ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made and
entered into as of the 31st day of October, 1996 by and among Fingerhut
Companies, Inc., a Minnesota corporation, ("FCI"), Direct Merchants Credit Card
Bank, National Association ("Direct Merchants Bank"), a national banking
association, and Metris Companies Inc. ("Metris"), a Delaware corporation.
WHEREAS, FCI has performed and following the initial public offering of
Metris will continue to perform (or cause to be performed) certain Services (as
defined herein) on behalf of Direct Merchants Bank, Metris and their
subsidiaries; and
WHEREAS, Direct Merchants Bank and Metris, desire to use the Services of
FCI;
NOW THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereby agree as follows:
I. SERVICES
Section 1.1 SERVICES. During the term of this Agreement, FCI agrees
to perform the services (herein "Services") set forth in Exhibits 1 through 8
(including any schedules to such Exhibits) attached hereto and incorporated
herein by reference. Exhibit 9, attached hereto and incorporated herein by
reference, reflects Services which Metris has agreed to perform for FCI. Each
Exhibit shall be subject to the terms as identified in the Exhibit. In the
event any Exhibit is terminated, the Agreement shall remain in effect unless
otherwise terminated as provided herein. The Exhibits may be amended from time
to time as the parties may mutually agree as evidenced by an amendment signed by
the President, and/or Chief Financial Officer of each party. The most recent of
each Exhibit shall supersede all earlier dated Exhibits. In the event of any
conflict between the terms of this Agreement and any Exhibit, the terms of this
Agreement shall govern. For purposes of this Agreement, Services and resources
provided by FCI shall include services rendered and resources provided by any of
its subsidiaries or affiliates other than Metris and Direct Merchants Bank.
Section 1.2 PERFORMANCE OF SERVICES.
(a) FCI shall perform the Services with the same degree of care, skill
and prudence customarily exercised for its own operations. In the event FCI
changes the degree of care, skill and prudence customarily exercised for its own
operations, the Services performed hereunder may be modified by FCI to meet its
revised internal performance standards for the Services hereunder. It is
understood and agreed that the Services will be substantially identical in
nature and quality to the Services performed by FCI during the years prior to
the execution of this Agreement, except as required by Metris becoming a public
company.
(b) Each party acknowledges that the Services will be provided only with
respect to the business (including joint ventures and partnerships) of the party
receiving such Services and its subsidiaries as such businesses exist as of the
execution of this Agreement or as otherwise mutually agreed by the parties.
Services will not be requested for the benefit of any entity other than Direct
Merchants Bank, Metris and their respective subsidiaries. Each party agrees
that it will use the Services only in accordance with all applicable federal,
state and local laws, regulations and tariffs, and in accordance with reasonable
conditions, rules, regulations and specifications which are or may be set forth
in any manuals, materials, documents or instructions of the party providing the
Services. The parties hereto each reserve the right to take all actions,
including the termination of any Services, in order to assure that the Services
are provided in accordance with any applicable laws, regulations and tariffs.
(c) Any input or information needed by either party to perform the
Services pursuant to the provisions of this Agreement shall be provided by the
other party or its subsidiaries, as the case may be, in a manner consistent with
the practices employed by the parties during the year prior to the execution of
this Agreement. Should the failure to provide such input or information render
the performance of the Services impossible or unreasonably difficult, the party
providing the Services may, upon reasonable notice to the other parties hereto,
refuse to provide such Services.
Section 1.3 COMPENSATION. FCI shall be compensated for the Services
rendered under this Agreement and Services rendered prior to this Agreement as
determined and as set forth in the Exhibits hereto. Metris shall be responsible
for payments owed to FCI hereunder. In the event Metris incurs an Event of
Default and after FCI has exercised its remedies pursuant to Section 4.2, Direct
Merchants Bank and any other subsidiary of Metris shall be responsible for
payment to FCI for Services it received hereunder. Payments shall be made by
the thirtieth (30th) of the month following the month in which such Services are
performed either by check or wire transfer. If there are additional Services,
and to the extent charges are to be agreed upon in the future in accordance with
any Exhibit, the charges will be determined as follows:
(i) Charges for Services performed by a third party shall be equal to
the incremental costs charged by such third party to perform those Services as
agreed to by the parties. With respect to all other Services not to be provided
by a third party, the parties hereto will negotiate in good faith, fees to be
charged on a monthly basis. Fees for Services not provided by third parties
shall be based on the estimated costs of providing such Services, which shall
include a reasonable allocation of direct and indirect overhead costs
(including, without limitation, employee salaries, benefits and other costs)
expected to be incurred in connection therewith.
(ii) If any additional Services provided by FCI and as set forth in the
Exhibits attached hereto, or if the scope or nature of Services provided at any
time under this Agreement change materially, the parties hereto will negotiate
in good faith new fees
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based on the estimated cost of providing such additional or revised Services.
Fees for Services not provided by third parties shall be based on the
estimated costs of providing such Services, which shall include a reasonable
allocation of direct and indirect overhead costs (including, without
limitation, employee salaries, benefits and other costs) expected to be
incurred in connection therewith.
II. CONFIDENTIALITY
Section 2.1 CONFIDENTIALITY OF INFORMATION. All Confidential
Information (as hereinafter defined) disclosed by any of the parties to any
other party hereunder is confidential and proprietary to such disclosing party.
Each party, its affiliates, and officers, directors, employees, agents,
consultants and contractors shall not use any of the Confidential Information
for any purpose other than as expressly permitted hereunder. Confidential
Information furnished by any of the parties to any other in connection with this
Agreement (or previously disclosed prior to execution of this Agreement) and the
transactions contemplated hereby will be kept in confidence by such other party,
including its affiliates or subsidiaries, in accordance with its policies for
maintaining the confidence of its own information of similar content. The term
Confidential Information shall mean and include: (i) all trade secrets and
other confidential business information learned in the course of performance by
any party of its obligations hereunder, (ii) any information, data, software or
computer programs which are disclosed by any party to the other party under or
in contemplation of this Agreement. Confidential Information may be either the
property of the disclosing party or information provided to the disclosing party
by a corporate affiliate of the disclosing party or by a third party.
Notwithstanding the foregoing, the term "Confidential Information" shall not
include information which: (i) is already known to such other party when
received (except for information previously disclosed which the parties have
identified as Confidential Information and subject to the confidentiality
requirements of this Agreement), (ii) thereafter becomes generally obtainable by
a party other than as a result of an unauthorized disclosure by the party taking
advantage of this clause, (iii) is required by law, regulation or court order to
be disclosed by such party, provided that in the case of this clause, prior
notice of such disclosure has been given to the party which furnished such
information, when legally permissible, and that such other party which is
required to make the disclosure uses its best efforts to provide sufficient
notice to permit the party which furnished such information to take legal action
to prevent the disclosure or (iv) is reasonably necessary, in the opinion of
counsel, to be disclosed in the context of a legal proceeding or regulatory
investigation provided that prior notice shall be given to the party which
furnished the information. This Section 2.1 shall survive any termination of
this Agreement for five (5) years.
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III. CONFLICT RESOLUTION
Section 3.1 CONFLICT RESOLUTION. Any dispute, controversy or claim
relating to this Agreement (a "Dispute") shall initially be referred to the
executive management of each of the parties to the Dispute. In the event
executive management cannot come to an agreement on a particular Dispute, then
the matter shall be submitted to the respective Chief Executive Officers and
General Counsel ("Designated Officers") of the parties to the Dispute. The
Designated Officers of each party then shall investigate and evaluate the
dispute. The parties agree to cooperate in this process by exchanging relevant
information unless such information is privileged. The Designated Officers or
their respective designees shall meet as appropriate to, in good faith, resolve
the dispute.
