CREDIT CARD PROGRAM AGREEMENT

EXHIBIT 10.2

 

CREDIT CARD PROGRAM AGREEMENT

 

by and among

 

THE NEIMAN MARCUS GROUP, INC.

 

BERGDORF GOODMAN, INC.

 

HSBC BANK NEVADA, N.A.

 

and

 

HOUSEHOLD CORPORATION

 

Dated as of June 8, 2005

Table of Contents

 

 

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CREDIT CARD PROGRAM AGREEMENT

 

This Credit Card Program Agreement is made as of the 8 ^th day of June, 2005, by and among The Neiman Marcus Group, Inc., a Delaware corporation (“ NMG ”), Bergdorf Goodman, Inc., a New York corporation (“ BG , and together with NMG, the “ NMG Companies ”), HSBC Bank Nevada, N.A., a national credit card bank (“ Bank ”), and Household Corporation, a Delaware corporation (“ Primary Servicer ”).

 

WITNESSETH :

 

WHEREAS, the NMG Companies are engaged in, among other activities, operating retail department stores and the Credit Card Business (as hereinafter defined);

 

WHEREAS, concurrently with the execution of this Agreement, the NMG Companies, Bank and Bank Parent (as hereinafter defined) are entering a purchase and sale agreement (the “ Purchase Agreement ”) pursuant to which Bank shall purchase specified assets related to the NMG Companies’ Credit Card Business, including certain Credit Card and payment plan accounts and associated receivables (“ Purchased Accounts ”);

 

WHEREAS, the NMG Companies have requested that Bank establish a program pursuant to which, following the Effective Date of this Agreement, Bank shall issue NMG Credit Cards (as hereinafter defined) and Non-Card Payment Plans (as hereinafter defined) to be serviced, marketed and promoted in accordance with the terms hereof; and

 

WHEREAS, the Parties hereto agree that the goodwill associated with the NMG Licensed Marks (as hereinafter defined) contemplated for use hereunder are of substantial value that is dependent upon the maintenance of high quality services and appropriate use of the trademarks pursuant to this Agreement;

 

NOW, THEREFORE, in consideration of the terms, conditions and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

1.1 Generally . The following terms shall have the following meanings when used in this Agreement:

 

“ Account ” means any account (including any Private Label Account, Non-Store Account or Non-Card Payment Plan account) under which a purchase, cash advance, convenience check or balance transfer transaction may be or has been made by or to a Person (or any Person authorized by such Person) pursuant to a Cardholder Agreement established pursuant to the terms of this Agreement or acquired pursuant to the Purchase Agreement. For the avoidance of doubt, the term Account shall include the Purchased Accounts.

 

“ Account Documentation ” means, with respect to an Account, any and all documentation relating to that Account, including Cardholder Documentation, checks or other forms of payment with respect to an Account, notices to Cardholders, adverse action notices, change of terms notices, other notices, correspondence, memoranda, documents, stubs, instruments, certificates, agreements, magnetic tapes, disks, hard copy formats or other computer-readable data transmissions, any microfilm, electronic or other copy of any of the foregoing, and any other written, electronic or other records or materials of whatever form or nature, including tangible and intangible information, arising from or relating or pertaining to any of the foregoing to the extent related to the Program; provided that Account Documentation shall not include NMG’s or any of its Affiliates’ register tapes, invoices, sales or shipping slips, delivery or other receipts or other indicia of the sale of NMG Goods and Services, any reports, analyses or other documentation prepared by any of the NMG Companies or their Affiliates for use in the retail business operated by the NMG Companies and their Affiliates regardless of whether derived in whole or in part from the Account Documentation or any other document not directly related to the Credit Card Business.

 

“ Accountants ” has the meaning set forth in Section 12.3 hereof.

 

“ Affiliate ” means, with respect to any Person, each Person that controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.

 

“ Agreement ” means this Program Agreement, together with all of its schedules and exhibits, as modified, altered, supplemented, amended and/or restated from time to time.

 

“ Applicable Law ” means all applicable federal, state and local laws (including common law), statutes, regulations, written regulatory guidance, orders or directives, as may be amended and in effect from time to time during the Term, including (i) the Truth in Lending Act and Regulation Z; (ii) the Equal Credit Opportunity Act and Regulation B; (iii) the Fair Debt Collection Practices Act; (iv) the Fair Credit Reporting Act; (v) the Gramm-Leach-Bliley Act; (vii) the USA PATRIOT Act; and (vii) the Unfair and Deceptive Trade Practices Act, and, in each case, any implementing regulations or interpretations issued thereunder.

 

“ Applicable Order ” means, with respect to any Person, a judgment, injunction, writ, decree or order of any Governmental Authority, in each case legally binding on that Person or on any material amount of its property.

 

“ Application ” means the credit application that must be completed and submitted in order to establish an Account (including any such application submitted at the POS, by phone or via the Internet).

 

“ Approved Ancillary Products ” means any Credit Card enhancement and other products (other than the NMG Credit Cards and the Non-Card Payment Plans) approved by the Management Committee for offering under the Program from time to time.

 

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“ Average Interest Free Receivables ” means, for any Fiscal Year, the average for each Fiscal Month occurring in such Fiscal Year of the Fiscal Month-end Billed Cardholder Debt under Private Label Accounts that do not bear interest (other than CCCS Accounts and Accounts for which a payment plan was instituted in connection with the servicing and collection thereof).

 

“ Average Private Label Receivables ” means, for any Fiscal Year, the average for each Fiscal Month occurring in such Fiscal Year of the Fiscal Month-end Billed Cardholder Debt under Private Label Accounts.

 

“ Bank ” has the meaning set forth in the preamble hereof.

 

“ Bank Companies ” means, collectively, Bank and Primary Servicer.

 

“ Bank Event of Default ” means the occurrence of any one of the events listed in Section 15.2 hereof or an Event of Default where a Bank Company is the defaulting Party.

 

“ Bank Guaranty ” means the Guaranty by Bank Parent of Bank’s and Primary Servicer’s obligations under this Agreement and the Servicing Agreement.

 

“ Bank Licensed Marks ” means the trademarks, tradenames, service marks, logos and other proprietary designations of Bank listed on Schedule 1.1(a) and licensed to the NMG Companies under Section 10.2 hereof.

 

“ Bank Matters ” has the meaning set forth in Section 3.2(g) hereof.

 

“ Bank Parent ” means HSBC Finance Corporation, a Delaware corporation.

 

“ Bank Systems ” means Systems owned, leased or licensed by and operated by or on behalf of Bank or any of its Affiliates.

 

“ Bankruptcy Code ” means Title 11 of the United States Code, as amended, or any other applicable state or federal bankruptcy, insolvency, moratorium or other similar law and all laws relating thereto.

 

“ BG ” has the meaning set forth in the preamble hereof.

 

“ Billed Cardholder Debt ” means (i) all amounts charged and owing to Bank by Cardholders that were billed with respect to the Private Label Accounts (including principal balances from outstanding charges, charges for Approved Ancillary Products, finance charges, NSF fees, late charges, pay-by-phone fees and any other fees and charges), less (ii) the amount of any credit balances owing by Bank to such Cardholders, including in respect of any payments and any credits associated with returns of NMG Goods and Services and other credits and adjustments, in each case, that were reflected in the Billing Statement with respect to the Account.

 

“ Billing Cycle ” means the interval of time between regular periodic Billing Dates for an Account.

 

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“ Billing Date ” means, for any Account, the day as of when the Account is billed.

 

“ Billing Statement ” means a summary of Account credit and debit transactions for a Billing Cycle including a descriptive statement covering purchases, charges, past due account information and Loyalty Program information.

 

“ Business Day ” means any day, other than (i) a Saturday or Sunday, or (ii) a day on which financial institutions in New York or Texas are authorized by law to close; provided that for purposes of Sections 8.4 and 9.1, “Business Day” shall exclude any day on which the Fedwire system is closed.

 

“ Card Association ” means American Express, Visa International Inc., Visa U.S.A., Inc. or MasterCard International Inc., or any other payment system that is generally acceptable to sellers of goods and services.

 

“ Cardholder ” means any Person who has been issued an NMG Credit Card or Non-Card Payment Plan (including any guarantor of the Account related to such NMG Credit Card) and includes authorized user(s).

 

“ Cardholder Agreement ” means the agreement between Bank and a Cardholder (and any replacement of such agreement), governing the use of an Account, together with any amendments, modifications or supplements that now or hereafter may be made to such Cardholder Agreement (and any replacement of such agreement).

 

“ Cardholder Data ” means all personally identifiable information about a Cardholder (A) received by or on behalf of Bank (including by NMG Servicer in its capacity as such) in connection with the Cardholder’s application for use of an NMG Credit Card, Non-Card Payment Plan or Account or (B) otherwise obtained by or on behalf of Bank (including information obtained by NMG Servicer in its capacity as such) for inclusion in its database of Cardholder information (including information about a Cardholder purchased by Bank), including all transaction and experience information collected by or on behalf of Bank (including by NMG Servicer in its capacity as such) with regard to each purchase charged by a Cardholder using his or her NMG Credit Card, Non-Card Payment Plan or Account (including NMG Charge Transaction Data with respect to charges on Private Label Accounts and transaction and experience information with respect to charges on Non-Store Accounts).

 

“ Cardholder Documentation ” means, with respect to the Accounts, all Applications, Cardholder Agreements, NMG Credit Cards, Loyalty Cards and Billing Statements relating to such Accounts.

 

“ Cardholder Indebtedness ” means all amounts charged and owing to Bank by Cardholders with respect to Accounts (including principal balances from outstanding charges, charges for Approved Ancillary Products, finance charges, NSF fees, late charges, pay-by-phone fees and any other fees and charges), whether or not billed, less the amount of any credit balances owing by Bank to Cardholders, including in respect of any payments and any credits associated with returns of goods and/or services and other credits and adjustments, whether or not billed.

 

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“ Cardholder List ” means any list (whether in hardcopy, magnetic tape, electronic or other form) that identifies Cardholders, including any such listing that sets forth the names, addresses, email addresses (as available), telephone numbers or social security numbers of any or all Cardholders.

 

“ Change of Control ” means, with respect to NMG or Bank, as the case may be, (the “subject Person”), (i) a Person or group becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (except that a Person or group shall be deemed to own all securities it has the right to acquire)), directly or indirectly, of more than fifty percent (50%) of the total voting power of the subject Person, (ii) such subject Person merges, consolidates, acquires, is acquired by, or otherwise combines with any other Person in a transaction in which the subject Person is not the surviving entity or which constitutes a “merger of equals”, it being understood that a subject Person shall not be considered the “surviving entity” of a transaction if either (A) the members of the Board of Directors of the subject Person immediately prior to the transaction constitute less than a majority of the members of the Board of Directors of the ultimate parent entity of the entity surviving or resulting from the transaction or (B) the Persons who were beneficial owners of the outstanding voting securities of the subject Person immediately prior to the transaction beneficially own less than fifty percent (50%) of the total voting power of the ultimate parent entity of the entity surviving or resulting from the transaction, or (iii) the subject Person sells all or substantially all of its assets to a Person that is not an Affiliate of the subject Person.

