CREDIT CARD PROGRAM AGREEMENT by and among DILLARD’S, INC., DILLARD INVESTMENT CO. INC., and CITIBANK, N.A.
Exhibit 10(k)
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. REDACTED INFORMATION IS INDICATED BY [***]
by and among
▇▇▇▇▇▇▇’▇, INC.,
▇▇▇▇▇▇▇ INVESTMENT CO. INC.,
and
CITIBANK, N.A.
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APPENDED EXHIBITS AND SCHEDULES*
Exhibit B | List of Competitors |
Exhibit C | Prohibited Goods and Services |
Exhibit D | Form of Confidentiality and Non-Disclosure Agreement |
Schedule 3.2.1(a) | Record Retention Requirements for Program Marketing Communications |
Schedule 3.2.1(c) | Fair Lending Review Procedures |
Schedule 3.3.1 | Approved Bank Products |
Schedule 4.1.1(b)(i) | Initial Management Committee Members |
Schedule 4.1.3 | Meetings and Governance |
Schedule 5.1.1 | Operating Procedures |
Schedule 5.5.2(a) | Floor Limits |
Schedule 5.6 | Network |
Schedule 5.10.1(b) | Modifications to Risk Management Policies |
Schedule 5.10.1(c) | Approval Rate and Initial Credit Limit Targets |
Schedule 5.10.2(a) | Credit Terms |
Schedule 5.10.2(c) | Club Plans |
Schedule 5.10.2(g) | Program Growth |
Schedule 5.11 | Company Employee Incentive Program as of Effective Date |
Schedule 5.13 | Firearms |
Schedule 5.15 | Program Card Participation in Digital Wallets |
Schedule 6.1 | Compensation and Other Economic Terms |
Schedule 6.3 | Sales Tax Recovery |
Schedule 7.3 | Secondary Provider Program |
Schedule 7.4 | Company Acquisition Exception |
Schedule 8.1.1 | Service Level Standards |
Schedule 8.3.1 | Reports |
Schedule 9.1 | Loyalty Program Value Proposition |
Schedule 10.2.2(e) | Additional Security Requirements |
Schedule 11.2.2 | Provided Program Information |
Schedule 11.4.1 | Company Marks |
Schedule 11.4.2 | Bank Marks |
Schedule 12.4.4 | Additional Requirements |
Schedule 14.3.2-(i) | Company Change in Control |
Schedule 14.3.2-(ii) | Restricted Retailers |
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Schedule 14.6.2(a) | Evaluation Data |
Schedule 14.7.1(b) | Diligence File Information |
Schedule 14.10 | Liquidation Process |
*Schedules omitted pursuant to Item 601(a)(5) of Regulation S-K.
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This CREDIT CARD PROGRAM AGREEMENT (“Agreement”) is effective as of January 26, 2024 (the “Effective Date”), by and among ▇▇▇▇▇▇▇’▇, Inc., a Delaware corporation (“Company”), ▇▇▇▇▇▇▇ INVESTMENT CO., INC., a Delaware Corporation, a subsidiary of Company (“DIC”, and together with Company, the “Company Parties”) and CITIBANK, N.A., a national banking association (“Bank”). Bank and the Company Parties are each referred to herein individually as a “Party” and collectively as “Parties”.
RECITALS
WHEREAS, Company is engaged in the business of selling goods and/or services;
WHEREAS, DIC is a subsidiary of Company;
WHEREAS, Bank is engaged in the business of establishing programs to extend customized revolving credit to qualified customers for the purchase of goods and/or services;
WHEREAS, Bank intends to acquire the Back Book Assets pursuant to a Back Book Purchase Agreement to be executed between Bank and the Previous Issuer; and
WHEREAS, subject to the terms and conditions of this Agreement, the Parties desire to enter into an agreement for Bank to provide a private label and co-branded revolving credit program to customers of Company and its Affiliates who are located in the Territory.
NOW, THEREFORE, in consideration of the terms and conditions stated herein, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
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As of the Effective Date, Bank hereby represents and warrants to the Company Parties that, to the knowledge of Bank (after reasonable inquiry of individuals with responsibility for the subject matter of the applicable representation), there is no fact relating to Bank or any of its Affiliates’ respective businesses, operations, financial condition or legal status, including any Governmental Authority investigation, order, memorandum of understanding, consents or other regulatory restriction, that would reasonably be expected to impair Bank’s ability to consummate the purchase of the Back Book Assets or obtain, on a timely basis, all authorizations, approvals, consents, orders, declarations licenses and other authorities of or from all Governmental Authorities and third parties as are necessary for the consummation of the Back Book Assets.
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continues to display other such programs on ▇▇▇.▇▇▇▇.▇▇▇; and (c) such other channels as may be mutually agreed in writing by Bank and Company from time to time, including in accordance with the Marketing Plan. The Parties will meet to discuss opportunities to market and promote the Program in other Bank Channels.
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Section 2.3.2, or (ii) instruction or direction provided by Bank pursuant to Section 2.3.1(b) or Section 2.3.4, in which case, to such extent of Company’s failure, Company shall be responsible and Bank shall not be in default of its foregoing obligations under this Section 2.3.1.
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update to the Management Committee) of changes in Bank Applicable Law or Network Rules (applicable to issuers) that may have an impact on the Program pursuant to Section 2.3.1. Company shall promptly notify Bank (which may be by email to the Bank Program Manager or an update to the Management Committee) of changes in Company Applicable Law that may have an impact on the Program pursuant to Section 2.3.2.
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for the launch of the Program, each in accordance with the Launch Plan. The Parties acknowledge their mutual intention that the Program Launch Date shall occur on or before [***] (or such other date as agreed to in writing by the Parties).
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connection with the Program; provided, that with respect to the use of the Company Marks on the Forms, Bank shall obtain Company’s prior written approval (such approval not to be unreasonably withheld delayed or conditioned). Without the prior written approval of Company, Bank shall not include or reference any Company Mark in any adverse action communications except in the nominative sense (i.e., without use of any logo, trade dress, or other stylized attributes, and in the same size font as the content of the communications) as required to identify the Account that is the subject of the communication.
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Section 3.3.1, and Section 3.3.4, without limiting the generality of Section 11.2.2, neither Bank nor its Affiliates or designees may (a) use Program Information to solicit Bank’s proprietary products and services (e.g., deposit accounts, mortgages, auto loans) or any ancillary product or service offered in connection with the Program (e.g., debt cancellation) (each a “Bank Product”) or (b) solicit Cardholders for, and offer to Cardholders (or arrange for a third party to solicit and/or provide) the Bank Products or any Bank Products that are tied to the Program, reference the Program or reference or use a Company Party’s name or Company Marks. Bank may offer Approved Bank Products in compliance with Applicable Law, and the terms of this Section 3.3.1. If Company agrees to permit the offering or solicitation of Approved Bank Products, such offering and/or solicitation shall only be permitted on the terms (including terms relating to the compensation of Company with respect thereto) agreed in writing by Company.
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relates to Bank’s Account administrative messages shall take precedence over any or all Statement Communications provided by Company. The Parties acknowledge and agree that Company’s Statement Communications may solely promote Goods and Services, and any other goods or services identified by Company may be promoted only with the Parties’ mutual agreement. Company is responsible for design of its Statement Communications. Statement Communications must comply with the Bank Design Specifications. [***]. Company must notify Bank in writing of its desire to include Statement Communications in the Cardholder statement, which must include the proposed content of the Statement Communication and received by Bank at least thirty (30) days prior to the system cut-off date for the programming of Statement Communications. All Statement Communications proposed by Company will be subject to review and approval by Bank solely as it relates to compliance with Bank Applicable Law and legal and regulatory compliance risks, which approval shall not be unreasonably withheld. Statement Communications will be at no cost to Company so long as they do not cause the Billing Statement to exceed standard postage rates that would have applied had the Statement Communication not been included in the statement.
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Any disagreement of the Management Committee with respect to matters requiring its approval shall be subject to the dispute resolution process set forth in Section 4.2.
