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PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made and entered into this 2d
day of October, 1997, by and between FIRST NATIONAL BANK IN BROOKINGS (the
"Bank") and SERVICE ONE INTERNATIONAL CORPORATION, a South Dakota
corporation, doing business as TCS Services, Inc. (the "Purchaser").
RECITALS:
WHEREAS, Bank will be the owner of certain VISA and MasterCard credit cards
(the "Cards") which will be marketed on behalf of the Bank by the Purchaser or
Purchaser's affiliate pursuant to the Bankcard Marketing Agreement (herein so
called) of even date herewith between the parties (all Cards issued by Bank as a
result of Purchaser's and its affiliate's marketing efforts are herein referred
to as the "Marketer Card Portfolio"); and
WHEREAS, Bank desires to sell, and Purchaser or the Purchasing Party (as
hereinafter defined) desires to buy, all of the outstanding loans and other
credit resulting from cash advances, purchases, balance transfers or any other
charges on the Cards in the Marketer Card Portfolio, together with all interest
income, finance charges, membership fees, usage fees, transaction charges, late
charges, overlimit charges, return check charges, and all other rights to
payment or compensation related to the Cards in the Marketer Card Portfolio (all
of the foregoing herein collectively referred to as the "Receivables"), all in
accordance with the terms and conditions of this Agreement,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I.
Purchase and Sale
Section 1.1 Purchase of Balance Transfer Amounts. Purchaser, or its
affiliate, or a third party reasonably acceptable to Bank for whom Purchaser is
acting as a marketer and servicer (each of the foregoing other than Purchaser
herein, a "Purchasing Party"), is the owner of defaulted consumer debt. Through
Purchaser's marketing efforts pursuant to the Bankcard Marketing Agreement,
certain obligors of such defaulted consumer debt may elect to balance transfer
all or a portion of their consumer debt to a Card in the Marketer Card
Portfolio. Provided that Purchaser has not defaulted in its obligations
hereunder or under the Bankcard Marketing Agreement, Bank shall purchase the
defaulted consumer debt of obligors that elect to balance transfer their debt to
their Card. The purchase price shall be
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the par value of the amount of the consumer debt that is balance transferred to
Cards. The purchase price payable by Bank under this Section 1.1 may be offset
by Bank against Purchaser's obligations under Section 1.4 below.
Section 1.2 Sale of Receivables. Bank hereby agrees that, subject to the
terms and conditions of this Agreement, it will sell, convey, transfer and
deliver to Purchaser or a Purchasing Party, on a daily basis (other than
weekends and Bank holidays), one hundred percent (100%) of the Receivables
outstanding in connection with the Marketer Card Portfolio which have not
previously been sold to Purchaser or a Purchasing Party hereunder. The
Receivables purchased and sold hereunder shall be sold free and clear of all
liens, mortgages, obligations or encumbrances incurred as a result of Bank's
ownership of the Receivables. The Receivables are sold without recourse against
the Bank, and Purchaser and Purchasing Party shall look solely to the Marketer
Card Portfolio for its return of and on investment.
Section 1.3 Agreement to Purchase. Purchaser hereby agrees that, subject to
the terms and conditions of this Agreement, Purchaser or a Purchasing Party will
purchase and accept delivery and conveyance from Bank of, on a daily basis
(other than weekends and Bank holidays), one hundred percent (100%) of the
Receivables outstanding in connection with the Marketer Card Portfolio which
have not previously been purchased by Purchaser or a Purchasing Party hereunder.
The Receivables shall be conveyed free and clear of all liens, mortgages,
obligations or encumbrances incurred as a result of Bank's ownership of the
Receivables. Purchaser, for itself and on behalf of each Purchasing Party,
acknowledges that only the Receivables generated by the Marketer Card Portfolio
are being acquired and that ownership of the Cards is to be maintained by the
Bank, subject to Section 4.1 hereof.
Section 1.4 Purchase Price. The purchase price for the Receivables shall be
the par value of the amounts balance transferred to Cards, plus all cash
advances and purchases on the Cards in the Marketer Card Portfolio. The purchase
price for these daily purchases of Receivables shall be paid in cash or by wire
transfer on the date of the purchase.