 

“ Closing ” has the meaning set forth in the Purchase Agreement.

 

“ Co-Branded Credit Card ” means a Credit Card that bears a NMG Licensed Mark and the trademarks, tradenames, service marks, logos and other proprietary designations of a Card Association, including any Dual-Line Credit Card.

 

“ Comparable Partner Programs ” means from time to time other major Credit Card programs of Bank designated annually by the Management Committee that are comparable to the Program in terms of program size, public profile and brand image. As of the date hereof, the “Comparable Partner Programs” include those listed on Schedule 1.1(b).

 

“ Competing Retail Programs ” means from time to time major retailer Credit Card programs other than the Program, whether or not Bank or any of its Affiliates participate in such other programs.

 

“ Competitive ” with respect to any feature or aspect of the Program, means that such feature or aspect is both (i) no less favorable to the NMG Companies than comparable aspects and features of the Comparable Partner Programs and (ii) consistent and competitive with the comparable aspects and features of the Competing Retail Programs (to the extent publicly known in the case of Competing Retail Programs in which neither of the Parties or their respective Affiliates are participants).

 

“ Confidential Information ” has the meaning set forth in Section 13.1 hereof.

 

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“ CPI ” means the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items, as published by the United States Department of Labor Bureau of Labor Statistics, or any successor organization.

 

“ Credit Card ” means a credit card pursuant to which the cardholder or authorized user may purchase goods and services, obtain cash advances or convenience checks, and transfer balances through open-end revolving credit, commonly known as a credit or charge card; provided that the term does not include: (i) any gift card; (ii) any debit card, stored value card, electronic or digital cash card or any other card that does not provide the holder thereof with the ability to obtain credit other than through an overdraft line or similar feature; or (iii) any card issued to the holder of a securities brokerage account that allows the holder to obtain credit through a margin account.

 

“ Credit Card Business ” means the business relating to the ownership, administration and management of the Accounts and Receivables (including the extension of credit to Cardholders, the processing of transactions under the Accounts and the servicing of the Accounts) and, following the Effective Date, includes all activities relating to the Program established pursuant to this Agreement.

 

“ Credit Card Production Services ” has the meaning set forth in the Servicing Agreement.

 

“ Customer Management System ” means the Systems developed by the Bank with the features set forth on Schedule 7.6.

 

“ Development Period ” has the meaning set forth in Section C of Schedule 2.2(c)(i).

 

“ Disclosing Party ” has the meaning set forth in Section 13.1(d) hereof.

 

“ Documentation Services ” has the meaning set forth in the Servicing Agreement.

 

“ Documentation Services Transition Date ” has the meaning set forth in Section 7.2(d) hereof.

 

“ Dual-Line Card Deadline ” has the meaning set forth in Section C of Schedule 2.2(c)(i)..

 

“ Dual-Line Credit Card ” means a Credit Card that (i) bears a NMG Licensed Mark and the trademarks, tradenames, service marks, logos and other proprietary designations of a Card Association and (ii) is linked to a Non-Store Account and a Private Label Account.

 

“ Dual-Line Testing Date ” has the meaning set forth in Section C of Schedule 2.2(c)(i).

 

“ Effective Date ” means the Closing Date as the term is defined in the Purchase Agreement.

 

“ Event of Default ” means the occurrence of any one of the events listed in Section 15.1 hereof.

 

“ Fair Market Value ” has the meaning set forth in Section 17.3 hereof.

 

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“ Federal Funds Rate ” means the offered rate as reported in The Wall Street Journal in the “Money Rates” section for reserves traded among commercial banks for overnight use in amounts of one million dollars or more or, if no such rate is published for a day, the rate published for the preceding Business Day, calculated on a daily basis based on a 365 day year.

 

“ Finance Charge Reversal Percentage ” means, with respect to any Fiscal Year, an amount, expressed as a percentage, equal to (i) the aggregate amount of all finance charges that had been assessed on the Accounts and then reversed by NMG during such Fiscal Year, divided by (ii) the aggregate amount of all finance charges assessed on the Accounts during such Fiscal Year; provided , however , that, for purposes of arriving at the foregoing percentage, the finance charges assessed and reversed on any Accounts that have undergone any change in any of the terms set forth in Schedule 4.7 in such Fiscal Year shall be excluded from both the numerator and denominator during the period of one hundred twenty (120) days after the effective date of such terms change.

 

“ Fiscal Month ” means each four (4) or five (5) week period designated as such in the calendar published by the National Retail Federation for retailers on a Fiscal Year-reporting basis; provided that the Fiscal Month in which the Effective Date occurs shall be deemed to begin on the Effective Date.

 

“ Fiscal Quarter ” means each three (3) Fiscal Month period set forth in the calendar published by the National Retail Federation for retailers on a Fiscal Year-reporting basis; provided that the Fiscal Quarter in which the Effective Date occurs shall be deemed to begin on the Effective Date.

 

“ Fiscal Year ” means the fiscal year set forth in the calendar published by the National Retail Federation setting forth the fiscal year for retailers on a 52/53 week fiscal year ending on the Saturday closest to July 31; provided that the first Fiscal Year under this Program shall be the period beginning on the Effective Date and ending on the Saturday closest to July 31, 2006.

 

“ Force Majeure Event ” has the meaning set forth in Section 19.22 hereof.

 

“ Future Subcontractors ” has the meaning set forth in Section 6.2(g)(i) hereof.

 

“ GAAP ” means United States generally accepted accounting principles, consistently applied.

 

“ Governmental Authority ” means any federal, state or local domestic, foreign or supranational governmental, regulatory or self-regulatory authority, agency, court, tribunal, commission or other governmental, regulatory or self-regulatory entity.

 

“ Gross Receivables ” means amounts owing (net of credit balances) from cardholders with respect to accounts in a Credit Card portfolio (including outstanding loans, cash advances and other extensions of credit; billed or unbilled finance charges and late charges; and any other billed or unbilled fees, charges and interest assessed on such accounts).

 

“ High Collar ” has the meaning set forth on Schedule 1.1(f) hereto

 

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“ Indemnified Party ” has the meaning set forth in Section 18.3 hereof.

 

“ Indemnifying Party ” has the meaning set forth in Section 18.3 hereof.

 

“ Initial Term ” has the meaning set forth in Section 16.1 hereof.

 

“ Inserts ” has the meaning set forth in Section 5.3 hereof.

 

“ In-Store Payment ” means any payment on an Account made in a retail store owned or operated by NMG or any of its Subsidiaries by a Cardholder or a person acting on behalf of a Cardholder.

 

“ Intellectual Property ” means, on a worldwide basis, all intellectual property, including (i) rights associated with works of authorship, including copyrights, moral rights and mask-works; (ii) trademarks, service marks and other source indicators and the goodwill associated therewith; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) applications, registrations, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

 

“ Interchange Fees ” means the interchange fees or interchange reimbursement fees paid or payable to Bank (i) by the Card Association with respect to the Accounts or (ii) in connection with Cardholder usage of the Accounts.

 

“ Internet Services ” has the meaning set forth in Section 4.8.

 

“ Joint Marketing Fund ” has the meaning set forth in Section 5.2(d) hereof.

 

“ Joint Marketing Commitment ” means the obligation of the Bank to fund the amount per Fiscal Year set forth on Section B of Schedule 5.2 for the purposes set forth in Section 5.2(d).

 

“ Knowledge ” means, with respect to any of the NMG Companies or Bank Companies, the actual knowledge of the executive officers of the organization who have managerial responsibility for the Program, after reasonable inquiry.

 

“ Late Fee Reversal Percentage ” means, with respect to any Fiscal Year, an amount equal to (i) the aggregate amount of all late fees that had been assessed on the Accounts and then reversed by NMG or its Subsidiaries during such Fiscal Year, divided by (ii) the aggregate amount of all late fees assessed on the Accounts during such Fiscal Year; provided , however , that, for purposes of arriving at the foregoing percentage, the late fees assessed and reversed on any Accounts that have undergone any change in any of the terms set forth on Schedule 4.7 in such Fiscal Year shall be excluded from both the numerator and denominator during the period of one hundred twenty (120) days after the effective date of such terms change.

 

“ Legal Opinion ” means a written opinion of counsel to a Party in form and substance reasonably acceptable to the other Party and given by counsel (which, subject to the proviso below may be internal counsel) selected by the Party obtaining the opinion and reasonably

 

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acceptable to the other Party; provided that the Party receiving any such opinion may require (and it shall be deemed reasonable to so require) any opinion rendered pursuant to this Agreement to be rendered by outside counsel selected by the Party obtaining the opinion and reasonably acceptable to the Party receiving the opinion.

 

“ Licensee ” means any Person authorized by NMG or any of its Subsidiaries to operate in and sell NMG Goods and Services from the NMG Channels under the NMG Licensed Marks, solely with respect to such Person’s or any of its Subsidiaries’ operation in and sale of NMG Goods and Services from the NMG Channels or under the NMG Licensed Marks.

 

“ Low Collar ” has the meaning set forth on Schedule 1.1(f) hereto.

 

“ Loyalty Card ” means a card issued for the Program pursuant to any Loyalty Program providing for access to an Account, including the Loyalty Cards listed in Section B of Schedule 1.1(c) hereto.

 

“ Loyalty Programs ” means a points-based system that rewards Credit Card usage or customer spending with points that may be redeemed for goods and/or services.

 

“ Management Committee ” has the meaning set forth in Section 3.2 hereof.

 

“ Manager ” has the meaning set forth in Section 3.3(a) hereof.

 

“ Marketing Plan ” means the document that outlines the objectives, strategies and tactics of new account solicitation, usage and awareness programs for the applicable Fiscal Year.

 

“ Merchant Discount ” means a discount rate generally applied against settlements due to merchants for transactions with respect to the use of a Credit Card, which includes the Interchange Fees as well as any other transaction fees.

 

“ Monthly Settlement Sheet ” has the meaning set forth in Section 7.1(b) hereof.

