Exhibit
10.3


 


AMENDMENT
TO


MERCHANT
SERVICES AGREEMENT


 


THIS
AMENDMENT dated
as of June 8, 2009 (this “Amendment”), amends that certain Merchant
Services Agreement (the “Original Agreement”) dated as of July 10,
2000, as previously amended (the Amendment and the Original Agreement as
previously amended, collectively referred to as the “Amended Agreement”),
by and among, CITIBANK (SOUTH DAKOTA), N.A., a national banking association as
successor to HURLEY STATE BANK, ZALE DELAWARE, INC., a corporation organized
and existing under the laws of the State of Delaware, and ZALE PUERTO RICO,
INC., a corporation organized and existing under the laws of Puerto Rico (each
a “Party” and collectively the “Parties”).


 


WITNESSETH


 


WHEREAS,
the Parties entered into the Original Agreement in order for Bank to provide
certain credit services to customers of Zale;


 


WHEREAS,
the Parties have determined that the Original Agreement should be amended as
set forth in this Amendment;


 


WHEREAS,
Bank has requested greater latitude in changing the Account Issuance Criteria
and in exchange therefore Zale has requested a restructuring of the Minimum
Volume Amount:


 


WHEREAS,
the Bank has requested collateral for certain obligations of Zale in order to
induce Bank not to give notice of termination of the Original Agreement before March 1,
2010; and


 


WHEREAS,
each of the Parties believe it is in their best interest and desire to amend
the Original Agreement as set forth below.


 


NOW,
THEREFORE, in consideration of the foregoing premises and mutual covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:


 


Section I                Defined Terms.


 


Unless
otherwise defined herein, capitalized terms used herein shall have the meaning
given to such terms in the Original Agreement.


 


Section II               Amendments to Original Agreement.


 


(1)           The definition of “Merchant Fee Differential”
contained in Section 1.1 of the Original Agreement is hereby deleted in
its entirety and replaced with the following:


 

















 


“Merchant
Fee Differential” means, (i) with respect to a Decrease Period for
which no payment of a Merchant Fee Differential has occurred, an amount equal
to the product of (a) the Average Merchant Fee with respect to such
Decrease Period and (b) the difference between the Minimum Volume Amount
and Net Card Sales with respect to such Decrease Period; or (ii) with
respect to a Decrease Period for which the payment of one or more Merchant Fee
Differential amounts has already occurred, an amount equal to the product of (a) the
Average Merchant Fee with respect to such Decrease Period and (b) the
difference between the Net Card Sales for all of the months following the end
of the last Decrease Period for which a Merchant Fee Differential was paid and the
aggregate number for that same period of time as determined by reference to the
monthly chart set forth immediately below.


 


	
  Jan

  	
   

  	
  Feb

  	
   

  	
  Mar

  	
   

  	
  Apr

  	
   

  	
  May

  	
   

  	
  Jun

  	
   

  	
  Jul

  	
   

  	
  Aug

  	
   

  	
  Sep

  	
   

  	
  Oct

  	
   

  	
  Nov

  	
   

  	
  Dec

  	
   

  
	
  28,570

  	
   

  	
  54,119

  	
   

  	
  35,201

  	
   

  	
  39,445

  	
   

  	
  48,773

  	
   

  	
  38,220

  	
   

  	
  39,077

  	
   

  	
  40,412

  	
   

  	
  38,932

  	
   

  	
  39,566

  	
   

  	
  67,286

  	
   

  	
  130,399

  	
   

  



 


(All numbers in the chart
are in thousands of dollars.)


 


(2)           The definition of “Minimum Volume Amount” contained in
Section 1.1 of the Original Agreement is amended:


 


(a)           by deleting the reference therein to $750,000,000.00
and replacing it with $600,000,000.00; provided  however, that
Bank and Zale expressly agree that Net Card Sales for purposes of this
definition shall not include any amount of credit sales for the Bailey, Banks &
Biddle division that was sold by Zale to Finlay Fine Jewelry Corporation;


 


(b)           by deleting the reference therein to adjustment from
time to time as provided in Section 3.2(c); and


 


(b)           by adding at the end thereof the following:


 


In the
event that Bank provides Zale with a notice of Material Changes to the Bank’s
Account Issuance Criteria as permitted by Section 3.2(a), beginning on the
date that the changes are implemented the Minimum Volume Amount will be
adjusted up or down, as the case may be, in an amount equal to the estimated
impact on Net Card Sales as provided by Bank to Zale.  Upon receipt of the notice, Zale shall have
the right to review and discuss with Bank the information detailing the
estimated impact of the change on Net Card Sales.


