effect as of June 8, 2011. 
  

			
	BETWEEN:	  	 MONTROVEST B.V., a legal person incorporated under the laws of Netherlands;

 
 (the “Lender”)

 

	AND:	  	 BIRKS & MAYORS INC., a legal person incorporated under the laws of Canada;

 
 (the “Borrower”)


 WHEREAS, the Lender and the Borrower are parties to a Cash Advance Agreement with an effective date of
February 10, 2009 (the “Existing Cash Advance Agreement”) pursuant to which the Lender advanced US$2,000,000 to the Borrower upon the terms and conditions contained therein; and 

WHEREAS, the parties wish to amend and restate the Existing Cash Advance Agreement, all on the terms and conditions set forth herein; 

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree that from and after the date hereof (the “Effective Date”), the Existing Cash Advance Agreement is amended and restated in its entirety as follows: 

DEFINITIONS 
 In
this Agreement, capitalized terms not otherwise defined herein, shall have the following meaning: 
 “Management Subordination
Agreement” means the amended and restated management subordination agreement dated as of June 8, 2011 (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified and in effect from time to time), with,
inter alia, the Borrower, the Lender, and each Senior Agent. 
 “Postponement and Subordination Agreement” means the
amended and restated postponement and subordination agreement dated as of June 8, 2011 (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified and in effect from time to time), with, inter alia, the
Borrower, the Lender, and each Senior Agent. 







 “Revolving Credit Agreement” means the Second Amended and Restated Credit and Security
Agreement dated as of June 8, 2011 (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified and in effect from time to time), with, inter alia, the Borrower and Mayor’s Jewelers, Inc., as
borrowers, and Bank of America, N.A., as administrative agent and collateral agent, Bank of America, N.A., as Canadian administrative agent and Canadian collateral agent and the financial institutions party thereto from time to time as secured
parties. 
 “Senior Agents” means, collectively, Bank of America, N.A., in its capacity as administrative agent, collateral
agent, Canadian administrative agent and Canadian collateral agent, and GB Merchant Partners, LLC, in its capacity as administrative agent. 

“Senior Credit Agreements” means, collectively, the Revolving Credit Agreement and the Term Loan Agreement, each as amended, amended and
restated, supplemented, refinanced, replaced or otherwise modified and in effect from time to time. 
 “Senior Secured Parties”
means, collectively, the secured parties under the Revolving Credit Agreement and the secured parties under the Term Loan Agreement. 

“Term Loan Agreement” means the Amended and Restated Term Loan and Security Agreement dated as of June 8, 2011 (as amended, amended
and restated, supplemented, refinanced, replaced or otherwise modified and in effect from time to time), with, inter alia, the Borrower and Mayor’s Jewelers, Inc., as borrowers, GB Merchant Partners, LLC, as administrative agent and
collateral agent, and the financial institutions party thereto from time to time as secured parties. 
 ARTICLE 1

 CASH ADVANCE 
  

	1.1	The Facility 


Subject to the provisions hereof, the Lender has made available to the Borrower a cash advance in an amount of two million US dollars (US
$2,000,000) (the “Cash Advance”) that the Lender is prepared to invest by converting the Cash Advance into equity, at its sole discretion, upon terms and conditions to be mutually agreed upon by the parties hereto. 

 

	1.2	Purpose of the Cash Advance 

 The Cash Advance advanced by the Lender to the Borrower in accordance with the provisions hereof shall be used for working capital needs. 

 

	1.3	Interest 

 The
principal amount of the Cash Advance which, at any time and from time to time, remains outstanding shall bear interest, calculated daily, on the daily balance of such 

  
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Cash Advance, from the date hereof up to and including the day preceding the date of repayment, in full, at an annual rate of 11%, net of withholding taxes. 

 

	1.4	Payment of Interest 


The interest payable in accordance with Section 1.3 and calculated in the manner described therein shall be payable to the Lender
monthly in arrears on the 1st business day of each calendar month to the extent permitted under Section 5.6. 

ARTICLE 2 
 REPAYMENT 
  

	2.1	Repayment of the Cash Advance 

 Subject to the terms of Section 5.6 and each of the Senior Credit Agreements, the Borrower may repay the Cash Advance, in whole or in part, at any time and without any premium or penalty, upon notice
of not less than seven (7) days. 
  

	2.2	Fees 

  

	 	2.2.1	The Borrower shall pay to the Lender an amendment fee of 1.5% of the Cash Advance within ten (10) days of the Effective Date. 


