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Exhibit 10.28
SECOND AMENDMENT TO CREDIT CARD PROGRAM AGREEMENT
This Second Amendment to Credit Card Program Agreement is entered into as
of this 7 day of June, 1996 between Monogram Credit Card Bank of Georgia, a
Georgia banking corporation with its principal place of business at 0000 Xxxxxxx
Xxxx, Xxxxxxxx 000, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "Bank"), and Filene's
Basement, Inc., a Massachusetts corporation with its principal place of business
at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Filene's Basement").
WITNESSETH:
WHEREAS, the Bank and Filene's Basement are parties to a certain Credit
Card Program Agreement dated as of July 20, 1995, as amended by a certain
Amendment to Credit Card Program Agreement dated as of October 6, 1995 (as
amended, the "Program Agreement"); and
WHEREAS, the Bank and Filene's Basement are desirous of amending the
Program Agreement as set forth herein,
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Bank and Filene's Basement
agree as follows:
1. Capitalized terms used herein which are not otherwise defined shall
have the same meaning as in the Program Agreement.
2. The Program Agreement is hereby amended by deleting Subsection 3.7(d)
thereof in its entirety.
3. The Program Agreement is further amended by adding the following
immediately after Section 3.12 thereof:
"Section 3.13 SUPPLEMENTAL MARKETING FUND. The Bank shall
establish a fund (hereinafter, the "Supplemental Marketing Fund") to be
used by Filene's Basement for the marketing and promotion of the Credit
Cards. Upon the execution hereof, the Bank shall credit the
Supplemental Marketing Fund an amount equal to fifty percent (50%) of
the Bank's Net Income (as defined below) from the sale of Credit
Insurance during the period from July 20, 1995 through April 30, 1996.
Commencing June 15, 1996 and on the like day of each month thereafter,
the Bank shall credit the Supplemental Marketing Fund an amount equal
to fifty percent (50%) of the Bank's Net Income from the sale of Credit
Insurance for the prior calendar month. As used herein, "Net Income"
for any period means and refers to
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gross insurance premiums received by the Bank for Credit Insurance
during such period, less (a) all claims paid under such Credit
Insurance during such period, and (b) all out-of-pocket expenses
incurred or paid by the Bank during such period in connection with the
sale of Credit Insurance. Filene's Basement may from time to time
submit to the Bank evidence of expenses incurred by Filene's Basement
in marketing and/or promoting the Credit Cards, and the Bank shall
reimburse Filene's Basement for such costs and expenses to the extent
of funds then available in the Supplemental Marketing Fund. All amounts
reimbursed to Filene's Basement from the Supplemental Marketing Fund as
provided herein shall be supplemental and in addition to all other
amounts required to be paid by the Bank to Filene's Basement in
connection with the promotion of the Credit Cards and/or Accounts
including, but not limited to, amounts payable by the Bank to Filene's
Basement under Section 2.4 of the Program Agreement."
4. The reference in Section 2.4(b) of the Program Agreement to "Section
3.8" shall be amended to refer to "Sections 3.8 and 3.13".
5. The Program Agreement is further amended by adding the following
sentence at the end of Section 3.10 thereof:
"To the extent permitted by applicable law, Filene's Basement shall
cease to accept In-Store Payments immediately upon the Bank directing
Filene's Basement to cease to accept In-Store Payments."
6. Except as specifically provided herein, the terms and conditions of the
Program Agreement shall continue in full force and effect and shall be binding
on the parties hereto. Upon the execution of this Agreement, such reference in
the Program Agreement to "this Agreement", "hereunder", "hereof", or words of
like import, shall mean and be a reference to the Program Agreement as amended
hereby. In the event of any conflict between the terms of the Program Agreement
and the terms of this Second Amendment, the terms of this Second Amendment shall
prevail.
7. This Second Amendment may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument, and any of
the parties hereto may execute this Second Amendment by signing any such
counterpart.
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IN WITNESS WHEREOF, the Bank and Filene's Basement have executed this
Second Amendment as of the date first set forth above.
Filene's Basement
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
Monogram Credit Card Bank of Georgia
By: /s/ Xxxxxxx X. Xxxxx
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Print Name: Xxxxxxx X. Xxxxx
Title: Vice Chairman
Filene's Basement Corp., as guarantor of Filene's Basement's obligations
under the Program Agreement hereby approves the terms of this Second Amendment,
and agrees that its Guaranty is not invalidated by this Second Amendment to the
Program Agreement and that its Guaranty continues in full force and effect in
accordance with its terms with respect to the Program Agreement as so amended.
Filene's Basement
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
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