EXHIBIT 10(t)
REVOLVING PROGRAM AGREEMENT
This Revolving Program Agreement ("Agreement") is entered into as of October 15,
2001 ("Effective Date") by and between Household Bank (SB), N.A., a national
banking association, ("Household Bank"), with its principal offices located at
0000 Xxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 and Polaris Sales Inc., a Minnesota
corporation ("Polaris"), with its principal offices at 0000 Xxxxxxx 00, Xxxxxx,
XX 00000.
In consideration of the mutual promises, covenants, and agreements set forth
below and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
Section 1. Definitions. In addition to the words and phrases defined above and
elsewhere in this Agreement, the following words and phrases shall have the
following meanings:
a. "Active Account" means with respect to any Billing Cycle, any Account,
which at any time during the Billing Cycle has a credit or debt
balance.
b. "Account" means a Private Label Credit Card account established by
Household Bank for a Cardholder or assigned to Household Bank to be
used by the Cardholder to finance the purchase of Goods from Dealers
pursuant to the terms of the Cardholder Agreement. In addition,
"Account" shall also include those accounts included in the Existing
Portfolio.
c. "Affiliate" means any entity that is owned by, owns or is under common
control with the parties or their ultimate parent.
d. "Applicable Law" means collectively or individually any applicable law,
rule, regulation or judicial, governmental or administrative order,
decree, ruling, opinion or interpretation.
e. "Average Account Balances" means, for any period, the sum of the daily
Account net balances for the Accounts in the Revolving Program for such
period divided by the number of days in such period.
f. "Billing Cycle" shall mean the period of calendar days between billing
dates, usually between twenty-eight (28) and thirty-one (31) days.
g. "Business Day" means any day except Saturday or Sunday or a day on
which banks are closed in the State of Nevada.
h. "Card" means the Private Label Credit Card issued by Household Bank for
the Revolving Program.
i. "Cardholder" means (i) the person in whose name an Account is opened,
and (ii) any other authorized users of the Account.
j. "Cardholder Agreement" means as to any Account, the related application
and agreement between the Cardholder and Household Bank, governing the
terms and conditions of such Account, as such agreement may be amended
from time to time by Household Bank.
k. "Card Sale" means any sale of Goods that Dealers make to a Cardholder
pursuant to this Agreement and the Cardholder Agreement that is charged
to an Account.
l. "Credit Promotion" means the promotional plans set forth in the
Cardholder Agreements.
m. "Credit Promotion Period" means the promotional period for the
promotional plans set forth in the Cardholder Agreements.
n. "Dealer Participation Expense" means the amortization of Dealer
Participation Fees paid to the Dealers in accordance with the Dealer
Revolving Agreements for non promotional Card Sales. The Dealer
Participation Fees are paid at funding and will be amortized in
accordance with Household Bank's standard accounting policies.
o. "Dealers" means independent retail dealers authorized by Polaris to
sell its Goods.
p. "Discount Income" means the amortization of discounts which have been
assessed by Household Bank on various promotional credit plans in
accordance with Schedule A. These discounts are assessed at funding and
will be amortized in accordance with Household Bank's standard
accounting policies.
q. "Excess Loss Provision" means the Monthly charge or credit necessary to
maintain an appropriate bad debt reserve on outstanding Account
balances in accordance with Household Bank's standard accounting
policies.
r. "Existing Portfolio" means the existing portfolio of Private Label
Credit Card accounts arising from the program established and
maintained by Transamerica Bank, N.A. and Transamerica Retail Financial
Services Corporation (collectively "Transamerica") for Polaris, which
existing portfolio Household Bank has agreed to purchase pursuant to a
Purchase and Sale Agreement dated July 24, 2001, by and between
Household Bank and Transamerica.
s. "Fee Income" means late fees, NSF fees, net direct check fees, debt
cancellation program fees, overlimit fees, and any other fees, except
fees related to credit insurance, Finance Charge Income, and Discount
Income, assessed and billed to Accounts, net of reversals.
t. "Finance Charge Income" represents billed finance charges on Account
balances net of reversals.
