REVOLVING CREDIT PROGRAM AGREEMENT
This Program Agreement ("Agreement") is made as of the 27th day of January,
2000, by and between CONSECO FINANCE CORP., a Delaware corporation, its
successors and permitted assigns ("Conseco Finance"), with its executive offices
at 1100 Landmark Towers, 000 Xxxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, and
SYMS CORP., A New Jersey corporation, its successors and permitted assigns
("Syms"), with its executive offices at Xxx Xxxx Xxx, Xxxxxxxx, Xxx Xxxxxx
00000.
WHEREAS, Syms conducts business through its retail locations and desires to
have Conseco Finance provide revolving credit financing to its qualified
customers, and
WHEREAS, Conseco Finance is willing to provide revolving credit financing
(including the issuance of Credit Cards) to qualified Syms customers as set
forth herein during the term of this Agreement,
NOW THEREFORE, in consideration of the terms and conditions stated herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Conseco Finance and Syms agree as follows:
SECTION 1. DEFINITIONS
-----------------------
The following words shall have the following meanings when used in this
Agreement:
"Account" means all of the accounts, receivables and contract rights
created between an Accountholder and Conseco Finance pursuant to the Program
including Existing Accounts following the Conversion Date.
"Accountholder" means any person to whom Conseco Finance has extended
credit under the Program.
"Authorization" means permission from Conseco Finance to make a sale of
services, products, or goods to a cardholder pursuant to the agreement that is
charged to an Account.
"Chargeback" means the refusal of Conseco Finance to pay Syms for a sales
slip or the return to Syms and reimbursement to Conseco Finance of a sales slip
for which Syms was previously paid.
"Conversion Date" shall mean the date, anticipated to be in March 2000,
when Conseco Finance performs the conversion of Accounts from Syms current
program provider to Conseco Finance's system.
"Credit Agreement" means the open-end revolving credit agreement between
Conseco Finance and each Accountholder, together with any modifications or
amendments which may be made to such agreement.
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"Credit Card" means a plastic card issued and owned by Conseco Finance
under the Program that may be used exclusively for the purchase of Products from
Syms.
"Default" means any Event of Default or the occurrence of any event which
would be an Event of Default with the giving of notice or lapse of any
applicable grace period.
"Event of Default" has the meaning given in Section 7.01.
"Existing Accounts" means any open end credit card accounts dedicated to
Syms Purchases that exist at the commencement of the Program.
"Fraud Loss" means a Purchase as to which use of the Account was not
authorized by the Accountholder or the purported Accountholder, or as to which
the charges have been disavowed by the Accountholder or the purported
Accountholder.
"Merchandise Complaint" means any inquiry, complaint, dispute or conflict
between an Accountholder and Syms (but excluding any inquiry, complaint, dispute
or conflict of any third parties operating as described in Section 3.05) whether
communicated or addressed to Syms or to Conseco Finance which involves the
identity, quality, condition, performance or delivery of goods or services or
any representation or warranty or any recall or replacement program with respect
thereto.
"Net Credit Purchases" means, for any period of time, the total dollar
amount of all Purchases, as increased or decreased by the total dollar amount of
all credit adjustments transmitted to Conseco Finance by Syms.
"Operating Procedures" means all of the procedures, instructions, manuals'
forms, policies and practices now or hereafter in effect which govern the
operation of the Program, written copies of which have been or will be promptly
provided to Syms, including but not limited to:
(a) the manner in which customers may apply for and obtain an Account, and
enter into Credit Agreements;
(b) the manner in which Accountholders may make a Purchase on an Account;
(c) the manner in which Accountholders are issued credits for returns and
adjustments in response to Merchandise Complaints;
(d) the manner in which the Accounts are billed and collected, and related
inquiries and complaints from Accountholders are answered; or
(e) any other guidelines governing point-of-sale transactions as agreed to
by the parties and as may be amended from time to time.
"Outstanding Receivables" means for any particular day the amount of all
unpaid Accounts owned by Conseco Finance as of such day which have not been
written off.
"Presentment Warranty" means each of the warranties set forth in this
Agreement made
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by Syms each time a Purchase is presented to Conseco Finance for approval and
settlement.
"Products" means all products and services which may be purchased by an
Accountholder from Syms.
"Program" means the program established by Conseco Finance on the terms and
conditions outlined in this Agreement pursuant to which Conseco Finance will
offer to qualified Syms customers the revolving credit facility described in
Section 2.02 hereof. The term includes the extension of credit by Conseco
Finance, xxxxxxxx, collections, accounting between Conseco Finance and Syms, and
all aspects of the customized revolving Program contemplated herein.
"Program Year" means (i) in the case of the first Program Year, the full or
partial calendar month beginning with the date on which the Program commences
plus the next twelve consecutive calendar months, (ii) thereafter the twelve
consecutive calendar months following the expiration of the preceding Program
Year, except (iii) the last Program Year shall be that period of full and
partial calendar months ending on the date of termination of this Agreement
pursuant to Section 8 or otherwise.
"Program Documents" has the meaning given in Section 3.01.
"Purchase" means a purchase of Products from Syms for which Conseco Finance
has extended credit to an Accountholder.
"Standard Discount Fee" has the meaning given in Section 2.09.
"Store" means a retail store now or hereafter operated by Syms or any of
its subsidiaries.
"Termination Date" shall have the meaning set forth in Section 8.
SECTION 2. ESTABLISHMENT OF PROGRAM
------------------------------------
Section 2.01 Commencement of Program. On the Conversion Date, Conseco
Finance will assume responsibility for servicing, in accordance with Section 4
of this Agreement, the Accounts which are assigned to Conseco Finance pursuant
to this Section 2. Conseco Finance shall keep said list of Accounts confidential
and not disclose same or any part thereof to any third party without Syms'
written approval except as provided for in Sections 2.06 and 2.07.
Section 2.02 Revolving Credit Facility. Under the Program, Conseco Finance
agrees to offer qualified Syms customers an unsecured revolving line of credit
that will include (i) a Credit Card that may be used exclusively for Purchases,
and (ii) a convenience check cash advance feature that will enable
Accountholders to obtain cash advances from Conseco Finance by requesting a
specific cash advance utilizing personalized convenience checks furnished by
Conseco Finance. Any such cash advance feature shall be mutually agreed to by
Conseco Finance and Syms before its inception. Convenience check cash advances
are not assessed a Standard Discount Fee.
Section 2.03 Credit Terms. (i) Conseco Finance shall establish all of the
terms and conditions of the Credit Agreement and the terms and conditions under
which credit is extended to Accountholders, including without limitation the
interest rate and fees and charges applicable
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to Purchases. Conseco Finance shall establish a variable rate of interest for
Purchases equal to the Prime Rate plus 11.10%. The late fee shall be $20 and
Conseco Finance agrees that it shall not assess a late fee on Account balances
less than $50. Conseco Finance may from time to time in its sole discretion
modify such terms and conditions of the Credit Agreement to the extent it deems
necessary, provided that Conseco Finance agrees the late fee assessed to
Accountholders shall be reasonably competitive to the fees of other financial
institutions and changes to the variable rate of interest for current Accounts
will be with Syms's reasonable approval unless necessary to comply with law;
(ii) Conseco Finance agrees to offer special credit promotions on Purchases in
accordance with the terms and conditions as may be mutually agreed to by the
parties and (iii) the Accountholder payment factor (the minimum payment) will be
5.0% or $10.00, whichever is greater.
Section 2.04 Syms to Honor Credit Card. Syms hereby agrees to participate
in the Program and to honor the Credit Card for Purchases. Syms shall honor the
Credit Card only in accordance with the procedures outlined in Section 4 hereof,
as the same may be amended from time to time in accordance with the terms of
Section 4.01. Syms will maintain the availability of the Program at all Stores
and generally promote and publicize it at least to the same extent that it
promotes and publicizes the most favored other bank card credit card plans
accepted at the Stores. In any advertising or promotional mailing in which Syms
mentions or promotes any credit plan accepted by it (except an advertisement or
occasional promotional mailing paid for in whole or substantial part by the
operator of a credit plan), Syms will mention or, promote the Program with at
least substantially equal prominence. Wherever Syms displays the acceptance
decal, take-one boxes or other promotional material of any other credit plan,
Syms will display the comparable material of the Program with at least
substantially equal prominence. Syms shall take reasonable efforts to assure
that employees of Syms shall promote the Program. All references to Conseco
Finance or the Program which refer to the specific terms of the Program must be
approved by Conseco Finance. After the Conversion Date, Syms will not accept any
new charges under the current provider's program and will not permit any other
consumer program (with or without a credit card) to utilize any trademark or
trade name commonly utilized by Syms except to the extent such plan shall be
permitted otherwise in this Agreement.
Section 2.05 Conseco Finance to Extend Credit. Subject to (i) the terms of
this Agreement, (ii) the credit limits applicable to each Account, and (iii) the
terms and conditions in the Credit Agreement, Conseco Finance shall extend
credit to Accountholders in accordance with Section 4.
