EXHIBIT 4.4b


 


FIRST AMENDMENT TO

INTERCREDITOR AGREEMENT


 


This First Amendment to
Intercreditor Agreement (the “First Amendment”) is made as of September 24,
2010, by and among BANK OF AMERICA,
N.A. (“Bank of America”), in its capacity as administrative agent and
collateral agent (together with its respective successors and assigns in such
capacities, the “ABL Agent”) for
the ABL Secured Parties and Z INVESTMENT HOLDINGS, LLC
in its capacity as administrative agent (together with its successors and
assigns in such capacities, the “Term
Agent”) for the Term Secured Parties,
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.


 


WITNESSETH


 


WHEREAS,
the ABL Borrowers, the ABL Guarantors, and the ABL Agent, among others, have
entered into an Amended and Restated Credit Agreement dated as of May 10,
2010 (the “Credit Agreement”); and


 


WHEREAS,
the Term Borrower has entered into a Credit Agreement (the “Term Loan Agreement”)
dated as of May 10, 2010 the lenders party thereto, and the Term Agent;
and


 


WHEREAS,
the ABL Agent and the Term Agent have entered into a certain Intercreditor
Agreement dated as of May 10, 2010 (the “Intercreditor Agreement”); and


 


WHEREAS,
the Term Borrower, the Term Agent and the Term Secured Parties have agreed to
enter into an amendment to the Term Credit Agreement, which amendment would,
unless consented to by the ABL Agent, violate the terms of the Intercreditor
Agreement; and


 


WHEREAS,
the ABL Agent and the Term Agent have agreed to amend certain provisions of the
Intercreditor Agreement as set forth herein.


 


NOW
THEREFORE, it is hereby agreed as follows:


 


1.             Definitions.   All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Intercreditor
Agreement.


 


2.             Amendment to Section 5.  The provisions of Section 5.2(b) of
the Intercreditor Agreement are hereby amended as follows:


 


a.             Clause (b) (iii) is
hereby deleted in its entirety;


 


b.             Clause (b)(vi) is
hereby amended by adding the following at the end thereof:


 


, other than principal payments required to be made under the First
Amendment to the Term Credit Agreement dated September 24, 2010 in an
amount not to exceed $12,500,000;


 


1

















 


3.             Consent to Amendment of Term
Credit Agreement.  The ABL
Agent and the ABL Secured Parties hereby consent to the amendment of the Term
Credit Agreement in accordance with the provisions of Exhibit B hereto and
waive any breach of the provisions of Section 5.2(b) or any other
provision of the Intercreditor Agreement as a result thereof.


 


4.             Conditions to Effectiveness.  This First Amendment shall not be effective
until each of the following conditions precedent have been fulfilled:


 


a.             This First Amendment shall
have been duly executed and delivered by the Borrowers, the ABL Guarantors, the
Term Guarantors, the ABL Agent and the Term Agent.


 


b.             The amendment to the Term
Credit Agreement in accordance with the provisions of Exhibit B hereto
shall have been executed by the parties thereto and shall have become
effective.


 


5.             Miscellaneous.


 


a.             Except as provided herein,
all terms and conditions of the Intercreditor Agreement remain in full force
and effect.


 


b.             This First Amendment may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered, each shall be an original, and
all of which together shall constitute one instrument.  Delivery of an executed counterpart of a
signature page hereto by telecopy or by electronic email in .pdf format
shall be effective as delivery of a manually executed counterpart hereof.


 


c.             This First Amendment
expresses the entire understanding of the parties with respect to the matters
set forth herein and supersedes all prior discussions or negotiations
hereon.  Any determination that any
provision of this First Amendment or any application hereof is invalid, illegal
or unenforceable in any respect and in any instance shall not affect the
validity, legality, or enforceability of such provision in any other instance,
or the validity, legality or enforceability of any other provisions of this
First Amendment.


 


d.             This First Amendment shall
be governed by, and construed in accordance with, the law of the State of New
York (without regard to its principles relating to choice and conflicts of
law), but including section 5-1401 and 5-1402 of the New York General
Obligations Law and any applicable laws of the United States of America.


 


[signature pages follow]


 


2

















 


IN WITNESS WHEREOF, the parties hereto have caused
this First Amendment to be executed and their seals to be hereto affixed as the
date first above written.


 


	
   

  	
   

  	
  BANK OF AMERICA, N.A., in its capacity as ABL
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ ANDREW CERUSSI

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  Cerussi

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Z
  INVESTMENT HOLDINGS, LLC, in its capacity as the Term Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ PETER MORROW

  
	
   

  	
   

  	
  Name:

  	
  Peter Morrow

  
	
   

  	
   

  	
  Title:

  	
  Manager

  



 


Signature Page to First Amendment to
Intercreditor Agreement


 

















 


ACKNOWLEDGMENT


 


Each ABL Obligor and Term
Obligor hereby acknowledges that it has received a copy of this First Amendment
and consents thereto, agrees to recognize all rights granted thereby to the ABL
Agent and the Term Agent, and will not do any act or perform any obligation
which is not in accordance with the agreements set forth in this First
Amendment. Each ABL Obligor and Term Obligor further acknowledges and agrees
that it is not an intended beneficiary or third party beneficiary under this First
Amendment and (i) as between the ABL Secured Parties and the ABL Obligors,
the ABL Documents remain in full force and effect as written and are in no way
modified hereby, and (ii) as between the Term Secured Parties, the Term
Obligors, the Term Documents remain in full force and effect as written and are
in no way modified hereby.


 


	
   

  	
   

  	
  ZALE
  DELAWARE, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZGCO,
  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  



 


Signature
Page to First Amendment to Intercreditor Agreement


 

















 


	
   

  	
   

  	
  TXDC,
  L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  ZALE
  DELAWARE, INC.

  
	
   

  	
   

  	
   

  	
  Its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  PUERTO RICO, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  CANADA CO.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  CANADA DIAMOND SOURCING INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZAP, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to
  First Amendment to Intercreditor Agreement

  



 

















 


	
   

  	
   

  	
  ZALE
  CANADA HOLDING, LP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZCSC,
  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  EMPLOYEES’ CHILD CARE ASSOCIATION, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  CANADA FINCO 2, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FINCO
  HOLDING LP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FINCO
  PARTNERSHIP LP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to
  First Amendment to Intercreditor Agreement

  



 

















 


	
   

  	
   

  	
  ZALE
  CANADA FINCO, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ZALE
  CANADA FINCO 1, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  MATTHEW W. APPEL

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  W. Appel

  
	
   

  	
   

  	
  Title:

  	
  EVP
  and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to First Amendment to Intercreditor Agreement