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identified by written notice to the other Party (each, a “Disputed Matter”), the following procedures shall apply:
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functionality of, in each case, Company’s or its Affiliates’ software, databases, computers, systems and networks employed by Company in the ordinary course of its business, including Company’s POS (the “Company Systems”) (a “Bank System Change”) unless (x) Bank reimburses Company for any costs incurred by Company as a result of such Bank System Change, including reasonable costs related to Company Systems’ upgrades, change in file protocols, employee resources and other similar costs; provided that, as a condition for reimbursement, Company will, promptly following Bank’s notification of an anticipated Bank System Change, provide an estimate of Company’s anticipated costs resulting from such change, [***], (y) Bank provides Company with reasonable advance written notice (but in no event less than twelve (12) months’ advance written notice) of such Bank System Change, and (z) the features and functionalities offered by Bank following such Bank System Change are the same or substantially similar to the features and functionality offered by Bank as of the Effective Date (or as modified by mutual written agreement of Company). The foregoing restrictions will not apply to any Bank System Change that is required by Applicable Law or to address a data security vulnerability; provided that, in the event of such a Bank System Change, (i) Bank shall provide Company with reasonably sufficient advance notice and evidence that such Bank System Change is required by Bank Applicable Law or required to address a data security vulnerability, [***]. Notwithstanding the foregoing, Bank may not make any Bank System Change in the last eighteen (18) months of the Term unless such Bank System Change is required in order for Bank or the Program to comply with Bank Applicable Law or to address a data security vulnerability, in which case, (i) Bank shall provide Company with reasonably sufficient evidence that such Bank System Change is required by Bank Applicable Law or to address a data security vulnerability [***]. For clarity, in no event will Bank be required to reimburse Company for any changes to Company Systems in connection with the launch of the Program.
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“Token Provider Services”). Subject to the provisions of this Section 5.3.2, Bank agrees to, in connection with the Tokenization for transactions involving Persons seeking to use the Program Cards through real-time, immediate application decisioning and through extensions of credit to qualifying Persons for real-time purchases from Company, provide newly-issued Account numbers directly to the Token Provider in exchange for tokens issued by the Token Provider in accordance with any encryption standards set forth by Token Provider. Token Provider will be considered a service provider of Company pursuant to Section 8.1.4, and, subject to Bank’s compliance with clause (iii) of Section 5.3.2(b), Company will be responsible for Token Provider’s handling, storage, retention, use, misuse, breach, and unauthorized disclosure of any data that Bank transfers or makes available to Token Provider to enable Token Provider to perform the Token Provider Services. Company, and not Bank, is solely responsible to Token Provider for payment of any fees or other compensation for the Token Provider Services.
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irrevocably disclaims and prospectively waives any and all right, title, claim or interest in or to the In-Store Payments at law or in equity, and (b) In-Store Payments do not constitute property of Company for any purpose, including under section 541 of title 11 of the United States Code. Company further acknowledges and agrees that Bank has the sole and exclusive right to receive and retain all In-Store Payments, and further that Bank has the sole and exclusive right to pursue collection of all amounts outstanding on any Account. If Company receives any In-Store Payments, Company shall be deemed to hold such In-Store Payments in trust for Bank until such payments are applied to reduce amounts payable by Bank to Company in accordance with the terms of this Agreement or delivered to Bank. Company will include information regarding In-Store Payments, including returns thereof, in the Charge Transaction Data on a daily basis, and Bank will deduct the amount of In-Store Payments from the daily settlement in accordance with Section 5.5.2(b). Other than notifying Bank pursuant to the preceding sentence of In-Store Payments that are returned, in no event shall Company be responsible for any In-Store Payments that are returned for insufficient funds or fraudulent purposes. Bank may direct Company to stop accepting In-Store Payments upon at least thirty (30) days’ advance written notice, and Company will take such actions as are reasonably necessary to effect Bank’s election after Company’s receipt of Bank’s written notice. Bank hereby grants to Company a limited power of attorney (coupled with an interest) to sign and endorse Bank’s name upon any form of payment that may have been issued in Bank’s name in respect of any Account. Company shall issue receipts for such payments in compliance with the requirements in the Operating Procedures. The termination or expiration of this Agreement will not affect Company’s obligations with respect to In-Store Payments received after termination or expiration of this Agreement except following the Closing Date, to the extent that the DIC Purchase Option is exercised.
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will reduce the final Daily Settlement Amount by [***]; provided, that, if the final Daily Settlement Amount prior to the reduction is lower than [***], then Company will, by the fifth (5th) Business Day after the final day of settlement, pay by wire transfer to an account designated by Bank the difference between (A) [***] and (B) the amount recouped by Bank. On each Retail Day, Company will electronically transmit to Bank the Charge Transaction Data for each Retail Day’s Purchases in Company Channels (including credits, returns, In-Store Payments received, and other adjustments with respect to such Purchases) in a “tap trans file” or other form and format determined by Bank. Company will make available to Bank all sales slips as set forth in the Operating Procedures, and Bank and Company will cooperate in developing any additional procedures that may be needed in connection with the daily settlement. Upon receipt and processing of Charge Transaction Data by Bank, Bank will remit to Company’s designated account an amount equal to the total charges indicated by such Charge Transaction Data for the days for which such remittance is being made less (i) credits, (ii) Chargebacks, and (iii) In-Store Payments to the extent such amounts have not been disputed in good faith (the “Daily Settlement Amount”). If Bank receives the Charge Transaction Data by [***], Bank will initiate a wire of the Daily Settlement Amount by [***]. If Bank receives the Charge Transaction Data after [***], Bank will initiate a wire of the Daily Settlement Amount by[***]. If the Daily Settlement Amount is a negative number, then Bank will deduct the absolute value of such negative amount (the “Settlement Amount Deficit”) from amounts to be paid to Company pursuant to this Section 5.5.2(b) on subsequent Business Days. Company will pay by wire transfer any unrecouped part of the Settlement Amount Deficit by [***] after it first arises. If Bank is unable to make an exact payment to Company when due pursuant to this Section 5.5.2(b) because Charge Transaction Data is not available for transmission as a result of any circumstance other than a willful failure of Company to send the Charge Transaction Data (e.g., Systems failure or communication outage), Company will promptly provide Bank with sufficient information (in the form of a register receipt report) to enable Bank to make such payment, Bank will make such payment based on the register receipt report, and Company will forward the applicable Charge Transaction Data as soon as operationally feasible.
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acceptability and eligibility under the Risk Management Policy. Bank shall make credit decisions, including approval or denial of a Program Card Application or establishment or modification of a Credit Limit, based solely on the creditworthiness of the individual Applicant or Cardholder and consistent with the Risk Management Policy.
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mutually agreed set of five (5) Credit Card programs, [***] (such review, the “Technology Industry Review”). Bank shall seek to complete this Technology Industry Review by the end of the first quarter of each Program Year during the Term (starting with the second (2nd) Program Year), and shall then promptly provide the Management Committee with a written summary of such Technology Industry Review.
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taking of applications as set forth on Schedule 5.11 (Company Employee Incentive Program as of Effective Date) and (ii) agrees that Company may continue to offer such employee incentive program following the Program Launch Date on substantially the same terms as set forth on Schedule 5.11 (Company Employee Incentive Program as of Effective Date) subject to the annual review and approval set forth above.
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in writing for Bank to offset the amount of such erroneous payment against any future payment made to the Company Parties. Nothing in this Section 5.16 shall be construed or interpreted to apply to any adjustments or modifications to the [***] (or any expenses reimbursed therefrom), each as set forth in Schedule 6.1 (Compensation and other Economic Terms) and (b) the Daily Settlement Amount, which shall be governed by Section 5.5.2.
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in such programs, rewards or other benefits is not ongoing for more than sixty (60) consecutive days during any Program Year; and
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functions performed by any such third parties to the same extent as if such Party performed such obligations, services and functions itself, (b) for purposes of this Agreement any such obligations, services and functions shall be deemed to have been performed by such Party, and (c) such Party causes such third Parties to comply with all applicable provisions of this Agreement.
