Neiman Marcus 2008 Annual Report Download - page 627

applicable to the Program) plus (ii) the Fair Market Value of the Non-Store Accounts, except that if the repurchase right arises as a
result of (A) an early termination of this Agreement by Bank for an NMG Event of Default pursuant to Section 16.3 or (B) an early
termination by the NMG Companies pursuant to Section 16.2(c), then such purchase price for the Program Assets shall be an amount
equal to the sum of (x) the par value of the Cardholder Indebtedness related to the Private Label Accounts and Non-Card Payment
Plans at the time of repurchase excluding written-off Cardholder Indebtedness (in accordance with the write-off policy then applicable
to the Program), plus (y) the Fair Market Value of the Cardholder Indebtedness related to the Non-Store Accounts plus (z) de-
conversion costs of the Bank in an amount not to exceed $1 million.
(e) The Parties shall use commercially reasonable efforts to minimize transaction costs and Bank shall provide NMG and the
Nominated Purchaser and their respective representatives reasonable access to the records and accounts relating to the Program Assets
for the purpose of conducting due diligence investigations to determine whether they wish to purchase the Program Assets and shall
provide as soon as reasonably practicable (but in no event more than fifteen (15) days) following a request therefor from NMG or its
Nominated Purchaser a master file of the Accounts (which shall include data for at least the twelve (12) month period preceding the
month in which the master file is requested and shall be updated upon request of NMG); provided, however, that Bank shall be
entitled to require any Nominated Purchaser to enter into customary confidentiality arrangements before providing it with such access.
The Parties shall promptly negotiate in good faith and execute a purchase agreement for the Program Assets to be repurchased, which
shall contain terms and conditions substantially similar to those in the Purchase Agreement (if applicable). Bank shall provide
reasonable assistance in connection with the conversion of the Program Assets to the Systems of NMG or the Nominated Purchaser,
including provision of interim services in accordance with the provisions of this Agreement until such conversion occurs; provided,
however, that Bank shall not be obligated to provide such interim services for more than (i) two hundred seventy (270) days after
notice has been given pursuant to Section 17.2(b) in connection with a purchase of the Program Assets by a Nominated Purchaser or
(ii) one year after the execution date of the purchase agreement with respect to the repurchase of the Program Assets by NMG subject
to a reasonable servicing fee. The Parties shall not unreasonably withhold or delay execution of such purchase agreement or any other
documents necessary to effectuate such sale. The Parties shall use reasonable efforts to ensure that the Program Purchase Date occurs
as promptly as reasonably practicable following the execution of such purchase agreement.
17.3 Fair Market Value. In the event that this Agreement terminates and, if NMG notifies Bank that it shall purchase the
Program Assets, Bank and NMG (or its Nominated Purchaser) shall attempt to mutually determine the fair market value of the Non-
Store Accounts ("Fair Market Value"). If the Parties cannot reach such agreement, each Party shall nominate an investment banker
who together shall select a third investment banker to value the Non-Store Accounts. In determining the Fair Market Value of the
Non-Store Accounts, the investment bankers shall assume that (a) the terms and conditions of this Agreement, including all financial
terms and conditions, Bank's right to use the NMG Licensed Marks in accordance with this Agreement and all other material elements
of the transactions contemplated by this Agreement, shall continue in respect of the Non-Store Accounts being purchased during the
period of valuation and (b) the Non-Store Accounts being purchased shall continue to operate on an ongoing basis in accordance with
past practice. In such case, the Fair Market Value shall be the
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