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Exhibit 10.11
AMERICAN EXPRESS(R) CARD SERVICE AGREEMENT
FOR RETAIL ESTABLISHMENTS
This Agreement effective as of , 1989
("Effective Date"), covers your participation in the American Express(R) Card
Service ("Card Service"). This Agreement supersedes all previous agreements
covering your participation in the American Express Card Service. As you read
this Agreement, please note the words "you" and "your" mean Filene's Basement,
Inc., a Massachusetts corporation. The words "we", "our" and "us" refer to
American Express Travel Related Services Company, Inc. and its subsidiaries,
affiliates and licensees that issue Cards or participate in the Card Service.
For the purposes of this Agreement, a credit or charge card issued by us bearing
an American Express name, logo, trademark, service xxxx or copyright is called
the "Card" or "American Express Card", the person whose name is embossed on the
face of the Card is the "Cardmember", and all amounts payable by Cardmembers for
purchases made with the Card are called "Charges".
If all the provisions of this Agreement and all of our procedures and
rules are satisfied each time a Cardmember makes a purchase with the Card at any
of your establishments, we will accept Charges made at your establishment(s)
without Full Recourse.
"Full Recourse" shall mean that we are entitled to reimbursement from you
of the amount of any Charges in question to the extent of any payment made by us
to you, and that we can offset such amount by deducting the amounts of all such
Charges (less the discount you have previously paid us for such Charges) from
amounts due to you for Charges or, if such deduction is not
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possible, we can xxxx you for it. We will have Full Recourse for any Charges as
to which you have not complied with all the rules, procedures or conditions
stated in this Agreement, even if we had notice when we paid you that you did
not follow them. We also will have other rights to Full Recourse as specified in
this Agreement. Where we have the right to Full Recourse, we may delay asserting
this right during any period in which we or you are attempting to resolve a
dispute. Our rights to Full Recourse shall survive termination of this
Agreement.
1. PARTICIPATING ESTABLISHMENT
You agree that all retail establishments operated by you in the
United States (the fifty United States and Washington, D.C.), U.S. Virgin
Islands, Puerto Rico and Canada shall participate in the Card Service under the
terms of this Agreement.
2. ACCEPTING CARDS
You agree to permit Cardmembers to purchase goods and services
with the Card at your establishment(s) in accordance with the following terms
and conditions, except as otherwise provided in Section 14 hereof regarding
Charges made by mail or telephone:
a) the Card is presented on or subsequent to the beginning
date and on or prior to the expiration date shown on the
face of the Card;
b) you have obtained "Authorization" in the manner set forth
in Section 3 of this Agreement;
c) the Card is signed in the same name as that which is
embossed on its face;
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d) You have not been notified by us of the Cancellation of the
Card;
e) the Charge form is signed by the Cardmember in the presence
of your employee with what reasonably appears to be the
same signature as that written on the signature panel of
the Card (if there is a question about the validity of a
signature, a signed statement by the Cardmember stating
whether the signature is his/hers shall conclusively
determine whether this condition has been met);
f) the Card is not visibly altered or mutilated; and
g) all other relevant provisions of this Agreement are
complied with.
3. AUTHORIZATION
a) "Authorization" of a Charge means only that we have
approved the amount of the Charge to a Cardmember's Card account. You must still
comply with all provisions of this Agreement, particularly all those
requirements in the preceding Section entitled "Accepting Cards." If you do not
fully comply, we have the right of Full Recourse for the Charge(s) involved,
even if you obtained Authorization from us.
b) For the purposes of obtaining Authorizations from us, an
electronic communications interface ("CAS Link") shall be in place between (i)
the point of sale terminals or electronic cash registers (hereinafter referred
to collectively as "POS terminals") at your establishments; and (ii) our credit
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authorization system (CAS). You agree to execute our Supplemental Agreement for
access to American Express Charge Authorization System attached hereto as
Exhibit A in order to implement the CAS Link at your establishments. The parties
agree to use their best efforts to maintain the CAS Link in good working
condition. At all times when the CAS link is operable, you agree to obtain an
Authorization approval code from us electronically through your POS terminals
before you allow a Cardmember to make any Charge regardless of amount. You
represent that Authorizations will be obtained solely in conjunction with bona
fide sales transaction at your establishments, and will not be transferred,
sold, or used for the benefit of any other party.