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shall be considered a service provider of Bank pursuant to Section 8.1.4, Bank shall be responsible for such third party’s handling, storage, retention, use, misuse, breach, and unauthorized disclosure of any data that Bank transfers or makes available to such service provider to provide the system functionality and facilitate the management of the Loyalty Program. Bank, and not Company, is solely responsible to such service provider for payment of any fees or other compensation for the service provider to provide the system functionality.
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incentives rewards, points, discounts, or rebates (and such incentives, rewards, points, discounts, or rebates will not be funded from the Joint Program Fund). Existing points will be included in the Cardholder points balances under the Loyalty Program.
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provided that each such other potential party and each of their professional advisors are bound by an ethical or contractual obligation of confidentiality that are no less restrictive than the provisions of this Article 10.
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accordance with Applicable Law, including, as applicable, all federal, state and local laws (including California laws) and the GLBA, to the extent such provisions apply to a Party.
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inadvertent or intentional disclosure of Personally Identifiable Information, and (B) ensure a consistent process for identifying, reporting, investigating and closing information security incidents; and
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providing the Security Incident Notice only to the extent Applicable Law or law enforcement expressly requires such delay, and in such case, the Breached Party will provide the Security Incident Notice to the non-Breached Party as soon as practicable. The non-breached Party shall have the right to suspend sharing Program Information or Company Independent Information, as applicable, with the Breached Party if such Breached Party or its agent suffers a Security Incident until such time as the cause of the Security Incident (and risk of another Security Incident) have been addressed to the sharing Party’s reasonable satisfaction.
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(including third party service providers), shall be entitled to use Program Information, in compliance with Applicable Law and the Program Privacy Policy, solely (a) to market Goods and Services and the Program; (b) with respect to Evaluation Data, in connection with the Designated Purchaser’s purchase of Program Assets (if any), subject to the provisions of Section 14.6; (c) in connection with the Company Parties’ participation in the Program and the exercise of the Company Parties’ rights under this Agreement; (d) for internal analytics and modeling purposes; (e) [***] and (f) as required by Applicable Law.
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Parties with respect to implementing changes to the Bank System that are required as a result of such changes to the Company Systems, subject to mutually agreeable timing and cost allocation.
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Company exercising its rights under this Agreement will not be deemed to be such an action or omission) and will not take any action inconsistent with the rights in the Bank Marks. If at any time a Company Party acquires any rights in, or registration(s) or application(s) for the Bank Marks by operation of law or otherwise, such Company Party agrees to assign such rights, registrations, and applications to Bank together with any and all associated goodwill.
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of (other than by a Company Party or its Affiliates) Bank or any of its Affiliates in connection with the Program (the “Bank Program Technology”).
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licensee Party’s option, shall destroy) the licensor Party’s Technology then in the licensee Party’s possession or control; provided that a Party shall not be required to return or destroy any Confidential Information necessary for the exercise of the rights and licenses set forth in this Section 11.5.2, including the license set forth in this Section 11.5.2 and any rights in jointly owned Technology. Each Party agrees to treat the Technology of the other Party or its Affiliates licensed to such Party or its Affiliates hereunder as Confidential Information in accordance with Section 10.1.
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or result in the breach of, or constitute a default under any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which it is a party or by which it or any of its assets or property are bound; and (f) does not require any filing or registration with, or the consent or approval of, any Governmental Authority, or any other Person which has not been made or obtained previously. This Agreement has been duly executed and delivered and constitutes a legal, valid, and binding obligation enforceable against it in accordance with its terms.
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Except as expressly provided in this Article 12, BANK DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY AS TO TITLE, AGAINST INTERFERENCE OF ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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(including any financial services arrangements with third parties), to which it is a party nor has it received any notice of default under any such material contract, agreement, lease or other instrument, in each case other than defaults which would not have, individually or in the aggregate, a material adverse effect on its ability to conduct the Program.
Except as expressly provided in this Article 12, THE COMPANY PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY AS TO TITLE, AGAINST INTERFERENCE OF ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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current and period testing if requested by Company), as well as systems, equipment, facilities and trained personnel that shall enable it to perform its basic obligations under this Agreement consistent with the disaster recovery plan continuously through a disaster. Subject to Article 10 (Confidentiality; Privacy and Data Security), Bank will cooperate with reasonable inquiries from Company Parties in order for the Company Parties to assess the adequacy of such disaster recovery plan. Bank will perform backups of all data, information, materials, and records it creates or stores on its systems or any system that is related to the Program. Backups must be made using reasonable commercial practices, on not less than a daily basis, and stored off-site in an alternate location. Backups must be readily accessible and Bank will promptly restore any corrupted or lost files using the most current backup media available. All backups will be disposed of in accordance with Bank’s data retention policies and Section 10.1.3.
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provides written notice thereof and such failure has or is reasonably expected to have a material adverse effect on Company or the Program or (c) Bank fails to comply with Section 12.1.10.
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and shall remain in full force and effect for ten (10) years from the Program Launch Date (“Initial Term”).
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under Section 13.1.1 unless such Bank Event of Default involves individually or in the aggregate more than [***].
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non-FM Notifying Party shall have the right to terminate this Agreement while the Force Majeure Event continues by providing no less than fifteen (15) days’ prior written notice to the FM Notifying Party of such termination.
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by the Parties). Such event shall not constitute a Bank Event of Default or a Company Event of Default.
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termination of this Agreement for any reason, (other than termination pursuant to Section 14.5.3), DIC shall have the option to evaluate whether to purchase or arrange for a third party to purchase the Program Assets (DIC or such third party, a “Potential Purchaser”), exclusive of any Accounts that have been previously written off, or should have been written off in accordance with Bank’s standard policies and Applicable Law, free and clear of all liens, encumbrances, claims, third party rights, mortgages, restrictions, security interests or other similar kind of right (such option to purchase the Program Assets, the “DIC Purchase Option”). The Company Parties shall have the right to evaluate the Program Assets upon the occurrence of any of the following events (each, an “Evaluation Event”):
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Down Period”). Upon commencement of and during the Wind-Down Period, Bank shall continue to perform its obligations under this Agreement, including, continuing to: (a) originate new Accounts; (b) approve credit on existing Accounts; (c) service Accounts; (d) perform its obligations in connection with the Loyalty Program; (e) fund and use existing funds in the Joint Program Fund and (f) pay compensation and comply with the other economic terms each as set forth in Schedule 6.1 (Compensation and Other Economic Terms). Upon commencement of and during the Wind-Down Period, Company shall continue to perform its obligations under this Agreement, including: (i) promote the Program in all Company Channels; (ii) acquire Accounts; (iii) process Purchase transactions; and (iv) perform its obligations in connection with the Loyalty Program.
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purchase the Program Assets and in no event shall DIC be obligated to purchase the Program Assets for itself unless otherwise agreed in writing by DIC.
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mutually agreed by DIC and Bank) for DIC and the Designated Purchaser to obtain regulatory approval; and
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facilitating access or interaction between the Designated Purchaser or its third party vendors, as applicable, and Bank’s third party vendors.
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the Loyalty Program from Bank to Company, the Designated Purchaser, or their designated partner. Each Party shall bear its own costs associated with transition of the operational functions from Bank to Company, the Designated Purchaser, or their designated partner. Company will honor all Cardholder rewards earned or fulfilled through their expiry and will provide appropriate notice to Loyalty Program participants of the termination or any material modification of the Loyalty Program.
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provided, however, that in no event shall a Company Party be obligated to indemnify Bank under this Section 15.1 against any Indemnified Losses to the extent such Indemnified Losses result from (a) the willful or negligent acts or omissions of Bank, or (b) any act or omission taken by Company that would be indemnifiable by Bank pursuant to Section 15.2.13.
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provided, however, that in no event shall Bank be obligated to indemnify a Company Party under this Section 15.2 against any Indemnified Losses to the extent such Indemnified Losses result from the willful or negligent acts or omissions of a Company Party.