u. "Interest Expense" means an amount equal to the product of:
(i) the result of the One Year LIBOR plus 40 basis points divided
by twelve, times
(ii) 85% of the Average Account Balances for such Month less
unamortized Discount Income plus unamortized Dealer
Participation Expense.
v. "Marketing Expenses" means and includes, but is not limited to,
expenses for point of sale materials, direct mail materials, general
media advertising and any other marketing materials or Revolving
Program related to promoting and marketing the Revolving Program
mutually agreed upon by Household Bank and Polaris. Marketing Expenses
shall not include discounts associated with Credit Promotions or
Participation Fees.
w. "Month" means a calendar month unless used in connection with a Credit
Promotion Period.
x. "Net Chargeoff" means the sum of the principal, interest, fees and
other components of an Account balance which is charged off by
Household Bank in accordance with Household Bank's standard operating
procedures, net of any recoveries received by Household Bank after the
charge-off of such Accounts.
y. "One Year LIBOR" means the Business Daily average, for the applicable
calendar month, of the one (1) year London Interbank Offered Rate as
published by Bloomberg Financial Markets.
z. "Operating Instructions" means the regulatory guidelines and operating
instructions and/or procedures designated by Household Bank from time
to time concerning the Revolving Program.
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aa. "Private Label Credit Card" means a credit card which may be used to
purchase the goods and/or services of the entity or an affiliate of the
entity whose name, tradename, or logo is on such credit card.
bb. "Revolving Program Assets" means Account balances minus bad debt
reserve plus unamortized Dealer Participation Expense minus unamortized
Discount Income for the Revolving Program.
cc. "Revolving Program Income" means Finance Charge Income, plus Discount
Income, plus Fee Income, plus any gain on the sale of the Accounts if
the portfolio is sold, minus Dealer Participation Expense, minus
Interest Expense, minus Net Chargeoff, plus or minus Excess Loss
Provision, minus Servicing Expenses, minus Sales Expenses, minus
Marketing Expenses, minus other Revolving Program write-offs, minus any
loss on the sale of Accounts if the portfolio is sold, all in
connection with the Revolving Program.
dd. "Sales Expense" means the amount of compensation paid by Household Bank
to the respective sales personnel of the Bank and Polaris in connection
with the Revolving Program.
ee. "Sales Slip" means evidence of a Card Sale in paper or electronic form
for Goods purchased from Dealers.
ff. "Servicing Expense" represents a Monthly charge for loan origination
and servicing which includes the following charges:
Origination - $6.65 per application
Customer Service - $1.24 per Active Account per Billing Cycle
Collection - $17.50 per delinquent Account per Billing Cycle (excluding
charged off Accounts)
Systems and Other Service Expenses - $3.50 per Active Account per
Billing Cycle
Section 2. Scope. Polaris is engaged in the sale of snowmobiles, watercraft, all
terrain vehicles, motorcycles, and other related products and services ("Goods")
through a distribution network of Dealers. Household Bank has been asked by
Polaris to provide a Private Label Credit Card program for consumers purchasing
Goods from Dealers (the "Revolving Program") under the terms and conditions of
agreements with Dealers ("Dealer Revolving Agreements") entered into hereafter
between Household Bank and Dealers.
Section 3. Revolving Program Participation Fee. On or before the 10th Business
Day following the end of each Month, Household Bank shall deliver to Polaris a
reasonably detailed operating statement for the Revolving Program and a
calculation of Revolving Program Income, both certified to be correct and
complete by an officer of Household Bank. In any Month in which the Revolving
Program Income is a gain, Household Bank shall make a payment to Polaris of a
monthly fee equal to fifty percent (50%) of the Revolving Program Income
("Polaris Participation Fee") within 10 Business Days after said certificate is
delivered. In any Month in which the Revolving Program Income is a loss, with
respect to all Accounts for such Month, Polaris shall pay Household Bank fifty
percent (50%) of the loss ("Polaris Participation Fee Shortfall") within 10
Business Days after said certificate is delivered. The liability of Polaris to
pay any amounts due for the Polaris Participation Fee Shortfall shall not exceed
fifteen million dollars ($15,000,000) in the aggregate (the "Shortfall
Maximum"), except as provided in Section 5.e; provided, however, that if the
Revolving Program Assets reach four hundred million dollars ($400,000,000),
Household shall have the right to terminate this Agreement upon
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twenty (20) days prior written notice, unless Polaris shall have agreed to
increase the Shortfall Maximum to an amount agreed upon with Household Bank.