c) However, if you are unable due to malfunctions or other
similar problems, to obtain Authorization through your POS terminals, or if no
such POS terminals have been installed at any particular establishment, you will
telephone us for an Authorization approval code number for any Charge of more
than one hundred dollars ($100.00) ("Downtime Floor Limit") or for any series of
Charges of more than one hundred dollars ($100.00) made at approximately the
same time in one day by a Cardmember at one point-of-sale position. You can
call us for Authorization at a toll free telephone authorization number. We will
make sure that at least one authorization center in Continental North America is
open to receive your calls twenty-four (24) hours a day, seven (7) days a week.
d) We have the right to change your Downtime Floor Limit. If
we do, we will notify you in writing of your new
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Downtime Floor Limit at least thirty (30) days in advance of the date it takes
effect.
e) We will have Full Recourse for any Charge or series of
Charges for which Authorization is not properly requested or obtained, or for
which Authorization is requested and refused or for which no Authorization
approval code number is shown, in accordance with the procedures and
requirements enumerated above.
4. CHARGE FORMS
You agree to follow our standard operating procedures for
completing American Express Charge forms for each Cardmember purchase. Except as
otherwise set forth herein, our Charge form or a Charge form approved by us
("Charge Form") shall be completed at the time of each sale and shall bear:
a) the imprint of the Card presented by the Cardmember or a
registration of the Cardmembers' Card account number made
from your point of sale terminal;
b) the date the Charge was incurred;
c) the amount of the Charge, including applicable taxes;
d) an Authorization approval code number, if necessary;
e) the Cardmember's signature as provided above;
f) your establishment's name, address and store number;
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g) a description of the goods or services purchased; and
h) all other relevant information reasonably required by us
from time to time to be included on the Charge form. Unless
otherwise required by applicable law, we will give you at
least thirty (30) days advance notice of the date on which
such other relevant information is required by us.
All information required by this Agreement shall be filled in legibly. We shall
assign to each of your establishments a unique service establishment number. All
Charges from each establishment shall be submitted according to its
establishment number.
5. ELECTRONIC TRANSMISSION OF CHARGE DATA
a) Until you establish a mutually agreeable procedure of
electronically transmitting Charges and Credits ("Charge Data") to us, you shall
use our paper Charge and Credit forms when submitting Charge Data to us.
b) As soon as a mutually agreeable telecommunications
interconnect has been satisfactorily established between you and us, you agree
to transmit electronically to us the Charge Data. For this purpose, you shall
execute the Electronic Submission and Transmission Addendum attached hereto as
Exhibit B. We shall not be obligated to accept any transmission of Charge Data
which does not conform with the Format or with the terms of Exhibit B, and shall
have Full Recourse with respect to any Charge for which the required information
is not given.
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c) Charges incurred in Canada, if applicable, must be batched
and submitted to us separately.
d) For all Charge Data electronically transmitted to us, you
agree to retain the original Charge or Credit forms or sales slips, or microfilm
copies thereof, for a period of time equal to the time you ordinarily retain
your own charge slips, or for twenty-five (25) months from the date the Charge
was incurred, whichever period is greater.
e) With respect to any such Charge Data which was
electronically transmitted to us, you agree that upon request from us for any
reason, you will provide a copy of the originally executed Charge form, sales
slip, or microfilm copy thereof, to us within seven (7) business days of your
receipt of our request therefor. In the event you fail to provide the Charge or
Credit form, sales slip or microfilm copy thereof within said seven (7) business
days, we shall have Full Recourse with respect to the entire amount of said
Charge.