Section 2.06 Confidential Information. Conseco Finance shall keep
confidential, during and after the term of this Agreement, all information and
knowledge regarding the Program including, without limitation, all information
received from Syms and other data relating thereto, and the policies, plans and
operations of Syms, both with respect to the Program and to the business of Syms
generally (the "Confidential Information"), provided that Conseco Finance may
make such information available, (i) as necessary to carry out its obligations
hereunder, (ii) to comply with applicable law or regulations, (iii) to its
directors, officers, employees, agents or subcontractors, auditors, attorneys
and business consultants (who will be required to preserve the confidentiality
of such information), (iv) to any regulatory agency asserting jurisdiction over
it, or (v) otherwise as required by law. Conseco Finance will treat the
Confidential Information with the same degree of care that it treats its own
Confidential Information. This section shall not restrict the rights of Conseco
Finance to utilize the names, addresses, credit histories, etc. of
Accountholders pursuant to Section 2.07 or 3.05. This Section 2.06 shall survive
the termination
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of this Agreement. In connection with the performance of this Agreement, Conseco
Finance may also disclose to Syms, in writing or orally, confidential
information concerning its business, marketing techniques and methods of
operation including financial statements, if any are provided (the "Conseco
Finance Confidential Information"). Syms shall treat the Conseco Finance
Confidential Information with the same degree of care that it treats its own
Confidential Information and shall not disclose the same to any other person, or
use the same except in connection with the performance of this Agreement. Syms
agrees that it will limit access to the Conseco Finance Confidential Information
to those of its employees, agents or subcontractors who reasonably require the
same to carry out the purposes of this Agreement.
The obligations set out in this Section shall not apply to any Confidential
Information that the recipient can establish by documentary evidence that: (a)
was known to the recipient at the time it was disclosed to the recipient; (b)
was in the public domain at the time it was disclosed to the recipient; or (c)
had entered into the public domain subsequent to disclosure to the recipient
through no unlawful act of the recipient. Conseco Finance and Syms acknowledge
that the Confidential Information of the other constitutes a unique and valuable
asset of the other, and that any disclosure or use of the Confidential
Information except as specifically authorized herein would be wrongful and would
cause irreparable harm, and that it would be difficult to compensate fully with
damages for a violation of this Section. Accordingly, each agrees that the other
shall be entitled to temporary and permanent injunctive relief to enforce this
Section; this provision shall not however be deemed to diminish or supplant the
right of Conseco Finance and Syms to claim and recover money damages for any
breach hereof in addition to obtaining equitable relief therefor.
Section 2.07. Syms's Customer List. The names and addresses of Syms
customers who make application to become Accountholders, whether or not an
Account is then opened and including Existing Accounts, and credit and other
information relating to them does constitute "Confidential Information." Conseco
Finance agrees that, during the term of this Agreement, without the prior
written consent of Syms, it will not sell, loan, exchange, give or otherwise
provide the Accountholder list or the credit and other information relating to
those customers to any person (other than Conseco Inc., its subsidiaries and
affiliates, as permitted by law, which may use such information for any lawful
purpose not otherwise prohibited by this Section 2.07), for any purpose (except
to its agents or subcontractors who reasonably require the same to carry out the
purposes of this Agreement, or credit reporting agencies with whom Conseco
Finance has contracted (or will contract) to provide such information for credit
reporting purposes), or use the list and such information for any other purpose,
except to the extent that other disclosures and uses may be expressly authorized
by Section 3.05 hereof. Syms shall be entitled to receive Accountholder data
(including Accountholder lists) from Conseco Finance at no cost upon request and
to use such data for any promotion or marketing activity in connection with
sales of its Products. Conseco Finance may withhold specific types of
Accountholder data if, in its sole reasonable determination, disclosure of such
data to Syms would violate applicable laws, including but not limited to the
federal Fair Credit Reporting Act.
Section 2.08. Syms Commitment. Syms agrees that it will not enter into or
suffer to exist any other Syms owned or operated program in the Stores,
including a co-branded program, other than the Program. Syms also agrees to use
commercially reasonable efforts to generate a minimum of $50 million in Program
Purchase volume on a Program Year basis. If less than $20 million in Purchases
is generated in any Program Year under the Program, Conseco Finance may treat
such failure to meet the minimum Purchases as an event of Termination and may
terminate
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the Agreement pursuant to the Termination provisions in Section 8.
Section 2.09. Fees, Discounts and Charges
(A) STANDARD DISCOUNT FEE: The parties agree that the "Standard Discount
Fee" shall be 1% of the Net Credit Purchases.
If a minimum of $30 million in Purchases is not generated in any
Program Year under the Program, Conseco Finance will adjust the
Standard Discount Fee to 2.20% of the Net Credit Purchases.
(B) PROMOTIONAL DISCOUNT FEE: For promotional financing options offered
under the Program, Syms and Conseco Finance shall negotiate in written
form the discount fee at the time of the promotion.
(c) CONVENIENCE USAGE CHARGE: None.
(d) RETURNED MERCHANDISE CHARGE: None.
(e) PROGRAM DOCUMENTS: Conseco Finance will provide Syms at Conseco
Finance's expense with appropriate quantities of credit applications, Credit
Agreements, temporary cards and other forms necessary to carry out the Program.
Conseco Finance shall supply Credit Cards to all new Accountholders, shall
re-issue Credit Cards to eligible Existing Accounts if necessary, and shall
honor all requests by eligible Existing Accountholders for replacement or
additional cards, as well as providing all change-in-terms notifications.
Conseco Finance shall supply the card carrier forms, welcome letters, Credit
Agreements and envelopes along with such Credit Cards. Conseco Finance shall
also supply the billing statements, the remittance envelopes included with the
monthly xxxx, the collection letters mailed to delinquent Accounts and the
decline letters mailed to rejected applicants. Program Documents shall
prominently display, only upon mutual agreement, the Syms trademark or trade
name, and Syms shall be responsible for the distribution of such Program
Documents to its Stores. The form and content (other than as required by law, in
Conseco Finance's sole discretion) of all Program Documents shall be subject to
the mutual approval of Syms and Conseco Finance.
(f) CHARGEBACK FEE: None.
(g) SYMS INSERTS, LABELS AND MESSAGES: Conseco Finance will include in each
regular monthly mailing to Accountholders up to six inserts of promotional
materials which Syms shall deliver to Conseco Finance or its affiliate at least
30 days prior notice to such mailing. Conseco Finance will not charge Syms any
fees for up to six (6) different billing statement inserts requested and
provided by Syms, unless the insert increases the postage paid by Conseco
Finance for the billing statement. In such case, Syms shall pay Conseco Finance
the increased postage. Conseco Finance reserves the right twice per Program Year
to reduce the number of statement inserts available to Syms to allow Conseco
Finance to send any necessary change in terms notification required by law
without increasing the postage paid for by Conseco Finance provided that at the
request of Syms and approval of Conseco Finance, such number of statement
inserts shall not be reduced and Syms shall pay Conseco Finance any increased
postage as a result of such inclusion. Conseco Finance will, upon 30 days'
advance notice, provide Syms mailing labels addressed to all Accountholders at
cost or a computer tape containing the names and addresses of all Accountholders
for no charge. Conseco Finance will print on billing
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statements, messages with respect to Syms business and/or the Program as Syms
shall reasonably request, with 30 days prior notice. Any reference in such
messages to Conseco Finance or any of its affiliates or any term or condition of
credit shall be subject to the prior written approval of Conseco Finance, which
shall not be unreasonably withheld.
(h) Within three days following the Conversion Date of the Existing
Accounts, and subsequent payment equal to the total balances of the Existing
Accounts by Conseco Finance to Syms current program provider and provided that
Conseco Finance has balanced the conversion file to the amount paid for the
Existing Accounts, Conseco Finance will pay to Syms via wire transfer, a premium
amount equal to one and one-half percent (1.50%) ("Premium") of the total
balances of the Existing Accounts. If the purchase price paid by Conseco Finance
exceeds the total balances of the Existing Accounts, the excess portion paid
will be deducted from the Premium before paying Syms.
Section 2.10 Marketing Fund. Conseco Finance will form a jointly managed
marketing fund ("Fund"). The Fund will be jointly managed by Conseco Finance and
Syms. Conseco Finance will develop and execute only with Syms approval,
marketing programs to market the Program to consumers residing in the areas
served by the Stores. The details of each such marketing programs will be
presented to Syms in advance for its review, input and approval. Syms agrees
that it will promote the Program by offering a discount on all Syms Purchases
beginning with the commencement of this Program. If Syms decides to terminate
the discount program on all Syms Purchases, Syms agrees that it will continue to
offer a minimum discount of ten (10) percent on the initial Purchase to attract
applicants and Accountholders. Conseco Finance will allocate $100,000 to the
Fund as of the commencement of the Program. Conseco Finance will allocate an
additional $100,000 to the Fund on each subsequent Program anniversary if the
Program generates a minimum of $50 million in annual Purchases during the
previous twelve months. If the Program generates Purchases that are less than
$50 million, the $100,000 annual contribution to the Fund will be prorated
downward based on actual Purchases. Utilization of the Fund may include but is
not limited to (i) appropriate signage which Syms shall strategically place in
its Stores subject to the Program, and (ii) developing easy to understand
training materials on the operation of the Program and providing training
programs for sales and service personnel to encourage support of the Program.
