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BANKCARD MARKETING AGREEMENT
This Bankcard Marketing Agreement (the "Agreement") is made and entered
into this 2d day of October, 1997, by and between SERVICE ONE INTERNATIONAL
CORPORATION, a South Dakota corporation, doing business as TCS Services, Inc.
("Marketer"), and FIRST NATIONAL BANK IN BROOKINGS ("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.
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.
Cardholder. Cardholder means a person who has been issued a Card by
Bank and any person who is an authorized user of such Card.
Cardholder Account. Cardholder Account means any credit line provided
by Bank which is accessed through a Card.
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ISO. An independent sales organization selected by Bank and licensed by
VISA and/or MasterCard for the purpose of marketing Cardholder Accounts.
IMO. 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 bank card 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 shall perform all application
processing services for the Bankcard Program, including the management of the
application process, the evaluation of the creditworthiness
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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
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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 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
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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
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, or (ii) the failure of Marketer to
apply the underwriting criteria approved by Bank. 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 save Bank 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 Marketer and/or any
IMO under contract with Marketer, or from Marketer's breach of the terms and
conditions of this Agreement unless such claim, action, liability, judgments,
damages, costs and expenses 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.
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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:
(a) Either party may terminate this Agreement with or without
cause upon giving the other party sixty (60) days' written
notice.
(b) 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 the notice or, in the event of a breach that
cannot be cured within ten (10) days, has not in good faith
commenced to cure the breach within ten (10) days of such
notice.
(c) 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
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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.
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 Disclosure.
(a) Each party shall promptly notify the other of any action, suit
or proceeding, facts or circumstances, or the prospect or
threat of the same, which might materially adversely affect
either party's ability to perform this Agreement.
(b) Each party warrants and represents to the other that there are
no suits, actions, or legal, administrative, arbitration, or
other proceedings or government investigations pending against
either party or its parent or affiliates, or its officers,
directors, or employees or, to the knowledge of either party,
threatened against Marketer or Bank or its parent or
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affiliates, or its officers, directors, or employees, that
have not been previously disclosed in writing, and which might
materially adversely affect the financial condition of
Marketer or Bank, or the ability of Marketer or Bank to
perform this Agreement.
Section 6.2 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 6.3 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 6.4 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 6.5 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 6.6 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 6.7 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
throughout the term of this Agreement and shall be enforceable at law or in
equity against such party, its successors and assigns.
Section 6.8 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
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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 6.9 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: First National Bank in Brookings
2220 Sixth Street
P.O. Box 6000
Brookings, SD 57006
Attn: Card Center Manager
To Marketer: TCS Services, Inc.
P.O. Box 5217
Sioux Falls, SD 57117-5217
Attn: President
Section 6.10 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 6.11 Amendments. This agreement may be amended or otherwise
changed only in writing, signed by both parties.
Section 6.12 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.
Section 6.13 Headings. Captions and headings in this Agreement are for
convenience only, and are not to be deemed part of this Agreement.
Section 6.14 Non-Exclusivity. This Agreement is a non-exclusive
bankcard marketing agreement between the parties, and
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the parties hereto may enter into similar agreements with other persons or
entities at any time.
Section 6.15 Binding Arbitration. Any disputes arising hereunder shall
be submitted by the parties to binding arbitration to be conducted in the State
of South Dakota by a qualified, mutually acceptable arbitrator in accordance
with the rules governing commercial disputes established by the American
Arbitration Association. Any decision by the arbitrator shall be binding and
final on all parties. Use of the arbitration procedure under this Section shall
be the exclusive method of resolving disputes under this Agreement, unless
otherwise agreed by the parties. The parties agree that a court located in the
State of South Dakota may enter judgment upon any award made pursuant to a
decision of the arbitrator.
Section 6.16 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.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date set forth above.
MARKETER:
SERVICE ONE INTERNATIONAL CORPORATION
By /s/ Kevin T. Riordan
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Its President
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BANK:
FIRST NATIONAL BANK IN BROOKINGS
By /s/ [Illegible]
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Its Executive Vice President
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GUARANTY OF CREDIT STORE, INC.
The undersigned hereby guarantees the prompt payment and performance of
each of Marketer's obligations to Bank under this Agreement. This shall be an
absolute, irrevocable and unconditional guaranty of payment and performance, and
not a guaranty of collection. No set-off, counterclaim, recoupment, reduction or
diminution of any obligation, or any defense of any kind or nature which the
undersigned may have against Marketer, Bank, or any other party, shall be
available to, or shall be asserted by, the undersigned against Bank or Bank's
successors or assigns.
Notice of the acceptance of this guaranty, of nonpayment of Marketer's
obligations, of protest, demand or other remedy availed of hereunder is
expressly waived.
The undersigned hereby expressly consents to any renewal or extension
of this Agreement and no notice of any renewal or extension of this Agreement
need be given to the undersigned.
This Guaranty shall be binding upon the undersigned and upon its
successors and assigns, and shall inure to the benefit of Bank and its
successors and assigns.
Dated as of the date first written above.
CREDIT STORE, INC.,
a Delaware corporation
By /s/ Kevin T. Riordan
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Its President
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