6. OUR PAYMENT TO YOU
a) You agree to submit paper Charge and Credit forms or to
transmit electronically Charge Data to us at least once each week. You agree to
send us Charge Data to the office we designate. You agree to use your best
efforts to transmit Charge Data within ten (10) days of the date each Charge is
made. For those establishments where electronic transmission of Charge Data is
not feasible, you agree to use your best efforts
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to submit Charges on paper Charge Forms no later than thirty (30) days from the
date the Charge is made. In any case, if you do not send Charges or Charge Data
to us within said thirty (30) days, we will not be obligated to accept those
Charges and we will have Full Recourse if we do accept such Charges.
b) For the purpose of determining when Charges are required to
be submitted to us hereunder, Charges for goods which are not to be delivered or
shipped immediately ("Delayed Charges") shall be deemed to be incurred on the
date the Cardmember picks up said goods or on the date of shipment to the
address specified by the Cardmember. In the event the goods are picked up or
shipped more than sixty (60) days from the date the Charge was originally made,
you agree to obtain Authorization again prior to delivering or shipping the
goods or so purchased. You shall not submit Charges to us until the date the
goods are picked up or shipped to the address specified by the Cardmember.
c) We will accept Cardmembers' Charges from you at a price
equal to the total face amount, less our discount as explained below. You agree
to transfer all these Charges directly to us, and not to xxxx any Cardmember
directly. If you do receive such payment you agree to endorse it over to us and
mail it to us immediately. However, if a Charge (other than a fraudulent Charge)
is charged back to you pursuant to our rights of Full Recourse, you may seek
reimbursement directly from the Cardmember.
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7. PAYMENT PLANS
You may choose the payment plan that suits your needs best--a
Basic Payment Plan, an Economy Payment Plan, or an Extended Payment Plan. Your
discount rate depends in part on the payment plan you choose, so be sure to read
these options carefully. Indicate your choice by checking and initialing the box
on the signature page next to the plan you want before signing this Agreement.
Here is how these plans work:
- BASIC PAYMENT PLAN: If we receive your Charges submitted or
transmitted in accordance with the requirements of this
Agreement before the close of any business day, our payment to
you for all Charge transactions received by us will be
transmitted via the Automated Clearing House system ("ACH")
within three (3) business days after we receive said Charges.
For example, payment for Charges we receive before the close
of business on Monday will be transmitted via ACH on Thursday.
Payment for Charges we receive before the close of business on
Thursday will be transmitted via ACH on Tuesday.
- ECONOMY PAYMENT PLAN: We will transmit payment via ACH for all
Charges submitted or transmitted in accordance with the
requirements of this Agreement on the first business day
fifteen (15) calendar days after we receive said Charges.
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- EXTENDED PAYMENT PLAN: We will transmit payment via ACH for
all Charges submitted or transmitted in accordance with the
requirements of this Agreement on the first business day
thirty (30) calendar days after we receive said Charges.
Payment for Charges will be transmitted to the bank(s) located in the United
States which you have designated in the Electronic Pay Addendum attached hereto
on Exhibit C hereto.
8. DISCOUNT RATE
Your discount rate depends on the Payment Plan you choose, and
the Net Annual Volume of Charges you had during the previous calendar year. This
"Net Annual Volume of Charges" means the total of all Cardmember Charges we
accepted from you during the previous calendar year, less any adjustments or
credits you issued or amounts for which we turned to you for payment. For the
purposes of this Agreement, the date we accept a Charge is the business day we
receive it at the office we have designated for the receipt of Charges from you.
You may qualify for a new discount rate based on the Net Annual
Volume of Charges we have received from all your establishments combined during
the previous calendar year. If you qualify for a new discount rate, we will
adjust your discount rate on April 1st following that calendar year, and the new
discount rate will be as indicated in the discount rate schedule below. The
calendar year runs from January through December, and you must be a participant
for a full calendar year before we make any adjustment. To illustrate, if you
start participating in the Card
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Service program in July, it will be twenty-one (21) months before your discount
rate could be adjusted.
Your initial discount rate will be:
3.00% under the Basic Payment Plan
2.75% under the Economy Payment Plan, or
2.50% under the Extended Payment Plan.
Here is the discount rate schedule showing how we compute your
discount rate after the first full calendar year:
*
Basic Economy Extended
Net Annual Payment Payment Payment
Volume of Charges Plan Plan Plan
$6,000,000-$10,000,000 3.40% 3.15% 2.90%
over $10,000,000-$20,000,000 3.25% 3.00% 2.75%
over $20,000,000 3.00% 2.75% 2.50%
9. PAYMENT CURRENCY
We will make all payments to you in U.S. Dollars, except that
payment for charges incurred in Canada will be submitted and paid in Canadian
Dollars.