 

“ Net Credit Sales ” means, (i) for any Business Day, an amount equal to (A) gross credit sales on Accounts (including gift card sales, sales tax, delivery charges, Licensee sales and any other amount included in the full amount charged by Cardholders) reflected in the NMG Charge Transaction Data since the preceding Business Day, minus (B) the sum of credits for returned goods and cancelled services and other credits (such as concessions, discounts and adjustments) on Accounts reflected in the NMG Charge Transaction Data since the preceding Business Day and (ii) for any Fiscal Year, an amount equal to (A) gross credit sales on Accounts (including gift card sales, sales tax, delivery charges, Licensee sales and any other amount included in the full amount charged by Cardholders) reflected in the NMG Charge Transaction Data since the preceding Fiscal Year, minus (B) the sum of credits for returned goods and cancelled services and other credits (such as concessions, discounts and adjustments) on Accounts reflected in the NMG Charge Transaction Data since the preceding Fiscal Year.

 

“ Net Yield ” means, with respect to any Fiscal Year, the dollar amount equal to (a) the sum of assessed finance charges and late fees under the Program during such Fiscal Year, minus (b) the sum of all concessions, reversals and write-offs of such finance charges and late fees

 

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during such Fiscal Year minus (c) the aggregate amount of all other Billed Cardholder Debt (other than that referred to in clause (b)) written-off during such Fiscal Year, net of all recoveries of Billed Cardholder Debt during such Fiscal Year.

 

“ New Bank Mark ” has the meaning set forth in Section 10.2(b) hereof.

 

“ New NMG Mark ” has the meaning set forth in Section 10.1(b) hereof.

 

“ New Portfolio ” has the meaning set forth in Section 14.1 hereof

 

“ NMG ” has the meaning set forth in the preamble hereof.

 

“ NMG Channels ” means (i) all retail establishments owned or operated by NMG or its Affiliates (including Licensee departments therein), (ii) all websites owned or operated by NMG or its Affiliates or their Licensees, and (iii) all mail order, catalog and other direct access media that are owned or operated by NMG or its Affiliates or their Licensees.

 

“ NMG Charge Transaction Data ” means the transaction information (in the form of electronic information) with regard to a charge on an Account with respect to each purchase of NMG Goods and Services or Approved Ancillary Products by a Cardholder on credit and each return of NMG Goods and Services or Approved Ancillary Products for credit.

 

“ NMG Companies ” has the meaning set forth in the preamble hereof.

 

“ NMG Credit Card ” means a (i) Private Label Credit Card or (ii) Dual-Line Credit Card after Dual-Line Credit Cards are offered pursuant to the terms of this Agreement;

 

“ NMG Event of Default ” means the occurrence of any one of the events listed in Section 15.3 hereof or an Event of Default where an NMG Company is the defaulting Party.

 

“ NMG Goods and Services ” means the products and services sold, charged or offered by or through NMG Channels, including for personal, household, or business purposes, and including accessories, delivery services, protection agreements, gift cards, shipping and handling, and work or labor to be performed for the benefit of customers of the NMG Channels.

 

“ NMG Licensed Marks ” means the trademarks, tradenames, service marks, logos and other proprietary designations of the NMG Companies listed on Schedule 1.1(d) and licensed to Bank by the NMG Companies under Section 10.1 hereof.

 

“ NMG Marketing Commitment ” means the obligation of the Bank to fund the amount per Fiscal Year set forth in Section B of Schedule 5.2 for the purposes set forth in Section 5.2(b).

 

“ NMG Marketing Fund ” means an accounting entry on the books of Bank representing the unused portion of the NMG Marketing Commitment, as set forth in Section 5.2(a).

 

“ NMG Matters ” has the meaning set forth in Section 3.2(f) hereof.

 

“ NMG Prospect List ” has the meaning set forth in Section 6.3(b) hereof.

 

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“ NMG Servicer ” means NMG or such of its Affiliates responsible for performing the Services referred to in the Servicing Agreement.

 

“ NMG Shopper ” means any Person who makes purchases of NMG Goods and Services or otherwise uses or accesses NMG Channels.

 

“ NMG Shopper Data ” means all personally identifiable information regarding an NMG Shopper that is obtained by (or on behalf of) NMG or any of its Affiliates at any time (including prior to the date hereof), including personally identifiable information obtained in connection with such NMG Shopper making a purchase of NMG Goods and Services.

 

“ NMG Systems ” means Systems owned, leased or licensed by and operated by, or on behalf of, NMG or its Affiliates.

 

“ NMG Transaction ” means any purchase, exchange or return of NMG Goods and Services by a Cardholder using an Account.

 

“ Nominated Purchaser ” has the meaning set forth in Section 17.2(a) hereof.

 

“ Non-Card Payment Plan ” means the payment plans referred to in Section A of Schedule 1.1(e) and such other payment plans not associated with a Credit Card as may be offered by NMG pursuant to which the obligor thereunder may purchase NMG Goods and Services through revolving credit or pursuant to a retail installment sale arrangement.

 

“ Non-Store Account ” means an Account linked to any Dual-Line Credit Card and usable solely for the purpose of financing purchases (and all fees and charges relating thereto) of goods and services through sellers or channels other than the NMG Channels.

 

“ Operating Procedures ” means the operating procedures for the Program in effect from time to time in accordance with Section 4.1(b) hereof.

 

“ Parties ” means the collective reference to the NMG Companies and the Bank Companies; and unless the context otherwise requires, “Party” means either the collective reference to the NMG Companies, on the one hand, or the Bank Companies, on the other hand.

 

“ Person ” means any individual, corporation, business trust, partnership, association, limited liability company or similar organization, or any Governmental Authority.

 

“ POS ” means point of sale.

 

“ Previously Disclosed ” has the meaning set forth in the Purchase Agreement.

 

“ Privacy Policy ” means the privacy policy and associated disclosures to be provided by Bank to Cardholders in connection with the Program.

 

“ Private Label Accounts ” means (i) the Accounts linked to Private Label Credit Cards and (ii) Accounts linked to Dual-Line Credit Cards solely for the purpose of financing the purchase of NMG Goods and Services (and all fees and charges relating thereto) through any NMG Channel.

 

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“ Private Label Credit Card ” means a Credit Card that bears an NMG Licensed Mark and may be used solely to finance purchases of NMG Goods and Services through any NMG Channel, including the Private Label Credit Cards listed in Section B of Schedule 1.1(e). Each Private Label Credit Card is linked to solely a Private Label Account (and not a Non-Store Account).

 

“ Program ” means the program established pursuant to this Agreement.

 

“ Program Assets ” means the Accounts, Account Documentation, Cardholder Data, Solicitation Materials and all Cardholder Indebtedness (whether held by Bank or a third party).

 

“ Program Fee Percentage ” has the meaning set forth on Schedule 9.1(a)(i) hereof.

 

“ Program Loyalty Program ” means the InCircle Rewards Program and the Bergdorf Goodman Rewards Program described in Section A of Schedule 1.1(c) or any other annual points-based loyalty program implemented pursuant to Article III from time to time and tied to the NMG Credit Cards.

 

“ Program Objectives ” has the meaning set forth in Section 3.1 hereof.

 

“ Program Purchase Date ” has the meaning set forth in Section 17.2(c) hereof.

 

“ Program Website ” has the meaning set forth in Section 4.8(a) hereof.

 

“ Purchase Agreement ” has the meaning set forth in the recitals hereof.

 

“ Receiving Party ” has the meaning set forth in Section 13.1(d) hereof.

 

“ Renewal Term ” has the meaning set forth in Section 16.1 hereof.

 

“ Retail Merchants ” has the meaning set forth in Section 8.1 hereof.

 

“ Risk Management Policies ” means the underwriting and risk management policies, procedures and practices applicable to the Program and adopted in accordance with the terms of this Agreement, including policies, procedures and practices for credit and Account openings, transaction authorization, collections, credit line assignment, increases and decreases, over-limit decisions, Account closures, payment crediting and charge-offs.

 

“ Sales Tax Refunds ” means refunds, rebates, credits or deductions of sales and use tax by any taxing authority in respect of an Account, and all allowable interest relating thereto.

 

“ Second-Look Credit Card Program ” has the meaning set forth in Section 2.2(b) hereof.

 

“ Services ” means the services required to be performed by NMG pursuant to the Servicing Agreement or the Primary Servicer pursuant to Article VII hereof.

 

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“ Servicing Agreement ” means the Servicing Agreement, dated as of the Effective Date, between NMG and Bank, in the form set forth as Annex E to the Purchase Agreement.

 

“ SLA ” means each individual performance standard set forth on Schedule 7.3(a) and Schedule 2.04(a) of the Servicing Agreement.

 

“ Solicitation Materials ” means documentation, materials, artwork and copy, in any format or media (including television and radio), used to promote or identify the Program to Cardholders and potential Cardholders, including direct mail solicitation materials and coupons.

 

“ Special Discounts ” means non-POS discounts that are given to the customers specified in Schedule 1.1(g).

 

“ Subsidiary ” when used with respect to any Person, means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or similar governing body (or if there are not such voting interests, more than fifty percent (50%) of the equity interest of which) is owned directly or indirectly by such first Person or by another Subsidiary of such Person.

 

“ Systems ” means software, databases, computers, systems and networks.

 

“ Systems Transition Date ” has the meaning set forth in Section 7.4(a) hereof.

 

“ Term ” means the Initial Term and each Renewal Term.

 

“ Termination Period ” means the period beginning on the earlier of the date of expiration of this Agreement or the date of any notice of termination pursuant to Article XV and ending on either (i) the date the Program Assets are repurchased pursuant to Section 17.2, if NMG or a Nominated Purchaser purchases the Program Assets, or (ii) the date that either (A) the NMG Companies deliver written notice to Bank of their election not to purchase the Program Assets or (B) the right of the NMG Companies to purchase the Program Assets expires in accordance with the terms of this Agreement.

 

“ Trademark Style Guide ” means any rules governing the manner of usage of trademarks, tradenames, service marks, logos and other proprietary designations.

 

“ Unapproved Matter ” has the meaning set forth in Section 3.2(e)(ii)(B) hereof.

 

“ Yearly Settlement Sheet ” has the meaning set forth in Section 7.1(c) hereof.

 

1.2 Miscellaneous . As used herein: (a) all references to the plural number shall include the singular number (and vice versa); (b) all references to “herein,” “hereunder,” “hereof” or like words shall refer to this Agreement as a whole and not to any particular section, subsection or clause contained in this Agreement; (c) all references to “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (d) unless specified as Business Days or Fiscal Months, all references to days or months shall be deemed references to calendar days or months; and (e) all references to “$” or “dollars” shall be deemed references to United States dollars.