Upon termination of the Program, any money remaining in the Fund will be
retained by Conseco Finance.
Section 2.11 Reporting. Conseco Finance will develop a customized reporting
package which will include analysis of the marketing promotions and various
monthly reports.
Section 2.12 Meetings. Conseco Finance and Syms agree to use their best
efforts to meet periodically to discuss the operations hereunder and to discuss
and share information, including, without limitation, (i) the location, type and
volume of total Purchases and Outstanding Receivables, and (ii) any promotional
programs or other activities designed to increase Net Purchases.
SECTION 3. ADMINISTRATION OF PROGRAM
------------------------------------
Section 3.01 Preparation of Documents. Conseco Finance and Syms shall
cooperate and assist each other in the preparation of all documents to be used
in connection with the Program. Conseco Finance shall provide Syms with the form
and content of credit applications, Credit Agreements, Credit Cards, temporary
cards and other forms used in connection with the Program
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(hereinafter referred to as "Program Documents"). All Program Documents shall
clearly disclose that Conseco Finance is the creditor. Syms shall not use any
Program Document unless Conseco Finance has expressly approved its form and
content and Syms shall not be obligated to use any Program Documents provided by
Conseco Finance unless Syms has reasonably approved its form and content,
subject to section 2.09(e) above. Syms shall not refer to Conseco Finance,
except in approved Program Documents.
Section 3.02 Credit Decisions. The credit standards which Conseco Finance,
in its sole discretion, shall apply to the processing of Program applications,
the setting of credit limits for Accountholders, the granting of authorizations,
and the solicitation of pre-approved customers through direct mail and telephone
solicitation programs shall be determined and may be changed from time to time
by Conseco Finance, according to its usual and applicable creditworthy
standards, which constitutes proprietary information of Conseco Finance. Conseco
Finance may suspend or terminate the credit privileges of any Accountholder at
any time provided that such suspension or termination does not violate any
applicable laws or regulations.
Conseco Finance shall maximize the number of qualified applicants that are
approved for credit under the Program and shall review periodically its credit
standards to facilitate the highest number of qualified applicants being
approved as possible. Syms has informed Conseco Finance that their approval rate
with their current program provider is between 70% and 75%. However, this
information is not a covenant, representation, warranty, or precondition to this
Agreement. Conseco Finance will also accept (but not be required to grant)
credit limit increase requests from Syms for Accountholders. Syms may
periodically request Conseco Finance to approve an application that has been
denied. If Conseco Finance then approves the Account at the request of Syms, the
Account will be flagged, as recourse to Syms ("Recourse Account") and any unpaid
portion of the Account will be charged back to Syms not later than the time at
which the account becomes 180 days delinquent, according to Conseco Finance's
accounting methods. Conseco Finance reserves the right to reasonably deny these
requests and if such an application is approved, Conseco Finance reserves the
right to determine the credit limit.
Section 3.03 Ownership of Accounts. Conseco Finance shall be the sole and
exclusive owner of all Accounts, Credit Cards, Credit Agreements, Accountholder
data (including Accountholder lists), sales slips, credit slips and receipts or
evidences of payment or Purchases by Accountholders and other Program Documents,
and shall be entitled to receive all payments made by Accountholders on
Accounts, and Syms acknowledges and agrees that it has no right, title or
interest in the Accounts, Credit Cards, Credit Agreements, Accountholder data,
sales slips, credit slips, receipts or evidence of payments or Purchases by
Accountholders and other Program Documents and has no right to any payments made
by Accountholder on Accounts. Conseco Finance shall be identified to
Accountholders as the creditor for all purposes. Notwithstanding the foregoing,
(a) Syms shall be entitled to receive Accountholder data (including
Accountholder lists) from Conseco Finance at no cost upon request and to use
such data for any promotion or marketing activity in connection with sales of
its Products and (b) Conseco Finance shall have no right, title or interest in
or to any Syms trademark, trade name or other proprietary right except a limited
right to use such proprietary rights on the Program Documents in connection with
the Program, which right shall not be assigned or otherwise transferred by
Conseco Finance without the prior written consent of Syms and which right shall
terminate on the Termination Date. Conseco Finance may withhold specific types
of Accountholder data if, in its sole determination, disclosure of such data to
Syms would violate applicable laws, including but not limited to the federal
Fair Credit Reporting Act. Conseco
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Finance shall not transfer ownership of the Accounts and related assets to any
third party, other than a permitted assignee of this Agreement pursuant to
Section 10.03, without the prior written consent of Syms.
Section 3.04 Periodic Statements. Conseco Finance shall be responsible for
mailing monthly periodic statements to Accountholders including amounts owed on
the Conversion Date under the existing provider's program and collecting all
amounts due on the Accounts upon such lawful terms and conditions as Conseco
Finance shall determine. The monthly statements will include provisions for
payment by mail in return window or preaddressed envelopes to Conseco Finance
and Conseco Finance will receive, process and promptly post such payments to the
Accounts. The monthly statement will instruct the Accountholder to make all
payments to Conseco Finance. Syms shall not have any responsibilities regarding
billing or collections on Accounts and, except as otherwise provided herein,
shall not be responsible for uncollectible Accounts. Conseco Finance shall have
the right to endorse the name of Syms on any and all checks made out to Syms or
other forms of payment received by Conseco Finance from Accountholders in the
performance of this Agreement. Syms authorizes and empowers Conseco Finance to
sign and endorse Syms's name on all checks, drafts, money orders, or other forms
of payment with regard to the Accounts. In the event that Conseco Finance sues
an Accountholder to collect a delinquent debt, Syms will cooperate reasonably
with Conseco Finance in its prosecution of the suit, at no material cost to
Syms. This Section shall survive and remain in effect for so long as Conseco
Finance owns any Outstanding Receivables.
Section 3.05 Enhancements. With the prior written consent of Syms, Conseco
Finance and its affiliates may from time to time make other products and
services available to Accountholders, that enhance the features of the Program
or the Accounts, provided that such products and services are not competitive
with the products and services offered by the Stores and the material clearly
identifies the offeror in a way that will not lead the Accountholder to believe
that Syms is the offeror. The products and services may include credit
insurance, a credit card protection plan, legal services, auto clubs and
extended warranties.
Section 3.06 Promotions. Syms and Conseco Finance may from time to time,
upon mutual agreement, develop marketing programs pursuant to which Conseco
Finance will offer revolving lines of credit to Syms customers. The mutually
agreed upon marketing programs will be reduced to written agreements which shall
be signed by Syms and Conseco Finance.
Section 3.07 Account Retention. Conseco Finance will not purge Syms
Accounts from the system until an Account has been inactive (no balance) for a
period of 24 months, "Inactive Purge". Conseco Finance may elect to store
inactive Accounts prior to 24 months of inactivity as long as the Account can be
accessed and moved to an active file upon receiving an Authorization request
from Syms. Conseco Finance will produce a file for Syms with the names and
addresses of the Accountholders being purged.
Section 3.08 Corporate Employee Discount Program. Syms currently invites
employees of corporations selected by Syms to apply for a Syms Account. Syms
offers a discount on each Purchase made by such employees. Conseco Finance
agrees to use its best efforts to support this program by:
(a) offering a phone-in application process for the employees;
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(b) indicating on the face of the Credit Card that it is a corporate
employee Account;
(c) systematically deducting the discount offered to corporate
employees by Syms, before billing the Accountholder.
SECTION 4. OPERATING PROCEDURES
--------------------------------
Section 4.01 General. During the term of this Agreement, Conseco Finance
will operate, maintain and promote the Program for all Stores subject hereto in
a professional manner in all material respects in accordance with applicable
laws and regulations' and substantially in accordance with the Operating
Procedures, (including, without limitation, complying with all Consumer Credit
Laws). However, Conseco Finance may make changes therein with the reasonable
approval of Syms, from time to time, effective only upon 30 days prior written
notice if such change relates to providing settlement of Accounts, unless such
change would have an insignificant impact on Syms, in which case Conseco Finance
shall notify Syms of such change as soon as practical thereafter. Conseco
Finance will provide to Syms the services hereinafter described, provided that
Conseco Finance will not make a change which will impose a material additional
cost or unreasonable burden on Syms or which is contrary to any specific
provision of this Agreement unless such change is required by law. Conseco
Finance will consider and discuss with Syms any requests by Syms to change any
of the Operating Procedures or other aspects of the Program, but will not be
obligated to agree to any request if it would adversely affect Conseco Finance
duties, responsibilities, costs of operations or the revenue therefrom in
Conseco Finance's sole opinion. Conseco Finance will not unreasonably withhold
consent. Syms will cooperate with Conseco Finance in the operation of the
Program and in developing and implementing procedures necessary for the
operation of the Program by Conseco Finance. Conseco Finance will operate the
Program with respect to each Store opened by Syms.