10. APPLYING CARDMEMBER PAYMENTS
All payments we receive from a Cardmember for Charges made at
your establishments(s) will first be used to satisfy any Charges for which we do
not have Full Recourse. Payments will then be applied to any Charges for which
we have Full Recourse. If the Cardmember pays us for Charges for which we have
already turned to you for payment, we will credit your account for this amount.
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11. PROCESSING CREDITS
You agree to issue credits to Cardmembers for returned goods or
services originally purchased with the Card in accordance with your ordinary
policy which shall be clearly disclosed to the Cardmember at the time of the
purchase. If you issue any credits to Cardmembers for services or returned
merchandise which they purchased with the Card, you shall process these credits
as a credit to the Cardmember's Card account ("Credit") and shall record these
Credits on our Credit Record forms. If you electronically transmit Credits, you
shall also electronically transmit such Credits to us, or, if such is not
possible, you shall submit such Credits to us on "hard copy" Credit Record
forms, in accordance with our instructions set forth in Section 5 hereof within
seven (7) days after you issue each Credit. We will deduct the full amount of
the Credit, minus the discount you paid us for the Charge being credited, from
subsequent payments to you or xxxx you for it.
You agree not to give cash refunds on Card Charges.
You agree to process credits to a Cardmember's Card account only
for goods and services the Cardmember purchased with the Card.
12. CHECK CASHING
We will not be responsible for checks you cash for Cardmembers.
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13. CARDMEMBER COMPLAINTS AND INQUIRIES
a) For purposes of this agreement a claim or complaint means:
(i) The Cardmember has made an inquiry or complaint to you
about a Charge and has made a good faith attempt to receive
reasonable satisfaction from you; or
(ii) The Cardmember has made an inquiry or complaint to us
concerning a Charge made at your establishment, stating the
approximate date and amount of the Charge, identifying the
merchandise or service purchased, and explaining the nature
of the dispute.
b) You agree to deal directly with the Cardmember to resolve
any claims or complaints about the nature, quality or quantity of merchandise or
services purchased with the Card at your establishment(s). If any Cardmember
refuses to make payment in full to us because of a claim or complaint, you shall
make a good faith effort to resolve the complaint within twenty-five (25) days
from the time you are notified of such refusal. If you and the Cardmember agree
to settle for less than the full amount of the original Charge, you shall submit
a Credit to us for the difference within seven (7) days of determining such
adjustment is due.
c) You also agree that you shall reply to all inquiries from
us about claims or complaints made to us by Cardmembers within twenty-five (25)
days after you receive our
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inquiry. Such a reply shall be a substantive reply containing a resolution of
the inquiry. If we do not receive said reply within said twenty-five (25) days,
we will have Full Recourse for the amount of the Charge involved. However, if
the Cardmember, despite your reply, continues to withhold payment from us for
the Charge involved in the inquiry, and the Cardmember has the right under
applicable law to withhold such payment, we shall have Full Recourse for the
amount of the Charge.
14. TELEPHONE AND MAIL ORDERS
a) If a Cardmember makes a purchase with the Card by mail or
phone, you must indicate this on the Charge Record form by writing the words
"Mail Order" or "Telephone Order" in the space provided for the customer's
signature. You agree not to submit or transmit Telephone or Mail Order Charges
to us until the goods or services so purchased are sent to the Cardmember. You
will then transmit or submit such Charge to us and we will process said Charge
in the usual manner. If the goods or services are not sent to the Cardmember
until sixty (60) days or more after the Charge was made by the Cardmember, you
agree to obtain a second Authorization for the amount of the Charge prior to
sending the goods or services to the Cardmember, and prior to submitting or
transmitting the Charge to us.
b) However, if a Cardmember makes an inquiry or complaint
concerning a Telephone or Mail Order Charge and the Cardmember has not signed
for such Charge or such Charge was made with a cancelled or otherwise invalid
Card, we will have Full Recourse for the Charge, even if you have received
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Authorization(s) from us. You agree to reimburse us for the full amount of the
Charge or we may deduct this amount from any future payments we make to you
under this Agreement.
c) We will accept Telephone or Mail Order Charges from you
without the right of Full Recourse (except as provided in Section 13 hereof
entitled "Cardmember Complaints and Inquiries") if you have followed all the
procedures and rules in this Agreement and, in addition:
(i) You have received an Authorization approval code number in
accordance with this Agreement for each Charge, regardless
of its amount; and
(ii) You have provided us with signed proof of delivery
indicating that you have delivered the goods or services
purchased by the Cardmember to the street address that we
have verified as that Cardmember's billing address.
