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Dillards - Private Label Credit Card Program Agreement
FINAL
PRIVATE LABEL CREDIT CARD PROGRAM AGREEMENT
This Program Agreement is made as of the 7th day of August, 2004, by and between DILLARD'S, INC. ("Dillard's"), a Delaware corporation with its principal offices at 1600 Cantrell Road, Little Rock, Arkansas 72201, and GE CAPITAL CONSUMER CARD CO. ("Bank"), a Federal savings bank with its home office at 5300 Kings Island Drive, Mason, Ohio 45040.
W I T N E S S E T H:
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WHEREAS, Bank has established programs to extend private label card credit to qualified customers for the purchase of goods and services;
WHEREAS, Dillard's is engaged, among other activities, in operating retail department stores and a Private Label Credit Card Business;
WHEREAS, concurrently with the execution of this Agreement, Bank and Dillard's are entering a purchase, sale and servicing transfer agreement (the "Purchase Agreement") pursuant to which Bank shall purchase Dillard's Private Label Credit Card Business, including certain credit card accounts and associated receivables ("Purchased Accounts");
WHEREAS, it is a condition precedent to the obligations of Dillard's under the Purchase Agreement that Dillard's and Bank enter into this Agreement;
WHEREAS, Dillard's has requested that Bank establish a program pursuant to which Bank shall issue Private Label Credit Cards, which shall be accepted only by Dillard's Channels; and
WHEREAS, the parties agree that the goodwill associated with the "Dillard's" mark contemplated for use hereunder is of substantial value which is dependent upon the maintenance of high quality services and appropriate use of the mark pursuant to this Agreement;
NOW, THEREFORE, in consideration of the terms, conditions and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Dillard's and Bank agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Generally.
The following terms shall have the following meanings when used in
this Agreement:
o "Account" means a Private Label Credit Card accessed open end credit
account established in favor of a Cardholder, pursuant to which such
Cardholder may finance the
purchase of Goods and/or Services from Dillard's Channels and other
charges that may be made using the Private Label Credit Card, all
subject to the terms of a Credit Card Agreement. The term Account
includes Purchased Accounts.
o "Account Documentation" means, with respect to an Account, any and
all documentation relating to that Account, including, without
limitation, Credit Card Documentation, checks or other forms of
payment with respect to an Account, credit bureau reports (to the
extent not prohibited from transfer by contract with the credit
bureau), adverse action notices, change of terms notices, other
notices, correspondence, memoranda, documents, stubs, instruments,
certificates, agreements, magnetic tapes, disks, hard copy formats
or other computer-readable data transmissions, any microfilm,
electronic or other copy of any of the foregoing, and any other
written, electronic or other records or materials of whatever form
or nature, including, without limitation, tangible and intangible
information, arising from or relating or pertaining to any of the
foregoing to the extent related to the Program; provided that
Account Documentation shall not include Dillard's register tapes,
invoices, sales or shipping slips, delivery and other receipts or
other indicia of the sale of Goods and/or Services.
o "Accountants" has the meaning set forth in Section 10.2 hereof.
o "Affiliate" means, with respect to any Person, each Person that
controls, is controlled by, or is under common control with, such
Person.
o "Agreement" means this Program Agreement, together with all of its
schedules and exhibits, and, if modified, altered, supplemented,
amended and/or restated, as the same may be so modified, altered,
supplemented, amended and/or restated from time to time.
o "Applicable Law" means all federal, state and local laws, statutes,
regulations, written regulatory guidance, orders or directives, as
may be amended and in effect from time to time during the Term of
this Agreement, including, but not limited to: (i) the Truth in
Lending Act and Regulation Z; (ii) the Equal Credit Opportunity Act
and Regulation B; (iii) the Fair Debt Collection Practices Act; (iv)
the Fair Credit Reporting Act; (v) the Gramm-Leach-Bliley Act and
its implementing regulations ("GLBA"); (vii) the PATRIOT Act and its
implementing regulations; and (vii) the Unfair and Deceptive Trade
Practices Act.
o Approval Rate Threshold" means the approval rates set forth in
Schedule 3.4(a)-1.
o "Average Daily Club Plan Receivables" means, for any calendar year
or Program Year, as appropriate, the quotient obtained by dividing
(a) the sum of Club Plan Cardholder Indebtedness as of the end of
the day for each day of such year by (b) the number of days in the
such year.