 


(3)           Section 3.2(a) of the Original Agreement is
hereby deleted in its entirety and replaced with the following:


 


(a)           Bank’s Account Issuance Criteria. Subject to the terms and conditions of
this Agreement, Bank shall receive Applications for Accounts and approve or
decline such Applications solely in accordance with Bank’s Account issuance
criteria (“Bank’s Account Issuance Criteria”). Bank’s Account Issuance
Criteria as of the date of this Agreement are attached hereto as Schedule
3.2(a) and are incorporated herein as fully as though set forth
herein. Thereafter, Bank may make changes to Bank’s Account Issuance Criteria
from time to time as Bank reasonably deems necessary, and such changes will not
require the approval of the Client 


 


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Relationship Team or Zale,
provided, however, that (i) Bank shall give Zale at least sixty
(60) days’ notice of any such change which is a material change, which notice
shall include a reasonable estimate of the impact of the change on approval
rates, initial credit limits, Net Card Sales and the number of Credit Applicants,
and (ii) Bank will not make any changes between November 15 of each
year and January 15 of the following year. Bank shall decision each
Application in accordance with the terms hereof and, if such Application is
approved, promptly issue a Card to such Accountholder.


 


(4)           Section 3.2(c) of the Original Agreement is
hereby deleted in its entirety and shall have no further legal force or effect.


 


(5)           Section 3.2 of the Original Agreement is amended
by adding at the end thereof:


 


(l)            As soon after the end of each calendar quarter during
the Term of the Agreement as practical, Bank shall provide to Zale a risk
management report detailing the delinquency and charge-off levels consistent
with the information that has been provided by Bank to Zale in Program
Committee meetings prior to the effective date of the Amendment.


 


(6)           The Original Agreement is hereby amended by adding the
following Section 3.23:


 


3.23        Zale Letters of Credit.


 


(a)           Zale hereby covenants and agrees that it shall
obtain and maintain in full force and effect at all times during the time
period commencing within ten days following the date of execution of this
Amendment an irrevocable stand-by letter of credit in an amount equal to
$5,000,000.00 subject to and in accordance with the terms and conditions set
forth below and in a form acceptable to Bank consistent with the standard form
utilized by Bank of America or another issuer acceptable to Bank (the “Permanent
Letter of Credit”). Zale shall replenish the Permanent Letter of Credit
within thirty (30) days to eliminate any deficit of $250,000.00 or more that is
created as a result of a draw by Bank.


 


(b)           Zale hereby covenants and
agrees that it shall obtain and maintain in full force and effect at all times
during the time period commencing on November 15 of each year and
continuing until February 14 of the following year (the “Security
Period”) an additional irrevocable stand-by letter of credit in an amount
equal to $10,000,000.00 subject to and in accordance with the terms and
conditions set forth below and in a form acceptable to Bank consistent with the
standard form utilized by Bank of America or another issuer acceptable to Bank (the
“Seasonal Letter of Credit,” and together with the Permanent Letter of
Credit, the “Letters of Credit”).


 


(c)           Zale acknowledges and agrees that Bank shall have the
right in its sole and absolute discretion (without prior notice to or consent
by Zale): (i) to make full or partial draws on the Letters of Credit at
any time in an amount equal to any amounts to which Bank is entitled to receive
from Zale and that have not been paid pursuant to the terms of the Agreement,
including without limitation, Chargebacks, Returns, the non-delivery of
merchandise, amounts owed under the terms of any recourse programs, and
In-Store Payments;


 


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(ii) to make full or partial draws on the
Permanent Letter of Credit upon the receipt of notice of non-renewal of the
Permanent Letter of Credit; (iii) to make full or partial draws on the
Permanent Letter of Credit upon the failure of Zale to replenish the Permanent
Letter of Credit as required by this Agreement to eliminate any deficit created
as a result of a draw by Bank; or (iv) to make full or partial draws on
the Permanent Letter of Credit upon the failure of Zale to deliver the Seasonal
Letter of Credit prior to the beginning of any Security Period. Notwithstanding
the foregoing, in the event Bank makes a partial draw on the Letters of Credit at
any time in an amount less than two hundred fifty thousand dollars
($250,000.00), the draw shall be considered a final draw and Bank shall not
have the right to make any further draws on the Letters of Credit. Zale shall
take whatever action is required for the Letters of Credit to remain available
for full or partial draws by Bank as set forth above during the Term of the
Agreement, during any period following termination or expiration of the
Agreement where the parties continue to comply with the terms and conditions of
the Agreement pursuant to Section 5.5, and for a period of ninety (90)
days following the final Card Sale under the terms of the Card Program. Under
no circumstances shall Bank’s decision to draw down any amount under the
Letters of Credit constitute a waiver of any of Bank’s other rights under the
Agreement, including without limitation Bank’s right to terminate this
Agreement in accordance with Section 5.4. The provisions of this Section will
survive the termination of the Agreement.


 


(d)           The failure by Zale to
obtain and maintain the Permanent Letter of Credit in full force and effect at
all times and the Seasonal Letter of Credit at all times during the Security
Period shall constitute a material breach of an obligation to pay an amount
under the Agreement as set forth in Section 5.4(b)(iii) of the
Agreement.