Section 4.02 Solicitation of Accounts. The following procedures shall be
followed for the solicitation of Accounts and the processing of credit
applications:
(a) In connection with the sale of Products, Syms may take credit
applications on behalf of Conseco Finance using the credit application and
disclosure forms provided by Conseco Finance. Approved applicants will be able
to Purchase immediately utilizing a temporary card Account.
(b) Syms shall forward promptly to Conseco Finance, by mail, telephone,
facsimile transmission, or electronically, credit applications completed by
customers.
(c) All credit applications will be reviewed by Conseco Finance for
approval and establishment of the applicable credit limit. Conseco Finance will
communicate in-store credit approvals and denials to both the customer and Syms.
Section 4.03 New Account Fulfillment. Conseco Finance shall be solely
responsible for Account fulfillment, including the mailing of Accountholder
welcome letters, Credit Cards, Credit Agreements and convenience checks.
Section 4.04 Procedures for Purchases and Credits.
(a) Syms shall complete a sales slip for each Purchase and imprint or write
the
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Accountholder's name and Account number on the sales slip. Syms shall deliver
copies of the sales slip to Conseco Finance, if requested by Conseco Finance,
within ten (10) business days of Conseco Finance request.
(b) Syms shall obtain the Accountholder's signature on the sales slip once
all of the Purchase information is complete. If a Credit Card is used, the card
must appear to be valid on its face and show no signs of having been altered,
defaced or tampered with and the last name of the name signed on the Credit Card
is the same as the last name of the name embossed or otherwise placed on the
Credit Card by the issuer, and the signature of the customer signed on the sales
slip must compare favorably with the signature on the signature panel of the
Credit Card. If the Accountholder does not have his/her Credit Card, the
signature on the sales slip must be reasonably similar to the signature on one
form of identification, one with a photograph, provided by the Accountholder. A
valid driver's license, military or state identification is required as
identification. Syms will make reasonable efforts to confirm the identity of the
Accountholder in all cases. Conseco Finance will assume responsibility for Fraud
Losses occurring on Accounts opened in a Syms Stores up to and including 40
basis points of the average Outstanding Receivables on a Program Year basis.
Syms will be responsible for Fraud Losses on Accounts opened in a Syms Stores in
excess of 40 basis points of the average Outstanding Receivables on a Program
Year basis. Such Fraud Losses shall be calculated by Conseco Finance at the end
of each Program Year, and any payments hereunder shall be made within 15 days of
calculation; provided, however, that in the event Syms delivers written notice
to Conseco Finance within such 15 day period specifying its written objection to
such mathematical calculation, then such parties will act in good faith to
resolve such dispute as promptly as practicable and Syms shall promptly
thereafter pay any monies due Conseco Finance pursuant hereto. Conseco Finance
will provide a report to Syms on a monthly basis detailing in-Stores Account
Fraud Losses.
(c) Syms shall obtain prior authorization for all Purchases and record the
authorization code on the sales slip. Authorizations may be obtained
electronically or by contacting Conseco Finance at a designated telephone number
established for the purpose of issuing authorizations under the Program, during
the hours set forth in Section 4.07 (e) of the Operating Procedures. On at least
2 week's notice from Syms, Conseco Finance will reasonably extend the times for
such authorization services. Syms shall configure all POS registers in each
Store so as to have access to such electronic authorization services for
Purchases in accordance with mutually acceptable protocols. Such services will
be provided through the communications network selected by Conseco Finance. If
Syms elects to use any other means of communication, Syms will give Conseco
Finance at least 3 months prior notice of any such proposed change and Syms will
absorb all costs of such proposed change. At the time of each Purchase, Syms
will prepare a sales slip, and at the time Syms gives an Accountholder a credit
for the return of merchandise, or an adjustment of the price of the merchandise
or for any other reason, with respect to a Purchase, Syms will issue a credit
sales slip. No Purchase shall be made to an Account pursuant to the Program
except in accordance with this Section 4.04 (c) regarding Purchase authorization
procedures. Each day Syms will capture all of the information on all Purchases
and transmit such information by electronic data transmission to Conseco
Finance, all in accordance with the Operating Procedures.
Section 4.05 Settlement Procedures.
(a) All sales data will be transmitted from Syms by electronic data
transmission to
11
Conseco Finance. The sales data shall include the following: (i) the account
number, authorization number, amount and date of each Purchase, (ii) the account
number, amount and date for each credit slip issued with respect to the
Accounts, and (iii) such other information that Conseco Finance may reasonably
request.
(b) The receipt of the customer's original credit application (required for
initial Purchase only) within ten (10) days of the electronic transmission of
sales data, shall also be a requirement. Purchases where Conseco Finance has not
received the original application are subject to Chargeback under Section 5.
Conseco Finance will supply postage-paid envelopes to Syms Stores for the
purpose of mailing original credit applications to Conseco Finance.
(c) Conseco Finance shall pay to Syms the amount of each Purchase for which
all of the proper data has been provided as described in Section 4.05 (a) above,
less any applicable standard and promotional discounts. Conseco Finance shall be
entitled to set off against amounts due to Syms for Purchases the amount of any
credit slips issued for Purchases and any Chargebacks pursuant to Section 5
hereof. Funds due to Syms for Purchases hereunder shall be forwarded to Syms via
the Automated Clearing House System on the business day following the day on
which the sales data is received before 4:00 PM Eastern Time or if received
later, the second business day, by crediting funds to an account in the name of
Syms or otherwise as directed by Syms, no later than the next business day.
Conseco Finance will use all reasonable efforts to pay Syms by 2:00 PM Eastern
Time on the next business day.
(d) Conseco Finance and Syms shall cooperate in resolving any disputes
regarding amounts set forth in the sales data, as described in Section 4.05 (a).
Conseco Finance shall be entitled to withhold payment for the disputed portion
of any sales data. In the event that amounts due from Syms to Conseco Finance
under this Agreement on any day shall exceed amounts payable by Conseco Finance
to Syms, Syms shall pay such excess to Conseco Finance by crediting funds to the
account of Conseco Finance on the same time schedule as stated above in this
Section. Information regarding Purchases, payments received by Syms and other
credits issued to be applied to Accounts by Conseco Finance, shall be
transmitted electronically from Syms to Conseco Finance computers in a
reasonable format prescribed by Conseco Finance AND shall include the
information described in Section 4.05 (a).
(e) The parties intend that Accountholders shall be required to make all
payments by mail. Syms will not actively solicit or encourage any Accountholder
to make a payment in any Store and will not permit such payments.
Section 4.06 Dispute Resolution Procedures. Syms shall cooperate with
Conseco Finance to promptly resolve any Accountholder Product related dispute.
Conseco Finance will notify Syms via fax upon receipt of the Accountholder
dispute. Syms will have twenty calendar days to settle or resolve the dispute.
Failure to resolve or settle the dispute will result in a Chargeback pursuant to
Section 5 hereof.
Section 4.07. Customer Service. (a) Conseco Finance and Syms agree to
cooperate in rendering good customer service including, but not limited to,
maintaining Syms current practice of answering the phones, responding to written
and telephone inquiries and complaints concerning Purchases; returns,
adjustments, credits, bills, payments, collections and other matters
(collectively "Inquiries and Complaints"). Conseco Finance shall provide a toll
free
12
telephone number for use by the Accountholders. Conseco Finance, on average,
shall answer its customer service calls from Accountholders within 25 seconds.
This operating standard is advisory only and does not, in and of itself,
represent a warranty or covenant of Conseco Finance. Failure to meet this
operating standard shall not be a condition of default under this Agreement, nor
is it a condition precedent to payment of any sums due from Syms to Conseco
Finance hereunder. Conseco Finance agrees to make all necessary adjustments to
Accounts to correct errors and as required by law and good business practice.
(b) Syms agrees to promptly forward to Conseco Finance all written
Inquiries and Complaints directed to it, and to provide Conseco Finance with any
information relating to each such Inquiry or Complaint as Conseco Finance may
request.
(c) Conseco Finance will promptly forward to Syms all Inquiries and
Complaints which it receives. Syms shall respond to and resolve all Inquiries
and Complaints promptly in accordance with the Operating Procedures and within
the time period required by law. Syms will notify Conseco Finance of action
taken with respect to Inquiries and Complaints received by Conseco Finance.
(d) Conseco Finance will exercise all reasonable efforts to mail a new
Credit Card to each Accountholder in good standing within 5 days of notice from
such Accountholder who reports a lost or stolen card, provided the loss was not
caused by the negligence of the Accountholder.
(e) Conseco Finance will provide service to Accountholders at the following
times: Monday-Sunday (other than Holidays) 8:00 A.M. - 1:00 A.M. ET. The
automated voice response unit is available 24 hours a day for customer
inquiries, excepting a seven hour period during the early morning hours.