Section 4. Revolving Program Support by Polaris.
a. Polaris agrees to review and recommend Dealers that have met Polaris'
Dealer criteria and are in good standing with Polaris for participation
in the Revolving Program. Polaris further agrees that it will use
commercially reasonable efforts to encourage appropriate Dealers to
participate in the Revolving Program. Polaris shall request each Dealer
which desires to participate in the Revolving Program to enter into
Dealer Agreements which, once executed, shall be forwarded to Household
Bank. Household Bank may, at any time and in its sole discretion for
any reason, decline to accept a Dealer referred by Polaris by not
executing a Dealer Agreement presented to Household Bank. If approved
by Household Bank, Household Bank will send a copy of the fully
executed Dealer Agreement to the Dealer.
b. If Polaris desires to terminate a particular Dealer from the Revolving
Program, Polaris shall notify Household Bank in writing of such desire
and Household Bank will terminate such Dealer from the Revolving
Program in accordance with the terms of the Dealer Agreements.
c. Polaris agrees to actively promote the Revolving Program with both
Dealers and consumers including, but not limited to, providing such
Dealer training and consumer marketing regarding the Revolving Program
mutually agreed to by Polaris and Household Bank.
d. Polaris shall not issue during the term of this Agreement, arrange to
have issued during the term of this Agreement, or accept any Private
Label Credit Card other than the Card issued by Household Bank, except
with respect to applications declined by Household Bank.
e. Polaris shall use commercially reasonable efforts to assist Household
Bank in resolving all disputes involving Goods which go unresolved by
any Dealer
Section 5. Equity Reserve for Revolving Program.
a. Upon the execution of this Agreement, Polaris and Household Bank shall
establish an equity reserve (the "Equity Reserve") to be held by
Household Bank in trust for Polaris for the sole benefit of and use by
Household Bank in accordance with the terms of this Agreement. In order
to secure the performance of Polaris's obligations hereunder, Polaris
hereby grants Household Bank a first priority security interest in and
lien upon the Equity Reserve, and agrees to execute such documents and
take such other actions as Household Bank reasonably determines are
necessary in order to perfect such security interest and lien.
b. The Equity Reserve shall be considered fully funded for each Month in
which the balance of the Equity Reserve is at least seven and one-half
percent (7.5%) of
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the Revolving Program Assets at the end of such Month (the "Fully
Funded Amount").
c. The Equity Reserve shall be funded as follows: (i) Polaris shall,
within three (3) Business Days of the Effective Date of this Agreement,
deposit in the Equity Reserve an amount equal to seven and one half
percent (7.5%) of the Revolving Program Assets; (ii) for any Month in
which the amount in the Equity Reserve is less than the Fully Funded
Amount, Polaris shall deposit the amount of the shortfall in the Equity
Reserve within ten (10) Business Days of the end of such Month; and
(iii) for any Month in which the amount in the Equity Reserve is more
than the Fully Funded Amount, Household Bank shall deduct the
difference from the Equity Reserve and forward that amount to Polaris
within ten (10) Business Days of the end of such Month.
d. If Polaris has not paid Household Bank any amounts due to Household
Bank under Section 3 or 9, Household Bank may deduct such amounts from
the Equity Reserve. Household Bank may not use the Equity Reserve for
any other reason.
e. Any amount remaining in the Equity Reserve upon the termination of this
Agreement shall be returned to Polaris upon the earlier of the date (i)
the balances on all the Accounts (excluding charged off Accounts) have
been reduced to zero, or (ii) the Accounts have been purchased pursuant
to Section 10.d, less any deductions for any amounts due Household Bank
under Section 3 or 9 after the termination date and less any amount of
the Polaris Participation Fee Shortfall in excess of the Shortfall
Maximum not paid by Polaris pursuant to Section 3 on account of the
Shortfall Maximum having been reached.