Section 1.5 Fixed Fee; Base Fee. In consideration of Bank's agreement to
sell the Receivables to Purchaser, Purchaser shall pay Bank a fee of $1.50 per
Card for the first 14,000 Cards, $1.00 per Card for 14,001 Cards to 35,000
Cards, and $0.50 per Card for the number of Cards in excess of 35,000 in the
Marketer Card Portfolio per month for so long as this Agreement remains in
effect (the "Fixed Fee"). Purchaser shall pay Bank a minimum Fixed Fee on
100,000 credit cards for the first twelve (12) months of this Agreement. The
minimum Fixed Fee shall be due and payable during each of the first twelve
months of the first
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year of this Agreement, provided that Purchaser shall be under no obligation to
continue to pay the minimum Fixed Fee if (1) Bank materially alters its Credit
Criteria and Standards, a copy of which is attached hereto as Exhibit A, for the
Marketer Card Portfolio without the prior written consent of Purchaser, (2) the
marketing program generating the Marketer Card Portfolio cannot be continued due
to VISA or MasterCard regulations or state or federal law, regulation, or
ruling, (3) the Bankcard Marketing Agreement between Bank and Purchaser is
terminated, or (4) the Marketer Card Portfolio is transferred to a financial
institution other than Bank. In addition to the above consideration, the
Purchaser shall pay to the Bank a fee of $10,000 per month (the "Base Fee")
until such time as the Marketer Card Portfolio has been transferred to a
financial institution other than Bank. This Base Fee shall compensate the Bank
for time and resources dedicated to the Cards being issued and serviced under
this Agreement, including Bank customer service representatives fielding calls
with regard to this program. The Fixed Fee and the Base Fee shall be paid by
Purchaser on the 15th day of each month. The Fixed Fee shall be based upon the
number of Cards issued and outstanding in the Marketer Card Portfolio as of the
last day of the prior month as shown on the reports of the third-party processor
described in Section 1.6 hereof. The Fixed Fee and the Base Fee shall be paid by
cash or wire transfer.
Section 1.6 Management of Portfolio and Processing Costs; Servicing of
Accounts.
(a) Bank shall utilize the services of First Data Resources, Inc. ("FDR")
as its third party processor. Bank agrees that the administration of the
Marketer Card Portfolio shall be segregated from other Bank credit card programs
and accounted for separately on the third party processor's system. Bank shall
establish Bank Identification Number ("BIN") with VISA and an ICA Number ("ICA")
with MasterCard that are solely dedicated to the Marketer Card Portfolio. With
Bank's prior written consent (which shall not be unreasonably withheld),
Purchaser shall have the right to issue and assign Principal and Agent numbers
within the dedicated BIN and ICA to Purchaser or a Purchasing Party. Purchaser
shall be responsible for the payment of all charges by the third-party processor
made relative to the Marketer Card Portfolio. The schedule of current rates
charged by FDR is attached hereto as Exhibit B. In the event that these Exhibit
B rates increase by more than ten (10) percent in any given year, Bank agrees to
cooperate with Purchaser, at Purchaser's request, in transferring the processing
responsibilities to a more cost effective third party processor to be mutually
agreed upon by Bank and Purchaser. Purchaser acknowledges that it and Bank
presume the accuracy of all reports generated by the third-party processor. Any
audit of said reports shall be paid for by the party requesting the audit.
(b) Purchaser shall service the Cards and Card accounts in the Marketer
Card Portfolio. Such services shall be provided in
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the same manner and with the same diligence as all other credit card accounts
owned or held by Purchaser. In servicing the Cards, Purchaser shall manage,
perform and enforce the terms of the cardholder agreements relating to the Cards
and enforce any and all of the obligations and liabilities of cardholders under
such cardholder agreements in accordance with the exercise of Purchaser's best
business judgment. Without limiting the generality of the foregoing, Purchaser's
servicing responsibilities shall include providing customer service, security
and fraud monitoring and control, collections, and payment processing. Purchaser
will be responsible for all expenses and obligations incurred in connection with
the servicing of the Cards and the enforcement of the cardholder agreements.
If the Southeast Bankcard Association ("SEBA") establishes "associate
member" status for non-bank institutions, then Bank will take all reasonable
actions necessary to appoint Purchaser as an associate member of SEBA. Bank, at
its sole cost and expense, will prepare and submit required quarterly and annual
reports to VISA and MasterCard. To the extent permitted by applicable law and
VISA and MasterCard rules and regulations, Bank shall provide Purchaser with
access to information and reports regarding the Marketer Card Portfolio in its
possession or in the possession of FDR.