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notice to the Indemnifying Party no later than five (5) Business Days after receipt by the Indemnified Party in the event a suit or action has commenced, or thirty (30) days under all other circumstances; provided, however, that the failure to give such notice shall not reduce or otherwise affect the obligation of an Indemnifying Party to indemnify the Indemnified Party except to the extent the Indemnifying Party is materially prejudiced by such failure.
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defense against any Third Party Claim, the Indemnifying Party shall not have the right to compromise or enter into an agreement settling any Third Party Claim which imposes liability or obligations on or involves an admission of the Indemnified Party without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, the Indemnifying Party may, upon prior written notice to and consultation with, the Indemnified Party, compromise or enter into a settlement agreement that involves solely the payment of money by the Indemnifying Party; provided that such settlement includes a complete, unconditional, irrevocable release of the Indemnified Party with respect to such Third Party Claim.
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Bank and its Affiliates may securitize, participate or otherwise convey or transfer an interest in, or pledge or create a lien in respect of, any or all of the Accounts and/or Indebtedness at any time during the Term; provided, however, that (a) Bank shall not purport to grant any rights under this Agreement to a third party in connection with any such securitization or other financing transaction (including the right to use Company Marks), nor shall any third party have any recourse against a Company Party or its Affiliates with respect to any such securitization or other financing transaction, (b) Bank shall securitize and enter into other financing transactions only on terms and conditions that permit such arrangements to be unwound or that allow removal or substitution of Program Assets in accordance with Section 14.8 in the event that the Designated Purchaser purchases the Program Assets pursuant to the terms hereof, and (c) neither Bank nor any Person who is a party to such securitization, participation, or other financing transaction involving Indebtedness (or Recovery Accounts) or any legal or beneficial interest therein shall have the right to use the Company Marks or otherwise refer to a Company Party or its Affiliates in connection with any securitization, participation, or financing in any disclosure material other than in accordance with traditional and customary standards, or as required under Applicable Law. If the Designated Purchaser elects to purchase the Program Assets at the end of the Term, Bank shall transfer the Program Assets to the Designated Purchaser free and clear of all liens, claims, and encumbrances; provided, however, that Bank shall have sufficient time prior to the Closing Date to obtain a release of the Program Assets from the securitization or other financing transaction.
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this Agreement without the written consent of the Company Parties in connection with any transaction that results in a Person or group of Persons acquiring a majority of the total aggregate receivables of the “Citi Retail Services” division (or successor or replacement thereto) of Citibank, N.A., regardless of the structure of such transaction; provided that (a) Bank shall provide Company with written notice of such assignment as soon as reasonably practicable following such assignment and (b) such assignee has adequate and sufficient resources and ability to perform the assigned obligations in a manner substantially similar to the performance of the obligations prior to the assignment, but no less than the performance required under this Agreement.
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The exercise of one or more of a Party’s rights hereunder shall not be a waiver of, nor preclude the exercise of, any rights or remedies available to such Party under this Agreement or in law or equity.
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order to give effect and to consummate the transactions contemplated hereby, and to provide access to the other Parties and the Governmental Authority with jurisdiction over the other Party to the extent necessary for the other Party to comply with Applicable Law and Network Rules.
If to Company: | ▇▇▇▇▇▇▇’▇ Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: Chief Financial Officer Email: [***] |
with a copy to: | ▇▇▇▇▇▇▇’▇ Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: General Counsel Email: [***] |
If to DIC: | ▇▇▇▇▇▇▇ Investment Co., Inc. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: President |
with a copy to: | ▇▇▇▇▇▇▇ Investment Co., Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: General Counsel Email: [***] |
| |
If to Bank: | Citi Retail Services 1515 Woodfield Rd Schaumburg, Illinois 60173 Attention: General Manager – Dillard’s Program Email: [***] |
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with a copy to: | Citi Retail Services 1515 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: Legal Department |
provided, however, that (a) if any of the Parties shall have designated a different address by notice to the other, then to the last address so designated; (b) notices required to be delivered pursuant to Article 14 (Term and Termination) and Article 15 (Indemnification) may not be delivered by email, although duplicate and/or advance copies of such notices may be delivered by email as mutually agreed by the Program Managers for convenience (it being understood that such duplicative or advance copies of such notices shall not be effective notice under this Section 17.8) and (c) notices under Article 3, Section 5.1, and Section 5.10; written approvals; and routine operational communications may be provided by electronic mail to the receiving Party’s Program Manager. Any notice provided pursuant to this Section 17.8 shall be deemed given (i) if sent by certified mail, three (3) Business Days after being sent, (ii) if sent by nationally recognized overnight courier service, on the next day on which such courier service makes deliveries in the ordinary course of its business, (iii) if delivered by hand, on the day of delivery, and (iv) if sent by electronic mail, upon confirmation of receipt.
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this Agreement. No Party shall hold itself in a capacity contrary to the terms of this Agreement, and no Party shall become liable by reason of any representations, acts or omissions of the other contrary to the provisions hereof.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective officers or duly authorized agents as of the Effective Date.
▇▇▇▇▇▇▇’▇, INC. | CITIBANK, N.A. |
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name:▇▇▇▇▇▇▇ ▇▇▇▇▇ Title:Senior Vice President, Principal Financial Officer and Principal Accounting Officer | By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Name:▇▇▇▇ ▇▇▇▇▇▇▇ Title:Vice President |
▇▇▇▇▇▇▇ INVESTMENT CO., INC. | |
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title:Vice President/Assistant Secretary | |
[Signature Page to Credit Card Program Agreement]
DEFINITIONS
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“Account” means any open-end revolving credit account established by Bank pursuant to a Program Card Agreement (or by the Previous Issuer and included in the Back Book Assets) whereby a Cardholder may finance purchases of goods or services on credit pursuant to the terms of such Program Card Agreement, which credit is to be used for personal, family or household purposes.
“Account Documentation” means with respect to an Account, any and all documentation relating to such Account, including Program Cards, Program Card mailers, Program Card Applications, Program Card Agreements, Charge Transaction Data, Credit Records, checks and stubs, receipts, credit bureau reports, adverse action information, change of terms notices, correspondence, memoranda, documents, instruments, certificates, agreements and invoices, including any and all amendments or modifications thereto, however stored or kept, and any other written information relating to an Account; provided, however, that the term “Account Documentation” shall not include (i) materials used for general advertising or solicitation, including advertising or solicitations of credit-based promotions, (ii) POS or welcome brochures, or (iii) Company’s or any of its Affiliates’ register tapes, invoices, sales or shipping slips, delivery or other receipts or other indicia of the sale of Goods and Services, any reports, analyses or other documentation prepared by the Company or its Affiliates for use in the retail business operated by Company and its Affiliates except to the extent such documentation serves a dual purpose of documenting the Account Documentation, in which case such materials shall be considered Account Documentation as well as Company Independent Information.
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“Affiliate” means any entity that Controls, is Controlled by, or is under common Control with, a specified Person or Persons.
“Aggregate Outstanding Balance” means the total outstanding balance on all Accounts, including finance charges, late charges and other charges billed and/or accrued, as reduced by any credit balances, but excluding balances of all Recovery Accounts and all Chargebacks.
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Exhibit A - 1
“Agreement” has the meaning set forth in the Preamble.
“Agreement Termination Date” means either the expiration of the Term or the effective date of the termination of this Agreement pursuant to an Early Termination.
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“Anti-Corruption and AML Laws” means all laws, rules, and regulations, as amended, concerning or relating to money laundering, bribery or corruption, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, and all other applicable anti-bribery, anti-money laundering and corruption laws.
“Applicable Law” means all (i) federal, state, and local laws (including common law), codes, statutes, ordinances, rules, regulations, and regulatory bulletins, (ii) written or oral interpretations, guidance, substantive recommendations, regulatory examinations or orders, decrees and orders of any Governmental Authority, and (iii) any written interpretations, policies, guidelines or determinations of, or any other requirements imposed by, any Governmental Authority, in each case to the extent applicable to the Program or a Party. If a Party is exercising its rights and obligations hereunder with respect to Applicable Law described in subclauses (i), (ii), or (iii) of this definition that is not publicly available (“Non-Public Guidance”), upon the request of the other Party, such Party must certify in writing that such action is necessary or advisable pursuant to such Non-Public Guidance, which certification shall include a reasonably detailed summary of the Non-Public Guidance and the circumstances in which it was given and identifying the particular Governmental Authority issuing such Non-Public Guidance (or, if the Party is not permitted to disclose such summary, such information regarding the Non-Public Guidance as reasonably determined by such Party is permitted to be disclosed).