IV. EVENTS OF DEFAULT AND REMEDIES
Section 4.1 EVENT OF DEFAULT. An "Event of Default" shall be deemed
to occur upon the earliest to occur of the following:
(a) A material breach of a material representation, agreement or other
obligation of any of the parties to this Agreement (any such breach is herein
referred to as a "Material Breach"); provided, however, that no Event of Default
shall be deemed to have occurred unless and until: (i) a non-breaching party
provides the breaching party with written notice of such Material Breach,
describing in reasonable detail the nature of such Material Breach, (ii) the
breaching party shall have had an opportunity to cure such Material Breach
within sixty (60) days after such notice, (unless such Material Breach is with
respect to a monetary matter, the cure of which requires only the payment of a
specified amount of money pursuant to the terms of this Agreement, in which case
the breaching party shall have had an opportunity to cure within ten (10)
business days after such notice); (iii) the breaching party does not cure such
Material Breach within the applicable time period, or, if such Material Breach,
other than a Material Breach relating to a monetary matter, cannot reasonably be
cured within such period, but is curable, the breaching party does not (x)
undertake to cure such Material Breach within such sixty (60) day period and (y)
after such sixty (60) day cure period, diligently and continuously use all
reasonable efforts to cure, and (iv) the notifying party thereafter declares an
Event of Default. In respect of clause (iii), (x), (y) of this Section 4.1(a),
such extended cure period shall continue so long as the parties hereto
reasonably agree that the actions being taken by the breaching party are
reasonably expected to cure such Material Breach.
(b) If, at any time within twelve (12) months following the expiration
of any cure period provided in Section 4.1(a) above, there shall occur a
Material Breach (the "Second Material Breach") and such Second Material Breach
is of the same nature as the Material Breach (the "First Material Breach") by
the breaching party that gave rise to such cure period, then an Event of Default
shall be deemed to have occurred upon the delivery of notice of such Second
Material Breach to the breaching party by the notifying party
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referred to in paragraph (a) of this Section 4.1 and upon such notifying party
declaring an Event of Default.
(c) If there shall occur a "Bankruptcy," as hereinafter defined, of any
party, any non-bankruptcy party may declare an Event of Default. For purposes
of this Agreement, the term "Bankruptcy" shall mean (i) the entry of a decree or
order for relief by a court of competent jurisdiction in any involuntary case
under any bankruptcy, insolvency or similar law now or hereafter in effect, and
such decree or order shall not be vacated, set aside or stayed within ninety
(90) days after its entry, (ii) the entry of a decree or order appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
agent for any substantial part of the assets or property and such decree or
order shall not be vacated, set aside or stayed within ninety (90) days after
its entry, (iii) the ordering of the winding up or liquidation of the affairs of
a party and such order shall not be vacated, set aside or stayed within one
hundred twenty (120) days after its entry, (iv) the filing of a petition in any
such involuntary bankruptcy case, which petition remains undismissed for a
period of ninety (90) days or which is not dismissed or suspended pursuant to
Section 305 of Title 11 of the United States Code (or any corresponding
provision of any future United States Bankruptcy law), (v) the commencement of a
voluntary case under any bankruptcy, insolvency or similar law now or hereafter
in effect, (vi) the consent to the entry of an order for relief in an
involuntary case under any such law or to the appointment of or taking
possession of any substantial part of the assets or property by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar agent, or
(vii) the making of any general assignment for the benefit of creditors
Section 4.2 REMEDIES. Each of the parties hereto shall be liable
to the other parties for damages arising out of or in connection with any
breach of this Agreement including any breach by their respective
subsidiaries (except to the extent that Direct Merchants Bank and Metris are
subsidiaries of FCI) to the extent permitted by law, subject to the duty of
the non-breaching parties to take all reasonable actions in order to mitigate
such damages. The parties agree that in no event shall any party to this
Agreement be liable to the other parties for punitive, indirect, special or
consequential damages arising out of a breach of this Agreement. It is
understood and agreed that monetary damages may not be a sufficient remedy
for any Event of Default. Accordingly, the non-breaching parties shall, to
the extent permitted by law or equity, be entitled to specific performance
and injunctive or other equitable relief as a remedy for any breach of, or
Event of Default under this Agreement. The remedies described in this
Section 4.2 shall not be deemed to be the exclusive remedies for any breach
of, or Event of Default under this Agreement, but shall be in addition to all
other remedies available to the parties at law or in equity, subject to the
limitations with respect to damages set forth above in this Section 4.2.
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V. INDEMNIFICATION
Section 5.1 INDEMNIFICATION OBLIGATIONS
(a) BY DIRECT MERCHANTS BANK. Direct Merchants Bank shall be liable to
and shall defend, indemnify and hold harmless, Metris, FCI and their affiliates,
and their respective officers, directors, employees and permitted assigns, from
and against any and all Losses (as hereinafter defined) incurred by any of them
by reason of or related to Direct Merchants Bank's failure to perform its
obligations hereunder.
(b) BY FCI. FCI shall be liable to and shall defend, indemnify and hold
harmless, Direct Merchants Bank, Metris and their affiliates, and their
respective officers, directors, employees and permitted assigns, from and
against any and all Losses (as hereinafter defined) incurred by reason of or
related to FCI's failure to perform its obligations hereunder.
(c) BY METRIS. Metris shall be liable to and shall defend, indemnify
and hold harmless, Direct Merchants Bank, FCI and their affiliates, and their
respective officers, directors, employees and permitted assigns from and against
any and all Losses (as hereinafter defined) incurred by any of them by reason of
or related to Ff.'s failure to perform its obligations hereunder.
(d) "LOSSES" DEFINED. For purposes of this Section 5.1, the term
"Losses" shall mean any losses, liability, claims, damages, costs, and expenses,
including attorney's fees, disbursements and court costs, reasonably incurred by
an indemnified party, judgments, fines and other amounts paid in settlement,
incurred or suffered by an indemnified party in connection with any threatened,
pending or adjudicated claim, demand, action, suit or proceeding (whether civil,
criminal, administrative or investigative, by an unaffiliated third party
arising out of or in connection with any breach or alleged breach of this
Agreement) without regard to whether or not such Losses would be deemed material
under this Agreement.
Section 5.2 PROCEDURES
(a) NOTICE OF CLAIMS. The parties agree that in case any claim is made,
or any suit or action is commenced which, if not corrected, may give rise to a
right of indemnification by a party hereunder ("Indemnified Party") from one of
the other parties ("Indemnifying Party"), the Indemnified Party will give notice
to the Indemnifying party as promptly as practicable after the receipt by the
Indemnified party of such notice or knowledge of such claim, suit, or action.
On a best efforts basis, notice to the Indemnifying Party shall be given no
later than fifteen days after receipt by the Indemnified Party in the event a
suit or action has commenced or thirty days under all other circumstances;
provided, however, that the failure to give prompt notice shall not relieve an
Indemnifying Party of its obligation to indemnify except to the extent that the
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Indemnifying Party is materially prejudiced by such failure. The Indemnified
Party shall make available to the Indemnifying Party and its counsel and
accountants at reasonable times and for reasonable periods, during normal
business hours, all books and records of the Indemnified Party relating to any
such possible claim for indemnification, and each party will render to the other
such assistance as it may reasonably require of the other in order to ensure
prompt and adequate defense of any suit, claim or proceeding based upon a
statement of facts which may give rise to a right of indemnification hereunder.