SECTION 5. CHARGEBACK
----------------------
Section 5.01 Chargeback Rights. Conseco Finance shall have the right, at
its option, to Chargeback to Syms the amount of any Purchase plus all accrued
and unpaid finance charges and other amounts owing to Conseco Finance if:
(a) Any Presentment Warranty made by Syms pursuant to Section 6.01 proves
to be false or inaccurate in any material respect, after a reasonable
investigation by Conseco Finance;
(b) The Accountholder asserts any claim or defense against Conseco Finance
as a result of any act or omission of Syms that violates any applicable law,
statute, ordinance, rule or regulation, after a reasonable investigation by
Conseco Finance;
(c) The Accountholder disputes the amount or existence of such Account or
the Accountholder refuses to pay (including by exercise of its right under the
Fair Credit Billing Act or other similar law to require Conseco Finance to
credit its Account), alleging dissatisfaction with the Products received, a
breach of any warranty or representation in connection with the transaction, or
an offset or counterclaim against Conseco Finance based on an act or omission of
Syms, after a reasonable investigation by Conseco Finance; or
(d) Syms did not comply in any material respect with the operating
procedures outlined
13
in Section 4 herein.
Section 5.02 Limitation of Chargeback Rights. In its reasonable discretion
Conseco Finance may compromise and settle any claim made by any Accountholder if
such claim may give Conseco Finance a right to Chargeback up to the face amount
of any sales slip. In the event of any such compromise or settlement, Conseco
Finance shall adjust the Accountholder's Account and Conseco Finance right to
Chargeback shall be limited to the actual amount so compromised.
Section 5.03 Exercise of Chargeback. If Conseco Finance exercises its right
of Chargeback, Conseco Finance shall have the right to off set the amount of the
Chargeback against any amounts due Syms under this Agreement or, if Chargebacks
exceed sums due Syms, Conseco Finance may demand immediate payment from Syms for
the full amount of such excess. If any Purchase is charged back, Conseco Finance
shall assign, without recourse, all right to payment for such Purchase to Syms
upon the request of Syms. Conseco Finance shall promptly notify Syms in writing
of any Chargebacks and any compromises or settlements of any claims by
Accountholders.
SECTION 6. WARRANTIES AND COVENANTS
-----------------------------------
Section 6.01 Presentment Warranties. Syms represents and warrants to
Conseco Finance with respect to each Account (the following shall be deemed
restated, renewed and reaffirmed with respect to each Purchase presented to
Conseco Finance for approval and settlement):
(a) that the sales slip represents a bona fide sale and was actually
executed by the person named therein as Accountholder;
(b) that the signature on the sales slip appears reasonably similar to the
signature of the Accountholder on Credit Card or the signature on other valid
identification examined by Syms;
(c) that the sales slip has not been materially altered;
(d) that the Accountholder is of legal age per the identification and
appeared competent to open an Account;
(e) that the Products are accurately described on the sales slip and any
Products described therein have been delivered into the possession of the
Accountholder; and do not violate any warranty, expressed or implied;
(f) that the transaction, including prior authorization, was conducted by
Syms in accordance with the operating procedures set forth in Section 4 above
(as same may be revised from time to time);
(g) that the account number, name of Accountholder and authorization number
have been printed on each sales slip;
(h) that Syms has not received, directly or indirectly, and will refuse to
accept, any reimbursement, payment or trade-in for the charges listed on such
sales slip (other than from
14
Conseco Finance) and has not and will not, either directly or indirectly, take
or grant any right or security interest in any sales slip or credit slip (other
than to Conseco Finance) which is the subject of the transaction;
(i) that the transaction was conducted by Syms in accordance with all
applicable laws and regulations that pertain to the sale of Products by Syms;
(j) there is no fact nor any claim or defense of any Accountholder that
would impair the validity, enforceability, or collectability of the obligation
of the Accountholder evidenced by the sales slip;
(k) that Syms has full and complete title to the Products subject only to
the rights of the Accountholder which exist by virtue of the Account;
(l) that there have been no representations or warranties made to the
Accountholder which are not contained in the sales slip other than Syms's
standard warranties; and in the event Syms breaches a standard warranty, Syms
will cure the breach within twenty (20) calendar days of notice of the breach;
(m) Syms owns the sales slip free from any claims, liens, security interest
or other encumbrances.
Section 6.02 Program Covenants of Syms. Syms covenants to do the following
during the term of this Agreement with respect to the operation of the Program:
(a) Syms shall cooperate with Conseco Finance promptly to resolve all
disputes with Accountholders.
(b) Syms shall maintain a fair and equitable policy for the exchange and
return of Products and shall promptly deliver a credit slip to the Accountholder
and include credit for each return in the data transmitted to Conseco Finance
pursuant to Section 4.05 (a) hereof.
(c) Syms shall not seek or obtain any special agreement or condition from,
nor discriminate in any way against, any Accountholder with respect to the terms
of any transaction.
(d) Syms shall use its best efforts within three (3) business days of its
receipt, but no later than seven (7) business days of its receipts, to provide
Conseco Finance with a copy of any written complaint from any customer relating
to any sales slip;
Section 6.03 General Representations and Warranties of Syms. Syms makes the
following representations and warranties to Conseco Finance, each and all of
which shall survive the execution and delivery of this Agreement, and each and
all of which shall be deemed to be restated and remade on each day on which any
Account is opened, any Purchase is presented for settlement pursuant to Section
4.05, or any action is taken by Syms with respect to the Program:
(a) Corporate Existence. Syms (i) is a corporation duly organized, validly
existing, and in good standing under the laws of the State of New Jersey; (ii)
is duly qualified as a corporation and in good standing under the laws of each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification except where such failure would not
15
have a material adverse effect on the business, assets, operations or condition
of Syms or the operation of the Program; (iii) has the requisite corporate power
and authority and the legal right to own, pledge, mortgage, and operate its
properties, to lease the properties it operates under lease, and to conduct its
business as now conducted and hereafter contemplated to be conducted; (iv) has
all necessary licenses, permits, consents, or approvals required for the conduct
of its business except where such failure would not have a material adverse
effect on the business, assets, operations or condition of Syms or the operation
of the Program; and (v) is in compliance with its certificate of incorporation
and bylaws.
(b) Corporate Power, Authorization; Enforceable Obligation. The execution,
delivery, and performance of this Agreement and all instruments and documents to
be delivered by Syms hereunder: (i) are within Syms's corporate power; (ii) have
been duly authorized by all necessary or proper corporate action, including the
consent of shareholders where required; (iii) do not and will not contravene any
provisions of Syms's certificate of incorporation or bylaws; (iv) will not
violate any law or regulation or any order or decree of any court or
governmental instrumentality; (v) will not conflict with or result in the breach
of, or constitute a default under any indenture, mortgage, deed of trust, lease,
agreement, or other instrument to which Syms is a party or by which Syms or any
of its assets or property are bound except where such failure would not have a
material adverse effect on the business, assets, operations or condition of Syms
or the operation of the Program; and (vi) do not require any filing or
registration with, or the consent or approval of, any governmental body, agency,
authority, or any other person which has not been made or obtained previously,
copies of which have been provided to Conseco Finance. This Agreement has been
duly executed and delivered by Syms and constitutes a legal, valid, and binding
obligation of Syms enforceable against Syms in accordance with it terms.
Section 6.04 Program Covenants of Conseco Finance. Conseco Finance
covenants to provide and maintain the computer software required for the
Program. Conseco Finance hereby agrees that Syms shall not be deemed to be in
breach of any term of this Agreement if and to the extent that such breach is a
result of Conseco Finance's breach of its obligations under this Section 6.04.
Section 6.05 Representations and Warranties of Conseco Finance. Conseco
Finance makes the following representations and warranties to Syms, each and all
of which shall survive the execution and delivery of this Agreement, and each
and all of which shall be deemed to be made on each day on which any Account is
opened, Purchase documentation is received for settlement pursuant to Section
4.05, or any action is taken with respect to the Program on or after the
Conversion Date:
(a) Corporate Existence. Conseco Finance (i) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; (ii) is duly qualified as a corporation and in good standing under the
laws of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification except where such failure
would not have a material adverse effect on the business, assets, operations or
condition of Conseco Finance or the Program; (iii) has the requisite corporate
power and authority and the legal right to own, pledge, mortgage, and operate
its properties, to lease the properties it operates under lease, and to conduct
its business as now conducted and hereafter contemplated to be conducted; (iv)
has all necessary licenses, permits, consents, or approvals required for the
conduct of its business except where such failure would not have a material
adverse effect on the business, assets, operations or condition of Conseco
Finance or the Program; and and (iv) is in
16
compliance with its articles of incorporation and bylaws.