“Applicant” means a Person who has submitted a Program Card Application.
“Applicant Identifying Information” has the meaning set forth in Section 11.3.2.
“Application Procedure(s)” means, as applicable, Bank’s proprietary application procedures in which Applicant information is communicated to Bank in a form and through a process determined by Bank in consultation with Company.
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“APR” means the annual percentage rate as defined by the Truth in Lending Act.
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“Audited Party” has the meaning set forth in Section 8.2.1.
“Auditing Party” has the meaning set forth in Section 8.2.1.
“Back Book Assets” means the Credit Card accounts issued by the Previous Issuer pursuant to the program agreement between Company, DIC and the Previous Issuer, together with associated receivables (other than accounts and receivables that have been previously
Exhibit A - 2
written off, or should have been written off, by the Previous Issuer in accordance with Applicable Law or the terms of the program agreement between Company, DIC and the Previous Issuer or that are customarily excluded in credit card portfolio acquisitions), documentation, and data in each case purchased by Bank pursuant to the Back Book Purchase Agreement, and any other assets purchased by Bank pursuant to the Back Book Purchase Agreement.
“Back Book Assets Closing Date” means the date on which the purchase and sale of Back Book Assets closes in accordance with the terms of the Back Book Purchase Agreement.
“Back Book Conversion” means Bank’s conversion of the Back Book Assets onto Bank’s servicing platform in accordance with the terms of the Back Book Purchase Agreement.
“Back Book Conversion Date” means the date on which Back Book Conversion occurs.
“Back Book Purchase Agreement” means the agreement between Bank and the Previous Issuer to which Bank agrees to purchase the Back Book Assets from the Previous Issuer, and which governs Bank’s and the Previous Issuer’s respective obligations for converting the Back Book Assets to Accounts and Bank’s servicing platform.
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“Bank” has the meaning set forth in the Preamble.
“Bank Applicable Law” has the meaning set forth in Section 2.3.1(a).
“Bank Campaign Data” has the meaning set forth in Section 11.2.2(d).
“Bank Change in Control” means, after the Effective Date, any of the following events: (i) any Person or group of Persons, other than a Permitted Affiliate, acquires Control of Bank, whether through a sale of Bank’s ownership interests or voting interests or a reorganization; or (ii) all or substantially all of the assets of Bank are sold or otherwise disposed of to a Person or group of Persons, other than a Permitted Affiliate, in one transaction or series of related transactions.
“Bank Channels” means (i) Bank direct mail marketing channels, and (ii) Bank Website or any other internet website or mobile application that is maintained and operated under the control of or through contractual arrangements by Bank, through which Bank offers products and services to Persons within the Territory, excluding (a) any application programming interface (API), plug-in or other application to support a Company Channel and (b) solely for purposes of the applicable Program Card Application, any online Bank Channel which processes a Program Card Application, the applicant for which was redirected to such online Bank Channel through an online Company Channel.
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“Bank Design Specifications” means Bank’s standard requirements for the design, form and non-customizable content of certain Cardholder communications (including Program Marketing Communications) that are applicable to substantially all of [***] and delivered by
Exhibit A - 3
Bank to the Company Parties prior to the Program Launch Date, and as updated by Bank from time to time.
“Bank Event of Default” has the meaning set forth in Section 13.1.
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“Bank Marks” means the marks contained in [***] (or any successors thereto).
“Bank Matters” has the meaning set forth in Section 4.3.1.
“Bank Owned Modifications” has the meaning set forth in Section 11.5.2(a)(ii).
“Bank Products” has the meaning set forth in Section 3.3.
“Bank Program Manager” means the individual appointed by Bank to administer Bank’s obligations hereunder and to serve as Company’s primary contact for all matters relating to this Agreement, including any substitute individual acting as such contact.
“Bank Program Team” has the meaning set forth in Section 4.1.2(b).
“Bank Program Technology” has the meaning set forth in Section 11.5.2(a)(ii).
“Bank System” means the computerized system used by Bank or its third party service provider for servicing Accounts, including the processing of Program Card Applications, electronic authorization of credit transaction requests, computation of finance charges, preparation of periodic bills, processing of payments, maintenance of Cardholder information, creation of management reports and collection of Accounts, as such computerized system may be modified from time to time.
“Bank System Change” has the meaning set forth in Section 5.3.1(a).
“Bank Technology” has the meaning set forth in Section 11.5.2(a)(ii).
“Bank Website” means, collectively, the internet website primarily branded with Bank Marks and any other internet website or digital platform maintained, operated or controlled by Bank for purposes of offering Bank products or services, including Bank Products (any successor URL(s)).
“Batch Prescreen” means a process where Bank’s offer of credit is made to certain customers prequalified by Bank (per its criteria), in a batch mode (often but not exclusively within a direct to consumer environment).
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“Billing Statement” means the periodic statement of transactions on an Account (including Purchases, credits, interest, fees, and other charges accrued during the relevant period) and payment due, prepared and delivered in accordance with the Program Card Agreement and Bank Applicable Law.
Exhibit A - 4
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“Blackout Period” has the meaning set forth in Section 14.8.1(d)(i).
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“Breached Party” has the meaning set forth in Section 10.2.3(a).
“Business Day” means any day except Saturday, Sunday, or any state, federal or postal holiday, which is a day on which banks are required or permitted to be closed in the State of New York.
“Cardholder” means a Private Label Cardholder or Co-Brand Cardholder, as applicable.
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“Change in Law” means a final change in Applicable Law (including, by rulemaking, any change that would limit or condition Bank’s ability to charge finance charges or fees (including late fees)) that is reasonably expected to (a) have a material adverse effect on (i) the Program or a Party’s ability to perform its material obligations under this Agreement, or (ii) a Party’s ability to exercise its material rights under this Agreement, or (b) result in a [***] drop in Net Credit Margin. A change in a Party’s interpretation of, or risk assessment with respect to, existing Applicable Law shall not be considered, and the finalization of the Late Fee Regulation shall not be a “Change in Law” for purposes of this Agreement so long as the final Late Fee Regulation is limited to changing the safe harbor for late fees to the lesser of eight dollars ($8.00) and twenty-five percent (25%) of the minimum payment amount.
“Change in Law Amendment” has the meaning set forth in Section 14.5.2(a).
“Change in Law Amendment Negotiation Extension Period” has the meaning set forth in Section 14.5.2(b).
“Change in Law Amendment Negotiation Period” has the meaning set forth in Section 14.5.2(b).
“Change in Law Notice” has the meaning set forth in Section 14.5.2(a).
“Charge Transaction Data” means the Account or Cardholder identification and transaction information with regard to each Purchase completed using an Account, including returns or exchanges of goods or services or a credit on an Account as an adjustment for goods or services to a Cardholder, but excluding any information or data that Company provides in connection with the “country club” billing.
“Chargeback” means the reversal by Bank to Company of the dollar value, in whole or in part, of a transaction on an Account.
Exhibit A - 5
“Chief Executives” has the meaning set forth in Section 4.1.5.
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“Closing Date” has the meaning set forth in Section 14.8.1(c).
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“Co-Brand Account” means an open-ended credit account established by Bank pursuant to a Program Card Agreement and usable for the purpose of financing purchases (and all fees and charges relating thereto) of goods and services, including Goods and Services and Approved Bank Products, and for financing any other charges on credit pursuant to the terms of such Program Card Agreement, which credit is solely for personal, family or household services.
“Co-Brand Card” means a consumer Credit Card that bears a Company Mark and the trademarks, tradenames, service marks, logos or other proprietary source indicators of the Network, and may bear a Bank Mark, and that may be used to access a Co-Brand Account.
