Neiman Marcus 2009 Annual Report Download - page 308

5.2 Marketing Commitment.
(a) On the Effective Date and no later than the first (1st) Business Day of each subsequent Fiscal Year, Bank
shall pay to NMG an amount equal to the NMG Marketing Commitment for such Fiscal Year, which amount shall be deposited into a
marketing fund maintained by NMG (the "NMG Marketing Fund").
(b) The NMG Marketing Fund shall be used by NMG and its Affiliates in the sole discretion of NMG for such
incremental marketing of the Program and the Credit Card Business as NMG and its Affiliates shall undertake from time to time.
(c) Each Yearly Settlement Sheet shall set forth an accounting of the costs incurred, if any, by NMG and its
Affiliates in the prior Program Year which were paid out of the NMG Marketing Fund. To the extent that the expenditures of the
NMG Marketing Commitment by NMG and its Affiliates in any Program Year exceed the amount in the NMG Marketing Fund, the
NMG Companies shall be entitled to reimbursement from the NMG Marketing Fund for the following Fiscal Year but not in excess of
[***] of such Fiscal Year's NMG Marketing Fund. Any amount in the NMG Marketing Fund for a given Fiscal Year that is not spent
in that Fiscal Year shall remain available for use during the Term.
(d) Bank hereby agrees to credit a joint marketing fund maintained by Bank (the "Joint Marketing Fund"), no
later than the first (1st) Business Day of each Fiscal Year, with an amount equal to the Joint Marketing Commitment. The Joint
Marketing Commitment shall be used as set forth in the Marketing Plan and as otherwise directed by the Management Committee
from time to time. The NMG Companies and Bank shall each provide to the other for inclusion in the Monthly Settlement Sheet, an
accounting of such Party's and its Affiliates' use of the Joint Marketing Commitment in the prior Fiscal Month, and Bank shall
reimburse the NMG Companies for such amounts used by NMG and its Affiliates, and shall reduce the amount remaining in the Joint
Marketing Fund by the amounts used by Bank and its Affiliates. Any amount in the Joint Marketing Fund for a given Fiscal Year that
is not spent in that Fiscal Year shall remain available for use at the direction of the Management Committee during the Term.
(e) In the event that the NMG Companies expand acceptance of Credit Cards not bearing NMG Licensed
Marks as permitted by Section 2.2(d)(iii) and in any month during the [***] after such acceptance was first expanded, the Gross
Receivables decline by more than [***] compared to the corresponding calendar month in the [***] preceding the expanded
acceptance, the Parties shall consider in good faith whether the amount of the NMG Marketing Commitment and/or the Joint
Marketing Commitment should be adjusted to take into account such decline.
5.3 Communications with Cardholders.
(a) NMG Inserts. NMG and its Affiliates shall have the exclusive right to communicate with Cardholders,
except for any message required by Applicable Law, through use of inserts, fillers and bangtails (which shall be included on all billing
envelopes) (collectively, "Inserts"), including Inserts selectively targeted for particular segments of Cardholders, in any and all Billing
Statements (including electronic Billing Statements) and
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