o "Average Daily Receivables" means, for any calendar month, calendar
year or Program Year, the quotient obtained by dividing (a) the sum
of Cardholder Indebtedness as of the end of day for each day of the
calendar month, calendar year or Program Year, as the
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case may be, by (b) the number of days in the calendar month,
calendar year or Program Year, as the case may be.
o "Bank" has the meaning set forth on page 1.
o "Bank Event of Default" means the occurrence of any one of the
events listed in Section 12.2 hereof or an Event of Default of Bank.
o "Bank Licensed Marks" means the trademarks, tradenames, service
marks, logos and other proprietary designations of Bank listed on
Schedule B and licensed to Dillard's under Section 8.2 hereof.
o "Bankruptcy Code" means Title 11 of the United States Code, as
amended, or any other applicable state or federal bankruptcy,
insolvency, moratorium or other similar law and all laws relating
thereto.
o "Billing Cycle" means the interval of time between regular periodic
Billing Dates for an Account.
o "Billing Date" means, for any Account, the last day of a Billing
Cycle as of when the Account is billed.
o "Billing Statement" means a summary of Account credit and debit
transactions for a Billing Cycle including a descriptive statement
covering purchases of Goods and/or Services and a statement with
only past-due account information.
o "Business Day" means any day, other than a Saturday, Sunday or legal
holiday, on which Dillard's and Bank both are open for business.
o "Cardholder" means any Person who has been issued a Credit Card and
includes any authorized user(s).
o "Cardholder Indebtedness" means all amounts charged and owing to
Bank by Cardholders with respect to Accounts (including finance
charges, NSF fees, late charges, pay-by-phone fees and any other
fees and charges), whether or not billed, less the amount of any
credit balances owing by Bank to Cardholders, including any credits
associated with returns of Goods and/or Services and similar credits
and adjustments, whether or not billed.
o "Cardholder Data" means all personally identifiable information
about a Cardholder received by Bank in connection with the
Cardholder's application for or use of a Private Label Credit Card
or Account.
o "Cardholder List" means any list in electronic form that identifies
or provides a means of differentiating Cardholders, including any
such electronic listing that includes the names, addresses, email
addresses (as available), telephone numbers or social security
numbers of any or all Cardholders.
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o "Change in Control" means any acquisition of Control of Dillard's by
an entity other than an Affiliate of Dillard's, or acquisition of
Control of Bank by an entity other than an Affiliate of Bank, as the
case may be.
o "Charge Transaction Data" means the transaction information with
regard to each purchase of Goods and/or Services by a Cardholder on
credit and each return of Goods and/or Services for credit in the
form of electronic information as more particularly set forth in the
Operating Procedures.
o "Club Plans" has the meaning set forth in Schedule 2.3(b).
o "Club Plan Cardholder Indebtedness" means Cardholder Indebtedness
related to Club Plan purchases.
o "Co-Branded Credit Card" means a credit card that bears a Dillard's
Licensed Mark and the trademarks, tradenames, service marks, logos
and other proprietary designations of VISA U.S.A., Inc., MasterCard
International Inc., American Express, Discover or any other payment
system that is generally accepted by sellers in the general purpose
department store business.
o "Competing Program" has the meaning set forth in Section 2.5(a)
hereof.
o "Comparable Private Label Credit Card Programs" means private label
credit card programs operated by Bank involving department store,
specialty apparel and other soft line retailers listed in Schedule
1.1, or as the parties may otherwise from time to time mutually
agree.
o "Confidential Information" has the meaning set forth in Section 11.1
hereof.
o "Control" of a Person means the possession, directly or indirectly,
of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by
contract or otherwise.
o "Conversion Date" means a date between the Effective Date and March
31, 2005, mutually agreed between Dillard's and Bank.
o "Credit Card Agreement" means the credit card agreement between Bank
and a Cardholder, including those assigned to Bank by Dillard's
under the Purchase Agreement (and any replacement of such agreement)
governing the use of an Account, together with any amendments,
modifications or supplements which now or hereafter may be made to
such Credit Card Agreement (and any replacement of such agreement).
o "Credit Card Application" means the credit application which must be
completed and submitted by individuals who wish to become
Cardholders.
