EXHIBIT 10.8
AMENDMENT #2 TO
PROGRAM AGREEMENT
This AMENDMENT #2 TO PROGRAM AGREEMENT (this "Amendment"), effective as of
May 25, 2004, amends the Program Agreement, dated as of January 16, 2004 (the
"Agreement"), by and between CIRCUIT CITY STORES, INC., a Virginia corporation
("Company"), and BANK ONE, DELAWARE, NATIONAL ASSOCIATION, a national banking
association ("Bank").
INTRODUCTION
Company and Bank have entered into the Agreement.
Each of Company and Bank have now agreed to amend the Agreement by this
Amendment.
Accordingly, in consideration of the mutual agreements contained herein,
the parties agree as follows:
AMENDMENT
1. Amendment to Exhibit 1.1. Exhibit 1.1 of the Agreement, "Certain Defined
Terms", is hereby amended to add the following defined term: "'Program Year'
means the year of time running during the Term of the Agreement from June 1st of
one calendar year to May 31st of the next calendar year, except the First
Program Year shall run from May 25, 2004 to May 31, 2005, and the Seventh
Program Year shall run from June 1, 2010 to May 24, 2011. Program Year quarters
end on August 31st, November 30th, the last day of February, and the last day of
the Program Year for any given Program Year."
2. Amendment to Exhibit 2.6(c). Exhibit 2.6(c) of the Agreement,
"Promotional Financing Programs", is hereby amended to delete the first
paragraph of Exhibit 2.6(c) and replace it with the following paragraph:
[CONFIDENTIAL]*
3. Amendment to Section 3.9(b). Section 3.9(b) of the Agreement, "In-Store
Payments" is hereby amended to add the following to the end of the Section: "To
the extent that an In-Store Payment results in a personal check being returned
to Company for insufficient funds, Bank agrees to reimburse Company for any fee
charged to Company by a third-party check processor for processing the returned
check."
4. Definitions. The capitalized terms in this Amendment shall have the
meaning ascribed to them in the Agreement.
*Confidential treatment has been requested for the redacted portions of this
agreement pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. The confidential, redacted portions has been file separately with the
United States Securities and Exchange Commission.
5. Agreement Continuation. The Agreement, as modified herein, shall
continue in full force and effect according to its terms.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to such state's
principles of conflict of laws (other than Section 5-1401 of the General
Obligations Law). Any term or provision of this Amendment that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Amendment in such
jurisdiction or in any other jurisdiction. If any provision of this Amendment is
deemed to be so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable. If any provision of this
Amendment is contrary to law, such provision shall, to the extent necessary, be
deemed ineffective without invalidating the remaining provisions hereof.
7. Headings.
The headings contained in this Amendment are for reference purposes only
and shall not affect the meaning or interpretation of this Amendment.
8. Counterparts.
This Amendment may be executed by facsimile transmission of original
signatures in one or more counterparts, each of which counterparts shall be
deemed to be original, and all such counterparts shall constitute one and the
same instrument.
9. Miscellaneous.
This Amendment (i) constitutes the entire agreement and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof; (ii) is not intended to and
shall not confer upon any Person, other than the parties hereto, any rights or
remedies; and (iii) shall be binding upon and inure to the benefit of the
parties hereto and their respective estates, heirs, legal representatives,
successors and permitted assigns; provided, however, that this Amendment shall
not be assigned by operation of law or otherwise without the consent of the
other party (except to the extent the Agreement may be assigned under the terms
thereof).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers.
CIRCUIT CITY STORES, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and Chief Financial
Officer
BANK ONE, DELAWARE, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
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