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BANKCARD MARKETING AGREEMENT
This Bankcard Marketing Agreement (the "Agreement") is made and entered
into this 9th day of February, 1999, by and between THE CREDIT STORE, INC., a
Delaware corporation ("Marketer"), and Bank of Hoven, a commercial bank
chartered under the laws of the State of South Dakota ("Bank").
RECITALS:
WHEREAS, Bank is a duly registered principal member of VISA and
MasterCard and, as such, is authorized to establish VISA and MasterCard credit
card accounts; and
WHEREAS, Marketer is in the business of providing certain services
necessary for the marketing and application processing of MasterCard and VISA
credit card programs; and
WHEREAS, Bank desires to engage Marketer to provide the services set
forth herein,
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Marketer and Bank agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. The terms described below shall be defined as
set forth herein:
Account Agreement. Account Agreement means the agreement entered into
between the Bank and Cardholders governing the terms and use of the Card and the
Cardholder Account established pursuant to this Agreement.
Bankcard Program. Bankcard Program means the solicitation, marketing,
administration, supervision and processing of the Cards, Cardholder Accounts and
applications pursuant to this Agreement.
Card. Card means any VISA or MasterCard credit card issued by Bank in
connection with the Bankcard Program.
Cardholder. Cardholder means a person who has been issued a Card by
Bank and any person who is an authorized user of such Card.
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Cardholder Account. Cardholder Account means any credit line provided
by Bank which is accessed through a Card.
ISO. ISO means an independent sales organization selected by Bank and
licensed by VISA and/or MasterCard for the purpose of marketing Cardholder
Accounts.
IMO. IMO means an independent marketing, membership, or advertising
organization recommended by Marketer and approved by Bank to provide materials
or market credit card services for Bank.
MasterCard. MasterCard means MasterCard International, Inc., a Delaware
corporation.
Processor. Processor means any organization engaged in the business of
providing data processing services for bankcard systems.
Regulatory Authority. Regulatory Authority means any agency or entity
which shall have jurisdiction over the Bank's activities with respect to their
credit card program and shall include but not be limited to: the Office of the
Comptroller of the Currency, Office of Thrift Supervision, the Federal Reserve
Board, the Federal Deposit Insurance Corporation, VISA, MasterCard, or other
state or federal regulatory agencies.
Rules and Regulations. Rules and Regulations means all federal and
state statutes, regulations interpreting the same, orders or requirements of any
Regulatory Authority having jurisdiction over Bank or Marketer, and VISA and/or
MasterCard Bylaws and Operating Regulations, as any such statutes, regulations,
requirements, orders, or bylaws may be amended or in effect from time to time
during the term of this Agreement.
VISA. VISA means VISA USA, Inc., a Delaware corporation.
ARTICLE II.
MARKETING OF BANKCARD PROGRAM
Section 2.1 Duties of Marketer. Bank hereby appoints Marketer as its
marketing and sales representative to market VISA and MasterCard credit cards to
prospective Cardholders in accordance with this Agreement. Marketer shall locate
prospective Cardholders that Marketer believes to be likely candidates for the
Bankcard Program. Marketer shall obtain such information and documentation as
Bank may reasonably require on each prospective Cardholder, including an oral or
written application for a Cardholder Account (with written applications being
signed by the prospective Cardholder), such applications to be in a form
acceptable to Bank. Marketer agrees that it shall record each oral application
for a Cardholder Account. In addition, Marketer
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shall perform all application processing services for the Bankcard Program,
including the management of the application process, the evaluation of the
creditworthiness of Card applicants, the collection of application fees (if
any), notifications of denial of applications, and other related services. All
application processing shall be performed by Marketer in accordance with
applicable Rules and Regulations. In evaluating Card applications on behalf of
Bank, Marketer shall apply the underwriting criteria approved by Bank, a copy of
which is attached hereto and incorporated herein by reference as Exhibit A (the
"Credit Criteria and Standards"). Marketer shall also provide to Bank all credit
information and documentation in its possession that Bank may reasonably request
with respect to any applicant.
Section 2.2 Underwriting Criteria. Marketer and Bank have developed the
Credit Criteria and Standards applicable to the issuance of Cards. Bank shall
have the right to approve, disapprove or modify the Credit Criteria and
Standards and the policies and procedures used in connection with the
solicitation and evaluation of potential cardholders to ensure the safety and
soundness of Bank and the Bankcard Program.
Section 2.3 Bank to Approve All Cardholder Accounts. Marketer
acknowledges that approval of an application for a Cardholder Account creates a
customer relationship between Bank and Cardholder which involves, among other
things, the extension of credit, the collection of payments and disbursements of
funds to process and settle credit card transactions. Bank shall, in its sole
discretion, make the final decision as to whether or not to approve or decline
any Card application submitted to Bank in accordance with this Agreement.