 

	 	2.2.2	No other commitment fee or any other fee with regard to the availability of the Cash Advance shall be payable by the Borrower in respect of the Cash Advance.


  

	2.3	No Compensation or Counterclaim by Borrower 

 All payments by the Borrower to the Lender hereunder shall be made free and clear of and without any deduction for or on account of any compensation or counterclaim. 

ARTICLE 3 
 REPRESENTATIONS AND WARRANTIES 
 The Borrower hereby represents and
warrants to the Lender that: 
  

	3.1	Incorporation 

 The
Borrower is a corporation duly incorporated and organized, validly existing and in good standing under all laws, ordinances, decrees, orders, rules, regulations and directives of governmental bodies, in each case having the force of law, and all
applicable provisions of treaties, as well as all ordinances and other decrees of tribunals and arbitrators (the “Laws”) of its jurisdiction of incorporation and of all jurisdictions in which it carries on business. The Borrower has
the capacity and power, whether corporate or otherwise, to hold its assets and carry on the business presently carried on by it or which it proposes to carry on hereafter in each jurisdiction where such business is carried on. 

  
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	3.2	Authorization 

 The
Borrower has the power and has taken all necessary steps under the Law in order to be authorized to borrow hereunder and to execute and deliver and perform its obligations under this Agreement in accordance with the terms and conditions hereof has
been duly executed and delivered by duly authorized officers of the Borrower and is, and when executed and delivered in accordance with the terms thereof, shall be, a legal, valid and binding obligation of the Borrower enforceable in accordance with
its terms. 
  

	3.3	Compliance of this Agreement 

 The execution and delivery of and performance of the obligations under this Agreement in accordance with its terms therein, do not require any consents or approvals, do not violate any Laws, do not
conflict with, violate or constitute a breach under the constating documents or by-laws of the Borrower or under any material agreements, contracts or deeds to which the Borrower is a party or binding upon it or its assets which have not been
obtained. 
  

	3.4	Regulatory Approvals 

 The Borrower is not required to obtain any consent, approval, authorization, permit or license, nor to effect any filing or registration with any federal, provincial or other regulatory authority in
connection with the execution, delivery or performance of this Agreement which has not been obtained. 
 ARTICLE 4

 INDEMNITY 
  

	4.1	Indemnity 

 The
Borrower shall at all times protect, indemnify and hold harmless the Lender and its affiliates, directors, officers, agents and employees (collectively, the “Indemnified Parties”) from and against any losses, claims, damages,
liabilities or other expenses which arise out of or in connection with the Cash Advance or this Agreement, including those which may arise from or in respect of the failure of the Borrower to pay principal, interest, fees or any other amount
hereunder when due, the exercise by the Lender of its rights and recourses under this Agreement and at Law and any action, suit or proceeding (whether or not any Indemnified Party is a party or is subject thereto). 

ARTICLE 5 
 MISCELLANEOUS 
  

	5.1	Notice 

 Any notice
or other communication required or permitted to be given by the terms of this Agreement, shall be in writing and be effectively given if delivered personally, sent by courier service, sent by registered mail, or sent by facsimile, or other means of


  
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electronic communication and confirmed through receipt of electronic or other written confirmation that the notice has been received by the other party. 

Notice to the Borrower shall be given to: 
 c/o Birks & Mayors Inc. 
 1240 Phillips Square 

Montreal, Quebec, Canada M3B 3H4 
 Attention: Group VP, Finance and Group VP, Legal Affairs 
 Telephone:
(514) 397-2572; (514) 397-2509 
 Telecopier: (514) 397-2472; (514) 397-2537 

Notice to the Lender shall be given to: 
 Montrovest B.V. 
 Spoorsingel 11 

2871 TT Schoonhoven 
 P.O. Box 513, 2870 AH Schoonhoven 
 THE NETHERLANDS 

Attention: Managing Director 
 Telephone: (31) 182-386070 
 Telecopier: (31) 182-387570 

or to such other individuals as either party may designate in writing from time to time. If received after 4:00 p.m. on a business
day, notice shall be deemed to have been received on the next business day. Any notice sent by registered mail shall be deemed to be received within three (3) business days. 

 

	5.2	Payments 

 All
payments to the Lender contemplated hereunder shall, unless the Borrower receives written instructions to the contrary from the Lender, be made at the address for the Lender set forth in Section 5.1. 