(b) Corporate Power, Authorization; Enforceable Obligation. The execution,
delivery, and performance of this Agreement and all instruments and documents to
be delivered by Conseco Finance hereunder; (i) are within Conseco Finance
corporate power; (ii) have been duly authorized by all necessary or proper
corporate action, including the consent of shareholders where required; (iii) do
not and will not contravene any provision of Conseco Finance certificate of
incorporation or bylaws; (iv) will not violate any law or regulation or an order
or decree of any court or governmental instrumentality; (v) will not conflict
with or result in the breach of, or constitute a default under, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which Conseco
Finance is a party or by which Conseco Finance or any of its property is bound
except where such failure would not have a material adverse effect on the
business, assets, operations or condition of Syms or the operation of the
Program; and (vi) do not require any filing or registration with or the consent
or approval of any governmental body, agency, authority, or any other person
which has not been made or obtained previously. This Agreement has been duly
executed and delivered by Conseco Finance, and constitutes the legal, valid, and
binding obligation of Conseco Finance, enforceable against Conseco Finance in
accordance with its terms.
Section 6.06 Acquisitions. (a) Whenever Syms proposes (whether directly or
indirectly through a subsidiary, through a merger or consolidation with a third
party in which Syms is the surviving entity in such merger or consolidation,
through the acquisition of a chain of stores or individual stores, or through
the opening of new stores) to operate stores not then served by the Program,
Syms will, to the extent practicable or feasible or not otherwise prohibited by
applicable law, keep Conseco Finance fully informed as to its plans for such
change in order to allow Conseco Finance to make preparations (i) to service
such additional stores, customers or business under the existing Program, or
(ii) to establish a new Program for such additional stores, customers or
business, or (iii) to the extent permitted under the applicable agreements, to
take over and service as a Program hereunder any existing private label credit
program serving such stores, customers or business if such program is acquired
by Syms, each to the extent provided in clause (b) below.
(b) If at the time of acquisition such stores do not have a credit card
program which is utilized primarily in such stores, and (i) if such stores are
stores selling merchandise generally similar to that currently sold by Syms,
Conseco Finance and Syms will as soon as reasonably practicable, make the
Program available in such stores to those customers who become Accountholders in
accordance with the terms of this Agreement, but (ii) if such stores are not
stores selling merchandise generally similar to that currently sold by Syms,
Conseco Finance shall have the option, by notice to Syms within 30 days after
all of the relevant information concerning such stores is provided to Conseco
Finance, to decline the Program for such stores.
SECTION 7. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
-------------------------------------------------
Section 7.01 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(a) Either Syms or Conseco Finance shall fail to make any payment of any
amount due pursuant to this Agreement when due and payable, and the same shall
remain unpaid for a period of ten (10) days after written notice thereof;
17
(b) Either Syms or Conseco Finance shall fail or neglect to perform, keep,
or observe any other material term, provision, condition, or covenant contained
in this Agreement that is required to be performed, kept, or observed by either
party, and the same shall remain uncured for a period of thirty (30) days after
the other party shall have given written notice thereof;
(c) Any representation or warranty made or delivered by either Syms or
Conseco Finance or any of its respective officers, employees, agents, or
representatives shall not be true and correct in any material respect as of the
date when made or reaffirmed and has not been cured for a period of 30 days
after notice from the other;
(d) Either Syms or Conseco Finance shall (i) make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
Syms or any of its subsidiaries or Conseco Finance or any of its parent
corporations or subsidiaries seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or appointment of a receiver, trustee-, or other
similar official for it or for any substantial part of its property; (ii)
consent to the institution of proceedings pursuant thereto or to the filing of
any such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, or sequestrate (or similar official) of
either party of any substantial part of its properties; (iii) generally not pay
its debts as such debts become due unless either party has a serious good faith
dispute with such debts, or shall admit in writing its inability to pay its
debts generally; or (iv) take corporate action in furtherance of any such
action;
(e) Syms closes 10 or more Stores (excluding Store relocations) in any 12
month period.
Section 7.02 Remedies. If any Event of Default shall have occurred and be
continuing the non-defaulting party shall have the right to terminate this
Agreement at any time by notice to the other and cause this Agreement to be
terminated in the manner specified in Section 8 hereof. Upon any such
termination, the terminating party shall have, in addition to all other rights
and remedies under this Agreement or otherwise, all other rights and remedies
provided under other applicable laws, which shall be cumulative.
SECTION 8. TERM/TERMINATION
--------------------------
Section 8.01 Term. This Agreement shall remain in effect until the
effective date (the "Termination Date") on which this Agreement is terminated by
one of the parties hereto pursuant to this Section 8.01, Section 8.02 or Section
8.03. Either party may terminate this Agreement effective on the last day of the
fifth Program Year or thereafter at the end of each subsequent Program Year, by
giving written notice to the other party not less than ninety (90) days prior to
such Termination Date. In addition and subject to Section 8.03, at any time
after November 30, 2000, Syms may terminate this Agreement upon not less than 90
days prior written notice in the event that it sells all or substantially all of
its assets to or merges or otherwise consolidates with an unaffiliated third
party (and Syms is not the surviving entity in such merger or consolidation) and
only if such third party has a revolving credit program in effect, which program
will be used in the Stores following termination of this Agreement pursuant
hereto.
18
Section 8.02 Termination for Cause. If an Event of Default under (i)
Section 7.01 (a), (b), (c) or (d) shall occur, the non-defaulting party shall
have the right immediately to terminate this Agreement effective upon written
notice and (ii) Section 7.01 (e) shall occur, Conseco Finance shall have the
right to terminate this Agreement on 120 days prior written notice..
Section 8.03 Merger; Sale of Assets. (a) In the event Syms shall merge or
consolidate with any other third party entity and Syms or its subsidiary shall
not be the surviving entity in such transaction or Syms shall sell or transfer
substantially all of its assets to any entity, Syms shall provide to Conseco
Finance as far in advance as reasonably possible satisfactory financial
information concerning the surviving entity including the intentions of the
parties with respect to the continued operation of the Program and, if the other
party is in the retail business, at other stores to be operated by the surviving
party, and such other information as would be appropriate to enable Conseco
Finance to plan for the continued operation of the Program. If in the reasonable
judgment of Conseco Finance, such transaction will have a materially adverse
effect on Syms financial condition or the financial condition and operations of
the business as it had been conducted by Syms, Conseco Finance may at its option
terminate this Agreement on 90 days prior written notice to Syms which notice
shall be given within 30 days after final and complete information is provided,
effective only upon a consummation of the merger, consolidation or sale. In the
event Conseco Finance does not elect to terminate, unless Syms shall elect to
terminate this Agreement pursuant to the last sentence of Section 8.01, this
Agreement shall survive any such merger or consolidation and in the case of a
sale of all or substantially all of Syms assets, Syms shall require the
acquiring or resulting entity to assume in writing this Agreement and all of
Syms obligations and duties hereunder and enter into a supplementary agreement
with Conseco Finance, reasonably satisfactory to Conseco Finance, which (if
mutually agreed on by Conseco Finance and the surviving party) will specify the
extent to which this Agreement will apply to any additional stores to be
operated by the surviving party in accordance with Section 6.06 and will be
substantially similar to this Agreement. Notwithstanding the foregoing, this
Section 8.03 shall not apply to the sale or transfer of substantially all of
Syms' assets to an affiliate of Syms as long as such affiliate becomes a party
to this Agreement.
(b) If Conseco Finance elects to terminate this Agreement pursuant to
Section 8.03 (a), or in the event that Syms elects to terminate this Agreement
pursuant to the last sentence of Section 8.01, then Syms or such third party
shall purchase or cause to be purchased from Conseco Finance on the Termination
Date or such other date as the parties may agree upon (the "Purchase Date") all
Outstanding Receivables for a purchase price payable in cash in an amount equal
to the unpaid principal balance plus all accrued and unpaid finance charges and
other amounts owing to Conseco Finance on the day prior to the Purchase Date
(the "Final Receivables"). In the case of a termination by Syms pursuant to the
last sentence of Section 8.01, Syms will also pay a "Termination Fee", as
follows, based on the effective date of the termination.
Termination at any Time % of the average Outstanding
---------------------------------------- Receivables for such period to be
paid by Syms
during the 12-month period following the 10 %
12th month after the Conversion Date...
during the 12-month period following the 7.5 %
19
24th month after the Conversion Date...
during the 12-month period following the 5 %
36th month after the Conversion Date...
during the 12-month period following the 2.5 %
48th month after the Conversion Date...
In the event of a termination by Conseco Finance or Syms pursuant to this
Section 8.03, the provisions of Section 8.04 (c) and (d) shall apply to the
purchase and sale of the Outstanding Receivables.
Section 8.04 Effect of Termination. (a) In the event of termination by
either party that is effective on the last day of the fifth Program Year or
thereafter at the end of each subsequent Program Year or if termination is by
Syms pursuant to Section 8.02 (i), Syms shall have the option to purchase or to
cause another entity to purchase from Conseco Finance, on the Purchase Date the
Final Receivables. Syms shall do this by giving irrevocable written notice of
exercise of this option to Conseco Finance or its affiliate, (i) not less than
ninety days prior to the last day of the fifth Program Year or thereafter at the
end of each subsequent Program Year (except that Syms shall have an additional
10 days if Conseco Finance is the one terminating), or (ii) together with any
notice of termination given by Syms under Section 8.02 (i). Upon the giving of
such notice of exercise, Conseco Finance shall be obligated to sell and Syms
shall be obligated to cause the designated entity to purchase in accordance with
the terms of this Section. The purchase price shall be equal to the amount of
the Final Receivables as of the close of business on the day prior to the
Purchase Date.