(b) SELECTION OF COUNSEL. The Indemnifying Party shall have the right
to defend, compromise and settle any suit, claim or proceeding in the name of
the Indemnified Party to the extent that the Indemnifying Party may be liable to
the Indemnified Party under Section 5.1 above in connection therewith; provided,
however, that the Indemnifying Party shall not compromise or settle a suit,
claim or proceeding unless it assumes the obligation to indemnify for all Losses
related thereto. In the event two of the parties to this Agreement must
indemnify the third, the parties agree the two Indemnifying Parties must agree
to select one to be the Indemnifying Party to the third Indemnified Party and
the third Indemnified Party shall look to one party to this Agreement for
indemnification. The Indemnifying Party shall notify the Indemnified Party
within ten days of having been notified pursuant to Section 5.2(a) of this
Agreement if the Indemnifying Party elects to assume the defense of any such
claim, suit or action and employ counsel in a reasonable exercise of its
discretion. The Indemnified Party shall have the right to employ its own
counsel to participate in such defense, compromise or settlement, but the fees
and expenses of such counsel shall be at the Indemnified Party's expense, unless
the Indemnifying Party shall not have employed counsel to take charge of the
defense thereof.
(c) SETTLEMENT OF CLAIMS. The Indemnified Party may at any time notify
the Indemnifying Party of its intention to settle or compromise any claim, suit
or action against the Indemnified Party in respect of which indemnification
payments may be sought from the Indemnifying Party hereunder, but shall not
settle or compromise any matter for which indemnification may be sought without
the consent of the Indemnifying Party. Any settlement or compromise of any
claim, suit or action in accordance with the preceding sentence, or any final
judgment or decree entered on or in any claim, suit or action which the
Indemnifying Party did not assume the defense of in accordance herewith, shall
be deemed to have been consented to by, and shall be binding upon, the
Indemnifying Party as fully as if the Indemnifying Party had assumed the defense
thereof and a final judgment or decree had been entered in such suit or action,
or with regard to such claim, by a court of competent jurisdiction for the
amount of such settlement, compromise, judgment or decree.
(d) SUBROGATION. The Indemnifying Party shall be subrogated to any
claims or rights of the Indemnified Party as against any other persons with
respect to any amount paid by the Indemnifying Party under this Section 5. The
Indemnified Party shall cooperate with the Indemnifying Party, at the
Indemnifying Party's expense, in the assertion by the Indemnifying Party of any
such claim against such other persons.
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(e) INDEMNIFICATION PAYMENTS. Amounts owing under this Section 5 shall
be paid promptly upon written demand for indemnification containing in
reasonable detail the facts giving rise to such liability; provided, however, if
the Indemnifying Party notifies the Indemnified Party within thirty (30) days of
receipt of such demand that it disputes its obligation to indemnify and the
Parties are not otherwise able to reach agreement, the controversy shall be
settled by final order entered by a court of competent jurisdiction.
Section 5.3 SURVIVAL OF INDEMNIFICATION. The provisions of this
Section 5 shall expressly survive any termination of this Agreement or otherwise
for a period of five (5) years.
VI. TERM AND TERMINATION
Section 6.1 TERM AND TERMINATION. This Agreement shall take effect
upon the date first written above, and shall remain until December 31, 1998
("Initial Term"). Thereafter, this Agreement will automatically renew for an
additional term of one (1) year ("Renewal Term") unless each party provides
written notice to the other parties to this Agreement of not less than six (6)
months prior to the end of the Initial Term or Renewal Term of its intent to
terminate this Agreement. Any party may terminate this Agreement reserving all
other remedies and rights hereunder in whole or in part and otherwise available
in law or in equity, upon the following conditions:
(a) the occurrence of an Event of Default. Upon the occurrence of an
Event of Default, a non-defaulting party may terminate this Agreement by giving
no less than 30 days prior written notice of its intent to terminate to each of
the other parties to this Agreement which notice shall describe the Event of
Default;
(b) at any time upon mutual agreement of the parties upon 90 days' prior
written notice;
(c) any party may terminate any Exhibit upon mutual agreement of the
parties during any Initial Term or Renewal Term without terminating this
Agreement; or
(d) FCI shall have the right to terminate this Agreement by written
notice to Metris and Direct Merchants Bank upon the occurrence of a Change of
Control (as defined below) with respect to Metris. A "Change in Control" shall
be deemed to have occurred if (i) any person or group (within the meaning of
Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date
hereof) other than FCI shall own directly or indirectly, beneficially or of
record, shares representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of Metris; (ii) a
majority of the seats (other than vacant seats) on the Board of Directors of
Metris shall at any time be occupied by persons who were neither (1) nominated
by FCI or by the Board of Directors of Metris, nor (2) appointed by directors so
nominated; or (iii) any
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person or group other than FCI shall otherwise directly or indirectly have
the power to exercise a controlling influence over the management or policies
of Metris.
VII. MISCELLANEOUS
Section 7.1 ADDITIONAL ACTIONS AND DOCUMENTS. Each of the parties
hereto agrees to take or cause to be taken such further actions, to execute,
acknowledge, deliver and file or cause to be executed, acknowledged, delivered
and filed such further documents and instruments, and to use all reasonable
efforts to obtain such consents, as may be necessary or as may be reasonably
requested in order to fully effectuate the purposes, terms and conditions of
this Agreement.
Section 7.2 NOTICE. All notices, demands, requests or other
communications which may be or are required to be given pursuant to this
Agreement shall be in writing and shall be personally delivered, mailed by first
class, registered or certified mail postage prepaid, or sent by electronic or
facsimile transmission, addressed as follows:
(a) If to Metris:
Metris Companies Inc.
000 Xxxxx Xxxxxxx 000, Xxxxx 0000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: President
(b) If to FCI:
Fingerhut Companies, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
(c) If to Direct Merchants Bank:
Direct Merchants Credit Card Bank, National Association
1455 West 0000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: President
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request or communication which shall be delivered,
mailed or transmitted in the manner described above shall be deemed sufficiently
given, served, sent or received for all purposes at such time as it is delivered
to the addressee or at such time as delivery is refused by the addressee upon
presentation.
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Section 7.3 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if one or more of the provisions of this Agreement is
subsequently declared invalid or unenforceable, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions of this Agreement (unless those provisions which are
invalidated or unenforceable are clearly material and inseparable from such
other provisions). In the event of such declaration of invalidity or
unenforceability, this Agreement, as so modified, shall be applied and construed
so as to reflect substantially the intent of the parties and achieve the same
economic effect as originally intended by the terms hereof. In the event that
the scope of any provision to this Agreement is deemed unenforceable by a court
of competent jurisdiction, the parties agree to the reduction of the scope of
such provision as such court shall deem reasonably necessary to make such
provision enforceable under the circumstances.
Section 7.4 SURVIVAL. It is the express intention and agreement of
the parties hereto that all covenants, agreements, statements, representations,
warranties and indemnities made in this Agreement shall survive the execution
and delivery of this Agreement.
Section 7.5 WAIVERS. Neither the waiver by any party hereto of a
breach of or a default under any of the provisions of this Agreement, nor the
failure of any party hereto, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right, remedy or privilege
hereunder shall thereafter be construed as a waiver of any such provisions. The
provisions, rights, remedies, warranties and conditions of this Agreement may be
waived only by a written instrument executed by the party warning compliance.
Section 7.6 AUDIT RIGHTS. Each party agrees that all records
relating to this Agreement at all times shall be subject to inspection and
review by each party's internal auditors or its designees and the examiners of
any regulatory agency, having jurisdiction over each party to this Agreement.