In performing its servicing duties hereunder, Purchaser shall, at a
minimum, meet the following standards:
(i) New applications shall be processed in twenty-five (25) days or less;
(ii) Customer service correspondence shall be responded to in
twenty-five (25) days or less;
(iii) Customer calls shall be answered within sixty (60) seconds;
(iv) Customer service call abandon rate shall be five percent (5%) or
less;
(v) Payments received by 9:00 a.m. at the remittance address shall be
posted the same day;
(vi) Collection effort must consist of a minimum of three (3) telephone
attempts and one collection letter per month for accounts one or
more billing cycles delinquent; and
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(v) Cards should be mailed within five (5) days of account approval.
Purchaser shall use its best efforts to provide (and in any event within
six (6) months of the date of this Agreement Purchaser shall provide) to Bank
monthly reports summarizing Purchaser's monthly and year-to-date performance of
each of these customer service standards. Such monthly reports shall then be
provided within twenty (20) days of the end of each month.
Section 1.7 Allocation of Costs. Except for costs covered by the Base Fee,
which costs shall be paid for by Bank, any and all costs and expenses related to
the Marketer Card Portfolio shall be Purchaser's obligation, including, without
limitation, 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 federal and
state law, violations of VISA or MasterCard 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. Purchaser shall promptly reimburse Bank or promptly pay the
appropriate third party for such costs and expenses as Purchaser receives
invoices therefor. For purposes of determining allocable expense, no portion of
Bank's general administrative expense nor any direct marketing or other expenses
incurred relative to the Bank's other credit card programs shall be allocable to
the Marketer Card Portfolio. To the extent that extraordinary direct expenses,
other than those contemplated herein, are incurred by Bank in overseeing the
Marketer Card Portfolio, the parties agree to negotiate in good faith the
necessity for the additional costs and the cost sharing between the parties.
Section 1.8 Purchaser Entitlement. The Receivables acquired shall entitle
Purchaser or the applicable Purchasing Party to 100% of all principal, interest,
overlimit fees, late payment fees, cash advance fees, returned check fees,
insurance commissions, annual fees, interchange fees and any and all other fees
or earnings related to the Marketer Card Portfolio. Purchaser or the applicable
Purchasing Party shall also receive all annual fees charged and paid for in cash
or cash equivalents prior to or contemporaneously with Card issuance. All
payments made by cardholders in the Marketer Card Portfolio and all interchange
fees and refunds shall be remitted to Purchaser on a daily basis.
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Section 1.9 Chargebacks and Refunds. All cardholder claims for refunds or
reversals made with respect to charges incurred and paid for by Purchaser or a
Purchasing Party shall be processed by Bank, Purchaser, or Bank's processor in
the ordinary course and all cash received and/or the cash equivalent of merchant
account debits made with respect to said refund claims shall be promptly
remitted to Purchaser. Purchaser acknowledges, however, that ultimate liability
for all refunds due to such cardholders shall be Purchaser's responsibility.
Section 1.10 Instruments of Conveyance. Bank agrees to deliver to Purchaser
such bills of sale, Uniform Commercial Code financing statements, endorsements,
assignments or other good and sufficient instruments of conveyance and transfer,
as shall be effective to vest in Purchaser or a Purchasing Party good and
marketable title to the Receivables.
Section 1.11 Ownership of Marketer Card Portfolio. Except for the sale of
the Receivables hereunder and subject to the provisions of Section 4.1, Bank
shall retain ownership of the Marketer Card Portfolio and the related Cards,
cardholder accounts, cardholder records and other related assets. Unless
otherwise agreed by Purchaser, Bank may dispose of such ownership rights only
after the termination of this Agreement and the parties' agreement not to
transfer the rights of the Bank in the Marketer Card Portfolio to Purchaser as
provided in Section 4.1 of this Agreement.
Section 1.12 Further Assurances. The parties hereby agree from time to
time, at the other's request and without further consideration, to execute and
deliver such other instruments of conveyance and transfer and take such other
action as either party may reasonably require to convey, transfer and to vest in
Purchaser the Receivables, and to put Purchaser or the applicable Purchasing
Party in possession of the Receivables to be sold, conveyed, transferred and
delivered hereunder. Additionally, Bank acknowledges that Purchaser or a
Purchasing Party may pledge as collateral for a loan, sell, or securitize all or
a portion of the credit card Receivables acquired under this Purchase Agreement.