Section 2.4 Ownership of Cards and Cardholder Accounts; Separate
Portfolio of Cards. All Cards, Cardholders, Cardholder Accounts, Account
Agreements and all related records shall be and remain the sole and exclusive
property of Bank, except as otherwise agreed by the parties in that certain
Purchase Agreement of even date herewith. Cards issued in connection with
applications procured through the efforts of Marketer or an IMO shall be
segregated from other credit cards issued by Bank and held by Bank in a separate
credit card portfolio with a BIN and ICA established for the sole and exclusive
use of Marketer.
Section 2.5 Other Marketing Organizations. Marketer may establish
contractual relationships with IMOs to market Cards on behalf of Marketer and
Bank. Each IMO must enter into a separate written agreement with Marketer, in
form and substance reasonably satisfactory to Bank, which provides that such IMO
will comply with all Rules and Regulations and the terms of this Agreement in
providing such services. All costs and fees incurred by Marketer or any IMO in
connection with this Section 2.5 shall be the responsibility of Marketer and
such IMO.
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Section 2.6 Compliance with Rules and Regulations. Bank and Marketer
each represents and warrants to the other that it is familiar with the
requirements of all applicable consumer protection laws and covenants, as well
as all Rules and Regulations, and agrees that it will comply with all such Rules
and Regulations, now and in the future. Marketer shall be responsible for
causing the Bankcard Program to be in compliance with all Rules and Regulations.
Section 2.7 Marketing Materials. Marketer shall use only such marketing
or advertising materials approved in writing by Bank that comply with this
Agreement and with all Rules and Regulations. Marketer shall keep such materials
updated as necessary to assure continued compliance with all such Rules and
Regulations. Marketer will cooperate and cause each IMO to cooperate with Bank
to the end that all required disclosures are made to prospective Cardholders and
that no statements inconsistent with law or the credit card criteria shall be
made to prospective Cardholders. No such material may identify Marketer unless
Marketer is prominently identified as an ISO of Bank and, if appropriate, as the
owner of previously charged-off debts. Marketer and all IMOs must identify Bank
as the issuing bank when marketing applications for Cards, whether by telephone
or in person.
Section 2.8 Card Pricing. Marketer shall consult with Bank as to the
terms and conditions of the Bankcard Program, including:
(a) the amount of any rebate to be paid to Cardholders, if any;
(b) the interest rate and balance computation method to be applied
to Cardholder Accounts;
(c) the annual account fee to be paid by Cardholders; and
(d) other fees to be imposed on Cardholders.
Section 2.9 System Changes and Operating Instructions. Bank and
Marketer shall jointly develop, subject to the Bank's final approval, operating
instructions governing the operation of the marketing and application processing
services provided by Marketer pursuant to this Agreement. Marketer shall not,
without giving prior notice to and obtaining approval of Bank, initiate
modifications of, additions to, or substitutions for practices and procedures
for delivering services to Bank where such change materially affects Bank's
procedures or reporting with respect to Bank's credit card program. Bank may
request, in writing, modifications to the operating instructions to meet its
requirements, and Marketer shall promptly make such modifications.
Section 2.10 Inspection. Information and records concerning Cardholders
or Card applications in the possession of Marketer shall be available for
inspection and audit by representatives of Bank and by applicable Regulatory
Authority upon
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reasonable notice and during normal business hours. All out of
pocket and incidental expenses incurred by either party to accommodate
inspection activities shall be paid for by the party requesting the inspection
activities.
Section 2.11 Cardholders Product and Service Offerings. Marketer shall
have the right, at its expense, to solicit Cardholders with offerings of
products and services and to insert offerings in monthly Cardholder statements
subject to the prior approval of Bank. Bank shall not knowingly market to
Cardholders any product or service, or contact Cardholders for any purpose
unrelated to the oversight and administration of the Marketer Card Portfolio
without Marketer's prior written approval.
Section 2.12 Bankcard Program Expenses.
(a) As between Bank and Marketer, unless otherwise agreed by the
parties (whether pursuant to the Purchase Agreement of even
date herewith between the parties or otherwise), Bank shall at
all times be solely responsible for all costs associated with
the operation of its credit card program which shall include,
but not be limited to: costs of Card manufacturing; costs of
printing Account Agreements, billing statements, and other
Bank statement messages; amounts outstanding under Cardholder
Accounts charged off as credit losses, such as losses
sustained as a result of a Cardholder's bankruptcy or refusal
to pay, a lost or stolen Card, or fraud; other losses,
including losses resulting from violations of Rules and
Regulations, VISA or MasterCard fines, or violations of
Account Agreements; Processor fees and Processor pass through
expenses; MasterCard and/or VISA license fees, quarterly
assessments, warning bulletin expenses, and any other fees or
special assessments.