Section 6. Revolving Program Return. Household Bank will manage the Revolving
Program economics in accordance with its ordinary business practices so that the
Revolving Program Income will represent a return on Revolving Program Assets
between 4.8% and 5.75%. The Revolving Program return will be reviewed on a
quarterly basis, and Household Bank may adjust, after discussions with Polaris,
the Revolving Program economics, including but not limited to Cardholder APR and
fees, Discounts, Dealer Participation Fees, and the Revolving Program Income.
Section 7. Service Level Standards and Reporting for Revolving Program.
a. Household Bank shall comply with Applicable Law in servicing the
Accounts.
b. Household Bank shall maintain the following service level standards
("Service Levels") in connection with the Revolving Program:
(i) Monthly average speed of answer for Cardholders: 45 seconds
(ii) Monthly average speed of answer for Dealers: 20 seconds
(iii) Monthly average time to decision applications: 4 minutes
(iv) Monthly average percentage of Dealers funded same day
for Dealers' whose funding transmissions are timely
received by Household Bank: 95%
(v) Monthly average percentage of payments correctly
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processed if standard payment envelope and remittance coupon
are used, and one check is enclosed: 95%
c. Upon the conversion of the Existing Portfolio from Transamerica's
system to Household Bank's system, which will affect Household Bank's
performance of the Service Levels, Household Bank may reduce the
Service Levels to levels which are 80% of the Service Levels set forth
in Section 7.b., which reduced levels shall govern for a temporary
period of sixty (60) days after the conversion of the Existing
Portfolio to the Household Bank system, after which time the levels
shall revert to those Service Levels set forth herein.
d. Notwithstanding any other provision to the contrary, Household Bank
shall not be in default under this Agreement or be deemed to have
failed to meet a Service Level standard due to a system or network
communication failure. In the event of such an occurrence as set forth
in this Section, Household Bank shall use its best efforts to meet its
obligations as set forth in this Agreement.
e. Notwithstanding any other termination provision in this Agreement to
the contrary, Polaris may only terminate this Agreement pursuant to
this Section 7.e., if Household Bank fails to meet any three of the
Service Levels in three (3) out of any six (6) Months or the same
Service Level for three (3) consecutive Months. In such a case, (i)
Polaris shall give notice to Household Bank that it intends to
terminate this Agreement pursuant to this Section 7.e.; (ii) Household
Bank shall thereafter have 60 days to cure its failure to meet the
particular Service Levels; and (iii) if Household Bank has not cured
its failure in the aforementioned time period, Polaris may terminate
this Agreement upon written notice, such termination to be effective
180 days after such notice is provided.
f. On or before the 10th Business Day of each Month, Household Bank shall
provide agreed upon sales and marketing reports.
Section 8. Dealer Pricing and Cardholder Account Terms. The pricing terms for
volume generated by the Dealers and the Cardholder Account terms under the
Revolving Program are set forth in Schedule A attached hereto and incorporated
herein.
Section 9. Indemnification.
a. Indemnification by Polaris. Polaris shall be liable to and shall
indemnify and hold harmless Household Bank from any losses, damages,
claims or complaints incurred by Household Bank arising out of: (i)
Polaris's failure to comply with this Agreement; or (ii) the death or
injury to any person or the loss, destruction or damage to any property
arising out of the negligent act or omission of Polaris with respect to
Goods purchased by customers; or (iii) any claim or complaint of a
third party made in good faith in connection with advertisements and
promotions prepared by or at the direction of Polaris; or (iv) any
illegal conduct of Polaris or its employees or agents in connection
with the Revolving Program; or (v) any violation of Applicable Law by
Polaris or its employees or agents in connection with the Revolving
Program.