“Co-Brand Cardholder” means any individual who (i) has entered into a Program Card Agreement with respect to a Co-Brand Account with Bank, (ii) is an authorized user of a Co-Brand Account, or (iii) is or may become obligated under or with respect to a Co-Brand Account.
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“Common Information” has the meaning set forth in Section 11.1.1(a).
“Company” has the meaning set forth in the Preamble.
“Company Applicable Law” has the meaning set forth in Section 2.3.2.
“Company Change in Control” means, after the Effective Date, any of the following events: (i) any Person or group of Persons, other than a Permitted Affiliate, acquires Control of Company, whether through a sale of Company ownership interests or a reorganization; or (ii) all or substantially all of the assets of Company are sold or otherwise disposed of to a Person or group of Persons, other than a Permitted Affiliate, in one transaction or series of related transactions. For clarity, stock repurchase transactions by Company or stock purchases or acquisitions made by the ▇▇▇▇▇▇▇ family (related by blood or marriage) or a Permitted Affiliate shall not be a “Company Change in Control”.
“Company Channel” means any (i) Company Stores, and (ii) Company Website or any other internet website or mobile application, each of which is branded with the Company Marks, and is maintained and operated under the control of or through contractual arrangements by Company, through which Company sells Goods and Services to Persons within the Territory.
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Exhibit A - 6
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“Company Event of Default” has the meaning set forth in Section 13.2.
“Company Independent Information” means: (i) information about a Company customer that is obtained independently from the Program, including the Customer List, Loyalty Program and Tender Neutral Loyalty Program enrollment information, and such information about a Company customer provided by Company to Bank; (ii) sales transaction information collected by Company in connection with the sale of Goods and Services by Company and all transaction, search and experience information collected by or on behalf of Company or an Affiliate thereof with respect to a Company customer and all line item purchase data and SKU level data collected about such actual or prospective purchase of Goods and Services; (iii) customer information collected by Company pursuant to Section 11.3.1 and Section 11.3.2, or information derived from a Company customer or prospective customer using, entering or accessing Company Channels; (iv) such Company customer applying for membership in or being a member of any Tender Neutral Loyalty Program or the Loyalty Program; (v) any personally identifiable information regarding a Company customer that is otherwise obtained by (or on behalf of) Company or any of its Affiliates at any time (including prior to the Effective Date) other than in connection with the Program; (vi) all information derived from information described in preceding clauses (i) through (v).
“Company Mark” means the marks contained in [***] (or any successors thereto) or otherwise designated by Company to, and agreed by, Bank for use in connection with the Program.
“Company Matters” has the meaning set forth in Section 4.3.2.
“Company Owned Modifications” has the meaning set forth in Section 11.5.2(a)(i).
“Company Program Manager” means the individual or individuals appointed by Company to administer Company’s obligations hereunder and to serve as Bank’s primary contact for all matters relating to this Agreement other than customer service, including any substitute individual acting as such contact.
“Company Program Technology” has the meaning set forth in Section 11.5.2(a)(i).
“Company Stores” means those certain physical retail locations that are (i) branded with a Company Mark and (ii) owned (or leased) and operated by Company or its Affiliates, at which Company offers and sells Goods and Services.
“Company System Change” has the meaning set forth in Section 5.3.1(b).
“Company Systems” has the meaning set forth in Section 5.3.1(a).
“Company Technology” has the meaning set forth in Section 11.5.2(a)(i).
Exhibit A - 7
“Company Website” means, collectively, the internet website with the internet address ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, and any other internet website maintained, operated or controlled by Company or its Affiliates, for purposes of offering Goods and Services, the Loyalty Program, or the Tender Neutral Loyalty Program.
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“Confidential Information” of a Party means (i) information that is provided by or on behalf of such Party to the other Party or its agents in connection with the Program, or (ii) information about such Party or its Affiliates, or their respective businesses or employees, that is otherwise obtained by the other Party in connection with the Program, in each case including: (A) information concerning marketing plans, marketing philosophies, objectives and financial results; (B) information regarding business systems, methods, processes, financing data, programs and products; (C) information unrelated to the Program obtained by the other Party in connection with this Agreement, including by accessing or being present at the business location of the other Party; (D) proprietary technical information, including source codes; (E) competitive advantages and disadvantages, technological development, sales volume(s), goods and services mix, business relationships and methods of transacting business, operational and data processing capabilities, and systems software and hardware and the documentation thereof; (F) other information regarding the business or affairs of the other Party or its Affiliates or the transactions contemplated by this Agreement that such other Party or its Affiliates reasonably considers confidential or proprietary; and (G) any copies, excerpts, summaries, analyses or notes of the foregoing. The Parties agree that the terms of this Agreement shall be Confidential Information of all the Parties. The term “Confidential Information” of a Party shall not include information: (i) already in the possession of the other Party other than in connection with the structuring, negotiation and execution of this Agreement and the other related documents and the transactions contemplated herein that is not otherwise subject to an agreement as to confidentiality; (ii) that is obtained in the public domain or which became available in the public domain other than as a result of an unauthorized disclosure by the other Party or its directors, officers, employees or agents in violation of this Agreement; (iii) that is lawfully received by the other Party on a non-confidential basis from a third party authorized to disclose such information without restriction and without breach of this Agreement; and (iv) that is developed by the other Party without the use of any Confidential Information of such Party.
“Consumer Credit Law” means the subset of Bank Applicable Law that regulates open-end private label credit products, open-end co-brand credit products, or any Form Factor provided by Bank that is included in the Program, in each case, used for personal, family or household purposes, including such laws that relate to credit marketing, credit applications, extension of credit or collection of credit.
“Control” with regard to an entity, means the beneficial, equitable or legal ownership, either directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights, or effective control of the activities of such entity (through contract, board representation or otherwise) regardless of the percentage of ownership.
Exhibit A - 8
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“Credit Card” means a general purpose or private label credit card, or other device or Form Factor when it is used to access an open-ended consumer credit account with which the cardholder or authorized user may purchase goods and services, obtain cash advances or convenience checks, commonly known as a credit or charge card that is issued to individuals with postal mailing addresses in the Territory. The term “Credit Card” does not include the following types of cards, or the following types of other devices or Form Factors when it is used to access the respective types of products or accounts: (i) any gift card product or account; (ii) any debit, prepaid or stored value card product or account; (iii) any credit or charge card product or account underwritten as a corporate, purchasing or fleet credit or charge card product or account; or (iv) any BNPL Product.
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“Credit Limit” means the maximum amount of credit to be extended to a Cardholder under an Account.
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“Credit Record” means a sales credit receipt, register receipt, tape or other invoice or documentation, whether in hard copy or electronic draft capture form, in each case evidencing a return or exchange of Purchases to a Cardholder or correction of a misposting, in each case for credit on an Account.
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“Credit Terms” means the annual percentage rates, fees and charges and all other key economic terms applicable to Accounts as described on [***], as modified from time to time in accordance with Section 5.10.2.
“Customer Communications” means any and all content, irrespective of medium, that is developed for communication with customers and/or Cardholders in connection with the Program, including general and targeted advertising, promotional and solicitation content that mentions the Program, Account servicing materials, Cardholder correspondence, and customer service documents and telephone scripts.
“Customer List” means any general, undifferentiated list of customers of Company, which neither (a) consists solely of Cardholders, nor (b) identifies or provides a means of differentiating any customers as Cardholders.
“Daily Settlement Account” has the meaning set forth in Section 5.5.2(b).
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Exhibit A - 9
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“Designated Purchaser” has the meaning set forth in Section 14.8.1(a).
“DIC” has the meaning set forth in the Preamble.
“DIC Purchase Option” has the meaning set forth in Section 14.6.1.
“Disclosing Party” means the other Party whose Confidential Information is received by the Receiving Party.
“Discount Program” has the meaning set forth in Section 5.10.2(d).
“Disputed Matter” has the meaning set forth in Section 4.2.1.
“Early Termination” means the termination of this Agreement by a Party, other than in accordance with Section 14.2.
“Early Termination Notice” means the provision of a written notice of Early Termination.
