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Exhibit No. 10.43
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SECOND AMENDMENT AND AGREEMENT
TO
AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT
SECOND AMENDMENT AND AGREEMENT TO AMENDED AND RESTATED COLLATERAL
SHARING AGREEMENT dated as of March 1, 2000 by and among ABN AMRO BANK N.V., NEW
YORK BRANCH ("ABN"), FLEET PRECIOUS METALS INC. ("FPM"); CREDIT SUISSE FIRST
BOSTON, f/k/a Credit Suisse, New York Branch ("Credit Suisse"); PARIBAS
("Paribas"); and MITSUI & CO. (U.S.A.), INC. ("Mitsui") (each a "Consignor" and
collectively, the "Consignors"); and FLEET PRECIOUS METALS INC., in its capacity
as agent for itself and the other Consignors ("Agent").
W I T N E S S E T H:
WHEREAS, the Consignors (other than Mitsui) are parties to a certain
Amended and Restated Collateral Sharing Agreement dated as of August 20, 1993
(hereinafter, as amended from time to time, the "Collateral Sharing Agreement"),
pursuant to which the Consignors decided among themselves the parity of their
security interest in the Collateral (as defined in the Collateral Sharing
Agreement) of XXXXXXX XXXXXXX JEWELERS, INC. ("Debtor") and provided for the
enforcement of such security interest therein; and
WHEREAS, Mitsui has requested that it be added as a "Consignor"
pursuant to the terms of the Collateral Sharing Agreement as Mitsui will be
entering into a consignment arrangement with Debtor; and
WHEREAS, Mitsui is willing to assume all obligations and liabilities
under the Collateral Sharing Agreement as a Consignor thereunder and to comply
with the covenants and terms of such Collateral Sharing Agreement and any
documents executed by the Consignors in connection with the Collateral Sharing
Agreement; and
WHEREAS, MA BRANDS, INC., a Delaware corporation ("MAJ Delaware") and
FPM, for itself and as Agent for the Consignors, are parties to a certain
Security Agreement (Trademark and Service Marks) dated _____________, 1999 (the
"Consignor Trademark Assignment") pursuant to which MAJ Delaware has granted a
security interest in the Marks (as defined in the Consignor Trademark
Assignment) in order to secure the Obligations;
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 Collateral Sharing Agreement.
2. Mitsui is hereby added as a party to the Collateral Sharing
Agreement, with Mitsui to be included as a Consignor pursuant to the terms of
the Collateral Sharing Agreement.
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3. The Collateral Sharing Agreement is hereby amended so that the terms
"Consignor" and "Consignors" as used therein and herein shall include, from and
after the date hereof, Mitsui and Mitsui 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 Collateral Sharing Agreement which are to be performed by the
Consignors thereunder.
4. The Collateral Sharing Agreement is hereby amended so that the term
"Collateral" as used therein and herein shall include, from and after the date
hereof, the Marks.
5. All necessary, conforming changes to the Collateral Sharing
Agreement occasioned by reason of this Second Amendment are hereby deemed to be
made.
6. This Second Amendment shall be binding upon the parties and their
respective successors and assigns.
7. Each of the Consignors acknowledge and agree that, except as
expressly provided herein, the terms and provisions of the Collateral Sharing
Agreement remain unchanged and the Collateral Sharing Agreement remains in full
force and effect in accordance with its terms. The terms "Agreement" as used in
the Collateral Sharing Agreement and all references to the Collateral Sharing
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 Collateral Sharing Agreement as amended and supplemented by this Second
Amendment.
8. This Second 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.
9. This Second 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 Second
Amendment to be executed by their duly authorized officers as of the date first
above written.
ABN AMRO BANK N.V., NEW YORK BRANCH, as
Consignor
By: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
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By: /s/ Xxx Xxxxxxxxx
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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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FLEET PRECIOUS METALS INC., as Agent and as
Consignor
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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By: /s/ Xxxxx X. X'Xxxxx
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Title: Vice President
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Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
CREDIT SUISSE FIRST BOSTON
formerly known as Credit Suisse, New York
Branch, as Consignor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
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By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Director
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Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
PARIBAS, as Consignor
By: /s/ Xxxx-Xxxxxxxxx Xxxxxxx
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Title: Director
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By: /s/ Xxxxxx Xxxxx
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Title: Director
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Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx-Xxxxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
MITSUI & CO. (U.S.A.), INC.
By: /s/ Yutaka Taka
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Title: Senior Vice President
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Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopier: (000) 000-0000
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Consented and agreed to:
XXXXXXX XXXXXXX JEWELERS, INC.
By: /s/ Xxxxx Xxxx
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Title: Chief Financial Officer
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MA BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Assistant Treasurer
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