If any party to this Agreement receives any requests or demands under authority
of law (subpoenas, so called discovery means, or audit demands of any taxing
authority) for access to information of any other party, the party receiving
such request or demand but shall immediately inform the party from whom such
information is requested of such request or demand but shall not grant access to
such information without FCI's, Metris' and/or Direct Merchant Bank's
permission. By entering into this Agreement, FCI agrees that the appropriate
bank regulatory agency will have the authority and responsibility to do all
things required or contemplated by applicable banking laws or regulations
provided to the other regulatory agencies relating to services performed by
contract or otherwise for a bank or bank holding company. FCI further agrees to
reasonably cooperate with and provide any reasonable information to the
appropriate bank regulatory agency.
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Section 7.7 BINDING EFFECT. Subject to any provisions hereof
restricting assignment, this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and permitted
assigns.
Section 7.8 PRONOUNS. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person may require.
Section 7.9 HEADINGS. Section headings contained in this Agreement
are inserted for convenience of reference only, shall not be deemed to be a part
of this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
Section 7.10 GOVERNING LAW. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the internal laws of the
State of Minnesota without giving effect to the principles of conflicts of laws
thereof.
Section 7.11 EXECUTION IN COUNTERPARTS. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signatures of the persons required to bind any party,
appear on one or more of the counterparts. All counterparts shall collectively
constitute a single agreement. It shall not be necessary in making proof of
this Agreement to produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of all of the parties
hereto.
Section 7.12 ASSIGNMENT. No party to this Agreement shall have the
right to assign or otherwise transfer its rights or obligations under this
Agreement, except with the prior written consent of the other parties hereto;
notwithstanding, any party may assign or otherwise transfer its rights or
obligations under this Agreement to a successor in interest, subsidiary or
affiliate upon notice to the other parties. Regardless of the party to whom an
assignment is made pursuant to this Section 7.13, the assignee shall, as a
condition to such assignment, by written undertaking satisfactory to the other
parties, represent and warrant that that assignment was made in accordance with
all applicable laws and regulations and assume and agree to be bound by the
terms, provisions and conditions of this Agreement to the same extent as the
assignor; provided, however, that no such assignment shall relieve the assignor
of its obligations (which shall be primary and which may be discharged in whole
or in part by the assignee) under this Agreement, to the extent applicable. Any
unauthorized assignment and any assignment made in contravention of this Section
7.12 shall be null and void.
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Section 7.13 NO AGENCY. This Agreement shall not be deemed expressly
or by implication to create an agency, employee, or servant relationship between
or among any of the parties hereto, or any affiliates of the parties hereto for
any purpose whatsoever.
Section 7.14 FORCE MAJEURE. No party shall be liable for any failure
of or delay in the performance of this Agreement for the period that such
failure or delay is due to acts of God, public enemy, war, strikes or labor
disputes, or any other cause beyond the parties' reasonable control; it being
understood that lack of financial resources is not to be deemed a cause beyond a
party's control. Each party shall notify the other parties promptly of the
occurrence of any such cause and carry out this Agreement as promptly as
practicable after such cause is terminated; provided, however, that the
existence of any such cause shall not extend the term of this Agreement.
Section 7.15 TIME. Time is to be considered of the essence for the
purposes of this Agreement.
Section 7.16 AMENDMENT AND MODIFICATION. This Agreement or any
Exhibits may only be amended or modified by a subsequent written agreement by
and among the parties hereto.
Section 7.17 ADHERENCE TO APPLICABLE LAW. In connection with the
performance of their respective obligations and the exercise of their respective
rights hereunder, each of the parties hereto agrees, on behalf of itself, and
its subsidiaries or affiliates (except to the extent that Direct Merchants Bank
and Metris are affiliates of FCI), to comply in all material respects with all
applicable state, federal and local laws and regulations.
Section 7.18 ENTIRE AGREEMENT. This Agreement and the Exhibits
represent the entire undertaking of the parties hereto with respect to the
subject matter hereof. This Agreement and the Exhibits supersede all prior
agreements and all contemporaneous agreements not required or contemplated
hereby, whether oral or written, and all representations, warranties,
undertakings, and understandings by and between the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first written above.
FINGERHUT COMPANIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title
-----------------------------------------
DIRECT MERCHANTS CREDIT CARD BANK,
NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------------
Title
-----------------------------------------
METRIS COMPANIES INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Title
-----------------------------------------
13
EXHIBIT 1
TREASURY SERVICES
FCI agrees that it has or will on behalf of Direct Merchants Bank and/or Metris
(including subsidiaries) as the case may be:
1. Use its best reasonable efforts to arrange and will administer all
financing arrangements, including the securitization of assets, any
corporate financing and execution of any leases.
2. Arrange and Administer all interest rate and similar hedging
transactions, and the leasing or sale leaseback of any real or personal
property, including the execution of any leases.
3. Provide cash management administration and banking advisory services.
DURATION:
Effective through December 31, 1996.
COMPENSATION:
1. Incremental third party expenses, and
2. A Pro rata share of department expenses as agreed to by the parties for
each of the calendar years ended as reflected below:
1991 1992 1993 1994 1995 1996
------------------------------------------------------------
$25,000 $25,000 $25,000 $35,000 $220,000 $220,000
14
EXHIBIT 2
GENERAL ACCOUNTING AND ADMINISTRATIVE SERVICES
1. TAX SERVICES
FCI agrees that it has or will on behalf of Direct Merchants Bank and/or
Metris (including subsidiaries) as the case may be:
1. Prepare all Federal tax filings, including any extensions
thereof, and any payroll tax filings for Metris, or its
predecessor, and its subsidiaries and affiliates, including
Metris Financial Services Receivables, Inc. ("MFSRI") and Direct
Merchants Bank. Prepare and file any and all estimated tax
installments required hereunder pursuant to the Tax Sharing
Agreement dated October 31, 1996.
2. Prepare any and all state tax filings, any extensions thereof,
and any other non-federal tax filings, including any payroll tax
filings, for Metris, or its predecessor and subsidiaries and
affiliates, and for the states of Minnesota, Utah and Oklahoma.
Any tax filings for other states where it is determined that
Metris or its predecessor and its subsidiaries and affiliates
have income tax nexus shall require an amendment to this Exhibit.
Prepare and file any and all estimated tax installments required
hereunder pursuant to the Tax Sharing Agreement dated October
31,1996.
3. Assist in the analysis of any and all securitization, interest
rate hedging and other financing arrangements and any and all
other transactions or arrangements which may have tax
ramifications for the purpose of determining the proper tax
treatment for such transactions or arrangements;
4. Assist in the analysis of any and all employee compensation
issues from a tax perspective
5. Assist with any tax planning and research for Metris, or its
predecessor, and their subsidiaries or affiliates; and
6. Be the sole and exclusive agent and representative of Metris, or
its predecessor, and subsidiaries and affiliates, in any matters
relating to the tax filings noted above, and subject to
examination by representatives of the Internal Revenue Service or
any similar state agency pursuant to the Tax Sharing Agreement
dated October 31, 1996.
15
DURATION:
Effective through December 31, 1997.