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o "Credit Card Documentation" means, with respect to Accounts, all
Credit Card Applications, Credit Card Agreements, Credit Cards,
Value Proposition agreements and Billing Statements relating to such
Accounts.
o "Debt Cancellation Revenue" means the aggregate gross premiums and
revenue associated with the Bank's sale of debt cancellation
products to Cardholders.
o "Default Adjustment" has the meaning set forth in Schedule
14.2(d)-1.
o "Dillard's Channels" means all retail establishments owned or
operated by Dillard's in the United States (including Licensee
departments therein) and all mail order, catalog, electronic mail
outlets (including websites operated by Dillard's or its Licensees)
and other direct access media within the United States that are
owned or operated by Dillard's or its Licensees.
o "Dillard's Event of Default" means the occurrence of any one of the
events listed in Section 12.3 hereof or an Event of Default of
Dillard's.
o "Dillard's Licensed Marks" means the trademarks, tradenames, service
marks, logos and other proprietary designations of Dillard's listed
on Schedule A and licensed to Bank by Dillard's under Section 8.1
hereof.
o "Dillard's Operating Procedures" shall mean the operating procedures
employed by Dillard's prior to the Effective Date, a copy of which
is attached hereto as Schedule 3.1.
o "Dillard's Shopper" shall mean any Person who makes purchases of
Goods and/or Services.
o "Dillard's Shopper Data" shall mean all personally identifiable
information regarding a Dillard's Shopper that is obtained by
Dillard's in connection with the Dillard's Shopper making a purchase
of Goods and/or Services.
o "Disclosing Party" has the meaning set forth in Section 11.1 hereof.
o "Effective Date" means the Closing Date, as that term is defined in
the Purchase Agreement. If the Purchase Agreement terminates without
consummation of the Closing, this Agreement shall be null and void.
o "Enhancement Products" means the Credit Card enhancement products
(other than debt cancellation product) listed in Schedule 4.11, or
such other products as shall be approved by the Marketing Committee
from time to time.
o "Event of Default" means the occurrence of any one of the events
listed in Section 12.1 hereof.
o "Fair Market Value" has the meaning set forth in Section 14.3
hereof.
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o "Federal Funds Rate" means the offered rate as reported in The Wall
Street Journal in the "Money Rates" section for reserves traded
among commercial banks for overnight use in amounts of one million
dollars or more, as published in the most recent Friday edition
prior to any required payment or settlement date in which such
offered rate is reported, and if such rate is not so reported in any
Friday edition of The Wall Street Journal during the thirty day
period preceding such required payment or settlement date, such
offered rate as reported in another publication reasonably
acceptable to parties.
o "Financing Income" means, with respect to any period, an amount
equal to (a) the sum of assessed or accrued finance charges, late
charges, NSF fees, pay-by-phone fees and other similar fees under
the Program during such period, minus (b) the sum of concessions,
reversals and write-offs of such finance charges, late charges, NSF
fees, pay-by-phone fees and other similar fees and other adjustments
during such period in the normal course of business (other than
fraud losses).
o "Funding Costs" has the meaning set forth in Schedule 7.3.
o "GAAP" means generally accepted accounting principles, consistently
applied.
o "Goods and/or Services" means the products and services sold by or
through Dillard's Channels, including for personal, family,
household or business purposes.
o "Governmental Authority" means any federal, state or local domestic,
foreign or supranational governmental, regulatory or self-regulatory
authority, agency, court, tribunal, commission or other
governmental, regulatory or self-regulatory entity.
o "Indemnified Party" has the meaning set forth in Section 15.3
hereof.
o "Indemnifying Party" has the meaning set forth in Section 15.3
hereof.
o "Initial Term" has the meaning set forth in Section 13.1 hereof.
o "Inserts" has the meaning set forth in Section 4.8 hereof.
o "In-Store Payment" means any payment on an Account made to Dillard's
by a Cardholder or a person acting on behalf of a Cardholder.
o "Intellectual Property" means, on a worldwide basis, other than with
respect to Dillard's Licensed Marks or Bank Licensed Marks, any and
all: (i) rights associated with works of authorship, including
copyrights, moral rights and mask-works; (ii) trade marks and
service marks and the goodwill associated therewith; (iii) trade
secret rights; (iv) patents, designs, algorithms and other
industrial property rights; (v) other intellectual and industrial
property rights of every kind and nature, however designated,
whether arising by operation of law, contract, license or otherwise;
and (vi) applications, registrations, renewals, extensions,
continuations, divisions or reissues thereof now or hereafter in
force (including any rights in any of the foregoing).