15. DISPLAYING PROMOTIONAL MATERIAL/OPTIMA(SM) DIVIDEND
a) In each establishment, you agree to display prominently
American Express "Take-One" containers filled with our advertising material and
application forms within easy reach of your patrons. We will supply each
establishment with application forms coded with its respective establishment
number. You will receive a $7.00 commission when we issue a new Basic Card
(other than an Additional Card) based on an application coded with your
establishment number. You agree to provide us with a letter confirming your
approval of all your establishments' participation in this "Take One" program.
Such letter will be used by our
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independent contractors solely to facilitate their performance of the supply and
re-supply functions at your establishments.
b) You agree to display prominently American Express
identification such as signs, decals or other identification at each
establishment. Further, you agree to mention acceptance of Cards in your print
advertisements, catalogues and other forms whenever any other payment method,
other than Filene's Basement's card program is mentioned. Whenever you mention
the Card in your advertising, catalogues and/or order forms, you agree to use
the American Express name and logo only as set forth in our pre-approved logo
sheets which we will provide to your. You agree not to use any mail order forms
or cards which would reveal a Cardmember's Card account number while in transit
or in the mail.
c) The promotional activities set forth in subsections 15(a)
and (b) above are explained in more detail in the Retail Advertising and
Promotional Addendum annexed hereto as Exhibit D and made a part hereof.
d) In addition, you agree to let us list the name and address
of your establishment(s) in our Card Directory, our Guides and other materials
related to the Card Service.
e) You agree not to promote the use of other charge, credit or
debit cards, except for your own card which is used only in your
establishment(s), to your customers more actively than you promote the use of
the Card. If you do a special promotion in cooperation with any other charge,
credit or debit card, you agree that you will tell us after such special
promotion becomes public. You agree that we shall have the opportunity to
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offer a mutually acceptable similar promotion for the Card on no less favorable
terms and you will not unreasonably refuse to do such a promotion. When a
Cardmember presents the Card at the point of sale, you agree you will not
discourage the use of the Card or solicit Cardmembers for your own credit card
or charge program. You agree not to state or publish a preference for any other
charge, credit or debit cards or services except the Filene's Basement card over
the Card.
f) When Cardmembers choose to use the Optima Card in your
establishment(s) you will be paid an Optima Dividend. Provided you display
decals or logos and Take-One containers as required in this Agreement, you will
be paid an Optima Dividend calculated as a percentage of the Net U.S. Optima
Card Charge Volume that we received from your establishment(s). "Net U.S. Optima
Card Charge Volume" shall mean the aggregate of all Charges made by Cardmembers
with the Optima Card at your establishment(s) in the United States (the fifty
(50) states and the District of Columbia) and received by us less any credits
you issued, adjustments, and amounts for which we turned to you for payment. For
the purpose of this section, the amount of our Optima Dividend rate will be
based on your previous yearly Net Annual Volume of Charges, as defined in
Section 8 hereof. Your initial Optima Dividend rate shall be 1.25%. If you
qualify for a new Optima Dividend rate, based on your Net Annual Volume of
Charges for the previous calendar year such new rate will be effective on April
1st following that previous calendar year.
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Here is a schedule showing how we compute your Optima
Dividend rate:
Net Annual Volume of Charges for Optima
All American Express Charges Dividend
Received from you Rate
-------------------------------- ---------
$0 - 999,999 1.00%
$1,000,000 - $19,999,999 1.15%
$20,000,000 and over 1.25%
16. ASSIGNMENT
You may not assign (transfer) this Agreement to anyone else
without written permission from us. We may assign this Agreement to our parent
or one of our subsidiaries or affiliates without your permission. But we cannot
assign it to anyone else without your written permission.