2. INSURANCE SERVICES/RISK MANAGEMENT
FCI agrees that it has or will:
Use its best reasonable efforts to arrange and will administer all
existing insurance arrangements, including: Xxxxxxx'x Compensation
Insurance, Property and Casualty Insurance, excess liability insurance,
Employee Blanket Bond Insurance, Director and Officer liability
insurance and any other types of insurance reasonably required by
Metris, or its predecessor, and its subsidiaries and affiliates,
including Direct Merchants Bank. FCI may, subject to notification of
Metris, fulfill its obligation with respect to any of the identified
coverages by arranging for Metris and its subsidiaries and affiliates to
be included under FCI's policies.
DURATION:
Effective through December 31, 1997
3. GENERAL ACCOUNTING SERVICES
FCI agrees that it has or will:
1. Provide the assistance of its Chief Financial Officer, Corporate
Controller and other accounting staff in the preparation of the
financial statements and other financial information of Metris
for internal and external business needs, or its predecessor, and
its subsidiaries and affiliates including Direct Merchants Bank.
Such FCI personnel will also assist such parties by providing
financial advice and guidance, where necessary, in the conduct of
their business, including financial advice provided in the
negotiation of any contractual arrangements and other financial
transactions;
2. Provide Metris, or its predecessor, and its subsidiaries and
affiliates, including Direct Merchants Bank with access and use
of FCI's general ledger system for the recording and analyzing of
such entities financial transactions;
3. Provide accounts payable and other disbursement services for
Metris, or its predecessor, and its subsidiaries and affiliates,
including Direct Merchants Bank; and
16
4. Provide payroll and other employee compensation accounting
services for Metris, or its predecessor, and its subsidiaries and
affiliates, including Direct Merchants Bank
COMPENSATION:
1. Incremental third party expenses; and
2. A pro rata share of expenses as agreed to by the parties for each of the
calendar years ended as reflected below:
1991 1992 1993 1994 1995 1996 1997
--------------------------------------------------------------------
$15,000 $15,000 $25,000 $110,000 $170,000 $225,000 TBN*
* To be negotiated in good faith subsequent to the execution of this agreement.
17
EXHIBIT 3
HUMAN RESOURCE SERVICES
FCI agrees that it has or that it will on behalf of Direct Merchants Bank
and/or Metris (including subsidiaries) as the case may be:
1. Use its best reasonable efforts to arrange and will administer all human
resource activities, including the development and administration of all
policies and procedures for the determination of all Metris, or its
predecessor and its subsidiaries and affiliates, including Direct
Merchants Bank employee compensation and benefits including the
development and administration of all related benefit plans which such
employees may now, have been or hereafter may be participants in.
2. Assist in the review and determination of all hiring and termination
decisions of employees of Metris, or its predecessor, and Direct
Merchants Bank, and its subsidiaries, including the development of
policies and procedures therefor; and including assistance in
interviewing, placing adds and hiring search firms for new employees
3. Assist in the counseling process for employees, including all job
performance reviews, and maintain all personnel records, including
those required by the laws, rules and regulations of the states or
the Federal Government.
DURATION:
Effective through December 31, 1997.
COMPENSATION:
1. Incremental third party expenses; and
2. A pro-rata share of department expenses as agreed to by the parties for
each of the calendar years ended as reflected below:
1991 1992 1993 1994 1995 1996 1997
$10,000 $10,000 $50,000 $35,000 $94,000 $187,000 TBN*
*To be negotiated in good faith subsequent to the execution of this agreement.
18
EXHIBIT 4
LEGAL SERVICES
FCI agrees that it has or that it will on behalf of Direct Merchants Bank
and/or Metris (including subsidiaries) as the case may be, provide legal
services, including the retention and management of outside counsel:
1. Assist in the preparation and review of all contractual obligations of
Metris, Direct Merchants Bank and their subsidiaries.
2. Assist in the assessment of the applicability and subsequent compliance
of the laws, rules and regulations of the various authorities which have
jurisdiction over Metris, Direct Merchants Bank and their subsidiaries.
3. Review and recommend changes to the legal structure and organization of
the business of Metris. Direct Merchants Bank and their subsidiaries.
4. Provide counsel on all other business issues as appropriate
5. Assist in the preparation and review of all required filings with the
SEC, OCC, FDIC, the Federal Reserve and any other applicable authority
having jurisdiction over Metris, Direct Merchants Bank and their
subsidiaries.
6. Any matter which any party deems to create a conflict or possible
conflict with any other party shall be handled by separate independent
counsel on behalf of each party. FCI's legal department shall only
represent FCI in any such matter, even if the conflict or potential
conflict is between FFS and Direct Merchants Bank.
DURATION:
Effective date through December 31, 1997.
COMPENSATION:
1. Incremental third party expenses, and;
2. A pro-rata share of department expenses as agreed to by the parties in
this agreement for each of the calendar years ended as reflected below:
1991 1992 1993 1994 1995 1996 1997
-------------------------------------------------------------------
$35,000 $35,000 $35,000 $55,000 $115,000 $137,723 TBN*
* To be negotiated in good faith subsequent to the execution of this agreement.
19
EXHIBIT 5
INTERNAL AUDIT
FCI agrees that it has or it will on behalf of Direct Merchants Bank and/or
Metris (including subsidiaries) as the case may be:
1. Conduct periodic audits and reviews of the operations and the level of
compliance with both Metris, or its predecessor, Direct Merchants Bank
and their subsidiaries' policies and procedures and the rules and
regulations of the various authorities having jurisdiction over them;
Assess the adequacy of the internal control structure of both Metris,
Direct Merchants Bank and their subsidiaries and provide written reports
summarizing the conclusions from such audits and reviews, including
recommendations for improvement in the areas audited or reviewed.
DURATION:
Effective date through December 31, 1997.
COMPENSATION:
1. Incremental third party expenses, and;
2. A pro-rata share of department expenses as agreed to by the parties to
this agreement for each of the calendar years ended as reflected below:
1996 1997
--------------------
$133,336 TBN*
*To be negotiated in good faith subsequent to the execution of this agreement.
20
EXHIBIT 6
MARKETING ANALYSIS
FCI agrees that it has or that it will on behalf of Direct Merchants Bank and/or
Metris (including subsidiaries) as the case may be:
1. Provide the equivalent of up to one full time analyst in the marketing
analysis department to assist with access, review, selection and
segmentation of the Customer Database as allowed for under separate
agreements between FCI and/or its subsidiaries, and Metris and/or its
subsidiaries, including Direct Merchants Bank. Also, assist Metris and
Direct Merchants Bank and their subsidiaries, in conducting marketing
research, including present customer and potential customer surveys and
competitive analysis, among other similar projects.
DURATION:
Effective through December 31, 1996.
COMPENSATION:
1. Incremental third party expenses, and;
2. A pro-rata share of department expenses as agreed to by the parties to this
agreement for each of the calendar years ended as reflected below:
1991 1992 1993 1994 1995 1996
----------------------------------------------------------
$30,000 $30,000 $30,000 $63,000 $63,000 $63,000
21
EXHIBIT 7
EXECUTIVE TIME & SPACE/PROPERTY ALLOCATIONS
(ended prior to execution of this agreement)
FCI agrees that it has or it will on behalf of Direct Merchants Bank and/or
Metris (including subsidiaries) as the case may be:
1. Provide executive time and leadership in the development of the
businesses of Metris, or its predecessor, Direct Merchants Bank and
their subsidiaries.
2. Review and conclude on all business deals, contracts and transactions of
Metris, or its predecessor, Direct Merchants Bank or their subsidiaries
which would normally require such level of review and approval. Provide
any other assistance normally required of executive talent where
necessary.
3. Provide adequate space and fixed assets necessary for the conduct of the
business of Metris or its predecessor, Direct Merchants Bank and their
subsidiaries, including mainframe computer and peripherals access and
use.