 

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ARTICLE II

 

ESTABLISHMENT OF THE PROGRAM

 

2.1 Credit Program .

 

(a) General . Beginning as of the Effective Date, Bank shall offer the NMG Credit Cards and the Non-Card Payment Plans. Bank shall promptly open a new Account and issue a new NMG Credit Card and/or Non-Card Payment Plan with respect to each Application approved in accordance with the Risk Management Policies. Following the issuance of Dual-Line Credit Cards by Bank and NMG under the Program, Bank shall promptly open a new Account and issue a new Dual-Line Credit Card with respect to each Application approved in accordance with the Risk Management Policies. To the extent approved in accordance with the terms of this Agreement, the Program shall include and the Bank shall offer such other Approved Ancillary Products and other payment products as shall be incorporated in the Program in the future.

 

(b) Notice to Cardholders . Substantially concurrently with the Effective Date, Bank and NMG shall prepare jointly a form or forms of notices to each Cardholder to the effect that such Cardholder’s Account has been acquired by Bank and, if applicable, also containing any change of terms notices with respect to any change of terms that the Parties mutually agree to implement. Such notice shall be in the form approved by both Parties, which approval will not be unreasonably withheld or delayed, and will comply with all requirements of Applicable Law. Bank shall issue new Private Label Credit Cards in accordance with Schedule 2.1(b) and shall maintain existing Account numbers on the Accounts. The costs of preparation and mailings of such notices and new Private Label Credit Cards shall be borne by Bank. The mailings shall be made in such manner and at such time as Bank and NMG may mutually agree.

 

2.2 Exclusivity .

 

(a) General . Except as otherwise provided in this Section 2.2 and without limiting NMG’s right to arrange the purchase of the Program Assets by a Nominated Purchaser pursuant to Section 17.2, during the Term, each of the NMG Companies agrees that it shall not, by itself or in conjunction with or pursuant to agreements with any bank or other Credit Card issuer, offer or market in the United States (i) a Private Label Credit Card, (ii) a Co-Branded Credit Card or (iii) a Non-Card Payment Plan, in each case, other than through the Program.

 

(b) Second-Look Credit Card Program . Notwithstanding Section 2.2(a), NMG and its Affiliates shall have the right at any time during the Term to establish a program (a “ Second-Look Credit Card Program ”) for (i) issuing Credit Cards, including Private Label Credit Cards and Dual-Line Credit Cards, using the NMG Licensed Marks, or (ii) opening Non-Card Payment Plans, in each case, to customers whose Applications have been declined by Bank; provided , however , that Bank shall have a right of first offer to develop the Second-Look Credit Card Program as follows. NMG shall provide notice to Bank indicating the intention of NMG or its applicable Affiliate(s) to establish the Second-Look Credit Card Program. Not later than the 20 ^th day following receipt of the notice by Bank, Bank may make an offer to NMG with respect to the establishment of the Second-Look Credit Card Program, which offer shall remain open for a

 

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period of not less than forty-five (45) days. NMG shall be under no obligation to accept such offer or to provide Bank with any right to match any offer received by NMG from any third party. NMG may elect to (A) accept the offer made by Bank, (B) establish the Second-Look Credit Card Program directly or through any of its Affiliates, or (C) enter into an arrangement with any third party Credit Card issuer providing for the establishment of a Second-Look Credit Card Program to be issued by such issuer; provided that NMG may not enter into any such arrangement with any such third party Credit Card issuer unless the financial terms and conditions offered to NMG by such Credit Card issuer are substantially more favorable to NMG in the aggregate to the terms and conditions offered to NMG by Bank. If NMG elects to establish a Second-Look Credit Card Program pursuant to clause (B) or (C) above, upon the request of any NMG Company, Bank shall forward to the NMG Companies or a provider of secondary financing the Applications received by Bank with respect to such customers and shall cooperate in good faith with the NMG Companies in order to facilitate the issuance of Credit Cards or Non-Card Payment Plans, as applicable, to such customers pursuant to such program.

 

(c) Dual-Line/Co-Branded Program .

 

(i) Beginning as of the Effective Date, Bank, at its own expense, shall perform the product design and consumer research set forth in Section A of Schedule 2.2(c)(i) of Dual-Line Credit Card products designated in such schedule or otherwise approved by the Management Committee. Bank shall use its best efforts to ensure that the personnel used to conduct such product design and consumer research has relevant experience in the department store industry, comparable customer demographics and loyalty programs and that the other resources (including Systems and other technology resources) used to conduct such research are Competitive. Bank shall complete the product design and consumer research testing set forth in Section A of Schedule 2.2(c)(i) by the Dual-Line Testing Date.

 

(ii) In the event that NMG decides to test Dual-Line Credit Cards following such consumer research, NMG shall provide Bank notice of such desire. Within the Development Period, Bank shall commence the testing set forth in Section B of Schedule 2.2(c)(i) of Dual-Line Credit Cards having the terms set forth in Schedule 2.2(c)(ii) and such other and/or additional terms as may be approved by the Management Committee. In the event that Bank fails to commence offering Dual-Line Credit Cards on the terms set forth in Schedule 2.2(c)(ii) by the Dual-Line Card Deadline or otherwise breaches any of its obligations pursuant to this Section 2.2, NMG shall be free to issue Co-Branded Credit Cards itself or through an Affiliate or enter into an arrangement with any third party to issue Co-Branded Credit Cards. Upon such an event, the restrictions of Section 2.2(a) shall not apply to any such issuance of Co-Branded Credit Cards.

 

(d) Acceptance of Non-NMG Credit Cards . The NMG Companies’ right to accept Credit Cards other than NMG Credit Cards shall be limited as set forth in Section A of Schedule 2.2(d).

 

(e) Retail Portfolio Acquisition . Notwithstanding Section 2.2(a), Bank’s sole rights with respect to Credit Card portfolios acquired by NMG during the Term are set forth in Article XIV hereof.

 

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(f) Other Products . Except to the extent expressly set forth in this Section 2.2, NMG and its Affiliates shall not be restricted in any way with respect to any activities or payment products. For the avoidance of doubt, NMG and its Affiliates shall be free to do any of the following at any time:

 

(i) issue, offer or market any payment products not expressly covered in this Section 2.2 (e.g., NMG and its Affiliates shall not be restricted from issuing, accepting or otherwise taking action with respect to (A) gift cards, pre-paid cards or stored value cards, or (B) debit cards, in each case, whether or not bearing an NMG Licensed Mark);

 

(ii) participate in rewards programs and promotions by card associations or for cards not branded with any of the NMG Licensed Marks (e.g., American Express Membership Rewards); or

 

(iii) offer its customers rewards or promotional programs or other value propositions, including Loyalty Programs, of any type; provided that, except to the extent approved by a majority of the members constituting the full Management Committee (including any vacancies), (A) the Program Loyalty Programs shall remain the primary Loyalty Programs for the NMG Channels and any changes to the Program Loyalty Programs shall be made in accordance with Article III, and (B) except to the extent set forth in Section B of Schedule 2.2(d), no Loyalty Program other than the Program Loyalty Programs shall (x) award points based on the participant’s choice of tender or payment method or (y) provide awards on an annual basis upon reaching specific spending tiers.

 

ARTICLE III

 

PROGRAM MANAGEMENT AND ADMINISTRATION

 

3.1 Program Objectives . In performing its responsibilities with respect to the management and administration of the Program, each Party shall be guided by the following Program objectives (the “ Program Objectives ”):

 

(a)

to enhance the experience of NMG Shoppers;

 

(b)

to increase retail sales of the NMG Companies;

 

(c)

to maintain or improve customer insight through data acquisition and analysis;

 

(d)

to maximize Program economics while minimizing operational costs or complexity; and

 

(e)

to leverage the Program to identify existing and potential NMG Shoppers, develop and deepen relationships with NMG Shoppers and finance retail sales growth.

 

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3.2 Management Committee .

 

(a) Establishment of the Management Committee . NMG, on behalf of the NMG Companies, and Bank hereby establish a committee (the “ Management Committee ”) to oversee and review the conduct of the Program pursuant to this Agreement and to perform any other action that, pursuant to any express provision of this Agreement, requires its action.

 

(b) Subcommittees of the Management Committee . The Management Committee may designate additional committees (which may include persons who are not members of the Management Committee) with responsibility for overseeing and administering specified aspects of the Program (e.g., marketing, underwriting and risk management); provided , however , that approval of any matter expressly required by this Agreement to be approved by the Management Committee shall not be delegated to any subcommittee or other body.

 

(c) Composition of the Management Committee . The Management Committee shall consist of eight (8) members, of whom four (4) members shall be nominated by NMG (the “ NMG Designees ”) and four (4) members shall be nominated by Bank (the “ Bank Designees ”). The initial NMG Designees and Bank Designees will be designated prior to the Effective Date. Each Party shall designate its Managers to serve as one of its designees on the Management Committee. Each Party shall at all times have as one of its designees the Person with overall responsibility for the performance of the Program within his or her respective corporate organization, which in the case of Bank, shall be the Chief Financial Officer or Chief Operating Officer of the private label Credit Card business of Bank. NMG shall designate among its designees to the Management Committee the senior executive of NMG responsible for the Program Loyalty Programs and at least one executive officer of NMG. Bank and NMG may each substitute its designees to the Management Committee from time to time so long as their designees continue to satisfy the above requirements, provided that each Party shall provide the other Party with as much prior notice of any such substitution as is reasonably practicable under the circumstances.

 

(d) Functions of the Management Committee . The Management Committee shall:

 

(i)

oversee Program marketing activities, including review and approval of the Marketing Plan;

 

(ii)

review collection strategies and collection metrics;

 

(iii)

monitor activities of competitive programs and identify implications of market trends;

 

(iv)

approve the use of any third party (e.g., subcontractor or outsourced service provider), other than any Affiliate of NMG or Bank, as the case may be, to perform any of the obligations to be performed by Bank or the NMG Companies under the Program, in each case, except to the extent (x) subcontracted or outsourced as of the Effective Date or (y) such subcontracted or outsourced service would not involve direct contact between such third party and any Cardholder (i.e., in person, via telephone or in writing) it being agreed and understood that the subcontracting or outsourcing of such services (which may include print shops and mail vendors) would be within the sole discretion of the respective Party who elects to subcontract or outsource such service;

 

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(v)

evaluate and approve changes to any of the following:

 

(A)

offering of new Credit Cards or Approved Ancillary Products, including Co-Branded Credit Cards, Non-Card Payment Plans or other payment products;

 

(B)

changes in Account terms, including any of the terms set forth on Schedule 4.7;

 

(C)

changes to the Risk Management Policies (which shall be submitted to the Management Committee together with the expected pro forma effects of such changes on the Program);

 

(D)

changes to the Operating Procedures; and

 

(E)

changes to the SLAs applicable to the Program;

 

(vi)

approve the design of Cardholder Documentation and any changes thereto;

 

(vii)

review customer service, collections and other servicing performance and reporting aspects of the Program against SLAs and other requirements of this Agreement;

 

(viii)

oversee compliance with Applicable Law, the Risk Management Policies, Operating Procedures and other Program operations and procedures;

 

(ix)

carry out such other tasks as are assigned to it by this Agreement or jointly by the Parties; and

 

(x)

pursuant to Section 12.4(b)(i)(B), resolve disputes that arise among the Parties with regard to the Program from time to time.