(b) Marketer shall at all times be solely responsible for all
costs associated with the marketing and solicitation of new
applicants and the processing of applications which shall
include, but not be limited to: direct mail marketing costs,
radio (if any), television (if any), print media costs, credit
bureau reports, and other such costs associated with normal
operation of its obligations hereunder. Marketer shall also be
solely responsible for all fees payable by Marketer (and its
IMO's and agents) to VISA and MasterCard in connection with
its registration (and the registration of its IMO's and
agents) as an ISO with such organizations.
ARTICLE III.
INDEMNIFICATION
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Section 3.1 Bank Indemnification of Marketer. Bank agrees to indemnify
and save Marketer harmless from and against any and all claims, actions,
liability, judgments, damages, costs and expenses, including reasonable
attorneys fees, that may arise from the acts or omissions of Bank or Bank's
breach of the terms and conditions of this Agreement unless such claims,
actions, liability, judgments, damages, costs and expense, result from (i) the
negligence or willful misconduct of Marketer, (ii) the failure of Marketer to
apply the underwriting criteria approved by Bank, or (iii) the violation by
Marketer of any applicable law. Notwithstanding the foregoing, in no event shall
Bank be liable to Marketer for any losses suffered by Marketer as a result of
the uncollectibility of a Cardholder Account or fraud committed by persons other
than Bank.
Section 3.2 Marketer Indemnification of Bank. Marketer agrees to
indemnify and hold Bank harmless from any and all claims, actions, liability,
judgments, damages, costs and expenses, including reasonable attorneys' fees,
arising out of or in connection with the Bankcard Program including, without
limitation (i) Card marketing and advertising, (ii) credit risks, liability and
loss and regulatory compliance associated with Card issuance and Cardholders,
Card use and activity, (iii) any securitizing of the Bankcard Program, and (iv)
all third party expenses associated with the Bankcard Program, unless such
amounts indemnified hereunder result from the negligence or willful misconduct
of Bank.
Section 3.3 Notification. Each party shall promptly notify the other of
any suit or threat of suit of which that party becomes aware (except with
respect to a threat of suit one party might institute against the other) which
may give rise to a right of indemnification pursuant to this Agreement. The
indemnifying party will be entitled to participate in the settlement or defense
thereof. The indemnifying party and the indemnified party shall cooperate (at no
cost to the indemnified party) in the settlement or defense of any such claim,
demand, suit or proceeding.
Section 3.4 Survival. The terms of this Article III shall survive the
expiration or earlier termination of this Agreement.
ARTICLE IV.
TERMINATION
Section 4.1 Term. The initial term of this Agreement shall be for a
period of one (1) year commencing on the date of this Agreement, provided that
this Agreement shall automatically renew for successive one (1) year periods
unless one party provides to the other party a notice of non-renewal at least
sixty (60) days prior to the end of the initial term or any subsequent renewal
term.
Section 4.2 Termination. Notwithstanding the foregoing, either party
may terminate this Agreement as follows:
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(a) Either party may terminate this Agreement upon thirty (30)
days' written notice if the other party has materially
breached this Agreement and does not cure the breach within
ten (10) days of receipt of said notice or, in the event of a
breach that cannot be cured within 10 days, has not in good
faith commenced to cure the breach within ten (10) days of
such notice.
(b) Either party may terminate this Agreement immediately upon
written notice to the other party if a Regulatory Authority
demands that this Agreement be modified or terminated.
This Agreement shall terminate immediately upon the termination of the
Purchase Agreement of even date herewith between Bank and Marketer.
ARTICLE V.
CONFIDENTIAL INFORMATION
Section 5.1 Confidential Information. In performing their obligations
pursuant to this Agreement, each party may have access to and receive disclosure
of certain confidential information about the other party or parties, including
without limitation, the terms and conditions of this Agreement, the names and
addresses of a party's customers or members, marketing plans and objectives,
research and test results, and other information which is confidential and the
property of the party disclosing the information ("Confidential Information").
Confidential Information shall not include information in the public domain.
Bank and Marketer agree that Confidential Information shall be used by each
party solely in the performance of its obligations under this Agreement. Each
party shall receive Confidential Information in confidence and not disclose
Confidential Information to any third party, except as may be necessary to
perform its obligations hereunder or as may be otherwise agreed in writing by
the party furnishing the information. Upon request or upon any expiration or
termination of this Agreement, each party shall return to the other party or
destroy (as the latter may instruct) all of the latter's Confidential
Information which is in written or other recorded form, including data stored in
any computer medium. Confidential Information shall include, without limitation,
any and all marketing materials, status and performance reports, customer
information, Card information, operating manuals and guides, internal memoranda,
and other information relating to the marketing and servicing of any Marketer
Card Portfolio established pursuant to this Agreement. Notwithstanding the
foregoing, the Confidential Information may be disclosed (i) to the parties'
respective agents, employees and representatives that agree to be bound by the
terms and conditions hereof, and (ii) as may be required by legal process,
applicable law or regulatory authorities with jurisdiction over the parties
hereto. The terms of this Subsection 5.1 shall survive the termination of this
Agreement.