DURATION:
Effective through December 31, 1995 (no allocations for 1996)
COMPENSATION:
1. Incremental third party expenses, including leases in Tulsa, Oklahoma,
and Salt Lake City, Utah, but excluding the lease at the Interchange
Tower in St. Louis Park, Minnesota or at the Seagate Building in
Minnetonka, Minnesota.
2. A pro-rata portion of executive time and space, other than that noted in
1 above, and a pro-rata portion of the depreciation and amortization
expense of fixed assets utilized by Metris, Direct Merchants Bank, and
their subsidiaries, other than that which Metris already owns or has
contracted for itself directly, including mainframe computer and
peripherals usage as agreed to by the parties to this agreement for each
of the calendar years ended as noted below:
1991 1992 1993 1994 1995
-------------------------------------------------------
$170,000 $200,000 $700,000 $775,000 $1,204,000
22
EXHIBIT 8
INFORMATION SYSTEMS SERVICES
FCI agrees that it has or that it will on behalf of Direct Merchants Bank
and/or Metris (including subsidiaries) as the case may be:
I Provide certain "Systems", which shall mean certain data processing
hardware and software that Metris and/or Direct Merchants Bank do not
own because they do not have the processing needs to justify ownership
of such hardware or software, or where such hardware and software is
proprietary to FCI, but such hardware and software is integral to the
ongoing business operations of Metris and its subsidiaries and
affiliates. Such hardware and software shall include but not be limited
to mainframe computers, certain data and voice communication hardware
and software, certain telephone lines, certain telecommunications
equipment. and certain local and wide area networking services, software
and equipment.
2. Provide certain "System Resources", which shall mean certain skilled
employees or independent contractors of FCI who are programmers, system
analysts, data processing and data communications technical support
staff who support the Systems. Such System Resources shall not include
those personnel who are employees or independent contractors of Metris,
and its subsidiaries and affiliates and shall primarily be those
personnel whose functions Metris or its subsidiaries and affiliates
cannot justify a full-time need for. Metris and FCI may mutually agree
to transfer System Resources to the cost center of Metris.
3. During the service periods noted below, provide the System Resources and
maintain the Systems, in accordance with the Service Level Agreement
attached hereto and incorporated herein by reference as Schedule I to
Exhibit 8, in connection with the services to be provided to Metris in
the operation of its businesses.
4. Ensure that the operations, hardware configurations, software and other
facilities and procedures relating to access to, operation and use of
the Systems Resources and Systems made available by FCI shall,
throughout the term of this Agreement, be consistent with the Operating
System and Procedures of FCI as in effect immediately prior to the date
hereof, except as described in any "Change Control Procedures" which
shall be agreed to in writing by the signatories to this Agreement prior
to any such Change Control Procedures taking place.
5. Upon notification from Metris of non-application processing errors, and
as reasonably practicable to do so after discovery thereof by Metris,
use its reasonable best efforts to correct any non-application
processing errors with respect to the System.
23
6. FCI agrees to maintain Metris' and Direct Merchant Bank's customer data
("Customer Data") on its computers (i.e. data processing equipment and
software), and to maintain (including update) Metris and Direct Merchant
Bank Customer Data with the same degree of care it uses to maintain its
customer database information. FCI will segregate Metris and Direct
Merchant Bank Customer Data from customer database information and will
maintain procedures that FCI, in its sole discretion, does not become a
credit reporting agency as defined under the Fair Credit Reporting Act
and its implementing regulations.
7. Maintain Metris', and its subsidiaries and affiliates, including Direct
Merchants Bank, customer data (hereinafter "Metris Customer Data") on
its computers (i.e. data processing equipment and software), and to
maintain (including updates) such Metris Customer Data with the same
degree of care it uses to maintain customer data. Subject to the
confidentiality requirements of Section 2.1 in the Agreement, FCI agrees
that it has and it will continue to segregate Metris Customer Data from
its customer data and will maintain procedures such that FCI does not
become a credit reporting agency as defined under the Fair Credit
Reporting Act and its implementing regulations. Metris' use and its
unlimited exclusive access to the Metris Customer Data shall include
file selection, segmentation, response modeling, storage, updating, and
maintenance of Metris Customer Data.
Additionally, FCI agrees that has or that it will provide, on a timely
basis, the requested Metris Customer Data via magnetic tape or such
other forms as the parties may from time to time agree. FCI also will
continue to provide the requested data on a timely basis to ensure
Metris' production and solicitation deadlines are met, Throughout the
term of this Agreement, FCI will also update the Metris Customer Data
with all additions, deletions, and other amendments ("Updates") made or
developed by Metris in the ordinary course of its business, including
without limitation, the addition of name and other information related
thereto of all persons on the Metris Customer Database, and such Updates
shall thereafter become part of the Metris Customer Database for
purposes of this Exhibit to this Agreement.
FCI also agrees that it has or that it will maintain a backup, archival
or disaster recovery copy ("Back-up Copy") of the Metris Customer Data.
Metris shall have the right to access such Back-Up Copy in the event of
(1) FCI's or Fingerhut Corporation's Bankruptcy (as defined within
Section 4.1 (c) of the Agreement), (ii) FCI's main computer system is
unable to process its files, and (iii) upon expiration of this Agreement
without renewal.
8. Maintain for the benefit of Metris an adequate supply of tape
cartridges, desk spaces and general computer supplies or the operation
of the business contracted for herein.
24
9. Maintain hours of operation for the Systems Resources and the Systems
performed and provided by FCI hereunder on a basis consistent with the
practice of FCI for the periods prior to the execution of this
Agreement, except as otherwise provided in the Service Level Agreement,
as provided in Schedule I to this Exhibit. If such hours of operations
are interrupted for any reasons whatsoever, Metris shall be notified as
soon as reasonably possible.
10. If for any reason, including without limitation, system failures, power
failures, interruption of data communication lines or otherwise (but
excluding periods of "down time" scheduled in advance for any purpose
consistent with the practice of FCI prior to the execution of this
Agreement, i.e. systems maintenance or systems modifications), FCI shall
not be able to provide Metris the Systems Resources and the Systems
during the hours of operation (in each case, a "System Failure"), (i)
notify Metris as soon as reasonably possible thereafter of each such
System Failure, (ii) use its reasonable best efforts to correct each
such System Failure, and (iii) keep Metris informed on a reasonably
frequent basis during each such System Failure as to the status thereof.
As a result of such System Failure, and subject to the provisions of
item #15 below and except in the case that any such System Failure
results from or arises out of FCI's gross negligence or willful
misconduct, FCI shall not be liable to Metris for any damages (direct or
indirect, consequential or otherwise), losses or other liabilities
arising from or caused by any System Failure or any failure by FCI to
provide any notice required to be provided hereby, except for an
appropriate credit, as agreed upon by the parties to this Exhibit 8, in
an amount equal to the full amount of the Systems Resources and Systems
which were not provided or performed due to such System Failure.
Subject also to the provisions of item #15 below, in the event any
System Failure continues for more than 24 consecutive hours, in addition
to Metris' right to receive a credit as noted above, Metris shall have
the right to obtain the provision and/or performance of the System
Resources and Systems from a third party provider.
11. Exercise and provide back-up procedures and systems consistent with the
practice of FCI in the event circumstances beyond the control of FCI
prevent FCI from being able to provide the Systems Resources and Systems
as provided for hereunder. FCI further agrees that it will continue to
use the same level of care, consistent with the practice of FCI to
minimize the likelihood of all damages, losses of data, delays and
errors resulting from uncontrollable events; and should such damages,
losses of data, delays or errors occur, that FCI will use its reasonable
best efforts, consistent with the practice of FCI to mitigate the
effects of such occurrence.
