EXHIBIT 10(k)-3
THIRD AMENDMENT TO AMENDED AND RESTATED
CONSUMER CREDIT CARD PROGRAM AGREEMENT
This Amendment dated as of July 26, 2002 ("Amendment") amends that
certain Amended and Restated Consumer Credit Card Program Agreement dated as of
February 22, 2000 (as amended, modified and supplemented from time to time, the
"Agreement") by and among Monogram Credit Card Bank of Georgia ("Bank") and
Ethan Xxxxx Inc. ("Retailer"). Capitalized terms used herein and not otherwise
defined have the meaning given in the Agreement.
WHEREAS, Bank and Retailer are parties to the Agreement and it is their
mutual desire that the Agreement be amended in accordance with the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and subject to
the terms and conditions hereinafter set forth, the parties hereby agree as
follows:
I. AMENDMENTS TO THE AGREEMENT
1.01 NEW DEFINITIONS. The following are added as new defined terms:
"APPLICABLE FIXED RATE" shall have the meaning given to such term in
Section 6.02 hereof.
"FIXED PAYMENT PROMOTION" shall have the meaning given to such term in
Section 6.02 hereof.
"FIXED PAYMENT PROMOTION PURCHASE" means any Purchase made under a
Fixed Payment Promotion.
"FIXED RATE CHANGE DATE" shall have the meaning given to such term in
Section 6.02 hereof.
"POS UNIT" means a point-of-sale terminal which may or may not include
a related printer. All references to "Hypercom unit" throughout the
Agreement are changed to "POS Unit."
"THIRD AMENDMENT EFFECTIVE DATE" means January 1, 2003.
1.02 AMENDMENT TO DEFINITIONS. The following definitions are amended
and restated to read as follows:
"AGREEMENT" means this Amended and Restated Consumer Credit Card
Program Agreement, as amended from time to time.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
The first sentence of the definition of "Program" is amended to read as follows:
"PROGRAM" means the credit card program established by Bank pursuant to
the Original Agreement and continued and modified from time to time by
this Agreement and made available to qualified customers of Retailer
and its Authorized Dealers to make Purchases.
1.03 AMENDMENT TO SECTION 6.02(a). The following is
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
1.04 AMENDMENT TO SECTION 6.03. Section 6.03 is hereby
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
1.05 AMENDMENT TO SECTION 8.05(a). The first sentence of Section
8.05(a) is hereby amended and restated to read:
at any Participating Store any fixed payment or closed-end type credit
product or any open-end consumer credit program, credit facility,
credit card program, charge program or debit or secured card program or
facility other than a Permitted Credit Program.
The definition of "Permitted Credit Program" in Section 8.05(a) is amended by
adding the word "and" immediately before clause (iii) and deleting clause (iv)
in its entirety.
1.06 AMENDMENT TO SECTION 11.02(k). The following is
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
1.07 AMENDMENT TO SECTION 11.03(e)(iii). Section 11.03(e) (iii) is
hereby amended by adding the word "and" immediately before clause (C) and
deleting clause (D) in its entirety.
1.08 AMENDMENT TO BANK DEALER AGREEMENT. Retailer acknowledges that,
concurrently with this Agreement, the Bank Dealer Agreements will be amended in
substantially the form set forth in Exhibit A hereto. Retailer agrees to
cooperate in any reasonable manner requested by Bank in distributing such
amendment to all Authorized Dealers.
II. GENERAL
2.01 AUTHORITY FOR AMENDMENT. The execution, delivery and performance
of this Amendment has been duly authorized by all requisite corporate action on
the part of Retailer and Bank and upon execution by all parties, will constitute
a legal, binding obligation thereof.
-2-
2.02 EFFECT OF AMENDMENT; EFFECTIVE DATE. Except as specifically
amended hereby, the Agreement, and all terms contained therein, remains in full
force and effect. The Agreement, as amended by this Amendment, constitutes the
entire understanding of the parties with respect to the subject matter hereof.
This Amendment shall become effective on the Third Amendment Effective Date.
2.03 BINDING EFFECT; SEVERABILITY. Each reference herein to a party
hereto shall be deemed to include its successors and assigns, all of whom shall
be bound by this Amendment and in whose favor the provisions of this Amendment
shall inure. In case any one or more of the provisions contained in this
Amendment shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
2.04 FURTHER ASSURANCES. The parties hereto agree to execute such other
documents and instruments and to do such other and further things as may be
necessary or desirable for the execution and implementation of this Amendment
and the consummation of the transactions contemplated hereby and thereby.
2.05 GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Georgia.
2.06 COUNTERPARTS. This Amendment may be executed in counterparts, each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, all as of the day and year first
above written.