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o "Internet Services" has the meaning set forth in Section 3.8(a).
o "Knowledge" means, with respect to either Dillard's or the Bank, the
actual knowledge of the executive officers of the organization who
have managerial responsibility for the Program.
o "LIBOR" means the one month London Inter-Bank Offering Rate that
appears on the Bloomberg U.S. Government/Swap/Agency Composite
screen as of 11 a.m. (London time) each day, expressed as an annual
rate, and if such rate is not available from Bloomberg (or its
successor), LIBOR shall be determined from such financial reporting
service or other information as shall be mutually acceptable to the
parties.
o "Licensee(s)" means any person(s) to the extent such person is
authorized by Dillard's to operate in and sell goods and/or services
from Dillard's Channels under the Dillard's Licensed Marks.
o "Marketing Commitment" and "Market Commitment Quotient" have the
respective meanings set forth in Schedule 4.1(a).
o "Marketing Committee" shall mean the committee established pursuant
to Section 4.2 hereof.
o "Marketing Fund" means an accounting entry on the books of Bank
representing the unused portion of the Marketing Commitment.
o "Marketing Plan" means the document that outlines the objectives,
strategies and tactics of new account solicitation, usage and
awareness programs for the applicable calendar year.
o "Monthly Settlement Sheet" has the meaning set forth in Section 7.2
hereof.
o "Net Credit Sales" means, for any calendar year, an amount equal to
(a) gross credit sales on Accounts during such calendar year, minus
(b) the sum of credits for returned goods and cancelled services and
other credits related to the price of Goods and/or Services (such as
concessions, discounts and adjustments) on Accounts during such
calendar year.
o "New Mark" has the meaning set forth in Sections 8.1(b) and 8.2(b)
hereof.
o "Nominated Purchaser" has the meaning set forth in Section 14.2(a).
o "Operating Procedures" has the meaning set forth in Section 3.1(a).
o "Person" means and includes any individual, partnership, joint
venture, corporation, company, bank, trust, unincorporated
organization, government or any department, agency or
instrumentality thereof.
o "POS" means point of sale.
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o "Premium" has the meaning assigned to such term in the Purchase
Agreement.
o "Private Label Credit Card" or "Credit Card" means a card issued by
Bank to a Cardholder in connection with the Program (or by a
subsidiary of Dillard's in connection with a predecessor program),
in each case which bears a Dillard's Licensed Mark and may be used
to finance purchases of Goods and/or Services.
o "Private Label Credit Card Business" means the Business, as that
term is defined in the Purchase Agreement.
o "Program" means the private label credit card program established by
Dillard's and Bank and made available to Cardholders and qualified
applicants for the purchase of Goods and/or Services through
Dillard's Channels, including, without limitation, the extension of
credit, billings, collections, customer service, accounting between
the parties and all other aspects of the customized credit plan
specified herein and in Credit Card Agreements.
o "Program Purchase Date" has the meaning set forth in Section
14.2(c).
o "Program Assets" means the Accounts, Account Documentation,
Cardholder List, Solicitation Materials and all Cardholder
Indebtedness (whether held by Bank or a third party).
o "Program Net Losses" has the meaning set forth in Schedule 7.3.
o "Program Privacy Policy" shall mean the privacy policy and
associated disclosures to be provided by Bank to Cardholders in
connection with the Program, in the form consistent with the terms
of this Agreement and Applicable Law, as agreed to by the Marketing
Committee.
o "Program Purchase Date" has the meaning set forth in Section 14.2(c)
hereof.
o "Program Website" has the meaning set forth in Section 3.8(a).
o "Program Year" shall mean each full twelve calendar month period
following the Effective Date, except that, if the Effective Date
falls on a date other than the first day of a calendar month, the
first Program Year will include the days of such calendar month
after the Effective Date and the next full twelve calendar months.
o "Purchase Agreement" has the meaning set forth on page 1 hereof.
o "Purchased Accounts" has the meaning set forth on page 1 hereof.
o "Qualified Dillard's Customer" shall mean customers of Dillard's
that Dillard's determines are available to be solicited for Accounts
under the Program.