12. Take such precautions and observe such procedures to protect the
security of the Confidential Information. Such precautions and
procedures shall include, without limitation, the restriction of
physical and electronic access to the Confidential Information to those
persons identified in Article 11 of this Agreement as authorized to have
access thereto, in all cases at least to the extent that FCI
25
protects its own confidential and proprietary information and data. In
addition, consistent with FCI's standard security policies and
procedures, take such precautions to protect the Confidential
Information against unauthorized access by persons who pursuant to the
terms of this Exhibit and the Agreement, or otherwise, are not
authorized to access the Confidential Information, including without
limitation, taking reasonable precautions against unauthorized access
over phone lines, data networks or other communications means.
Should any employee, agent or consultant, or any other party that
obtains access to the Confidential Information through FCI or within the
scope of their employment with FCI, improperly access, use, transfer,
distribute or disclose (or otherwise provide unauthorized access to)
such Confidential Information, FCI agrees that it has or that it will,
notify Metris, as soon as reasonably practicable after learning of (or
having reasonable reason to suspect) any such conduct, and, at its own
expense for its legal fees and other expenses, cooperate with Metris
(and, as appropriate, any third party whose data or other proprietary
information may have been comprised) to assist Metris or such third
party to enjoin and otherwise redress such conduct, and discourage any
repetitions by the offending individual, entity or others similarly
situated, and will take such further steps as Metris (or such third
party) shall reasonably request (including complaints to law enforcement
authorities). In the event that civil litigation is desired by Metris
(or such third party), and subject further to the indemnification
provisions of Article V of the Agreement, Metris (or such third party)
shall have supervision and control and, in defense of any counterclaim,
the parties shall, to the extent it is mutually beneficial, cooperate in
preparing such defense and consider a joint defense, and generally,
shall conduct and defend any litigation in such manner as to preserve
the attorney client and work-product privileges and maintain the
Confidential Information in confidence, such as through entry of
appropriate protective orders.
DURATION.
Effective date through December 31, 1996.
COMPENSATION:
A Systems and Systems Resource user fee, broken out between those costs which
would be capitalizable for software development projects and those costs which
would not be capitalizable, all as in accordance with generally accepted
accounting principles, is as reflected for the Service Periods below:
Service Periods: 1995 1996
---- ----
Non-Capitalizable Services (NCS) $314,341 $1,617,840
Capitalizable Software Development Services (CS) $104,338 $1,227,662
26
SCHEDULE 1
SERVICE LEVEL AGREEMENT
1. Service Level Review and Change Procedure
A review of the Service Level Agreement may be called for by FCI or
Metris at any time. Consistent with past practices, Fingerhut shall
reasonably cooperate with Metris to address additional needs and
particular requirements.
A formal review will be held after the first six months of implementation
and as necessary thereafter.
2. Statement of Intent
This document defines the Service Level Agreement between the Fingerhut
Data Center and Metris.
The scope of this agreement covers the level of service provided by the
Fingerhut Data Center. The primary areas of service are:
* Hours of operation
* Online transaction response time
* Batch job turnaround time
The intent is to provide service to Metris at the same level as Fingerhut.
This will be accomplished by using Fingerhut's existing standards and
practices.
3. Participant's Signatories.
Service Supplier (Fingerhut Data Center)
Xxx Xxxxxxxxx
4. Service Communications
Service levels are measured monthly to be documented via e-mail to Metris.
5. Service Details
In addition to normal working hours, the Operations area will be staffed on
Saturday afternoons to accommodate copying of files received on Saturday
mornings.
27
Fingerhut commits to the following mainframe service levels:
Production batch jobs on time daily 95%
Production batch jobs on time bi-weekly 97%
Production batch jobs on time weekly 97%
Production batch jobs on time monthly 90%
Test batch jobs on time 90%
IMS availability 99%
TSO availability 99%
IMS foreground trans. less than 3 seconds 90%
IMS background trans. less than 60 seconds 90%
CICS Availability 99%
CICS Foreground 90%
DB2 Availability 99%
Oracle Availability 99%
Access to the Internet/Intranet 98%
Access to the RS600 File Server 98%
Access to Local Servers 98%
Access to Local Area Network 98%
Access to PC, PC Printer or Sun Workstation 98%
Access to the Mainframe via Network 98%
Access to all Locations via Network 98%
Access to all Locations via Network 98%
Access to Email/Scheduling 98%
Restrictions:
IMS and CICS transactions for foreground (short response time requirements)
must be 25 calls or less.
DB2 transaction must be limited to 50 get-pages or less.
ORACLE transaction must be limited to 50 get-pages or less.
Weekly scheduled downtime must be provided for hardware/software
maintenance needs. This scheduled "downtime" will begin at 11 p.m.
Saturday and continue until 7 a.m. Sunday. This will occur on weekly
basis. This scheduled "downtime" will not be included in calculating
service level performance. Any changes to this schedule will be
communicated as needed.
Metris must adhere to Fingerhut's Network & Distributed Systems
standards unless agreed to by both parties in writing in advance. This
includes hardware, software and processing.
28
As technology changes or significant changes in the processing
requirements of Metris change, Fingerhut will from time to time
recommend software/hardware upgrades and redundancies to continue to
provide the service level outlined in this document. If Metris chooses
not to make these upgrades, these service levels will have to be
reviewed and reconsidered as appropriate.
6. Help Desk
The Fingerhut Help Desk will be used to report all problems. Problems
not reported through the Help Desk will not be considered against the
Service Level Agreement.
Calls to the Fingerhut Help Desk will be assigned one of three severity
codes:
SEV 1 - Fingerhut will contact appropriate Metris personnel within one
hour of call being placed to Help Desk. Problem resolution will
occur as soon as possible and will be prioritized with the rest
of Fingerhut's SEV 1 problems. Only problems that affect
multiple users or affect a business critical process will be
classified as SEV 1.
SEV 2 - Fingerhut will contact appropriate Metris personnel within 2
hours or the next business day as specified on the job card.
Problems that cause degradation of critical applications and/or
service level agreements to be jeopardized, will be classified
as a SEV 2 problem.
SEV 3 - Fingerhut will contact appropriate Metris personnel within four
business hours or the next business day if during off hours of
the call being placed to Help Desk. Problem resolution will
occur as soon as possible assuming no other higher priority
tasks are affected. They will be prioritized with the rest of
Fingerhut's SEV 3 problems.
Metris retains the right to address all problems with their own
resources. Standards and procedures need to be strictly adhered to.
Metris will provide Fingerhut with their problem notification process to
be used for all SEV 1, SEV 2 and SEV 3 problems. Updates and changes to
this process will be communicated to the Fingerhut Help Desk.
29
7. Class Structure
Metris will use Fingerhut's job class structure and accounting
parameters to ensure accurate measurement of the objectives. Job classes
will be mutually agreed upon by Metris and Fingerhut to meet the goals
of each party. The job class structure is as follows:
Production job classes currently used are:
Job Class Purpose
A Critical runs.
B Production Priority Classes used to expedite
certain jobs to make our user commitments.
C Production Priority Classes used to expedite
certain jobs to make our user commitments.
D Production Priority Classes used to expedite
certain jobs to make our user commitments.
E Regular Production - Non Intervention
F Regular production - Intervention Required
G User (non IS) submitted production with class A-F
dependencies.
H User (non IS) submitted production without
dependencies.