Subject to the requirements of applicable law, regulatory authority, and VISA
and MasterCard rules and regulations, Bank shall use its best efforts to make
reasonable modifications to this Agreement and to its procedures as necessary
for Purchaser or a Purchasing Party to pledge as collateral for a loan, sell, or
securitize all or a portion of the Receivables. Purchaser shall reimburse Bank
for all costs and expenses incurred by it in such cooperative effort including a
reasonable per diem reimbursement for Bank employee's time and reasonable
attorney fees, which shall be payable at the time of closing of the transfer or
pledge of the Receivables.
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ARTICLE II.
Representations and Warranties of Bank
Section 2.1 Express Representations and Warranties. As of the date of each
Receivables purchase, Bank represents, warrants and covenants as follows:
(a) Title to Receivables. Bank has good and marketable title to the
Receivables being sold.
(b) Corporate Authority. Bank is a banking corporation duly organized,
validly existing and in good standing under the laws of the United
States of America. Bank has all requisite power and authority to
enter into this Agreement and perform its obligations hereunder.
The execution and delivery of this Agreement by Bank, and the
performance of its obligations hereunder, have been duly authorized
by all necessary corporate action.
(c) Power to Sell. Bank has complete and unrestricted power to sell,
convey, assign, transfer and deliver to Purchaser the Receivables
to be purchased and sold hereunder.
(d) Valid Conveyance. All Receivables and rights to be conveyed
hereunder will be validly conveyed and assigned to Purchaser.
ARTICLE III.
Representations and Warranties of Purchaser
Section 3.1 Express Representations and Warranties. As of the date of each
Receivables purchase, Purchaser represents and warrants as follows:
(a) Power to Purchase. Purchaser has complete and unrestricted power to
purchase the Receivables under the terms and in accordance with
this Agreement.
(b) Corporate Authority. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State
of South Dakota. Purchaser has all requisite power and authority to
enter into this Agreement and perform its obligations hereunder.
The execution and delivery of this Agreement by Purchaser, and the
performance of its obligations hereunder, have been duly authorized
by all necessary corporate action.
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(c) Credit Criteria. Purchaser agrees to be bound by the credit
criteria and standards agreed to by Purchaser and Bank with respect
to the Marketer Card Portfolio as set forth in Exhibit A attached
hereto, as the same may be amended or modified from time to time.
(d) Independent Review. Purchaser has acted independently and without
reliance upon Bank in (i) approving the Credit Criteria and
Standards set forth in Exhibit A hereto, and (ii) undertaking its
obligations as set forth in this Agreement.
(e) Title to Consumer Debt. Purchaser or a Purchasing Party has good
and marketable title to the consumer debt being sold to Bank
pursuant to Section 1.1 hereof.
ARTICLE IV.
Purchase of Marketer Card Portfolio
Section 4.1 Purchase. Upon termination of this Agreement for any reason,
unless otherwise agreed in writing by the parties, Purchaser or a Purchasing
Party shall purchase all right, title and interest of Bank in and to the
Marketer Card Portfolio and all Cards, Receivables, accounts, customers,
customer records and other assets of the Bank directly related to the Marketer
Card Portfolio (herein the "Portfolio Assets"). The purchase price for the
Portfolio Assets shall be an amount equal to the par value of the outstanding
credit generated by balance transfers, cash advances, and purchases on the Cards
in the Marketer Card Portfolio that have not previously been purchased by
Purchaser hereunder. The purchase price under this Section 4.1 shall be payable
in cash upon the closing of the sale of the Portfolio Assets hereunder. The
parties hereby agree, at the other party's request and without further
consideration, to execute and deliver such instruments of conveyance and
transfer and to take such other actions as a party may reasonably require to
promptly convey, transfer and vest in Purchaser or a Purchasing Party the
Portfolio Assets. Any third party costs associated with the purchase under this
Section 4.1 shall be paid by the Purchaser at the time of the closing of the
sale of the Portfolio Assets. In connection with the termination of this
Agreement and the sale of the Portfolio Assets to Purchaser or a Purchasing
Party, Bank shall use all reasonable efforts to transfer the Cardholder accounts
and records, and Purchaser's dedicated BIN and ICA, to a successor bank that is
licensed and authorized by VISA and MasterCard to issue credit cards. Bank shall
also use good faith efforts to accommodate the administrative and processing
needs of Purchaser with regard to the Marketer Card Portfolio after the
termination of this Agreement.