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o "Qualified Dillard's Customer List" means the list of Qualified
Dillard's Customers provided from time to time by Dillard's to Bank
for purposes of soliciting such Persons for the Program in
accordance with a Marketing Plan.
o "Receiving Party" has the meaning set forth in Section 11.1 hereof.
o "Renewal Term" has the meaning set forth in Section 13.1 hereof.
o "Risk Adjusted Margin" has the meaning set forth in Schedule 7.3.
o "Risk Management Policies" has the meaning set forth in Section
3.4(a) hereof.
o "Significant Failure" has the meaning set forth in Schedule 5.5(b).
o "SLA" means each individual performance standard set forth at
Schedule 5.2.
o "Solicitation Materials" means documentation, materials, artwork,
copy, trademarks (excluding the Dillard's Licensed Marks and the
Bank Licensed Marks), copyrights and any protectible items, in any
format or media (including television and radio), used to promote or
identify the Program to Cardholders and potential Cardholders,
including, without limitation, direct mail solicitation materials
and coupons.
o "Subsequent Failure" has the meaning set forth in Schedule 5.5(b).
o "Supported Accounts" has the meaning set forth in Section 3.5
hereof.
o "Term" means the Initial Term and each Renewal Term.
o "Termination Period" means the period beginning with the date of any
notice of termination pursuant to Article 13 and ending on the
Program Purchase Date, if Dillard's or its designee purchases the
Program Assets or upon notice that Dillard's will not purchase the
Program Assets if it determines not to do so.
o "Trademark Style Guide" means any rules governing the manner of
usage of trademarks, tradenames, service marks, logos and other
proprietary designations.
o "Transaction" means any purchase of Goods and/or Services through a
Dillard's Channel using a Private Label Credit Card or Account
number.
o "Unamortized Premium" means (i) the Premium, less 1/120th thereof
for each full month that transpires after the Effective Date; plus
(ii) unamortized premium related to each retail credit card business
portfolio acquired by Bank in connection with an acquisition
pursuant to Section 2.6 of this Agreement, based upon an
amortization schedule agreed upon by Dillard's and Bank.
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o "Value Proposition" means Dillard's current POS new account opening
day 10% discounts, promotional card event discounts, and any other
card-related promotional or rewards programs as may be established
by the Marketing Committee from time to time.
1.2 Miscellaneous.
As used herein,
(a) all references to the plural number shall include the singular
number (and vice versa),
(b) all references to "herein," "hereunder," "hereinabove" or like words
shall refer to this Agreement as a whole and not to any particular
section, subsection or clause contained in this Agreement, and
(c) all references to "include," "includes" or "including" shall be
deemed to be followed by the words "without limitation."
ARTICLE 2
ESTABLISHMENT OF THE PROGRAM
2.1 Generally.
Pursuant to the terms and conditions of this Agreement, Dillard's and Bank shall establish and participate in the Program commencing on the Effective Date.
2.2 Credit Program.
(a) Beginning as of the Effective Date, Bank shall offer Private Label
Credit Cards to qualified customers in accordance with this
Agreement and the Cardholder Agreement.
(b) Beginning as of the Effective Date, or such later date as shall be
agreed by the Marketing Committee, the terms and conditions for new
Accounts shall be those specified in Schedule 2.2 hereto.
2.3 Value Proposition.
(a) Beginning as of the Effective Date, Bank shall offer to Cardholders
the Value Proposition.
(b) Bank shall offer "Club Plans" as provided in Schedule 2.3(b).
2.4 Conversion of Purchased Accounts.
On the Conversion Date, subject to Applicable Law, Bank shall convert all of the Purchased Accounts to the terms and conditions specified in Schedule 2.2 hereto, provided that
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Bank on the Conversion Date shall not decrease or eliminate (but may increase) any existing credit line assignments. As soon as reasonably practicable after the Effective Date, and in any event prior to the Conversion Date, Bank shall prepare and send a change in terms notice as required by Applicable Law to each Person obligated on a Purchased Account. Descriptions of the terms and conditions of the Account and the Value Proposition, if any, shall be included as part of such notices to the extent required by Applicable Law. All such notices and descriptions shall be reviewed and approved by the Marketing Committee. Bank shall issue new Private Label Credit Cards and shall use its best efforts to maintain existing Account numbers on the Accounts.
2.5 Exclusivity.
(a) General. Except as otherwise provided in this Section 2.5, during
the Term of this Agreement (excluding the Termination Period),
Dillard's, on behalf of itself and its Affiliates, agrees not to
enter into or be a party to an agreement or arrangement, or act as a
partner of a bank or credit card issuer, relating to a program for a
private label credit card bearing a Dillard's Licensed Mark or other
mark using the Dillard's name in the United States (such a program,
a "Competing Program"). In addition, Dillard's, on behalf of itself
and its Affiliates, shall not itself or themselves operate or
participate in a Competing Program. Bank shall have exclusive rights
with respect to the Program.