 

(e)

Proceedings of the Management Committee .

 

(i) Meetings and Procedural Matters . The Management Committee shall meet (in person or telephonically) not less frequently than monthly, provided that unless otherwise agreed by all Management Committee members, not less than one meeting per quarter shall be in person. In addition, any member of the Management Committee may call a special meeting by delivery of at least five (5) Business Days’ prior notice to all of the other members of the Management Committee, which notice shall specify the purpose for such meeting. Except to the extent expressly provided in this Agreement, the Management Committee (and any subcommittee formed by it) shall determine the frequency, place (in the case of meetings in person) and agenda for its meetings, the manner in which meetings shall be called and all procedural matters relating to the conduct of meetings and the approval of matters thereat.

 

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(ii) Actions .

 

(A) Management Committee and subcommittee action shall be taken by majority vote of the committee members constituting the full committee (including any vacancies).

 

(B) If a majority of the Management Committee members constituting the full Management Committee (including any vacancies) fail to agree on any matter of significance to the Program (an “ Unapproved Matter ”) within ten (10) Business Days after the relevant initial vote (and in the case of a subcommittee vote, the Management Committee has attempted to resolve such matter for at least ten (10) Business Days after the relevant subcommittee vote and has failed to so), then initially the Chief Executive Officer of HSBC Retail Services and Senior Vice President, General Counsel and Secretary of NMG (or any other similarly ranking officer of Bank or NMG, as the case may be, who is not a Management Committee member and shall have been designated in writing by NMG or Bank, as applicable, to the other Party) shall in good faith attempt to resolve the matter. Any such resolution by such senior officers shall be deemed to be the action and approval of the Management Committee for purposes of this Agreement. If after ten (10) Business Days, the Unapproved Matter remains unresolved by such senior officers of NMG and Bank, the failure to agree shall constitute a deadlock. In the event of a deadlock, the final decision shall rest with NMG in the case of NMG Matters and with Bank in the case of Bank Matters, each of which shall, except as otherwise provided herein, exercise its discretion reasonably and in good faith. If a deadlock should occur with respect to a matter that is neither an NMG Matter nor a Bank Matter, the matter shall be deemed rejected by the Management Committee.

 

(C) Notwithstanding the foregoing, no changes to the Account terms or any other Program terms described in Section 3.2(d)(v) shall be made before the first anniversary of the Effective Date without the approval by majority vote of the committee members constituting the full Management Committee (including any vacancies); provided, however, that (i) if a Party concludes that such a change is required by Applicable Law (as evidenced by a Legal Opinion), such Party may make such change without regard to this clause (C) if such Party would have final decision-making authority with respect to such change following the first anniversary of the Effective Date and (ii) at the request of NMG, Bank shall make the changes referred to in Schedule 3.2(e).

 

(D) Notwithstanding anything to the contrary contained herein, Bank shall not override any vote of the NMG Designees in a way that would result in any aspect of the Program being more onerous or less beneficial to the Cardholders or the NMG Companies than Comparable Partner Programs unless (i) Bank’s position on the issue is required by Applicable Law and (ii) Bank adopts, and certifies to the NMG Companies that it has adopted, the same position with respect to each of its other Comparable Partner Programs that are similarly impacted by such Applicable Law or to which such Applicable Law could similarly be applied.

 

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(iii) Customer Service Disputes . If at any time there shall be a material change in customer dispute patterns or volume, as evidenced by the monitoring procedures set forth in the Dispute Resolution and Service Profile Report Process section of the Operating Procedures, (A) NMG shall call, and the Parties shall attend, one or more Management Committee meetings to consider and vote upon a plan to remediate such customer service or other disputes, (B) the Parties shall negotiate in good faith for a period ending not less than ten (10) days following the date of such meeting, to arrive at a mutually agreeable remediation plan (or a shorter period if such a remediation plan is agreed to prior to the 10 ^th day), and (C) in the event such remediation plan is voted upon and approved, the Parties shall promptly implement such plan; provided , that in the event that such customer service or other disputes arise from a change in Account terms, NMG may request that any such Account terms be restored to the terms in effect prior to such customer service or other disputes and Bank shall implement such change in Account terms to the extent permitted by Applicable Law. If such changes in Account terms are implemented, the amount payable by Bank to NMG under Section 9.1(a)(i) shall be adjusted to reinstate the amounts previously payable pursuant to this Agreement in connection with such reinstated terms. If such customer service or other disputes remain uncured on the tenth (10 ^th ) day following the implementation of such Management Committee-approved remediation plan or such other date determined by the Management Committee as reasonably required to implement such remediation plan, NMG shall call, and the Parties shall attend, one or more Management Committee meetings to consider and vote upon an alternative plan to remediate such customer service or other disputes. In the event that the Management Committee is unable to agree to a plan to remediate such customer service or other disputes within the ten (10) days following any meeting called by NMG pursuant to this Section 3.2(e)(iii), it shall be considered an Unapproved Matter.

 

(f) NMG Matters . In accordance with and subject to this Section 3.2, NMG shall have the ultimate decision making authority with respect to any Unapproved Matters in respect of the following matters (the “ NMG Matters ”):

 

(i) design of the Cardholder Documentation and collateral aesthetics; provided that changes to the design or content of Cardholder Documentation (other than Billing Statements) that require a material increase in production costs beyond the per unit cost in effect as of January 1, 2005 (as adjusted by CPI) shall not be adopted as an NMG Matter but shall require the approval of the Management Committee pursuant to Section 3.2(e)(ii)(A) unless NMG agrees to pay the cost of such increase;

 

(ii) look, feel and content of Billing Statements, except for content that is dictated by legal or regulatory requirements, as evidenced by a Legal Opinion;

 

(iii) the Marketing Plan and marketing and promotion of the Program;

 

(iv) any maintenance of, and improvements to, the NMG Systems used in connection with the Program, including any conversion to any Bank systems and any capital expenditures of NMG and its Affiliates for maintenance of, and improvements to, the NMG Systems used in connection with the Program;

 

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(v) the approval (in the sole discretion of NMG) of any new Credit Card products, including Co-Branded Credit Cards, Approved Ancillary Products, Non-Card Payment Plans or other products and services proposed to be offered to Cardholders and, in each case, the approval of any compensation payable to the NMG Companies in respect thereof; provided , that the economic terms and compensation arrangements related to such new products or services shall be acceptable to both Parties;

 

(vi) the design, implementation, modification or any changes to any terms of any Program Loyalty Program; provided that NMG shall continue to offer one or more Program Loyalty Programs to Cardholders throughout the Term and unless approved by majority vote of the full Management Committee (including any vacancies), such Program Loyalty Programs shall be the primary Loyalty Programs for the NMG Channels; and

 

(vii) communications and/or contacts with Cardholders (other than as required to service the Accounts, comply with Applicable Law or as otherwise provided in this Agreement), including use of telemarketing techniques by Bank.

 

(g) Bank Matters . In accordance with and subject to this Section 3.2, Bank shall have the ultimate decision making authority with respect to any Unapproved Matters in respect of the following matters (the “ Bank Matters ”):

 

(i) changes to Risk Management Policies (A) to the extent required by Applicable Law or safety and soundness considerations, in each case, as evidenced by a Legal Opinion or (B) in response to changes in the credit profiles for Account applicants from the profile specified in Schedule 3.2(g)(i);

 

(ii) changes to Account terms required by Applicable Law as evidenced by a Legal Opinion;

 

(iii) capital expenditures for maintenance of, and improvements to, the Bank Systems used in connection with the Program; and

 

(iv) content of Cardholder Documentation and Solicitation Materials that is dictated by Applicable Law, as evidenced by a Legal Opinion.

 

3.3 Program Relationship Managers; Program Team .

 

(a) The NMG Companies and Bank shall each appoint one Program relationship manager (each, a “ Manager ”). The Managers shall exercise day-to-day operational oversight of the Program, subject to the actions and decisions of the Management Committee, and coordinate the partnership efforts between the NMG Companies and Bank, shall report to the designees on the Management Committee of the Party appointing such Manager and shall conduct their Program responsibilities in accordance with the actions and decisions of the Management Committee. The NMG Companies and Bank shall endeavor to provide stability and continuity in the Manager positions and each Party’s other Program personnel.

 

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(b) The initial Manager of the NMG Companies is set forth in Schedule 3.3.

 

(c) The initial Manager of Bank is set forth in Schedule 3.3. The Bank’s Manager shall report directly to the Bank’s Managing Director-Client Relations. The Bank’s Manager’s performance-based compensation shall be based upon the Program Objectives and other specific annual targets and objectives set by the Management Committee, including Program profitability targets. The appointment of a new Manager by Bank is subject to the prior approval of NMG. With respect to future Bank Manager candidates, Bank shall seek to propose candidates with substantial Program relevant experience, including experience with the department store industry, comparable customer demographics and loyalty programs.

 

(d) Bank shall maintain a Program team having Competitive expertise and experience and meeting the requirements and specifications set forth in Schedule 3.3. No member of the Bank’s Program team shall be reassigned to any program operated by Bank or any of its Affiliates pursuant to any agreement or arrangement with any retail store competitor designated annually by the Management Committee, including those listed in Schedule 3.3(d), without the approval of NMG.

 

ARTICLE IV

 

PROGRAM OPERATIONS

 

4.1 Operation of the Program .

 

(a) Each of the Parties hereto shall perform its obligations under this Agreement (i) in compliance with the terms and conditions of this Agreement, the Risk Management Policies, the Operating Procedures and any other policies, procedures and practices adopted pursuant to this Agreement, (ii) in good faith, (iii) in accordance with Applicable Law, and (iv) in a manner consistent with the Program Objectives.

 

(b) The initial Operating Procedures applicable to various aspects of the operation of the Program shall be the operating procedures adopted by NMG, its Affiliates and the Licensees prior to the Effective Date (which operating procedures are attached hereto as Schedule 4.1(b)). Changes to such Operating Procedures shall only be made with the approval of the Management Committee; provided that changes to the Risk Management Policies may be made in accordance with Section 4.6 and Article III.

 

(c) Except as expressly provided otherwise in this Agreement, Bank shall use commercially reasonable efforts to ensure that the personnel and other resources (including Systems and other technology resources) devoted by Bank to the Program shall be Competitive.