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ARTICLE V.
Contingent Liability Fund
Section 5.1 Contingent Liability Fund. Purchaser shall establish and fund a
reserve account (the "Contingent Liability Fund") at Bank. The Contingent
Liability Fund shall be in the name of Purchaser, but Purchaser shall only be
entitled to withdraw funds or other assets therefrom with the written consent of
Bank. Purchaser shall maintain a cash balance in the Contingent Liability Fund
in an amount not less than the aggregate amount of the unused credit lines
available in connection with the Cards in the Marketer Card Portfolio. In the
event the Contingent Liability Fund exceeds the aggregate amount of such unused
credit lines, the Bank shall from time to time (but no less often than
quarterly) permit the Purchaser to withdraw the amount of such excess from the
Contingent Liability Fund. The Contingent Liability Fund shall be maintained
after the termination of this Agreement and shall be disbursed to Purchaser only
after Bank has reasonably determined that Purchaser's obligations to Bank
hereunder have been completely satisfied.
As security for Purchaser's obligations to Bank hereunder, Purchaser hereby
grants to Bank a security interest in the Contingent Liability Fund and all
money, instruments, general intangibles and other property of Purchaser now or
hereafter held by Bank. Bank shall have the right to set off and apply against
all obligations of Purchaser owed to Bank, at any time and without notice to
Purchaser, any and all deposits or other sums at any time credited by or owing
from Bank to Purchaser.
The Contingent Liability Fund established by Purchaser shall be in the form
of a Repurchase Agreement for mutually agreed upon and identified obligations of
the United States government. Each party shall take all reasonable actions and
execute such documents as necessary to perfect and protect the other party's
interest in the Repurchase Agreement and the government obligations subject
thereto.
ARTICLE VI.
Indemnification
Section 6.1 Bank Indemnification of Purchaser. Bank agrees to indemnify and
save Purchaser 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 the negligence or willful
misconduct of Purchaser. Notwithstanding
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the foregoing, in no event shall Bank be liable to Purchaser as a result of
Purchaser's inability to collect any Receivable sold hereunder or as a result of
fraud committed by persons other than Bank.
Section 6.2 Purchaser Indemnification of Bank. Purchaser 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 Purchaser or a
Purchasing Party or from Purchaser's or a Purchasing Party'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 6.3 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 6.4 Survival. The terms of this Article VI shall survive the
expiration or earlier termination of this Agreement.
ARTICLE VII.
General Provisions
Section 7.1 Survival of Covenants, Warranties, and Agreements. The
representations, warranties and agreements made by Purchaser and Bank herein
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 7.2 Notice. All notice, request, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given either
when personally delivered or when sent by regular United States mail, postage
prepaid, addressed as indicated below unless notified in writing of a change in
address:
To Bank: First National Bank in Brookings
2220 Sixth Street
P.O. Box 6000
Brookings, SD 57006
Attn: Credit Card Manager
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To Purchaser: TCS Services, Inc.
P.O. Box 5217
Sioux Falls, SD 57117-5217
Attn: President
Section 7.3 Amendments. This Agreement may be amended, altered or modified
by, and only by a written instrument executed by all the parties hereto.
Section 7.4 Term; Termination Fees.
(a) 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. Notwithstanding the
foregoing, either party may terminate this Agreement as follows:
(i) Either party may terminate this Agreement with or without
cause upon giving the other party sixty (60) days' written
notice.
(ii) 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 10 days, has not in good faith
commenced to cure the breach within ten (10) days of such
notice.
(iii) Either party may terminate this Agreement immediately upon
written notice to the other party if a regulatory authority
demands that this Agreement be terminated or modified (such
regulatory authority to include the Office of the Comptroller
of the Currency, the Federal Reserve Board, the Federal
Deposit Insurance Corporation, VISA, MasterCard, or any other
state or federal regulatory agency).
This Agreement shall terminate immediately upon the termination of
the Bankcard Marketing Agreement.