I User (non IS) submitted "pseudo production" that does
not have an immediate dependency to production jobs
but has a future relationship to production jobs.
30
Test job classes currently used are:
Job Class Purpose
2 User submitted tests, no tapes or cartridges required.
Up to 10 minutes of CPU time.
3 IS submitted tests, no tapes or cartridges required.
Up to 10 minutes of CPU time.
4 User and IS submitted tests using 2 cartridge drives
or less and/or up to 20 minutes of CPU time.
5 User and IS submitted tests using 3 cartridge drives
or less and/or up to 20 minutes of CPU time.
6 *Scheduled User and IS test that:
1) Exceed 20 min. CPU or,
2) Exceed 100,000 lines in any SYSOUT dataset or
3) Use 4 or more cartridge drives
N IS submitted tests that:
1) Create production datasets and
2) Use 3 or less cartridge drives
3) Uses up to 20 minutes of CPU time.
O *Scheduled IS submitted tests that:
1) Create production datasets or
2) Exceed 20 min. CPU time in any step or
3) Exceed 100,000 lines in any SYSOUT dataset or
4) Use 4 or more cartridge drives
*Jobs must be scheduled; see next section.
SCHEDULING TESTS
If test jobs satisfy any of the conditions listed below, they must be submitted
with a job class of "6" or "O" and must be scheduled. A programmer schedules a
test by submitting form 23-724 "Request for Scheduled Test" or by using ISPF
option 8.3 "Scheduled Test Form". Jobs with class "6" or "O" will not be run
without this form.
a. Use of tape drives.
b. Use of 3 or more cartridge drives.
31
c. Jobs that run over 45 minutes of wall clock time or steps that use more
than 20 minutes CPU time.
d. When output exceeds 100,000 lines for any DD.
e. When dependencies exist between a production job and a test.
f. For critical tests that require special treatment.
g. The required input files(tape or cartridge) are not in the computer room,
but are in either vaults or on Metris site.
FINGERHUT COMMITMENT
FOR TEST JOB TURNAROUND
CPU MINUTES
--------------------------------------------------
JOB 0-1 1-5 5-10 10-20 GREATER
CLASS THAN 20
--------------------------------------------------
2 5 25 120 N/A N/A T
----------------------------------------- X
0 0 00 000 X/X X/X R
----------------------------------------- N
4 45 120 300 480 N/A A
----------------------------------------- R
5 90 180 360 540 N/A O
----------------------------------------- U
6 240 360 480 1440 1440 N
----------------------------------------- D
G 10 60 120 240 1440
----------------------------------------- M
H 10 60 120 240 1440 I
----------------------------------------- N
I 10 60 120 240 1440 U
----------------------------------------- T
N 20 90 180 480 N/A E
----------------------------------------- S
O 240 360 480 1440 1440
-----------------------------------------
8. Telecommunications
Fingerhut will provide management, design, installation and ongoing support
for Metris telephone systems, voice/data cabling, public switched and
dedicated private line network services and network equipment. This
support to be provided using Fingerhut personnel or by
coordinating/managing service through Metris personnel and/or service
contracts under Metris agreements.
32
As requested, Fingerhut will provide project management and project
analysis for Metris projects.
As requested, Fingerhut will provide/manage maintenance contract support
analysis and justification for vendor support services under existing
AT&T/Fingerhut/Metris maintenance agreements.
Fingerhut will manage all documentation, invoicing and chargebacks for all
LAC (Local Exchange Carrier) services and IXC (Inter Exchange Carrier)
services for all Metris sites.
Inbound and Outbound rate per minute and rates for point-to-point services
will be at the same rate provided to Fingerhut.
Service Levels
Every effort will be made to provide uninterrupted telecommunications
services to all Metris sites. The public switched network and the
switching hardware chosen and installed by Fingerhut are engineered to
provide maximum level of availability. Fingerhut vendors (and subsequently
Fingerhut) are indemnified against responsibility for damages or losses
incurred due to a Telecommunications outage. Beyond prescheduled outages
for Metris requested upgrades or manufacture maintenance upgrade, Fingerhut
will provide the following service levels.
Public switched and private network 99.975%
Network interface 99.975%
PBX/ACD switching hardware 99.925%
Call processing equipment 99.800%
Call reporting equipment 99.800%
33
SCHEDULE 1
(continued)
SERVICE LEVEL
Mainframe Standard Costs:
1. Computer Time HDS GX8524 (SYSD) $588.12/cpu hour
IBM 9021-982 (SYSC) $534.79/cpu hour
2. Disk Space $.47/meg-month
3. Disk I/O's $30.57/million
4. 0000 Xxxxxxxxx Xxxxx Hours $1.43/hour
5. 0000 Xxxxxxxxx I/O's $10.00/million
6. 0000 Xxxx Xxxxx Hours $1.76/hour
7. 3420 Tape I/O's $15.84/million
8. Tape/Cart Mounts $.18/mount
9. 3490 Cartridges $1.60/tape-year
10. Cartridge Vault Storage $40.35/tape-year
11. Client Tape Shipments $5.21/shipment
12. Outside Tapes Received $3.37/tape
13. Outside Tapes Returned $2.97/tape
14. Scheduled Jobs Run $.08/job
15. Laser Footage - Reports $8.93/thousand feet
16. Laser Footage - Special Forms $9.87/thousand feet
17. Fingerhut Impact Printer Time $18.72/hour
18. Stock Tab Paper (lasers) $6.21/thousand feet
34
19. Microfiche original $.46/fiche
copy $.11/copy
20. I.S. Resources Market Rate
Charge Back
21. Terminals and Mainframe Terminal $55/month
Associated Large Screen Terminal $170/month
Charges Printer $170/month
22. Personal **See Budget Users Manual for complete list
Computers
And Accessories
23. On-Line Transaction Costs $.01/transaction
35
EXHIBIT 9
CREDIT INSURANCE MANAGEMENT SERVICES
Metris agrees that it has or that it will on behalf of Direct Merchants Bank
and/or Metris (including subsidiaries) as the case may be:
1. Provide FCI with the personnel and other resources to manage the insurance
products offered within the closed-end installment coupon book,
including credit insurance offers therein. Manage the relationship with
the third party insurance provider and coordinate resolution of legal
and regulatory issues.
2. Budget, forecast and project insurance premiums and related expenses,
including claims and other fulfillment costs, on a daily basis. Report
on insurance and provide other reports to management on the experience
of the program.
3. Coordinate all marketing activities for such insurance product offers
including any modifications to such offers. Review, modify and approve
all insurance literature and coordinate any tests with customer service,
credit marketing and operations.
4. Manage the continuing development and maintenance of the insurance
database. Monitor and modify individual state rate and product tables as
necessary. Also, monitor the coupon master file.
5. Manage the insurance customer service functions.
6. Assist in Fingerhut's transition to a proprietary open-end revolving
charge product, particularly with respect to the development of credit
insurance offers for such product.
7. Transition the above functions to FCI personnel in late 1996, but no
later than January 1, 1997.
Metris agrees to perform the above services in accordance with the
Performance of Services in Section 1.2 and other terms and conditions of the
Agreement.
DURATION:
Effective through December 31, 1996.
32
COMPENSATION:
1. Incremental third party expenses, and
2. A pro-rate share of Metris' insurance and warranty department's expenses
as agreed to by the parties for each of the calendar years ended as
reflected below:
1991 1992 1993 1994 1995 1996
-------- -------- -------- -------- -------- --------
$491,300 $507,800 $860,000 $696,000 $354,600 $248,658
33