 

4.2 Certain Responsibilities of the NMG Companies .

 

(a) In addition to its other obligations set forth elsewhere in this Agreement, NMG agrees that during the Term it shall, either itself or through the Affiliate(s) to which it subcontracts the relevant functions:

 

(i) as provided in the Servicing Agreement, in its capacity as NMG Servicer, maintain a System to process Applications, using the underwriting and credit limit assignment policy set forth in the Risk Management Policies and the Operating Procedures, as maintained by NMG in effect as of January 1, 2005;

 

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(ii) as provided in the Servicing Agreement, in its capacity as NMG Servicer, maintain call centers to respond to inquiries from Cardholders and to deal with billing related claims and adjustments (including by making finance charge and late fee reversals), establish new Accounts or Account types, authorize transactions, and assign, increase and decrease credit lines, all in accordance with the Risk Management Policies and the Operating Procedures, in each case, as performed by NMG prior to January 1, 2005;

 

(iii) as provided in the Servicing Agreement, in its capacity as NMG Servicer, provide Account monitoring services, including identifying delinquencies, identifying collection efforts required, implementing credit-line adjustments, over limit authorizations and Account deactivation or cancellation;

 

(iv) as provided in the Servicing Agreement, in its capacity as NMG Servicer, handle collection and recovery efforts in respect of Accounts;

 

(v) solicit new Accounts through in-store instant credit procedures (in accordance with this Agreement) and display of Solicitation Materials (or Applications) in the NMG Channels pursuant to the Marketing Plan;

 

(vi) implement and administer the Marketing Plan in accordance with this Agreement;

 

(vii) receive In-Store Payments in accordance with procedures that comply with Applicable Law, subject to reimbursement from Bank for the processing of such payments as provided in this Agreement;

 

(viii) pay sales associate compensation relating to the solicitation of new Accounts;

 

(ix) continue to make available a Program Loyalty Program;

 

(x) as provided in the Servicing Agreement, in its capacity as NMG Servicer, process remittances from Cardholders;

 

(xi) until the Documentation Services Transition Date, as provided in the Servicing Agreement, in its capacity as NMG Servicer, prepare, process and mail Cardholder Billing Statements, Inserts, privacy policy notices, change in terms notices and other communications to Cardholders; and

 

(xii) as provided in the Servicing Agreement, in its capacity as NMG Servicer, produce and issue all new, replacement and reissued credit card plates related to the NMG Credit Cards and the Loyalty Cards.

 

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4.3 Certain Responsibilities of Bank .

 

(a) In addition to its other obligations set forth elsewhere in this Agreement, Bank agrees that during the Term it shall:

 

(i) extend credit (or cause one of its Affiliates to extend credit) on newly originated and existing Accounts in accordance with the Risk Management Policies and Operating Procedures;

 

(ii) comply (and cause its applicable Affiliates to comply) with the terms of the Cardholder Agreements, the Program Privacy Policies and all Cardholder opt-outs;

 

(iii) after the Systems Transition Date, provide any Account information required for the NMG Companies’ administration of any Loyalty Program;

 

(iv) in accordance with Section 7.2, after the Documentation Services Transition Date, prepare, process and mail Cardholder Billing Statements, Inserts, privacy policy notices, change in terms notices and other communications to Cardholders and perform any other Services required to be performed pursuant to this Agreement from time to time;

 

(v) provide training with respect to Program operations, including training of POS personnel and NMG Servicer personnel in the Bank’s policies and procedures with respect to the Program and in the use of any Bank Systems utilized in the Program;

 

(vi) to the fullest extent permitted by Applicable Law and Bank’s or its Affiliate’s agreements with third parties, as requested from time to time by NMG, provide transaction and experience information about cardholders of Bank’s and its Affiliates’ other Credit Card programs and customers of Bank’s and its Affiliates’ other consumer loan programs and assist the NMG Companies and their Affiliates in using such information to develop marketing plans for their businesses; and

 

(vii) to the fullest extent permitted by Applicable Law and Bank’s or its Affiliate’s agreements with third parties, as requested from time to time by NMG, permit the NMG Companies to solicit or offer NMG Goods and Services to cardholders of Bank’s and its Affiliates’ other Credit Card programs and customers of Bank’s and its Affiliates’ other consumer loan programs.

 

4.4 Ownership of Accounts; Account Documentation .

 

(a) Except to the extent of the NMG Companies’ ownership of the NMG Licensed Marks, Bank shall be the sole and exclusive owner of all Accounts and Account Documentation and shall have all rights, powers, and privileges with respect thereto as such owner; provided that Bank shall exercise such rights consistent with the provisions of this Agreement and Applicable Law. All purchases of NMG Goods and Services in connection with the Accounts and the Cardholder Indebtedness shall create the relationship of debtor and creditor between the relevant Cardholder and Bank, respectively. The NMG Companies acknowledge and agree that (i) they have no right, title or interest (except for their right, title and interest in the NMG Licensed Marks and their option to purchase the Program Assets under Section 17.2) in or to, any of the Accounts or Account Documentation or any proceeds of the foregoing, and (ii) Bank extends credit directly to Cardholders.

 

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(b) Except as expressly provided herein, Bank shall be entitled to (i) receive all payments made by Cardholders on Accounts and (ii) retain for its account all Cardholder Indebtedness and all other fees and income authorized by the Cardholder Agreements and collected with respect to the Accounts and Cardholder Indebtedness. Bank shall retain for its account any income from selling Approved Ancillary Products as shall have been approved by the Management Committee in connection with the approval of the offering of such Approved Ancillary Products.

 

(c) Bank shall fund all Cardholder Indebtedness on the Accounts.

 

(d) Bank shall have the exclusive right to effect collection of Cardholder Indebtedness, except as set forth in the Servicing Agreement, and shall notify Cardholders to make payment directly to it in accordance with its instructions; provided , however , that Bank at its option may make all collections for its account using a Program name which includes the name of NMG and, if Bank so elects, the name of Bank, and may direct all checks to be made payable to “NMG” or, with NMG approval, another name combined with the name NMG. NMG grants to Bank a limited power of attorney (coupled with an interest) to sign and endorse NMG’s name upon any form of payment that may have been issued in NMG’s name in respect of any Account.

 

(e) Notwithstanding the foregoing, the NMG Companies shall accept payments made with respect to an Account (i) in an NMG Store as provided in Section 8.3, (ii) by telephone through the ACH Pay by Phone system and (iii) online through the NMG Companies’ websites.

 

(f) With respect to all Account Documentation, and notwithstanding the purchase of such Account Documentation by Bank as of the Effective Date, NMG Servicer, shall continue to hold and retain the Account Documentation following the Effective Date as bailee for the sole benefit of Bank.

 

(i) From time to time following the Effective Date, NMG Servicer shall deliver such Account Documentation as requested by Bank. NMG Servicer will use reasonable efforts to accommodate Bank’s shorter requested time frames, but in any event such deliveries will be made no later than the following time frames: (i) for statements, 15 days; (ii) for non-cash payment information, 10 days; (iii) for cash payment information, 5 Business Days, (iv) for application information, 20 days; (v) for sales slips, 20 days; and (vi) for all other Account Documentation, 30 days. NMG Servicer shall effect delivery of the requested Account Documentation at its sole cost and expense, unless otherwise determined by the Management Committee; provided , that in connection with any litigation, all Account Documentation shall be provided within fifteen (15) days rather than the timeframes set forth above.

 

(ii) In discharging its bailment duties hereunder, NMG Servicer agrees to utilize such document storage, safekeeping and security methods in accordance with Applicable Law. All Account Documentation shall be housed at NMG Servicer’s operations centers or other facilities designated by NMG Servicer. Without limiting any of their obligations under this Agreement, NMG agrees to maintain the Account Documentation for a period that complies with the document retention policy set forth in Schedule 4.4(f).

 

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4.5 Branding of Accounts/Credit Cards/Cardholder Documentation/Solicitation Materials .

 

(a) The Cardholder Documentation and the Solicitation Materials shall be in the design and format proposed by the NMG Companies and approved by the Management Committee; provided that Bank shall be responsible for ensuring that the Cardholder Documentation and the Solicitation Materials comply with Applicable Law and for ensuring that the Solicitation Materials comply with the Cardholder Documentation.

 

(b) Bank shall be responsible for, and bear the cost of the design, development and delivery (other than delivery at NMG Channels) of the Cardholder Documentation; provided that, to the extent that changes to the design or format of Cardholder Documentation results in the per unit cost of such Cardholder Documentation being materially greater than (i) in the case of Cardholder Documentation other than Billing Statements, the cost in effect as of January 1, 2005 (as adjusted by CPI), and (ii) in the case of Billing Statements, the greater of such cost and the cost of producing statements having the specifications set forth in Schedule 7.3(a), the Management Committee shall allocate the increased costs resulting from such changes in Cardholder Documentation between the Parties.

 

(c) Bank shall issue a renewal NMG Credit Card and/or Loyalty Card to each Cardholder in accordance with the terms of any Loyalty Program at each scheduled NMG Credit Card and/or Loyalty Card renewal date (or earlier, at the direction of any NMG Company, if the Cardholder qualifies for an upgrade in any Loyalty Program).

 

(d) NMG Licensed Marks shall appear prominently on the face of the NMG Credit Cards. The NMG Credit Cards shall not bear Bank’s Licensed Marks except, in the case of a Dual-Line Credit Card, as required by the applicable Card Association; provided , however , the Bank’s name will appear on the back of the card in order to identify Bank as the credit provider under the Program, together with any other disclosures required by Applicable Law, and in the case of a Dual-Line Credit Card, as required by the applicable Card Association.

 

4.6 Underwriting and Risk Management .

 

(a) Bank shall accept or reject any Application based solely upon application of the then-current Risk Management Policies applicable to the relevant channel. Upon satisfaction of the applicable credit criteria set forth in the Risk Management Policies, Bank shall promptly establish a Private Label Credit Account, a Non-Store Account and/or a Non-Card Payment Plan, as applicable. The procedures for determining what type(s) of NMG Credit Cards and Accounts shall be issued upon receipt of each Application are set forth in the Risk Management Policies. Bank shall have the right, power and privilege to review periodically the creditworthiness of Cardholders to determine the range of credit limits to be made available to an individual Cardholder and whether or not to suspend or terminate credit privileges of such Cardholder; provided , however , that Bank shall only decrease credit limits or suspend or terminate credit privileges on an individual, case-by-case basis consistent with the then-current Risk Management Policies and Operating Procedures and in no event in a manner less favorable, in the aggregate, than its exercise of similar rights in connection with the Comparable Partner Programs.