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b. Indemnification by Household Bank. Household Bank shall be liable to
and shall indemnify and hold harmless Polaris from any losses, damages,
claims or complaints incurred by Polaris arising out of (i) Household
Bank's failure to comply with this Agreement; or (ii) any claim,
dispute or complaint of any thirty party made in good faith in
connection with advertisements and promotions prepared by or at the
direction of Household Bank; or (iii) any illegal conduct of Household
Bank or its employees or agents in connection with the Revolving
Program; or (iv) any violation of Applicable Law by Household Bank or
its employees or agents in connection with the Revolving Program.
c. Notice of Claim and Survival. In the event that Household Bank or
Polaris shall receive any claim or demand or be subject to any suit or
proceeding of which a claim may be made against the other under this
Section 9, the indemnified party shall give prompt written notice
thereof to the indemnifying party and the indemnifying party will be
entitled to participate in the settlement or defense thereof with
counsel satisfactory to indemnified party at the indemnifying party's
expense. In any case, 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. The terms of
this Section 9 shall survive the termination of this Agreement.
Section 10. Term and Termination.
a. Term. This Agreement shall be effective as of the Effective Date when
executed by authorized officers of each of the parties. It shall remain
in effect for five (5) years ("Initial Term"), and shall thereafter be
automatically renewed for successive one (1) year terms (the "Renewal
Term(s)") unless and until terminated as provided herein. The
termination of this Agreement shall not affect the rights and
obligations of the parties with respect to transactions and occurrences
which take place prior to the effective date of termination, except as
otherwise provided herein.
b. Termination. This Agreement may be terminated:
(i) effective at the end of the Initial Term or any Renewal Term,
by Household Bank or Polaris upon not less than one hundred
eighty (180) days prior written notice to the other prior to
the end of such term;
(ii) by Household Bank upon sixty (60) days prior written notice to
Polaris if the aggregate amount of Sales Slips or Card Sales
subject to Chargeback to the Dealers pursuant to the Revolving
Program exceeds 1.5% of the total number of Card Sales in any
calendar quarter;
(iii) by Household Bank or Polaris upon written notice to the other
party if the return on Revolving Program Assets is less than
4.2% for two consecutive calendar quarters;
(iv) by Household Bank or Polaris upon written notice to the other
party if the Polaris Participation Shortfall paid and unpaid
reaches fifteen million dollars ($15,000,000) in the
aggregate.
(v) by Household Bank or Polaris upon written notice to the other
in the event the other party shall elect to wind up or
dissolve its operation or is wound up and dissolved; becomes
insolvent or repeatedly fails to pay its debts as they become
due; makes an assignment for the benefit of creditors; files a
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voluntary petition in bankruptcy, or for reorganization or is
adjudicated as bankrupt or insolvent; or has a liquidator or
trustee appointed over its affairs; or
(v) upon written notice to the other (a) by either party,
if there occurs any material change in ownership of the other
party; or (b) by either party, if a material adverse change
occurs in the other party's financial condition as reasonably
determined by that party in its sole discretion, or if the
other party suspends or goes out of business or substantially
reduces its business operations or sends a notice of a
proposed bulk sale of all or part of its business; or (c) by
either party, in the event the other party materially breaches
its obligations or any term under this Agreement or in the
Operating Instructions; or (d) by either party, if that party
has reasonable cause to believe that the other party will not
be able to perform its obligations under this Agreement; or
(e) by Household Bank, such notice to be provided at least
sixty (60) days prior to the effective date of termination, if
in the annual dollar volume of Card Sales generated by the
Revolving Program is less than $50 million; or (f) by either
party, if that party has reasonable cause to believe that the
other party, its agents or employees have engaged in any
fraudulent activity in connection with any of the transactions
contemplated by this Agreement; or (g) by Household Bank, such
notice to be provided at least sixty (60) days prior to the
effective date of termination, if there is a fifty percent
(50%) or more increase in any calendar quarter from the
previous calendar quarter of Cardholder inquiries, disputes,
or complaints caused by Dealers and Polaris; (h) by Polaris,
such notice to be provided at least sixty (60) days prior to
the effective date of termination, if there is a fifty percent
(50%) or more increase in any calendar quarter form the
previous calendar quarter of Cardholder inquires, disputes, or
complaints caused by Household Bank; (i) by Polaris upon 180
days prior written notice to Household Bank pursuant to
Section 7.e. herein, if Household Bank fails to maintain the
Service Levels in accordance with Section 7; (j) by Household
Bank, if in Household Bank's reasonable judgment, any
Applicable Law requires that this Agreement or either party's
rights or obligations hereunder be amended, modified, waived
or suspended in any material respect, including, without
limitation, the amount of finance charges or fees that may be
charged or collected or the consumer rate that may be charged
on purchases with the Card and the parties are unable to
negotiate any additional amendments or modifications to the
Agreement to address such changes in any Applicable Law; or
(k) by either party, if the Closed End Program Agreement by
and between Polaris Sales Inc. and Household Retail Services,
Inc. (the "Closed End Program Agreement) is terminated, with
the termination date of this Agreement to be effective on the
same date as the termination of the Closed End Program
Agreement.