(b) In the event of termination by Conseco Finance pursuant to Section
8.02, Syms shall be required to purchase or cause another entity to purchase on
the Purchase Date from Conseco Finance the Final Receivables. The purchase price
shall be equal to the amount of the Final Receivables as of the close of
business on the day prior to the Purchase Date.
(c) The purchase price, including any Termination Fees, shall be payable in
full on the Purchase Date in same day funds by wire transfer to an account of
Conseco Finance against delivery by Conseco Finance of an assignment of all of
its right, title and interest in and to the Accounts, Outstanding Receivables,
Credit Agreements and Credit Cards and all records and other data obtained in
connection with the operation of the Program or otherwise pursuant to this
Agreement, without recourse and without warranty of any kind except that the
amounts of the Final Receivables and all other information with respect to the
Accounts, Credit Agreements and Credit Cards and such other records and other
data are correct, and that the assets so conveyed are the property of Conseco
Finance free and clear of any lien, claim or encumbrance of any kind whatsoever
arising out of any act or omission of Conseco Finance. In the event Syms
purchases or causes another entity to purchase the Final Receivables, the names,
addresses and payment histories of the Accountholders shall be included among
the assets conveyed to such purchaser and shall be the exclusive property of the
purchaser after the Purchase Date. The purchaser shall not be entitled to set
off against the purchase price any disputed claim it or Syms may have against
Conseco Finance for damages, and Conseco Finance shall not be entitled to
withhold delivery of the assignment on account of any disputed claim it may have
against Syms for damages.
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(d) Conseco Finance shall cooperate in good faith with the purchaser in
transferring the Final Receivables sold to the purchaser and the operation of
the Program to the purchaser and shall make available to the purchaser in
advance the master file tape or extracts therefrom and other records necessary
to assist the purchaser in analyzing such Outstanding Receivables and in
establishing its own records for operations after the Termination Date. On the
Purchase Date, Conseco Finance will deliver one or more computer tapes
containing all of the information normally maintained by Conseco Finance with
respect to the assets being conveyed for purposes of billing, credit review,
xxxxxxx and collection, and a description of the format in which such
information is recorded on tape, and all of the written records and documents
maintained by Conseco Finance with respect to the foregoing, and all unused
supplies for the Program which do not include the name of Conseco Finance.
Conseco Finance shall be entitled to retain copies of any of the foregoing only
to the extent required by law (after which such copies shall be destroyed), and
Conseco Finance shall preserve the confidentiality of and shall not permit the
use of or disclose any documents or information so conveyed, whether for
commercial gain or any other purpose. Conseco Finance shall provide such
additional cooperation and information as the purchaser shall reasonably
request. Without limitation to the foregoing, Conseco Finance shall use good
faith efforts to assist any successor provider to understand the record layout
and file structure of the database and to analyze pertinent account information
and portfolio characteristics and shall provide all access, information,
assistance and documentation that Conseco Finance has required or requested of
Syms and Syms current program provider in connection with the conversion
hereunder.
(e) In the event that Syms does not elect to purchase or cause an entity to
purchase the Outstanding Receivables, or having so elected the designated entity
does not purchase the Outstanding Receivables pursuant to Section 8.04 (a), Syms
shall (unless this Agreement was terminated by Syms under Section 8.02 (i)):
(A) compensate Conseco Finance to collect-out- the Outstanding Receivables,
upon billing in an amount equal to: (i) Conseco Finance Net Credit Losses after
the Termination Date, plus (ii) 110 % of Conseco Finance programming,
processing, administrative and collection agency expenses, plus or minus the net
of (iii) the actual costs for Conseco Finance to fund the Outstanding
Receivables over the total amount of finance charges Conseco Finance assesses to
Accountholder's each month. If the costs of funds exceeds the finance charges,
the net amount will be added to the above subsection (i) and (ii). If the
finance charges exceed the costs of funds, the net amount will reduce the total
of subsections (i) and (ii).
(B) not take any action which might materially adversely affect Conseco
Finance's ability to collect the Outstanding Receivables in full (including but
not limited to honoring or otherwise extending credit, utilize Conseco Finance's
numbering system for credit accounts, or issue new cards or open new accounts as
replacements for Conseco Finance Credit Cards or Accounts), but this shall not
prevent Syrns from introducing a new program for its customers if each customer
is required to apply for a new account and credit card and provides the usual
credit information to Syms.
Section 8.05 Post-Termination Matters.
(a) If Syms does not purchase or have the entity purchase the Outstanding
Receivables and Conseco Finance must collect out the Outstanding Receivables
Syms may implement a credit program for its customers, provided (A) such program
will not unreasonably confuse Accountholders or interfere with or jeopardize the
collectibility of the Outstanding Receivables,
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(B) Syms will not send without Conseco Finance's prior written consent (which
consent shall not be unreasonably withheld), any communication to Accountholders
which refers to the Program or the new credit program which communication might
materially adversely affect Conseco Finance's ability to collect the Outstanding
Receivables, and (C) Syms will not knowingly solicit any active Accountholders
for new accounts (provided Syms may accept unsolicited applications from such
customers) or use the names, addresses or any other information regarding such
customers in any way without the prior written consent of Conseco Finance.
(b) If Syms purchases or causes an entity to purchase the Outstanding
Receivables, it will or will cause such purchaser to assume all of the duties
which Conseco Finance may have to the Accountholders under their Credit
Agreements and all laws and regulations applicable thereto arising after the
Purchase Date and it will or will cause the purchaser to perform them in full
compliance with law and good business practice.
(c) On the Termination Date (regardless of the reason for termination) all
obligations of Conseco Finance to Syms to honor Purchases for Accountholders or
render services of any kind to Syms, and all obligations of Syms to honor the
Program or its cards or to render services of any kind to Conseco Finance, shall
terminate. Upon termination, all of the rights and obligation of the respective
parties hereto shall cease; provided, however, that the following shall survive
the termination of this Agreement: (i) Syms's obligation to reimburse Conseco
Finance for amounts due to Conseco Finance in connection with the offering of
special credit promotions and a grace period on Purchases pursuant to Section
2.03; (ii) Conseco Finance's Chargeback rights pursuant to Section 5; (iii) the
obligations of the parties related to indemnification under Section 9 and (iv)
each party's respective obligations pursuant to Section 2.06.
SECTION 9. INDEMNIFICATION
--------------------------
Section 9.01 Indemnification. Syms will indemnify and hold Conseco Finance
and its affiliates and their directors, officers, employees and agents harmless
from and against any and all Losses (as defined below) which may arise by reason
of (i) any act or omission by Syms or any of its directors, officers, employees,
or agents which constitutes a failure by Syms to comply or causes Conseco
Finance to fail to comply with any law or regulation governing the transactions
or operations contemplated hereby or which violates the personal or property
rights of any third party, or (ii) any sale of goods or services allegedly
financed under the Program (including any alleged defect therein or
misrepresentation by Syms or its agents), or (iii) any failure by Syms' current
program provider or Syms to comply fully with all federal, state and local laws
and regulations governing the relationship between merchant and consumer or
between creditor and debtor, including Laws relating to Truth-In-Lending, credit
opportunity, credit reporting, billing, the correction of billing errors, usury
and finance charges) (collectively, "Consumer Credit Laws") prior to the
Conversion Date, except that this indemnity shall not apply to any failure to
perform any duty or function which Conseco Finance has agreed to perform under
this Agreement. Conseco Finance will indemnify and hold Syms and its affiliates
and their directors, officers, employees and agents harmless from and against
any and all Losses (as defined below) which may arise by reason of (1) any act
or omission by Conseco Finance or any of its directors, officers, employees, or
agents which constitutes a failure by Conseco Finance to comply or causes Syms
to fail to comply with any law or regulation governing the transactions or
operations contemplated hereby (including, without limitation, applicable
Consumer Credit Laws) or which violates the personal or property rights of any
third party,
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(2) any sale made by a third party pursuant to Section 3.05, or (3) any
advertisements or promotions that Conseco Finance approved or utilized relating
to the Program, except that this indemnity shall not apply to any failure to
perform any duty or function which Syms has agreed to perform under this
Agreement.
Section 9.02 General. Syms and Conseco Finance shall promptly notify the
other of any claim, demand, suit or threat of suit of which it becomes aware
(except with respect to a threat of suit either party might institute against
the other) which may give rise to a right of indemnification pursuant to this
Agreement. The indemnifying party will be entitled to participate in the
settlement or defense thereof and, if the indemnifying party elects, to take
over and control the settlement or defense thereof with counsel satisfactory to
the indemnified party. 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. No settlement of any
indemnified matter may be agreed to by the indemnifying party unless it contains
a full and complete release of the indemnified party. An indemnitee's right to
indemnification hereunder shall not be subject to set off for any claims by the
indemnitor against any indemnitee. For purposes of this Section 9, the term
"Losses" shall mean any losses, damages, costs and expenses, liabilities,
settlements, including, without limitation, any attorneys' fees and
disbursements and court costs reasonably incurred by Conseco Finance or Syms, as
the case may be.