 


(7)           The Original Agreement is
hereby amended by adding the following Section 3.24:


 


3.24        Warranty Reinsurance.


 


(i)            On or before June 30, 2009, Zale agrees to enter
into an arrangement with a regulated insurance company to insure or reinsure all
jewelry protection plan agreements entered into with respect to Authorized
Goods and Services purchased on the Card during the Term of the Agreement, and
Bank shall be named as the beneficiary of such arrangement (the “Warranty
Reinsurance”). The identity of the provider, the amount of the Warranty
Reinsurance coverage, and the terms of the Warranty Reinsurance arrangement
shall be subject to the approval of Bank in its sole discretion, with such
approval not to be unreasonably withheld. Zale shall provide to Bank all
information and evidence of the Warranty Reinsurance arrangement as reasonably requested
by Bank. The provision of this Section will survive termination of this
Agreement.


 


(ii)           Bank may terminate the Agreement effective October 31,
2009, upon the provision of written notice to Zale, in the event Zale fails to
deliver the Warranty Reinsurance in accordance with the terms set forth above. Following
the delivery of the Warranty Reinsurance, the failure by Zale to
maintain the Warranty Reinsurance in full force and effect at all times shall
constitute a material breach of an obligation to pay an amount under the
Agreement as set forth in Section 5.4(b)(iii) of the Agreement.


 


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(8)           Section 5.4(b)(v) of the Original Agreement
is hereby deleted in its entirety and replaced with the following:


 


(v)           by Bank upon not less than one hundred eighty (180)
days prior written notice to Zale in the event the aggregate amount of Net Card
Sales of Zale during any twelve (12) consecutive calendar month period (the “Decrease
Period”) decrease below the Minimum Volume Amount; provided, however, that
there is a Merchant Fee Differential for such Decrease Period in an amount
greater than zero, Bank has first given Zale notice of its intent to terminate
pursuant to this Section 5.4(b)(v), and Zale has not advised Bank by
delivery of written notice to Bank within thirty (30) days of such notice that
Zale will pay Bank the Merchant Fee Differential with respect to such Decrease
Period. Notwithstanding anything to the contrary in the Agreement and for the
avoidance of doubt, Bank shall have the right to terminate the Agreement in
accordance with the terms and conditions of this Section 5.4(b)(v) at
any time regardless of when or whether Bank has previously given notice
hereunder, including without limitation, after either party has provided notice
of termination pursuant to Section 5.4(a) of the Agreement;


 


(9)           Section 5.4(e) of the Original Agreement is
hereby amended by deleting the reference therein to “Section 5.4(b)(i),
(ii), (iii) or (v)” and replacing it with “Section 5.4(b)(i), (ii) or
(iii).”


 


(10)         Sections V. and VI. of Exhibit C of the Original
Agreement are hereby deleted in their entirety and will have no further legal
force or effect.


 


Section III             Recourse Programs.


 


As of the date of this
Amendment, Bank and Zale agree that the program terms for the Big Ticket
Recourse Program and the 60/40 Program as set forth in that certain Letter
Agreement dated effective October 26, 2006 between Bank and Zale (the “Recourse
Letter Agreement”) are hereby amended to give Bank the right to determine the
eligibility of Accounts for either program in its sole discretion. Further, the
terms of the Letter Agreement are hereby amended to allow either party to
terminate the Big Ticket Recourse Program or the 60/40 Program upon the
provision of sixty (60) days prior written notice to the other party without
the requirement of a wind down period; provided  however, that
Bank will not terminate the Big Ticket Recourse Program or the 60/40 Program between
November 15 of each year and January 15 of the following year. Except
as expressly modified herein, all terms and conditions of the Recourse Letter
Agreement shall remain in full force and effect, including without limitation,
the amount of the recourse liability and the recourse reserve requirements.


 


Section IV             Minimum Volume Amount.


 


Provided
that Zale obtains and maintains the Letters of Credit and the Warranty
Reinsurance in accordance with the terms and conditions of the Amended
Agreement, Bank agrees not to give notice of termination pursuant to Section 5.4(b)(v) of
the Amended Agreement prior to March 1, 2010.  In the event Zale fails to obtain and maintain
the Letters of Credit and the Warranty Reinsurance in accordance with the terms
and conditions of the Amended


 


5

















 


Agreement, Bank shall
have the right to exercise a right of termination pursuant to Section 5.4(b)(v) of
the Amended Agreement at any time.


 


Section V              Miscellaneous.


 


The provisions set forth in Sections 5.15 to 5.25 of the Original
Agreement are hereby incorporated by reference as if set forth herein.  Except as amended hereby and by prior
amendments executed by the Parties, the Original Agreement shall continue in
full force and effect.


 


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IN
WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and delivered
by their duly authorized representatives as of the date first written above.


 


	
   

  	
  CITIBANK (SOUTH DAKOTA)
  N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
  Witness:

  	
  Name:

  	
   

  
	
  Name:

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ZALE DELAWARE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
  Witness:

  	
  Name:

  	
   

  
	
  Name:

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ZALE PUERTO RICO, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
  Witness:

  	
  Name:

  	
   

  
	
  Name:

  	
  Its:

  	
   

  



 


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