c. Duties and Rights Upon Termination. Polaris shall de-install from its
operating system any program files provided by Household Bank to
Polaris. Upon termination of this Agreement, Household Bank will
approve no new applications under any Dealer Agreements, will authorize
no additional purchases, and all Dealer Agreements shall also be
terminated. Neither party is liable to the other for any direct or
consequential damages that either party may suffer as a result
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of either party's termination of this Agreement. The termination of
this Agreement shall not affect the rights and obligations of the
parties with respect to transactions and occurrences which take place
prior to the effective date of termination, except as otherwise
provided herein. In the event this Agreement is terminated for any
reason or notice of termination is given by either party, Household
Bank may take such other reasonable actions, including, but not limited
to, establishing and maintaining a reserve (the "Termination Reserve")
from payments otherwise payable to Polaris to protect Household Bank's
rights under this Agreement and to cover amounts owing to Household
Bank. The Termination Reserve shall be in the amount of 100% of the
prior 12 Months Chargebacks, but in no event shall the Termination
Reserve exceed two million dollars ($2,000,000). Upon the purchase of
the Accounts pursuant to Section 10.d below, any unused amount in the
Termination Reserve shall be paid to Polaris within 30 days of the date
of sale. If no purchase occurs, the Termination Reserve shall be
maintained and used by Household Bank for three (3) years from the
termination date or until exhausted, whichever comes first. Any unused
amount in the Termination Reserve after said three years shall be paid
to Polaris within thirty (30) days of the end of such three year
period.
d. Purchase Requirements for Revolving Program. Polaris shall have the
option to purchase, or arrange the purchase by a third party of, the
Accounts from Household Bank upon termination of this Agreement. Said
option may be exercised by Polaris by giving written notice to such
effect to Household Bank within thirty (30) days after the termination
date. The purchase price shall be negotiated, but it shall not be less
than one hundred percent (100%) nor more than one hundred five percent
(105%) of the full amount of all of the outstanding Account balances,
plus accrued interest and fees from the last Billing Cycle through the
date of sale, plus unamortized Dealer Participation Expense, minus the
full amount of the bad debt reserve and minus the full amount of
unamortized Discount Income. The purchase shall occur not later than 90
days after the effective date of termination of this Agreement and to
be under such terms and conditions as are reasonable acceptable to
Household Bank. Household Bank shall, as a part of the purchase, assign
to Polaris or the third party purchaser, all charged off Accounts which
it still owns at the time of such purchase at a price to be determined,
but in any event, no more than 12% of the charged off Account balances.
If the purchase of the Accounts is not completed within ninety (90)
days, and unless Household Bank agrees to extend such time period,
Polaris shall have no further right to purchase the Accounts.
e. Only the terms of Sections 3, 5, 9, 10.c, 10.d, and 14 shall survive
termination of this Agreement; provided, however, that the terms of
Sections 3 and 5 shall survive until the Accounts are purchased
pursuant to Section 10.d. or otherwise. If either party owes the other
party any amounts under Section 3 and/or 5 as of the date the Accounts
are purchased, that party may pay the other party thereafter in
accordance with the time periods set forth in those sections.
Section 11. Audit Rights. Polaris and its designated representatives shall have
the right, at Polaris' expense, to audit the Revolving Program no more
frequently than once a year, during reasonable business hours and upon
reasonable notice to Household Bank.