 

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(b) The initial Risk Management Policies to be in effect as of the Effective Date are contained in the initial Operating Procedures. Each Party may propose modifications of any aspect of the Risk Management Policies, which modifications shall be made only upon approval in accordance with Article III.

 

(c) If the approval rate targets and other metrics referred to in Schedule 4.6(c) are not met and the credit profile of Account applicants has not adversely changed from that specified in Schedule 4.6(c), then Bank shall have thirty (30) days to modify the Risk Management Policies or otherwise adjust its practices to achieve such targets. If Bank does not make any such adjustments, or if such adjustments fail to result in all approval rate targets and other metrics once again being met by the 90 ^th day after the implementation of such adjustments, the NMG Companies shall have the right to terminate this Agreement pursuant to Section 15.2(h).

 

(d) The Parties shall each perform all commercially reasonable security functions in accordance with the Risk Management Policies to minimize fraud in the Program due to lost, stolen or counterfeit cards and fraudulent applications. The Parties each agree to use commercially reasonable efforts to cooperate with each other in such functions.

 

4.7 Cardholder Terms .

 

(a) The terms and conditions of all Purchased Accounts shall be the terms and conditions applicable to the Account type immediately prior to the Effective Date, including the terms and conditions set forth on Schedule 4.7, provided that, at the request of NMG, the Parties shall take such actions in accordance with this Agreement as may be required to convert the Accounts specified in Schedule 4.7 to the new terms and conditions specified in Schedule 3.2(e). Additional changes to the terms and conditions of the Accounts may be made only in accordance with Article III.

 

(b) The account numbers and BINs of all Purchased Accounts shall remain the same after the Effective Date.

 

4.8 Internet Services .

 

(a) Cardholder Website . Bank shall develop and maintain an NMG-branded website for Cardholders and potential Cardholders to be effective as of the Systems Transition Date, with the look and feel consistent with the NMG Companies’ websites (“ Program Website ”). The Program Website shall be accessed solely by means of links from the NMG Companies’ websites and shall contain or otherwise be associated with only such material and links as shall be agreed by the Management Committee from time to time. The NMG Companies will provide such links on (i) their home pages, (ii) their check-out pages, and (iii) such other pages as the Management Committee shall determine from time to time. The Program Website shall also include links back to the NMG Companies’ websites, on the Program Website home page and such other pages as the Management Committee shall determine from time to time. The Program Website shall include the following functions, and such other functions as may be approved by the Management Committee from time to time (the Program Website and such functionality, collectively, the “ Internet Services ”).

 

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(i) Applications . The Program Website shall permit potential Cardholders to access an Application, to complete and submit the Application online and receive real-time approvals or denials of such Application in accordance with the Risk Management Policies and Operating Procedures. Without limiting the foregoing, the Application function on the Program Website shall have at a minimum all features and functionality available on any NMG Company’s website prior to the Effective Date.

 

(ii) Cardholder Customer Service . The Program Website shall permit Cardholders to (A) view the Cardholder’s Account information and Billing Statements (including any Loyalty Program information, NMG Transaction information, and all other information contained in such Billing Statement); (B) to the extent requested by, and provided to the Bank by, NMG, view electronic copies of sales slips or other documents or data relating to the Cardholder’s NMG transactions, including the Cardholder’s signature; and (C) make payments on the Cardholder’s Account via automated clearing house transfer or other payment mechanism.

 

(b) Performance Standards . Bank shall provide the Internet Services consistent with the SLAs set forth on Schedule 4.8(b) and in accordance with industry standards.

 

(c) Customer Privacy . Bank shall ensure that the Privacy Policy is clearly and prominently posted on the pages of the Program Website.

 

(d) Internet Services Representations and Warranties . Bank represents and warrants as of the Systems Transition Date and during the Term of this Agreement that:

 

(i) the Program Website is solely under Bank’s control (subject to the NMG Companies’ rights under this Agreement); and

 

(ii) Bank has the license, right or privilege to use the hardware, software and content acquired from third parties for use in the Internet Services, and that it is the owner of all other hardware, software and content used in the Internet Services and that neither the Internet Services as a whole, nor any part thereof, infringes upon or violates any patent, copyright, trade secret, trademark, invention, proprietary information, nondisclosure or other rights of any third party.

 

4.9 Sales Taxes . NMG and its Subsidiaries shall pay when due any sales taxes relating to the sale of NMG Goods and Services. To the extent permitted by the Applicable Law of the relevant states, NMG shall use commercially reasonable efforts to recover sales taxes charged to any Account that has been written off by Bank. Bank shall notify the NMG Companies of any amounts written-off on Accounts by Bank, identified by Account, and shall sign such forms and provide any such other information as requested by NMG to enable the NMG Companies to pursue any such recoveries. NMG shall pay to Bank an amount equal to recovered sales taxes. To the extent Bank is permitted by Applicable Law to directly recover sales taxes charged to any Account written off by Bank, the NMG Companies shall sign such forms and provide any such other information as reasonably requested by Bank to enable Bank

 

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to pursue any such recoveries. In the event NMG is audited or assessed by a state, and as a result any amount of sales tax previously recovered is repaid to the state, Bank shall repay such amount to NMG. NMG shall use commercially reasonable efforts to negotiate such audit or assessment. Bank also shall fully cooperate in any such audit or assessment and shall pay the costs and expenses of NMG incurred in connection with negotiating any tax audit or assessment or analyzing or pursuing any bad debt claims.

 

4.10 Participation in Reversals .

 

(a) Reporting of Reversals . Each Year-End Settlement Statement shall set forth a calculation of the applicable Finance Charge Reversal Percentage and Late Fee Reversal Percentage for the preceding Fiscal Year and such other calculations as are necessary to calculate the payment in respect thereof to be made by the Parties pursuant to this Section 4.10. All amounts payable pursuant to this Section shall be netted against each other so that only a single payment shall be made pursuant to this Section.

 

(b) Finance Charge Reversals . If the Finance Charge Reversal Percentage with respect to the Private Label Accounts reflected in the Year-End Settlement Statement with respect to the preceding Fiscal Year is greater than the applicable High Collar, the NMG Companies shall pay Bank an amount equal to (A) the Finance Charge Reversal Percentage with respect to the Private Label Accounts minus the applicable High Collar, multiplied by (B) the aggregate amount of all finance charges assessed on the Private Label Accounts during such preceding Fiscal Year. If the Finance Charge Reversal Percentage with respect to the Private Label Accounts for such Fiscal Year is less than the applicable Low Collar, Bank shall pay the NMG Companies an amount equal to (A) the applicable Low Collar minus the Finance Charge Reversal Percentage with respect to the Private Label Accounts, multiplied by (B) the aggregate amount of all finance charges assessed on the Private Label Accounts during such preceding Fiscal Year.

 

(c) Late Fee Reversals . If the Late Fee Reversal Percentage with respect to the Private Label Accounts reflected in the Year-End Settlement Sheet with respect to the preceding Fiscal Year is greater than the applicable High Collar, the NMG Companies shall pay Bank an amount equal to (A) the Late Fee Reversal Percentage with respect to the Private Label Accounts minus the applicable High Collar, multiplied by (B) the aggregate amount of all late fees assessed on the Private Label Accounts during such preceding Fiscal Year. If the Late Fee Reversal Percentage with respect to the Private Label Accounts for such Fiscal Year is less than the applicable Low Collar, Bank shall pay the NMG Companies an amount equal to (A) the applicable Low Collar minus the Late Fee Reversal Percentage with respect to the Private Label Accounts, multiplied by (B) the aggregate amount of all late fees assessed on the Private Label Accounts during such preceding Fiscal Year.

 

4.11 Interest Free Accounts . Bank shall offer and support interest free Accounts in accordance with this Agreement and, subject to the limitations set forth in this Section 4.11, the cost of maintaining such interest free Accounts shall be borne by Bank. The Year-End Settlement Sheet for each Fiscal Year shall set forth, (i) Average Private Label Receivables, (ii) Average Interest Free Receivables and (iii) the Net Yield for such Fiscal Year calculated on all Billed Cardholder Debt. If the dollar amount of Average Interest Free Receivables as a

 

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percentage of Average Private Label Receivables for such Fiscal Year exceeds the applicable High Collar, there shall be included on the Year-End Settlement Sheet for such Fiscal Year (and the NMG Companies shall pay to Bank) an amount equal to (A) Net Yield, divided by (B) the Average Private Label Receivables less Average Interest Free Receivables for such Fiscal Year, multiplied by (C) the dollar amount by which Average Interest Free Receivables for such Fiscal Year exceeded the High Collar. If the dollar amount of Average Interest Free Receivables as a percentage of Average Private Label Receivables for such Fiscal Year is less than the Applicable Low Collar, there shall be included on the Year-End Settlement Sheet (and Bank shall pay to the NMG Companies) an amount equal to (A) Net Yield, divided by (B) the Average Private Label Receivables less Average Interest Free Receivables for such Fiscal Year, multiplied by (C) the dollar amount by which Average Interest Free Receivables for such Fiscal Year was less than the Low Collar.

 

ARTICLE V

 

MARKETING

 

5.1 Promotion of Program . In accordance with the Marketing Plan, the NMG Companies and Bank shall cooperate with each other and actively support and promote the Program to both existing and potential Cardholders.

 

5.2 Marketing Commitment .

 

(a) On the Effective Date and no later than the first (1 ^st ) Business Day of each subsequent Fiscal Year, Bank shall pay to NMG an amount equal to the NMG Marketing Commitment for such Fiscal Year, which amount shall be deposited into a marketing fund maintained by NMG (the “ NMG Marketing Fund ”).

 

(b) The NMG Marketing Fund shall be used by NMG and its Affiliates in the sole discretion of NMG for such incremental marketing of the Program and the Credit Card Business as NMG and its Affiliates shall undertake from time to time.

 

(c) Each Monthly Settlement Sheet shall set forth an accounting of the costs incurred, if any, by NMG and its Affiliates in the prior Fiscal Month which were paid out of the NMG Marketing Fund. To the extent that the expenditures of the NMG Marketing Commitment by NMG and its Affiliates in any Fiscal Year exceed the amount in the NMG Marketing Fund, the NMG Companies shall be entitled to reimbursement from the NMG Marketing Fund for the following Fiscal Year but not in excess of 10% of such Fiscal Year’s NMG Marketing Fund. Any amount in the NMG Marketing Fund for a given Fiscal Year that is not spent in that Fiscal Year shall remain available for use during the Term.