(b) In the event Purchaser terminates this Agreement and Bank is not
then in material breach of its
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obligations hereunder, Purchaser shall immediately pay to Bank an
amount equal to six (6) multiplied by the largest amount of Fixed
Fees and Base Fees accrued in any month during the immediately
preceding six (6) month period ("Termination Fee"). Purchaser shall
not be obligated to pay the Termination Fee in the event that
Purchaser elects to terminate the Agreement as a result of and
within six (6) months after the occurrence of any of the following
events: (i) Bank materially alters its Credit Criteria and
Standards for the Marketer Card Portfolio without the prior written
consent of Purchaser, or (ii) the Bank unreasonably restricts or
unreasonably disapproves of Purchaser's operation and/or management
of the marketing, issuance or servicing of the Marketer Card
Portfolio, or proposed changes thereto, unless such restriction or
disapproval is based upon actions taken by Bank in response to VISA
or MasterCard rules, or applicable law or regulation.
Section 7.5 Expenses. The parties to this Agreement shall pay their own
expenses (including, without limitation, the fees and expenses of their agents,
representatives, counsel and accountants) incidental to the preparation of this
Agreement.
Section 7.6 Relationship of the Parties. Bank and Purchaser 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 Purchaser.
Section 7.7 Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
Section 7.8 Successors and Assigns. Except as otherwise provided herein,
upon execution hereof this Agreement shall inure to the benefit of and become
binding upon the parties, their heirs, personal representatives, successors and
assigns.
Section 7.9 Separate Counterparts. This Agreement may be executed in
separate counterparts which shall collectively and separately be considered one
and the same Agreement.
Section 7.10 Severability. Should any one or more of the provisions hereof
be determined to be illegal or unenforceable, all other provisions hereof shall
be given effect separately therefrom and shall not be affected thereby.
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Section 7.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of South Dakota.
Section 7.12 Assignment. This Agreement may not be assigned without the
prior written consent of the other party; provided, however, that (a) Purchaser
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 Purchaser's liabilities or obligations under this Agreement, including,
without limitation, the indemnification obligations under Article VI hereto and
(b) Bank may assign its rights and obligations hereunder to its affiliate
without the written consent of Purchaser.
Section 7.13 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 7.14 Entire Agreement, Prior Agreements. 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. All
Cards and Receivables issued or created pursuant to the prior purchase agreement
and bankcard marketing agreement by and between Bank and Purchaser, and all
other rights, obligations and duties previously governed by such prior
agreements, are hereby transferred to and shall be governed by the terms and
provisions of this Agreement and the Bankcard Marketing Agreement.
Section 7.15 Reporting and Financial Statements; Audits.
(a) Purchaser agrees to provide Bank annually within one hundred
twenty (120) days of the end of its fiscal year a copy of Credit
Store, Inc.'s audited financial statements, including a balance
sheet, statement of income and expenses, statement of cash flows,
and related financial information, as prepared by an independent
certified public accountant reasonably acceptable to Bank.
Purchaser also agrees to provide Bank quarterly within thirty (30)
days of the end of each of Credit Store, Inc.'s fiscal quarters a
copy
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of Credit Store, Inc.'s internally prepared quarterly financial
statements containing such financial information as Bank may
reasonably require.
(b) Purchaser agrees to provide Bank monthly within fifteen (15) days
of the end of each month a management report regarding the
Receivables, including, without limitation, information regarding
the amount of Receivables outstanding, an aging of the Receivables,
and other information as Bank may reasonably require.
(c) Purchaser agrees to provide Bank, at Purchaser's expense, with
written results of annual compliance audits and annual operational
audits performed with respect to Purchaser's business by an
independent audit firm acceptable to Bank. If Bank is requested to
purchase debt pursuant to Section 1.1 hereof from a Purchasing
Party, Purchaser shall provide to Bank written results of such
audits with respect to such Purchasing Party. Such audits shall be
conducted in accordance with audit standards normally applied to
federally insured financial institutions and in a manner reasonably
acceptable to Bank.
Section 7.16 Confidentiality. 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 plan 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
Purchaser 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 shall 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
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 any 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.
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15
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date set forth above.
BANK:
FIRST NATIONAL BANK IN BROOKINGS
By [Illegible]
-----------------------------------
Its Executive Vice President
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PURCHASER:
SERVICE ONE INTERNATIONAL CORPORATION
By /s/ Kevin T. Riordan
------------------------------------
Its President
--------------------------------
GUARANTY OF CREDIT STORE, INC.
The undersigned hereby guarantees the prompt payment and performance of
each of Purchaser'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 Purchaser, 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 Purchaser'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.
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16
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
------------------------------------
Its President
--------------------------------
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