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Household Bank will reasonably cooperate by making its personnel and pertinent
records available, including, but not limited to such records showing the
following:
(a) Computation of Revolving Program Income
(b) Service Level performance
(c) Computation of Servicing Expenses
Section 12. Privacy and Internet Applications. Except as permitted in Section
15, neither Polaris nor Household Bank shall make any unauthorized disclosure of
or use any personal information of individual consumers which it receives from
the other party or on the other party's behalf other than to carry out the
purposes for which such information is received, and Polaris and Household Bank
shall comply, to the extent applicable, with the requirements of the
implementing regulations of Title V of the Xxxxx-Xxxxx Xxxxxx Act of 1999,
specifically, 16 Code of Federal Regulations, Chapter I, Subchapter C, Part
313.11.
Polaris and Household Bank shall adopt and maintain a comprehensive privacy
policy with respect to their handling of the personal information of individual
consumers submitted by such consumers to Polaris or Household Bank via the
Internet. Polaris and Household Bank's privacy policy shall be available on
their Internet websites. Polaris and Household Bank shall comply in all respects
with the provisions of their respective privacy policies.
With respect to Internet applications, Polaris shall include a link on its
website to the Household Bank website, and include language notifying visitors
that they may complete an application for a Card via the Internet by clicking on
such link. Household Bank shall provide a link back to the Polaris website for
such visitors.
Section 13. Termination of Dealer Agreement. Household Bank upon notice to
Polaris may elect to terminate its relationship with a particular Dealer if such
Dealer is associated with excessive chargebacks, high fraudulent activity or
other course of business conduct that is injurious to the business relationship
between Household Bank and Polaris or for any breach of the Dealer Agreement.
Section 14. Additional Products and Services. During and after the term of this
Agreement, Household Bank and/or its Affiliates shall have the non-exclusive
right to solicit Cardholders for the products set forth in Schedule B, attached
hereto. Household Bank may add additional products to Schedule B after the
Effective Date of this Agreement, but any additions to the products set forth in
Schedule B shall receive Polaris' prior review. Such solicitations shall comply
with Applicable Law, including privacy laws.
Section 15. Representations/Binding Effect. Household Bank and Polaris represent
and warrant that each has full power, capacity, and authority to enter into this
Agreement; that all action required to make this Agreement binding and valid
upon each party according to its terms has been taken; and that this Agreement
is and will be binding, valid and enforceable upon each party and its respective
successors and assigns according to its terms, and the benefits of this
Agreement shall extend to each party and its successors and assigns.
Section 16. Assignments and Modifications. Neither party may assign this
Agreement or any of its obligations under this Agreement to any third party
without the other party's
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written consent, provided, however, that either party may, upon prior written
notice to the other, assign this Agreement and any of the rights hereunder to
any Affiliate of the party, or any purchaser of substantially all of the assets
of the party, capable of fulfilling the obligations (including all financial
obligations) of the assigning party under this Agreement. In the event of such
assignment, the assignee shall have the same rights, remedies, obligations and
liabilities as Household Bank or Polaris under this Agreement. Any merger or
consolidation by either party with another entity, other than with an Affiliate,
shall be deemed to be an assignment expressly prohibited without the prior
written consent of the other party, which consent shall not be unreasonably
withheld. This Agreement may not be changed, amended or modified orally, and no
obligation of either party can be released or waived by either party, except by
a writing signed by a duly authorized officer or representative of each party.
Section 17. Applicable Law/Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois. If any provision
of this Agreement is contrary to applicable law, such provision shall be deemed
ineffective without invalidating the remaining provisions hereof.
Section 18. Notices. All notices required or permitted by this Agreement shall
be in writing and shall be sent to the respective parties as follows: if to
Household Bank and or HRSI, to the Attention of President, (with a copy to the
Attention of General Counsel, Retail Services Law Department, 0000 Xxxxxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 60070); if to Polaris to the Attention of CFO at
their respective addresses set forth on page one of this Agreement or such other
addresses as each party may designate to the other by notice hereunder. Said
notices shall be deemed to be received when sent to the above addresses (i) upon
three (3) business days after deposit in the U.S. first class regular mail with
postage prepaid or by registered or certified mail, return receipt requested,
with postage prepaid, (ii) upon personal delivery, or (iii) upon receipt by
telex, facsimile, or overnight/express courier service or mail.