17. CHANGING THIS AGREEMENT
We and you have the right to amend this Agreement at any time. We
will notify each other in writing at least thirty (30) days in advance. If the
changes are materially unacceptable to the other, he may terminate this
Agreement by notifying the other in writing within thirty (30) days of receipt
of notice concerning such changes. Termination pursuant to this Section 17 shall
be effective sixty (60) days after notified of the termination. Pending
termination pursuant to this Section, your compliance with the change or changes
at issue will be waived by us, or else an earlier termination date will be
agreed upon.
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18. TERM AND TERMINATION OF THIS AGREEMENT
a) This Agreement shall commence and be effective upon the
date indicated on the first page hereof ("Effective Date"). This Agreement shall
thereafter remain in effect for an initial term of three (3) years from the
Effective Date. After the initial three (3) year term, this Agreement shall
continue unless and until terminated by either party in writing upon thirty (30)
days prior written notice, or unless terminated as set forth in Section 17
hereof.
b) You agree to honor our Cards and to follow all the terms of
this Agreement until the termination takes effect. The provisions governing the
processing of Charges will continue to apply if processing of Charges made prior
to the effective termination date takes place after the termination becomes
effective. Our rights to Full Recourse shall survive termination of this
Agreement.
c) If either party materially breaches its obligations
hereunder, and fails to cure such material breach within thirty (30) days after
written notice from the other party specifying such breach, then such other
party may, upon written notice, in addition to any other rights and remedies
such party has hereunder or in law or equity, immediately terminate this
Agreement.
d) Anything to the contrary contained in this Agreement
notwithstanding, if: (i) either party becomes insolvent or enters bankruptcy or
receivership proceedings voluntarily or involuntarily, or makes an assignment
for the benefit of its
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creditors; or (ii) there is an execution, attachment, repossession or
foreclosure on or of all or substantially all of such party's assets; or (iii)
such party ceases all or a substantial portion of its operations; then in any
such event, all debts and obligations owed to the other party hereunder shall be
deemed immediately due and payable and such other party shall have the right to
immediately terminate this Agreement on written notice and/or to take any other
action to which such other party believes it is entitled under this Agreement or
under applicable law or in equity including, but not limited to withholding
payments to such party. (iv) In addition, if a party in the good faith exercise
of its business judgment deems the other party to be incapable of performing its
obligations hereunder, then such party may withhold payments to the other party,
in addition to the other rights and remedies which such party has under this
Agreement or applicable law or equity. Each party's rights and obligations
hereunder shall survive termination of this Agreement.
19. NOTICES
All notices hereunder shall be in writing and shall be sent by
certified mail, return receipt requested, or overnight courier service, to the
addresses specified below, unless changed by written notice. Notice shall be
deemed given on the date such notice is delivered to such recipient.
If notice is sent by you to us, it is to be addressed to:
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American Express Travel Related Services Company, Inc.
Consumer Card Group -- USA
American Express Tower
World Financial Center
Xxx Xxxx, XX 00000-0000
Attn: Vice President, Retail Marketing
with a copy to:
General Counsel's Office
American Express Tower
World Financial Center
Xxx Xxxx, XX 00000-0000
If notice is sent by us to you, it is to be addressed to:
Filene's Basement, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Chief Financial Officer
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with laws of the State of New York.
21. AUTHORITY TO SIGN
You represent that the individual who signs this Agreement has
authority to sign. We represent that the individual who signs this Agreement is
authorized to sign on behalf of American Express Travel Related Services
Company, Inc. and on behalf of its subsidiaries, affiliates and licensees that
issue Cards or participate in the Card Service.
--------------------------------------------------------------------------------
PAYMENT PLAN ELECTED
Please check and initial the Payment Plan you have elected.
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(X) Basic Payment Plan
( ) Economy Payment Plan
( ) Extended Payment Plan
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
FILENE'S BASEMENT, INC. AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
/s/ Xxxxx X. Xxxxxx
---------------------------------- --------------------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxxxxx
Chief Financial Officer President and Chief Executive
Officer
TRS North America
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