ETHAN XXXXX INC. MONOGRAM CREDIT CARD BANK OF
GEORGIA
By: /s/ X. Xxxxxx Kathwari By: /s/ Xxxxx Xxxxxx
-------------------------------- --------------------------
Its: Chief Executive Officer Its: President and Chief
Executive Officer
-3-
CONSENT OF GUARANTOR
Each of Ethan Xxxxx Manufacturing Corporation and Ethan Xxxxx Marketing
Corporation (without implying that such consent or agreement is required) hereby
consents to the foregoing Amendment and agrees that the Subsidiary Guarantee
that it executed in Bank's favor in connection with the Agreement (the
"Guaranty") shall continue to guarantee the Guaranteed Debt (as defined therein)
now or hereafter owing under or in connection with the Agreement as amended,
restated, supplemented or replaced from time to time, including, without
limitation, as the Agreement is amended by the foregoing Amendment.
ETHAN XXXXX MANUFACTURING
CORPORATION
By: /s/ X. Xxxxxx Kathwari
----------------------------------
Title: Chief Executive Officer
ETHAN XXXXX MARKETING CORPORATION
By: /s/ X. Xxxxxx Kathwari
----------------------------------
Title: Chief Executive Officer
CONSENT OF ETHAN XXXXX INTERIORS INC.
Ethan Xxxxx Interiors Inc. (without implying that such consent or
agreement is required) hereby consents to the foregoing Amendment and agrees
that its undertakings set forth below Retailer's signature in the Agreement
remain in effect and that, any guarantee executed pursuant to such undertakings
shall, in accordance with the terms of Exhibit C to the Agreement, guarantee the
Guaranteed Debt (as defined therein) now or hereafter owing under or in
connection with the Agreement as amended, restated, supplemented or replaced
from time to time, including, without limitation, as the Agreement is amended by
the foregoing Amendment.
ETHAN XXXXX INTERIORS INC.
By: /s/ X. Xxxxxx Kathwari
----------------------------------
Title: Chief Executive Officer
-4-
EXHIBIT A
(To Third Amendment to Amended and
Restated Consumer Credit Card Program Agreement)
SECOND AMENDMENT TO AMENDED AND RESTATED
ETHAN XXXXX CREDIT CARD PROGRAM DEALER AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") amends the Amended and Restated Ethan
Xxxxx Credit Card Program Dealer Agreement (as amended from time to time, the
"Dealer Agreement") between the Authorized Dealer of Ethan Xxxxx Inc. who is
named as the addressee on the letter accompanying this Amendment ("Dealer,"
"us," "we," or "our") and Monogram Credit Card Bank of Georgia ("Bank" or
"you"). Capitalized terms used in this Amendment, and not otherwise defined
herein, will have the meanings given in the Dealer Agreement.
1. AMENDMENT TO SECTION 8. Section 8 of the Dealer Agreement is amended and
restated to read as follows:
We may accept any general purpose bank credit cards and travel and
entertainment charge cards presented to us in payment for Goods and/or
Services. However, during the term of this Agreement, we shall not
participate in, or accept any credit cards in connection with, programs
involving acceptance or promotion of credit accounts other than this
Program and other programs offered by Bank or its Affiliates, including
GE Capital, but we may retain, or we may offer to any alternative
financing source, the opportunity to finance Accounts and provide credit
requested when the Credit Card Application or credit extension for such
sales initially have been rejected by you. In no event shall we submit to
Bank any Credit Card Applications or Charge Slips for credit sales that
have been submitted to and/or rejected by another credit grantor. In
addition to the foregoing, we may participate in other credit programs
sponsored by Ethan Xxxxx if, and only if, such programs are established
in compliance with the Program Agreement and we have received written
notice from Bank acknowledging such compliance.
2. AMENDMENT TO SECTION 11(a). Section 11(a) of the Dealer Agreement is
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
3. AMENDMENT TO CERTAIN DEFINED TERMS. All references in the Dealer Agreement
to "Service Fee" or "Service Fee Percentage" are changed to "Retailer/Dealer
Fee" and "Retailer/Dealer Fee Percentage," respectively.
4. AGREEMENT REMAINS EFFECTIVE. Except as amended by this Amendment, the
Dealer Agreement as originally entered into remains in full force and effect.
5. AGREEMENT BY SUBMISSION; EFFECTIVE DATE. As provided in Section 19 of
the Dealer Agreement, Dealer will be deemed to have agreed to this Amendment,
and it will become immediately effective, when Dealer submits any Charge Slip or
Credit Slip to Bank for approval or payment after January 1, 2003.
-5-