 

(d) Bank hereby agrees to credit a joint marketing fund maintained by Bank (the “ Joint Marketing Fund ”), no later than the first (1 ^st ) Business Day of each Fiscal Year, with an amount equal to the Joint Marketing Commitment. The Joint Marketing Commitment shall be used as set forth in the Marketing Plan and as otherwise directed by the Management Committee from time to time. The NMG Companies and Bank shall each provide to the other for inclusion in the Monthly Settlement Sheet, an accounting of such Party’s and its Affiliates’ use of the Joint

 

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Marketing Commitment in the prior Fiscal Month, and Bank shall reimburse the NMG Companies for such amounts used by NMG and its Affiliates, and shall reduce the amount remaining in the Joint Marketing Fund by the amounts used by Bank and its Affiliates. Any amount in the Joint Marketing Fund for a given Fiscal Year that is not spent in that Fiscal Year shall remain available for use at the direction of the Management Committee during the Term.

 

5.3 Communications with Cardholders .

 

(a) NMG Inserts . NMG and its Affiliates shall have the exclusive right to communicate with Cardholders, except for any message required by Applicable Law, through use of inserts, fillers and bangtails (which shall be included on all billing envelopes) (collectively, “ Inserts ”), including Inserts selectively targeted for particular segments of Cardholders, in any and all Billing Statements (including electronic Billing Statements) and envelopes, subject to production requirements contained in the Operating Procedures and Applicable Law. Except as otherwise provided in the Marketing Plan, and except for Inserts required by Applicable Law (which shall be paid for by Bank), the NMG Companies shall be responsible for the content of, and the cost of preparing and printing, any such Inserts. If the insertion of Inserts in particular Billing Statements would increase the postage costs for such Billing Statements, the NMG Companies agree to either pay for the incremental postage cost or prioritize the use of Inserts to avoid postage cost over-runs. The NMG Companies shall retain all revenues they receive from all Inserts (other than any Inserts promoting the NMG Credit Cards or Approved Ancillary Products that the NMG Companies may permit to be produced and distributed in accordance with the Marketing Plan). Subject to NMG’s prior written approval, which shall not be unreasonably withheld, Bank may communicate with Cardholders in the Inserts about the Program as necessary for Bank to comply with its obligations under this Agreement.

 

(b) Billing Statement Messages . NMG and its Affiliates shall have the exclusive right to use Billing Statement (including electronic Billing Statement) messages and Billing Statement envelope (or electronic mail) messages in each Billing Cycle to communicate with Cardholders, subject to production requirements contained in the Operating Procedures and Applicable Law. Such messages shall be included at no cost to the NMG Companies. Notwithstanding the foregoing, any message required by Applicable Law shall take precedence over NMG’s and its Affiliates’ messages. Subject to NMG’s prior written approval, which shall not be unreasonably withheld, Bank may communicate with Cardholders about the Program in the Billing Statements as necessary for Bank to comply with its obligations under this Agreement.

 

5.4 Additional Marketing Support .

 

(a) Upon the request of NMG from time to time, Bank shall perform the following marketing functions at no cost or expense to the NMG Companies:

 

(i) subject to Applicable Law and any contractual prohibitions to which Bank or its Affiliates are subject:

 

(A)

use Bank’s and its Affiliates’ databases, analytic tools and market research and Bank’s marketing support services to assist NMG and its Affiliates in their promotion of the NMG Channels, or the marketing and promotion of NMG Goods and Services, the NMG Credit Cards or the Non-Card Payment Plans;

 

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(B)

conduct mailings and other related marketing efforts on behalf of NMG and its Affiliates, which may include marketing materials promoting the Program, the NMG Credit Cards and Non-Card Payment Plans, the NMG Channels and/or the NMG Goods and Services at NMG’s option, based upon the customer databases and customer database analysis tools maintained by Bank and its Affiliates, including nonpersonally identifiable transaction and experience data from Bank’s and its Affiliates’ Credit Card, other consumer loan portfolio and other customer databases; provided that (unless such amounts are paid out of the NMG Marketing Fund or are paid out of the Joint Marketing Fund pursuant to the Marketing Plan) the NMG Companies shall be responsible for all out-of-pocket expenses of all marketing materials and mailing services at cost;

 

(ii) provide such reasonable assistance to NMG and its Affiliates as NMG may request in connection with the training of personnel of NMG and its Affiliates regarding the Program, including providing training materials developed by Bank and approved by the Management Committee;

 

(iii) collaborate with the NMG Companies to identify and test marketing initiatives (using Bank’s resources); provided that (unless such amounts are paid out of the NMG Marketing Fund or are paid out of the Joint Marketing Fund pursuant to the Marketing Plan) the NMG Companies shall be responsible for all out-of-pocket expenses of test marketing at cost requested in connection with the Program; and

 

(iv) provide models and modeling support, which may include Cardholder attrition models, prospect marketing models and other tools designed to improve Program performance.

 

(b) Following the Effective Date, Bank shall, at its sole expense, retain a mutually agreed upon third party to conduct surveys of Cardholder perception and satisfaction on a regular, periodic basis regarding the NMG Credit Cards and the Program but in no event less frequently than annually. Such surveys shall be in a form and employ reasonable methodologies developed in consultation with the NMG Companies and shall provide for a level of information reasonably acceptable to NMG. Bank shall make available to the NMG Companies the results of such surveys as well as all associated work papers promptly following completion thereof.

 

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5.5 Approved Ancillary Products . Except for the Approved Ancillary Products, the NMG Credit Cards and the Non-Card Payment Plans, Bank and its Affiliates shall not offer (except as directed by NMG) any goods or services to Cardholders or through the Program. From time to time, Bank may propose to solicit Cardholders for products or services other than the foregoing. If the NMG Companies, in their sole and absolute discretion, agree to permit such solicitation, such solicitation shall only be permitted on the terms (including terms relating to the compensation of the NMG Companies with respect thereto) agreed by the NMG Companies.

 

5.6 Marketing Plan .

 

(a) Following the date hereof NMG, in consultation with Bank, shall develop a proposed Marketing Plan for the first Fiscal Year. Within thirty (30) days after the Effective Date, the Management Committee shall approve such Marketing Plan for the first Fiscal Year. For each Fiscal Year following the first Fiscal Year, the NMG Companies shall develop, in consultation with Bank, and on or before ninetieth (90th) day prior to the commencement of such Fiscal Year, the Marketing Committee shall approve a Marketing Plan for such Fiscal Year.

 

(b) At least once per calendar year, the Management Committee shall consider (to the extent such terms and conditions are publicly known or otherwise known and not subject to any confidentiality obligations on the part of either Party) features, terms, conditions and other aspects of other Comparable Partner Programs and Competing Partner Programs in order to identify marketplace developments for possible inclusion in the Program to ensure that the Program remains Competitive. If the Management Committee determines that a change to the Program may be required, Bank shall develop a plan with respect to implementation of such change, including the impact the proposed change would have, if any, on the revenue share, and shall present such plan to the Management Committee for its review and decision. The Management Committee shall decide whether to test or launch any such Program changes for Cardholders or potential Cardholders.

 

(c) Each Marketing Plan shall outline, for each NMG Channel, all programs, to the extent established and mutually agreed upon by the NMG Companies and Bank, and shall include at least the following information for each program:

 

(i) description of offer(s), cost per unit, expected response rate and other performance projections with respect thereto;

 

(ii) description of target audience;

 

(iii) planned budget, specifying Bank’s share and the NMG Companies’ share, if any;

 

(iv) distribution among the NMG Channels and types of Accounts; and

 

(v) target implementation date (e.g., mailing dates, calling dates, delivery dates).

 

(d) Each Marketing Plan shall address development of Solicitation Materials and Account Documentation; new Account acquisition strategies, including direct mailing;

 

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preparation of unique collateral materials for the NMG Companies’ employees; activation, retention and usage; statement design and messaging; advertising of the Program; and such other marketing matters as the Parties shall agree to.

 

(e) Each Marketing Plan shall specify which Party is responsible for each Marketing Plan item and shall contain a budget specifying the Parties’ financial responsibilities during the applicable Fiscal Year.

 

(f) Any Marketing Plan may be modified or supplemented by the Parties from time to time upon mutual agreement, provided such modifications or supplements, as the case may be, are approved by the Management Committee.

 

(g) To the extent practicable, all significant marketing initiatives developed under this Agreement shall contain unique marketing source codes to facilitate post-marketing research and analysis.

 

ARTICLE VI

 

CARDHOLDER INFORMATION

 

6.1 Customer Information .

 

(a) All sharing, use and disclosure of Cardholder Data and NMG Shopper Data under this Agreement shall be subject to the provisions of this Article VI. The Parties acknowledge that the same or similar information may be contained in the Cardholder Data, the NMG Shopper Data, and other data and that each such pool of data shall therefore be considered separate information subject to the specific provisions applicable to that data hereunder.

 

(b) NMG and Bank shall each maintain an information security program that is designed to meet all requirements of Applicable Law, including, at a minimum, maintenance of an information security program that is designed to: (i) ensure the security and confidentiality of the Cardholder Data and the NMG Shopper Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Cardholder Data and the NMG Shopper Data; (iii) protect against unauthorized access to or use of the Cardholder Data and the NMG Shopper Data; and (iv) ensure the proper disposal of Cardholder Data and NMG Shopper Data. Additionally, such security measures shall meet current industry standards and shall be at least as protective as those used by each Party to protect its other confidential customer information. Each Party shall use the same degree of care in protecting the Cardholder Data and the NMG Shopper Data against unauthorized disclosure as it accords to its own confidential customer information, but in no event less than a reasonable standard of care. In particular, Bank shall treat NMG Shopper Data as if it were “customer information” for purposes of the regulations above. In the event a Party becomes aware of any unauthorized use of or access to Cardholder Data, such Party shall immediately notify the other Party and shall cooperate with such other Party, as it deems necessary or as required by Applicable Law, (x) to assess the nature and scope of such incident, (y) to contain and control such incident to prevent further unauthorized access to or use of Cardholder Data, and (z) to provide prompt notice to affected Cardholders to the extent required by Applicable Law or otherwise with the approval of the Management

 

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Committee. In the event Bank becomes aware of any unauthorized use of or access to NMG Shopper Data, Bank shall immediately notify the NMG Companies and shall cooperate with them, as they deem necessary or as required by Applicable Law, (x) to assess the nature and scope of such incident, (y) to contain and control such incident to prevent further unauthorized access to or use of NMG Shopper Data, and (z) to provide prompt notice to affected NMG Shoppers to the extent required by Applicable Law or otherwise with the approval of the Management Committee. The cost and expenses of any such notice shall be borne solely by the Party that experienced the unauthorized use of or access to Cardholder Data or NMG Shopper Data.

 

(c) The NMG Companies shall, subject to Applicable Law, promptly provide to Bank a complete list of any Persons who (i) after the Effective Date, have requested to be on the NMG Compa