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Section 5.2 Protective Agreements. Each party shall require each
subcontractor having access to Confidential Information to agree in writing to
be bound by the provisions of this Article V prior to disclosure to such
subcontractor of any Confidential Information. Such party shall keep and
maintain such protective agreements and shall promptly provide the other parties
with copies thereof upon request.
Section 5.3 Survival. The terms of this Article shall survive the
expiration or earlier termination of this Agreement.
ARTICLE VI.
GENERAL PROVISIONS
Section 6.1 Due Incorporation and Legal Authority. Marketer warrants
and represents to Bank that it is duly organized and existing as of the date
this Agreement is executed, that all necessary consents and approvals have been
duly obtained, and that this Agreement does not conflict with any provision of
any applicable federal or state laws or regulations or any agreement binding
Marketer or its property or affairs.
Section 6.2 Licenses. Bank hereby agrees to maintain, at its sole
expense, a principal license with VISA and/or MasterCard and to pay any fees,
dues, or assessments associated therewith. Except as otherwise agreed by the
parties in that certain Purchase Agreement of even date herewith, Bank shall be
entitled to all income distributions from VISA and MasterCard to its members.
Section 6.3 Relationship of the Parties. Bank and Marketer agree that
in performing their responsibilities pursuant to this Agreement, they are in the
position of independent contractors. This Agreement is not intended to create,
nor does it create and shall not be construed to create, a relationship of
partner or joint venture or any association for profit between and among Bank
and Marketer.
Section 6.4 Governing Law. Except as preempted or controlled by federal
law, this Agreement shall be governed by and construed in accordance with the
laws of the State of South Dakota.
Section 6.5 Severability. In the event that any part of this Agreement
is ruled by any court or administrative or regulatory agency to be invalid or
unenforceable, then this Agreement shall be automatically modified to eliminate
that part which is affected thereby. The remainder of this Agreement shall
remain in full force and effect.
Section 6.6 Survival of Covenants, Warranties and Agreements. All
representations, warranties and agreements made by the parties hereto shall not
merge into any document associated herewith and shall survive and continue
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throughout the term of this Agreement and shall be enforceable at law or in
equity against such party, its successors and assigns.
Section 6.7 Assignment. This Agreement and the rights and obligations
created under it shall be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. This
Agreement shall not be assigned or transferred by any party without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed; provided, however, that (a) Marketer may assign its rights
hereunder to its wholly-owned subsidiary without the written consent of Bank
provided that such assignment shall not extinguish or limit Marketer's
liabilities or obligations under this Agreement, including, without limitation,
the indemnification obligations under Article III hereof and (b) Bank may assign
its rights and obligations hereunder to its affiliate without the written
consent of Marketer.
Section 6.8 Notices. All notices, requests, and approvals required by
this Agreement (i) shall be in writing, (ii) shall be addressed to the parties
as indicated below unless notified in writing of a change in address, and (iii)
shall be deemed to have been given either when personally delivered or when sent
by regular United States mail, in which event it shall be sent postage prepaid
upon delivery thereof, as follows:
To Bank: Bank of Hoven
202 Main Street
Hoven, SD 57450
Attn: President
To Marketer: THE CREDIT STORE, INC.
3401 North Louise Avenue
Sioux Falls, SD 57107
Attn: President
Section 6.9 Waiver. None of the parties shall be deemed to have waived
any of its rights, powers, or remedies hereunder unless such waiver is approved
in writing by the waiving party.
Section 6.10 Amendments. This agreement may be amended or otherwise
changed only in writing, signed by both parties.
Section 6.11 Counterparts. This Agreement may be executed and delivered
by the parties hereto in any number of counterparts, and by different parties on
separate counterparts, each of which counterpart shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same instrument.
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Section 6.12 Headings. Captions and headings in this Agreement are for
convenience only, and are not to be deemed part of this Agreement.
Section 6.13 Non-Exclusivity. This Agreement is a non-exclusive
bankcard marketing agreement between the parties, and the parties hereto may
enter into similar agreements with other persons or entities at any time.
Section 6.14 Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and
supersedes all prior or contemporaneous agreements, discussions, representations
or understandings relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date set forth above.
MARKETER:
THE CREDIT STORE, INC.
By______________________________
Its____________________________
BANK:
BANK OF HOVEN
By______________________________
Its____________________________