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“Effective Date” has the meaning set forth in the Preamble.
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“Employee Card” has the meaning set forth in Section 5.10.2(d).
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“Evaluation Data” has the meaning set forth in Section 14.6.2(a).
“Evaluation Event” has the meaning set forth in Section 14.6.1.
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“Exercise Notice” has the meaning set forth in Section 14.8.1(a).
“Exigent Circumstances” means circumstances that would or could reasonably be expected to require a Party to take action in order to avoid (i) a material loss or material fraud for a Party or the Program or (ii) violation of Applicable Law.
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“Expedited Review” has the meaning set forth in Section 4.2.2.
“Expedited Review Notice” has the meaning set forth in Section 4.2.2(a).
Exhibit A - 10
“Family Card” has the meaning set forth in Section 5.10.2(e).
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“Financial Aggregator” has the meaning set forth in Section 11.2.2(c).
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“FM Notifying Party” has the meaning set forth in Section 17.3.2.
“Force Majeure Event” has the meaning set forth in Section 17.3.1.
“Form Factor” means an actual or virtual device or application, regardless of form and whether accessed online or offline or where the relevant account information is stored, including a digital wallet or mobile device application, that may be used to access an open-end private label or co-brand Credit Card account and is either (a) provided by the account issuer, or (b) is provided by a third party where the account issuer provides direct authorization for the device or application to access the issuer’s account.
“Forms” means the Program Card Applications, the Program Card, Program Card Agreement, Program Card mailers, privacy notices, Billing Statements (including backers), Cardholder letters, templates and other documents and forms to be used under the Program which (i) relate to the Program, (ii) relate to Bank’s and/or the Cardholder’s obligations under a Program Card Agreement or Bank Applicable Law, (iii) are used by Bank in maintaining and servicing the Accounts; or (iv) are required by Bank Applicable Law.
“Friends Card” has the meaning set forth in Section 5.10.2(f).
“GAAP” means the generally accepted accounting principles in the United States.
“GLBA” means the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and any implementing regulations, as each may be modified from time to time.
“Goods and Services” means the tangible or intangible products and services sold, charged or offered by or through Company Channels, 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 Company Channels and any Sales Taxes relating to the foregoing charges and to such customers in connection therewith, provided, that Goods and Services do not include (A) any financial products or services, or (B) any of the goods or services set forth on Exhibit C (Prohibited Goods and Services), as such exhibit may be amended by from time to time by the Parties.
“Governmental Authority” means any government, any state or any political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory, or
Exhibit A - 11
administrative functions of or pertaining to government, whether federal, state, local or territorial.
“Governmental Request” has the meaning set forth in Section 10.1.1(c).
“Indebtedness” means all amounts charged and owing to Bank by Cardholders with respect to Accounts (including principal balances from outstanding charges, charges for Approved Bank Products, finance charges, late charges, and to the extent applicable to any Program Card from time to time in accordance with the terms hereof, charges in connection with balance transfers, convenience checks, cash advances, pay-by-phone fees, and any other fees and charges, whether or not posted or 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 similar adjustments), whether or not posted or billed.
“Indemnified Losses” means any and all losses, liabilities, taxes, costs, and expenses (including reasonable fees and expenses for attorneys, experts and consultants, interest and penalties, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers), settlements, equitable relief, judgments, and damages, claims (including counter and cross-claims, and allegations whether or not proven), demands, offsets, defenses, actions, or proceedings.
“Indemnified Party” has the meaning set forth in Section 15.3.
“Indemnifying Party” has the meaning set forth in Section 15.3.
“Initial Term” has the meaning set forth in Section 14.1.
“Instant Credit” means a procedure whereby an Applicant is able to apply for a Program Card, either at POS or through online or other channels, in each case where Program Card Application information is collected from the Applicant directly or populated from information within Company’s database in accordance with the Operating Procedures, the Program Card Application is processed in real time by Bank, and if approved, the Applicant will receive an instant credit line and Account number which that Person may use to purchase Goods and Services.
“In-Store Payment” means any payment on an Account made to Bank via Company in a Company Store by a Cardholder or a person acting on behalf of a Cardholder.
“Intellectual Property” has the meaning set forth in Section 11.5.1(a).
“IVR” means Interactive Voice Response Unit.
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Exhibit A - 12
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“Late Fee Regulation” means the final rule succeeding the Consumer Financial Protection Bureau’s proposed rule modifying 12 C.F.R. §1026.52(b). at 88 Fed. Reg. 18906 (Mar. 29, 2023).
“Launch Plan” has the meaning set forth in Section 2.4.1(a).
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“Liquidation Date” means either (i) the Closing Date, in the case that Company or the Designated Purchaser acquires the Program Assets pursuant to the DIC Purchase Option or (ii) the later of the Agreement Termination Date, the Purchase Option Expiration Date, and the end of the Soft Landing Period, in the case that the Designated Purchaser does not acquire the Program Assets pursuant to the DIC Purchase Option.
“Loyalty Program” has the meaning set forth in Section 9.1.1.
“Management Committee” has the meaning set forth in Section 4.1.1(a).
“Marketing Manager” means the individual appointed by each Party to ▇▇▇▇▇▇ the development of strategic, forward-thinking growth strategies for the Program.
“Marketing Plan” has the meaning set forth in Section 3.1.2(a).
“Material Issue” has the meaning set forth in Section 4.2.2.
“Monthly Business Review” has the meaning set forth in Section 4.1.6.
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“Net Credit Volume” means, with respect to any period, the sum of the aggregate amount of Purchases on Accounts for such period as reflected in Charge Transaction Data received by Bank, less the aggregate amount of any Credit Records on Accounts, for such period
Exhibit A - 13
as reflected in Charge Transaction Data received by Bank, (as corrected by Bank in the event of computational error), calculated each Business Day.
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“Network Rules” means, with respect to a Party, the operating rules, guidelines, and other requirements, as in effect from time to time, issued by any Network in which the Co-Brand Cards participate that apply to such Party with respect to the (i) Program, (ii) performance of such Party’s obligations hereunder, or (iii) with respect to Company, Company’s acceptance of Credit Cards generally, subject to any modification in any direct agreement between such Party and such Network that has been disclosed in writing to the other Party.
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“No Interest Notice” has the meaning set forth in Section 14.7.1(a).
“Non-Company Channels” means any retail location, internet website or mobile application, other than Company Channels.
“Non-Renewal Notice” has the meaning set forth in Section 14.2.
“Operating Procedures” has the meaning set forth in Section 5.1.1.
“Originate” or “Origination” for purposes of Article 7 (Exclusivity), means to (i) directly issue or offer (e.g., establishing an account relationship with a consumer with respect to) credit products or (ii) directly assist any other Person in originating, including through taking or providing credit applications.
“Other Party” has the meaning set forth in Section 14.5.2(a).
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“Party” and “Parties” have the meanings set forth in the Preamble.
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Exhibit A - 14
“Permitted Affiliate” means (i) with respect to Bank, an Affiliate under the Control of Citigroup Inc. and (ii) with respect to a Company Party, an Affiliate under the Control of ▇▇▇▇▇▇▇’▇, Inc. or ▇▇▇▇▇▇▇ Investment Co., Inc.
“Permitted Uses” has the meaning set forth in Section 11.2.1(b).
“Person” means any individual, firm, company, corporation, unincorporated association, partnership, limited liability company, trust or other entity. For purposes of the definition of “Bank Change in Control”, the term “Person” shall include any group that is deemed to act together under Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended.
“Personally Identifiable Information” means (i) Account numbers and (ii) “nonpublic personal information”, as defined in the GLBA or other Applicable Law, with respect to the Program.
“POS” means the physical point of sale of Goods and Services at Company Channels.
“Potential Purchaser” has the meaning set forth in Section 14.6.1.
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“Previous Issuer” means ▇▇▇▇▇ Fargo Bank, N.A.
“Private Label Account” means an open-ended credit account established by Bank pursuant to a Program Card Agreement and usable solely for the purpose of financing the purchase of Goods and Services (and all fees and charges relating thereto) through any Company Channel on credit pursuant to the terms of such Program Card Agreement, which credit is to be used solely for personal, family or household purposes.