 

	5.3	Amendment and Waiver 

 The rights and recourses of the Lender under this Agreement are cumulative and do not exclude any other rights and recourses which the Lender might have, and no omission or delay on the part of the Lender
in the exercise of any right shall have the effect of operating as a waiver of such right, and the partial or sole exercise of a right or power will not prevent the Lender from exercising thereafter any other right or power. 

 

	5.4	Benefit of Agreement 

 This Agreement shall be binding upon and enure to the benefit of each party hereto and its successors and permitted assigns. This Agreement may be assigned by the Lender


  
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without the Borrower’s consent, provided that the assignee thereof agrees to be bound by the terms of Section 5.6 pursuant to documentation satisfactory to each Senior Agent. The
Borrower may not assign this Agreement without the prior written consent of the Lender. 
  

	5.5	Further Assurances 


The Borrower covenants and agrees that, at the request of the Lender, the Borrower will at any time and from time to time execute and
deliver such further and other documents and instruments and do all acts and things as the Lender in its absolute discretion requires in order to evidence the indebtedness of the Borrower under this Agreement or otherwise. 

 

	5.6	Subordination 


Notwithstanding anything to the contrary contained herein or in any other document executed and delivered in connection with this
Agreement but subject at all times to the Postponement and Subordination Agreement, each of the parties hereto acknowledges, agrees and covenants that all of the Borrower’s indebtedness and other obligations hereunder and under any other
documents or instruments executed and delivered in connection herewith or pursuant to the terms hereof or thereof (the “Borrower Obligations”) shall at all times remain inferior and junior and shall be subordinated in full to all
present and future indebtedness, liabilities and obligations of the Borrower to the Senior Agents and the Senior Secured Parties under the Senior Credit Agreements and any other documents creating or evidencing the hypothecs or other security
granted or to be granted to the Senior Agents and the Senior Secured Parties as security for the obligations under the Senior Credit Agreements and any other agreement, document or instrument ancillary or accessory thereto, as amended, supplemented
or replaced from time to time, in capital, interest, fees and accessories including interest on overdue interest, fees and accessories (the “Senior Indebtedness”) and that payment of the Borrower Obligations, in whole or in part,
whether in principal, interest, fees, accessories or otherwise, whether at maturity, before maturity or upon default, shall be postponed to the indefeasible payment of the Senior Indebtedness in full in cash unless otherwise allowed by the
Postponement and Subordination Agreement or the written authorization of the Senior Agents . In addition, the Borrower Obligations shall at all times remain unsecured. This provision is intended for the benefit of, and each of the Senior Agents are
third party beneficiaries of this provision, and may be enforced by, each of the Senior Agents and Senior Secured Parties, as third parties beneficiaries of this provision. This Agreement may not be amended, waived or otherwise modified without the
prior written consent of each Senior Agent. 
  

	5.7	Currency 

 Unless
the contrary is indicated, all amounts referred to herein are expressed in US dollars. 

  
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	5.8	Applicable Law 


This Agreement, its interpretation and its application shall be governed by the Laws of the Province of Québec. The parties hereto
irrevocably attorn to the jurisdiction of the Courts of the Province of Québec sitting in Montreal. 
  

	5.9	Language 

 The
parties acknowledge that they have required that the present agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées, directement ou
indirectement, relativement ou à la suite de la présente convention. 
  

	5.10	Entire Agreement 


This Agreement together with all documents to be delivered in conjunction herewith constitutes the entire agreement by and among the
parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. 

 

	5.11	Counterparts 

 This
Agreement may be executed in counterparts, each of which taken together shall constitute one instrument. This Agreement may be executed and delivered by facsimile or electronic communication, and it shall have the same force and effect as manually
signed originals. Any party hereto may require confirmation by a manually-signed original, but failure to request or deliver same shall not limit the effectiveness of any such facsimile signature or signature received by electronic communication.

 [Signature page follows] 

  
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 IN WITNESS WHEREOF, the parties hereto have signed this agreement as of the date first hereinabove
mentioned. 
  

			
	MONTROVEST B.V.
		
	By:	 	 /s/ Antonie De Ruiter

		 	Name: Antonie De Ruiter
		 	Title: Managing Director
		
	By:	 	 /s/ Carlo Coda-Nunziante

		 	Name: Carlo Coda-Nunziante
		 	Title: Managing Director
	
	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 and Treasurer



  
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