(b) Second-Look Credit Card Program. Notwithstanding Section 2.5(a),
Dillard's shall have the right at any time during the Term of this
Agreement to establish an unadvertised program for issuing credit
cards, including private label credit cards using the Dillard's
Licensed Marks, to customers whose Credit Card Applications have
been declined by Bank, provided that Dillard's shall ensure that if
the Dillard's Licensed Marks are used in connection with such
program, they are used in a manner which clearly differentiates them
from the use of the Dillard's Licensed Marks in the Program.
Notwithstanding the foregoing, Dillard's shall have the right to
include references to such credit cards in any materials listing
approved forms of payment, and to provide applications and brochures
for such program to customers whose Credit Card Applications have
been declined by Bank.
(c) Co-Branded Program. If Dillard's determines to offer Co-Branded
Credit Cards during the Term, it shall follow the procedures set
forth in Schedule 2.5(c).
(d) Retail Portfolio Acquisition. Notwithstanding Section 2.5(a), Bank's
sole rights with respect to credit card portfolios acquired by
Dillard's or its Affiliates are set forth in Section 2.6 below.
(e) Other Products. For clarity, other than the products set forth in
Section 2.5(a), this Agreement does not restrict in any way
Dillard's rights with respect to other payment products, including
debit cards, gift cards or stored value cards.
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2.6 Retail Portfolio Acquisition.
(a) In the event that Dillard's purchases another retailer, or any
stores or other channels thereof, that directly or through a third
party has a proprietary or co-branded credit card portfolio, Bank
agrees to participate in the purchase of some or all of the credit
card business of such retailer in the following manner.
(i) Retailer that Operates a Credit Card Business. In connection
with Dillard's purchase of any portion of the retail operations
of a retailer that directly or through an Affiliate provides a
proprietary or co-branded credit card, Bank agrees to negotiate
in good faith a joint bid with Dillard's to acquire the related
credit card business offered for sale by such retailer in
connection with Dillard's acquisition of the retailer, or any
of its stores or other channels. In the event that the bid is
successful, Bank shall be solely responsible for funding the
portion of the purchase price allocable to the credit card
portfolio, taking into account the entire financial terms of
this Agreement, including the same revenue share percentage as
provided under Section 7.3(a) hereof. If Dillard's and Bank
cannot agree on the portion of the purchase price to be
allocated to the credit card portfolio, Bank shall nonetheless
consummate such purchase on commercially reasonable terms and
conditions, and the parties shall promptly submit the dispute
regarding purchase price allocation for resolution pursuant to
Section 10.2. Pending the outcome of the dispute resolution
procedures set forth at Section 10.2, Bank shall fund the
portion of the purchase price equal to (A) its last good faith
offer, which shall be no less than the book value of any
receivables acquired, plus (B) one half (1/2) of the
difference between the amounts Dillard's and Bank respectively
believe should be allocated to the credit card portfolio
purchase price. If Bank fails to acquire such credit card
portfolio, Dillard's shall have the right to purchase and
operate such retailer's credit card business itself or to
engage a third party to do so. If Dillard's, directly or with a
third party, acquires the credit card business of another
retailer pursuant to this provision and this Agreement
otherwise continues in effect, Section 2.5 shall not apply to
such acquired credit card business or to the associated
acquired retail operations, including any growth thereof. In
such event, Bank shall use commercially reasonable efforts to
assist Dillard's in the conversion and servicing of the
portfolio until such time as Dillard's, itself or through a
third party, can provide such servicing, all for servicing fees
to be agreed upon by the parties.
(ii) Retailer that has a Credit Card with another Issuer. In
connection with Dillard's purchase of any portion of the retail
operations of a retailer that has a proprietary or co-branded
credit card through a third-party issuer, Bank agrees that it
shall negotiate in good faith for the purchase of the
retailer's credit card portfolio from such third party issuer
associated with the retail assets being acquired. In the event
that Bank is unsuccessful in its bid for the credit card
portfolio, Dillard's may offer the credit card
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program of such third party issuer until the expiration or
other termination of the agreement governing such program, and
Bank shall negotiate in good faith for the purchase of the
credit card portfolio at that time. In the event that Bank is
unable to acquire the credit card portfolio associated with the
retail assets acquired by Dillard's, Dillard's shall have the
right to purchase and operate such retailer's credit card
business itself or to engage a third party to do so. If
Dillard's, directly or with a third party, acquires the credit
card business of another retailer pursuant to this provision,
Section 2.5 shall not apply to such acquired credit card
business or to the associated acquired retail operations,
including any growth thereof.
(iii) Retailer that has a Proprietary or Co-Branded Credit Card with
Bank. In connection with D...
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