“Private Label Card” means a consumer Credit Card that bears a Company Mark, and may bear a Bank Mark, and that may be used to access a Private Label Account.
“Private Label Cardholder” means any individual who (i) has entered into a Program Card Agreement with respect to a Private Label Account with Bank, (ii) is an authorized user of a Private Label Account, or (iii) is or may become obligated under or with respect to a Private Label Account.
“Program” has the meaning set forth in Section 2.1.1(a).
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“Program Assets” means the Accounts, Program Cards, Program Information, Indebtedness, Account Documentation, Program Information, master file maintained by Bank or its service provider with respect to the Cardholders and Accounts, and Account numbers. For the avoidance of doubt, the term “Program Assets” shall not include Company Independent Information, which shall be and remain the property of Company.
Exhibit A - 15
“Program Card” means the Private Label Card or Co-Brand Card, as applicable, issued by Bank under the Program exclusively for use with the Program.
“Program Card Agreement” means the terms and conditions pursuant to which credit is extended to Cardholders, together with any amendments, modifications or supplements (and any replacement of such agreement).
“Program Card Application” means a credit application of an Applicant who wishes to become a Cardholder that is submitted to Bank or any third party acting on behalf of Bank.
“Program Information” means (i) information provided to Bank by Applicants, Cardholders, or third parties in connection with processing a Program Card Application, issuing Program Cards, or extending credit on or servicing Accounts; (ii) sales transaction information collected by Bank in connection with processing transactions with Program Cards on Accounts; and (iii) all information derived from information in preceding clauses (i) or (ii).
“Program Innovation” has the meaning set forth in Section 5.10.4(a).
“Program Launch Date” means the date that Bank first makes Program Cards commercially available on a general public basis.
“Program Manager” means Bank Program Manager or Company Program Manager, as applicable.
“Program Marketing Communication” means any consumer-facing or Cardholder-facing communication that mentions the Program, including any marketing, promotional, or advertising communication for the Program, except for Forms.
“Program Month” means (i) the period from the Soft Launch Start Date through the end of the first calendar month thereafter, and (ii) thereafter, each full calendar month during the Program Year.
“Program Privacy Policy” has the meaning set forth in Section 10.2.1(b).
“Program Quarter” means each consecutive three (3)-month period commencing on the first day of each Program Year.
“Program Specific Technology Enhancement” has the meaning set forth in Section 5.10.3(c).
“Program Website” means a webpage hosted by Bank or its agent that hosts a Program Card Application.
“Program Year” means each twelve (12)-month period commencing on January 1 of each calendar year and ending on December 31 of such calendar year; provided that (i) the first Program Year will commence on the Program Launch Date and end on December 31 of the calendar year in which the Program Launch Date occurs and (ii) the last Program Year will commence on January 1 in the calendar year that the Wind-Down Period ends and end at the end
Exhibit A - 16
of the Wind-Down Period. Any payment attributable to a partial Program Year shall be adjusted pro rata to account for the period less than twelve (12) full calendar months.
“Provided Company Independent Information” has the meaning set forth in Section 11.2.1(b).
“Purchase” means transactions completed with the Program Cards (including any applicable Sales Taxes) and billed to the Accounts, cash advances, balance transfers, foreign exchange fees or service fees and other transactions completed with a Program Card.
“Purchase Option Expiration Date” has the meaning set forth in Section 14.8.2.
“Purchase Price” has the meaning set forth in Section 14.8.3.
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“Real-Time Prescreen” means a process where Bank’s offer of credit is made to certain customers pre-qualified by Bank (per its criteria), in a real-time pre-approved manner, at the POS in any Company Channel at the time of a transaction.
“Receiving Party” means the Party that receives Confidential Information of the other Party.
“Recovery Account” means an Account written off by Bank in accordance with the Risk Management Policy.
“Renewal Term” has the meaning set forth in Section 14.2.
“Replacement Designated Purchaser” has the meaning set forth in Section 14.8.1(d)(iii).
“Representative” has the meaning set forth in Section 10.1.1(a).
“Requesting Party” has the meaning set forth in Section 14.5.2.
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“Retail Day” means any day on which a Company Store is open for business.
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“RFP Process” has the meaning set forth in Section 7.2.1(a)(i).
Exhibit A - 17
“Risk Management Policy” has the meaning set forth in Section 5.10.1(a).
“Sales Taxes” means any sales or similar gross receipts-based taxes or other indirect tax.
“Sanctioned Jurisdiction” means, at any time, a country or territory that is the subject of Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions related list maintained by any Sanctions Authority, (b) any Person located, organized, or resident in a Sanctioned Jurisdiction, or (c) any other subject of Sanctions, including any Person Controlled by any subject or subjects of Sanctions.
“Sanctions” means economic, trade, or financial sanctions, requirements, or embargoes in each case, imposed, administered, or enforced from time to time by any Sanctions Authority.
“Sanctions Authority” means the United States (including, the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State), the United Kingdom (including, His Majesty’s Treasury), the European Union and any EU member state, the United Nations Security Council, and any other sanctions authority applicable to a Party or this Agreement.
“SEC” means the U.S. Securities and Exchange Commission.
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“Security Incident” with respect to a Party means (i) any event with respect to such Party that is deemed to be a security breach under any Applicable Law of Personally Identifiable Information, or (ii) any unauthorized use, disclosure of or access either (a) any Personally Identifiable Information, whether in paper, electronic or other form, in the possession of such Party or its service providers or agents, or (b) any unencrypted computer or other electronic or physical storage system of such Party or its service providers or agents that contains Personally Identifiable Information in a manner in which there is a reasonable possibility of harm from the misuse of the Personally Identifiable Information.
“Security Incident Notice” has the meaning set forth in Section 10.2.3(a).
“Senior Executives” has the meaning set forth in Section 4.2.1(b).
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“Service Provider” has the meaning set forth in Section 8.1.5.
“Settlement Amount Deficit” has the meaning set forth in Section 5.5.2(b).
Exhibit A - 18
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“Solvent” as to a Person, means (a) the present fair salable value of such Person’s assets is in excess of the total amount of its liabilities, (b) such Person is presently able generally to pay its debts as they become due, and (c) such Person does not have unreasonably small capital to carry on such Person’s business as theretofore operated and all business in which such Person is about to engage. The phrase “present fair salable value” of a Person’s assets is intended to mean that value which can be obtained if the assets are sold within a reasonable time in arm’s-length transactions in an existing and not theoretical market.
“Statement Communications” has the meaning set forth in Section 3.4.1.
“Target Back Book Conversion Date” has the meaning set forth in Section 2.1.1(b)(i).
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“Technology” means any information, designs, drawings, specifications, schematics, software programs (including source and object codes), manuals and other documentation, data, databases, technical or business processes, methods of operation, or methods of production.
“Technology Enhancements” has the meaning set forth in Section 5.10.3(c).
“Technology Features” has the meaning set forth in Section 5.10.3(a).
“Technology Industry Review” has the meaning set forth in Section 5.10.3(a).
“Technology Integration Agreement” has the meaning set forth in Section 5.3.2(b).
“Tender Neutral Loyalty Program” has the meaning set forth in Section 9.2.
“Term” has the meaning set forth in Section 14.2.
“Territory” means the fifty states of the United States of America, its territories, and the District of Columbia.
“Third Party Claim” means any claim (including counter or cross-claim), assertion, event, condition, investigation or proceeding by any third party (including Governmental Authorities).
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“Tokenization” means the process of substituting a piece of sensitive data such as an account number with a piece of non-sensitive data, such as a code containing anonymized information used to process a consumer credit transaction.
Exhibit A - 19
“Token Provider” has the meaning set forth in Section 5.3.2(a).
“Token Provider Services” has the meaning set forth in Section 5.3.2(a).
“UCC” means the Uniform Commercial Code, as amended, as in effect in the State of Delaware and in all other states in which Company is located.
“Wind-Down Period” has the meaning set forth in Section 14.6.3.
Exhibit A - 20