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Exhibit No. 10.42
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FIRST AMENDMENT TO AMENDED AND
RESTATED INTERCREDITOR AGREEMENT
THIS FIRST AMENDMENT dated as of March 1, 2000, among ABN AMRO BANK
N.V., NEW YORK BRANCH, CREDIT SUISSE FIRST BOSTON, FLEET PRECIOUS METALS INC.,
PARIBAS, and MITSUI & CO. (U.S.A.), INC. ("Mitsui") (collectively, in their
capacity as consignors under the Consignment Agreements referred to below, the
"Consignors", and individually, a "Consignor"); THE CHASE MANHATTAN BANK
("Chase"); and GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION (the
"Lender").
W I T N E S S E T H:
WHEREAS, the Consignors (other than Mitsui), Chase and the Lenders are
parties to a certain Amended and Restated Intercreditor Agreement dated as of
January 28, 1999 (hereinafter, the "Intercreditor Agreement"), pursuant to which
the Consignors (other than Mitsui), Chase and the Lenders 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, Mitsui has requested that it be added as a "Consignor"
pursuant to the terms of the Intercreditor 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 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, at the time of the execution of the Intercreditor Agreement it
was anticipated that contemporaneously therewith (a) the Debtor would transfer
certain trademarks to MA BRANDS, INC., a Delaware corporation ("MAJ Delaware"),
(b) MAJ Delaware and Fleet Precious Metals Inc., for itself and as Agent for the
Consignors, would execute a Security Agreement (Trademark and Service Marks)
pursuant to which MAJ Delaware would grant a security interest in such
trademarks in order to secure the Consignment Obligations, and (c) MAJ Delaware
and Chase would execute a Security Agreement (Trademark and Service Marks)
pursuant to which MAJ Delaware would grant a security interest in such
trademarks in order to secure the Line of Credit Obligations; and
WHEREAS, Debtor did not transfer the trademarks until ______________,
and, therefore, MAJ Delaware and Fleet Precious Metals Inc., for itself and as
Agent for the Consignors, did not execute a Security Agreement (Trademark and
Service Marks) and MAJ Delaware and Chase did not execute a Security Agreement
(Trademark and Service Marks) until _______________;
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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. Mitsui is hereby added as a party to the Intercreditor Agreement,
with Mitsui 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, 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 Intercreditor Agreement which are to be performed by the
Consignors thereunder.
4. The first "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 XXXXXXX XXXXXXX JEWELERS, INC., a Delaware
corporation (the "Debtor") pursuant to certain Consignment
Agreements or Amended and Restated Consignment Agreements,
dated August 20, 1993 in the case of Fleet Precious Metals
Inc. and ABN AMRO Bank N.V., New York Branch, January 31, 1994
in the case of Credit Suisse First Boston, October 23, 1998 in
the case of Paribas, and November 29, 1999 in the case of
Mitsui, between the Debtor and each of the Consignors (as
amended and as the same may be amended from time to time, the
"Consignment Agreements"); and"
5. All references to the Consignor Trademark Assignment in the
Intercreditor Agreement shall from and after the date hereof be deemed to refer
to the Security Agreement (Trademark and Service Marks) dated
______________,_______, as the same may be amended from time to time, between
MAJ Delaware and Fleet Precious Metals Inc., for itself and as Agent for the
Consignors 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
Consignment Obligations, and all references to the Chase Trademark Assignment in
the Intercreditor Agreement shall from and after the date hereof be deemed to
refer to the Security Agreement (Trademark and Service Marks) dated
_______________, __________, as the same may be amended from time to time,
between MAJ Delaware and Chase pursuant to which MAJ Delaware has granted a
security interest in the Marks in order to secure the Line of Credit
Obligations.
6. Any necessary, conforming changes to the Intercreditor Agreement
occasioned by reason of this First Amendment are hereby deemed to be made.
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7. This First Amendment shall be binding upon the parties and their
respective successors and assigns.
8. Each of the each of the Consignors, Chase and the Lenders
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 First Amendment.
9. This First 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.
10. This First 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 First Amendment
to be executed by their duly authorized officers as of the date first above
written.
FLEET PRECIOUS METALS INC.
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
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 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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CREDIT SUISSE FIRST BOSTON
formerly known as
CREDIT SUISSE, NEW YORK BRANCH
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
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
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
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By
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Title
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Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
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GENERAL ELECTRIC CAPITAL BUSINESS ASSET
FUNDING CORPORATION
By: /s/: Xxxx Xxxxxxxx
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Title: Vice President
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Address: 00000 X.X. 0xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier: (000) 000-0000
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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