Section 19. Information. Polaris shall make available public financial
information to Household Bank. If Household Bank requires further financial
information, Polaris will make available financial officers of the company to
explain or clarify Polaris's financial condition to Household Bank including the
review of financial documents by Household Bank at Polaris's corporate office;
provided that Household Bank signs a standard non-disclosure agreement. Polaris
understands that Household Bank may seek credit and other information concerning
Polaris from others and may provide financial and other information regarding
the portfolio to its affiliates or others for purposes of its asset
securitizations and sales, but in no event shall any non-public information be
made public by Household Bank without Polaris' prior written consent.
Section 20. Limited License. Polaris hereby authorizes Household Bank solely for
purposes of this Agreement to use Polaris's name, logo, registered trademarks
and servicemarks (if any) and any other proprietary designations ("Proprietary
Materials") on the credit cards, applications, periodic statements, billing
statements, collection letters, documents, promotional or advertising materials
and otherwise in connection with the Revolving Program, subject to Polaris's
periodic reasonable review of such use and to such reasonable specifications of
Polaris. Polaris represents and warrants that it has appropriate trademark
rights in the Proprietary Materials. Polaris shall indemnify, defend and hold
Household Bank harmless from any loss, damage, expense or liability arising
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from any claims of alleged infringement of the Proprietary Materials (including
reasonable attorneys' fees and costs); provided that Household Bank has only
used the Proprietary Materials in compliance with this Section 20. Polaris may
not use any name or service xxxx of Household Bank or any of its Affiliates in
any manner without the prior written consent of Household Bank.
Section 21. Agreements between Polaris and Dealers. Except as specifically
provided in this Agreement or in the Dealer Agreements, (i) Household Bank shall
not be a party to any agreement between Polaris and individual Dealers, (ii)
Household Bank shall not be responsible for the obligations of Polaris and any
Dealers one to the other, including without limitation, the payment of any fees
agreed to between Polaris and Dealers, and (iii) Household Bank shall not in any
way be responsible for the acts, omissions or breaches of any arrangements or
contracts between Polaris and Dealer(s).
Section 22. Agreements between Household Bank and Dealers. Except as
specifically provided in this Agreement, (i) Polaris shall not be a party to any
agreement between Household Bank and individual Dealers, (ii) Polaris shall not
be responsible for the obligations of Household Bank and any Dealer one to the
other, including without limitation, the payment of any amounts owed by one to
the other, and (iii) Polaris shall not in any way be responsible for the acts,
omissions or breaches of any arrangements or contract between Household Bank and
Dealers or for any other obligations of Household Bank or any Dealer.
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SECTION 23. JURISDICTION. ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT MUST BE BROUGHT SOLELY IN THE COURTS OF THE STATE OF
ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS; POLARIS AND HOUSEHOLD BANK HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR THE PURPOSE OF
ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT (IT BEING UNDERSTOOD THAT SUCH
CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT
ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).
SECTION 24. WAIVER OF JURY TRIAL. HOUSEHOLD BANK AND POLARIS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUIT,
ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT,
ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING
FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT
ANY SUCH SUIT, ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOUSEHOLD
BANK AND POLARIS ENTERING INTO THIS AGREEMENT.
IN WITNESS HEREOF, Household Bank and Polaris have caused their duly authorized
representatives to execute this Agreement as of the date set forth above.
HOUSEHOLD BANK (SB), N.A. POLARIS SALES INC.
By: /s/Xxxxxxx Xxxxxx By: /s/Xxxxxxx X. Xxxxxx
--------------------------------- -----------------------------------
Print Name: Xxxxxxx Xxxxxx Print Name: Xxxxxxx X. Xxxxxx
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Title: Vice President Title: Vice President--Finance, CFO
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