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 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.
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 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.
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
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.
(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 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.
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.
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.
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.
IN WITNESS WHEREOF, the parties hereto have
executed
this Agreement on the date and year first
written above.
FINGERHUT COMPANIES,
INC.
By
Title
DIRECT MERCHANTS CREDIT
CARD BANK, NATIONAL ASSOCIATION
By
Title
METRIS COMPANIES INC.
By
Title
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
$xxx $xxx $xxx $xxx
$xxx
$xxx
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.
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
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
$xxx $xxx $xxx $xxx $xxx $xxx xxx*
* To be negotiated in good faith subsequent to
the execution of this agreement.
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
$xxx $xxx $xxx $xxx $xxx $xxx xxx*
*To be negotiated in good faith subsequent to
the execution of this agreement.
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
$xxx $xxx $xxx $xxx $xxx $xxx xxx*
* To be negotiated in good faith subsequent to
the execution of this agreement.
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
$xxx xxx*
*To be negotiated in good faith subsequent to
the execution of this agreement.
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
$xxx $xxx $xxx $xxx $xxx
$xxx
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
$xxx $xxx $xxx $xxx $xxx
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.
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.
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 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) $xxx
$xxx Capitalizable Software Development
$xxx $xxx Services (CS)
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
[omitted]
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:
[omitted]
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.
7. Class Structure
[omitted]
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.
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.
[omitted]