Section 9.03. Waiver of Jury Trial. Notwithstanding anything stated herein,
if either party brings any action against the other party, whether at law or
equity regarding such offer party's performance under this Agreement or brings
any action connected in any way with this Agreement, the parties hereby waive
any right they may now or hereafter possess to a trial by jury.
SECTION 10. MISCELLANEOUS
-------------------------
Section 10.01 Independent Contractors. It is expressly understood and
agreed between the parties that each party is an independent contractor and that
nothing herein shall be construed as creating a partnership, joint venture, or
agency relationship between the parties hereto and that neither of the parties
shall have the power or authority to bind or obligate the other party.
Section 10.02 Financial Statements. As soon as available and in any event
within 120 days after the end of each fiscal year of Syms, Syms shall provide
Conseco Finance with a copy of the financial statements included in Syms Annual
Report on Form 10-K filed with the Securities and Exchange Commission. Syms
understands and agrees that Conseco Finance may verify any financial information
provided by Syms and may, from time to time, seek credit and other information
concerning Syms from others subject, in each case, to Section 2.06.
(a) In addition to the other rights set forth in this Agreement, Syms
shall, subject to the confidentiality provisions set forth in this Agreement,
permit Conseco Finance and its designees, and their respective officers,
employees, attorneys, and/or accountants during normal business hours with
reasonable advance notice, in such a manner as to minimize interference with
Syms normal business operations, to examine, inspect, and make copies of all of
the data, records, files, and books of account under the control of Syms
relating to Accounts, Accountholders, Outstanding Receivables and all aspects of
the Program and the transactions contemplated by this Agreement. Syms shall use
reasonable efforts to deliver any document or instrument
23
necessary for Conseco Finance to obtain such information from any person
maintaining records for Syms. Except as otherwise specifically provided in this
Agreement, the cost and expense of any such examinations shall be borne solely
by Conseco Finance.
(b) In addition to the other rights set forth in this Agreement, Conseco
Finance shall permit Syms and its designees, and their respective officers,
employees, attorneys, accountants and/or other representatives, during normal
business hours with reasonable advance notice, in such a manner as to minimize
interference with Conseco Finance or its affiliate's normal business operations,
to examine, inspect, all of the data, records, files and books of account under
the control of Conseco Finance or its affiliate relating to Accounts,
Accountholders, Outstanding Receivables and all aspects of the Program and the
transactions contemplated by this Agreement. Conseco Finance shall use
reasonable efforts to deliver any document or instrument necessary for Syms to
obtain such information. from any person-maintaining records for Conseco
Finance. Except as otherwise specifically provided in this Agreement, the cost
and expense of all such examination shall be borne solely by Syms.
Section 10.03 Assignment; Delegation of Duties. This Agreement incorporates
the entire understanding of the parties with respect to the subject matter
hereof and no representation, warranty or agreement not set forth herein shall
be binding on either party. This Agreement shall be binding upon and inure to
the benefit of Syms and Conseco Finance and their respective successors and
permitted assigns, except without the express written consent of the other
party, neither Syms nor Conseco Finance may assign this Agreement or delegate
any of its duties hereunder except that (a) either Syms or Conseco Finance may
delegate such duties to any party which is then a wholly owned subsidiary of the
delegating party or a corporation or other entity under common control with the
delegating party provided that notwithstanding such delegation, such delegating
party shall remain primarily liable hereunder, (b) Conseco Finance may assign
this Agreement to a wholly owned subsidiary provided that notwithstanding such
assignment, Conseco Finance shall remain primarily liable hereunder, and (c)
subject to Syms right to accept or deny such assignment as provided below,
Conseco Finance may contract with an unaffiliated bank or other financial
institution in structuring the Program and in connection with such contract may
assign this Agreement or delegate duties to such financial institution to the
extent Conseco Finance deems necessary or desirable. Upon written notification
to Syms of the assignment of this Agreement pursuant to clause (c) above, (which
shall include a proposed date for the system conversion to the assigned bank or
other financial institution selected by Conseco Finance and financial and other
information with respect to such proposed assignee to enable Syms to exercise
its rights hereunder, such date for the system conversion not to be sooner than
120 days from the date of the notification from Conseco Finance), Syms will have
thirty (30) days to accept or deny the assignment. If Syms does not want to
convert to the bank or other financial institution selected by Conseco Finance,
Syms must provide Conseco Finance with the name of the bank or other financial
institution selected by Syms and Syms must require that bank or other financial
institution to purchase the Accounts at a price equal to the amount of the Final
Receivables as of the close of business on the day prior to the Purchase Date
and convert the Syms Program from Conseco Finance on or before the date that
Conseco Finance is scheduled to systematically convert its remaining programs.
Failure by Syms to convert the Syms Program on or before the date that Conseco
Finance is scheduled to convert its remaining programs, shall be deemed as
acceptance of the assignment of this Agreement by Syms to the bank or other
financial institution selected by Conseco Finance and Conseco Finance will
convert the Syms Program to the bank or other financial institution selected by
Conseco Finance.
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Section 10.04 Amendment. Subject to the right of Conseco Finance to amend
and supplement the Operating Procedures pursuant to Section 4.01 hereof, no
amendment or waiver of any provision of this Agreement or consent to any
departure by either party therefrom, shall in any event be effective unless the
same shall be in writing and signed by the party or parties to be bound thereby.
Section 10.05 Non-Waiver. No failure on the part of any party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 10.06 Severability. If any provision of this Agreement is held to
be invalid, void or unenforceable, all other provisions shall remain valid and
be enforced and construed as if such invalid provision were never a part of this
Agreement.
Section 10.07 Governing Law. This Agreement and all rights and obligations
hereunder shall be governed by and construed in accordance with the substantive
laws of the State of Minnesota.
Section 10.08 Entire Agreement. This Agreement, including any addenda or
exhibits hereto, constitutes the entire Agreement between Conseco Finance and
Syms with respect to the Program and any matters relating thereto and the
subject matter of this Agreement, and all prior agreements, negotiations and
communications on such subject are hereby superseded.
Section 10.09 Captions. Captions used in this Agreement are for convenient
reference only and shall not be construed as limiting or defining the
substantial content of this Agreement.
Section 10.10 Use of Syms Name and Xxxx and Public Announcements. Syms
hereby expressly gives Conseco Finance permission to use its name, logo,
registered trademarks and service marks (if any) solely in connection with the
promotion of the Program based on the Syms Corporate Trademark Guidelines
Handbook provided to Conseco Finance, provided that any such use shall be
subject to the prior written consent of Syms in each instance. Conseco Finance
must obtain prior approval for any use of Syms' name, logo, registered
trademarks and service marks (if any) in connection with the promotion of the
Program. Neither party will make any public announcement of the Program or
provide any information concerning the Program to any representative of any
news, trade or other media, or respond to any inquiry from any public or
governmental authority concerning the Program without prior consultation and
coordination with the other party.
Section 10.11 Marketing. Syms shall not use Conseco Finance name or logo or
any trademark or trade owned by Conseco Finance, or refer to Conseco Finance
directly or indirectly, in any advertisement, marketing materials, news release,
or release to any professional or trade publication without the prior written
approval of Conseco Finance. In the event that Conseco Finance grants such
written consent, Syms shall follow all terms and conditions set out by Conseco
Finance.
Section 10.12 Recoupment. All financial dealings between the parties
pursuant to this Agreement shall be considered as a single continuing
transaction, and subject to the doctrines of setoff and recoupment.
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Section 10.13 Notices. Except as otherwise provided in this Agreement, all
notices, demands and other communications hereunder shall be in writing and
shall be delivered personally or sent by facsimile, other electronic means or
nationally recognized overnight courier service addressed to the party to whom
such notice or other communication is to be given or made at such party's
address as set forth below, or to such other address as such party may designate
in writing to the other party from time to time in accordance with the
provisions hereof, and shall be deemed given when personally delivered, when
sent electronically or one (1) business day after being sent by overnight
courier.
To Conseco Finance:
Conseco Finance Finance Corp.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Facsimile: 800.488.6862
with copies to:
Conseco Finance Finance Corp.
1100 Landmark Towers
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: 612.293.5746
To Syms:
Syms Corp.
Xxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: 000-000-0000
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Section 10.14 Multiple Counterparts. This Agreement may be executed in any
number of multiple counterparts, all of which shall constitute but one and the
same original.
IN WITNESS WHEREOF, Conseco Finance and Syms have hereunto set their hands
as of the date first written above.
CONSECO FINANCE CORP. SYMS CORP.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ------------------------------
Its: Executive Vice President Its: Vice President & CFO
-------------------------- -------------------------
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