EXHIBIT 10.5.7
AMENDMENT TO FACILITIES MANAGEMENT SERVICES AGREEMENT
THIS AMENDMENT TO FACILITIES MANAGEMENT SERVICES AGREEMENT (this
"Amendment") is effective as of December 18, 2000, between COLUMBUS BANK AND
TRUST COMPANY ("CB&T"), and COMPUCREDIT CORPORATION ("CompuCredit").
W I T N E S S E T H :
WHEREAS, CB&T and CompuCredit are parties to that certain Facilities
Management Services Agreement dated as of August 1, 1998 (which, as
heretofore amended, is referred to in this Amendment as the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement to extend
the initial term of the Agreement, to provide for a minimum service fees, and
to make certain other changes, all as hereinafter set forth;
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the parties hereto covenant and
agree as follows:
1. AMENDMENTS TO THE AGREEMENT.
(a) Exhibit A to the Agreement, entitled "ASPIRE Card
Servicing Pricing", is deleted in its entirety and replaced by the language
set forth in "Exhibit A" to this Amendment, entitled "ASPIRE Card Servicing
Pricing (Revised December 18, 2000)", which is attached hereto and by this
reference and made a part hereof .
(b) Section 2.A of the Agreement is amended to read as
follows:
"The Initial Term of this Agreement shall commence
on August 1, 1998 and shall continue until December 31, 2004 (the
"Initial Term")."
(c) Section 2.C(1) of the Agreement is amended to read as
follows.
"(1) Notwithstanding any other provision hereof to
the contrary, unless CompuCredit terminates this Agreement pursuant to
Section 2.B or for breach pursuant to Section 2.C(3), Section 2.C(4) or
Exhibit C, CompuCredit shall continue to pay the Minimum Fees, as that
term is defined in Section 3.C, determined in accordance with Section
3.C, for each Servicing Year through the scheduled expiration date of
the Initial Term or any Renewal Term, as applicable. Furthermore, if
CompuCredit's termination of this Agreement is for breach pursuant to
Section 2.C(3), 2.C(4) or Exhibit C, the Minimum Fees shall not apply
for the Servicing Year that such termination becomes effective or for
any subsequent Servicing Year. Following the date on which any
termination by CompuCredit becomes effective, CB&T shall invoice
CompuCredit for all
Minimum Fees to which CB&T shall be entitled under
this Section 2.C(1) for the Servicing Year in which such termination
occurs and any subsequent Servicing Years. CompuCredit agrees to pay
all invoices from CB&T for Minimum Fees within thirty (30) days of
receipt thereof."
(d) Section 2.C(6) of the Agreement is amended to read as
follows:
"(6) If at any time TSYS Total Solutions, Inc. is
providing Agent Assisted Calls Services (as that term is defined in
Exhibit "A"), for less than _____ percent (__%) of the Accounts which
are processed by Total System Services, Inc., then CB&T, in its sole
discretion, shall have the right to, upon 270 days written notice,
terminate this Agreement with respect to any or all of the Services
hereunder which are provided by TSYS Total Solutions, Inc. Should
CompuCredit not be able to find another provider of such terminated
Services within such 270 day written notice period, then the parties
may renegotiate the pricing for the continuation of such terminated
Services."
(e) Effective as of January 1, 2001, a new Section 3.C is
added to the Agreement, as follows:
"C. Minimum Fees. Notwithstanding any other provision
hereof to the contrary, CompuCredit shall pay to CB&T minimum fees (the
"Minimum Fees") consisting of annual TSYS Minimum Fees (as defined
below) and monthly TSOL and Remittance Minimum Fees. "TSOL and
Remittance Minimum Fees" shall be calculated, through the end of the
then-current term, on a monthly basis as _______ percent (__%) of the
average actual monthly fees paid by CompuCredit for the remittance
processing Services currently provided by Synovus Technologies, Inc.
and for the Services provided by TSYS Total Solutions, Inc. during the
immediately preceding nine (9) months as those numbers appear on each
monthly invoice submitted to CompuCredit . If, at the end of any month
the actual Fees for such remittance processing Services and for the
Services provided by TSYS Total Solutions, Inc. during such month are
less than the TSOL and Remittance Minimum Fees for such month, then
CB&T shall invoice CompuCredit for the difference. CompuCredit agrees
to pay all invoices from CB&T for Minimum Fees within thirty (30) days
of receipt thereof.
By way of example, explanation and illustration, if on January 31,
2002, CompuCredit totally discontinued use of the Services provided by TSYS
Total Solutions, Inc. and the remittance processing Services provided by
Synovus Technologies, Inc., then the TSOL and Remittance Minimum Fees for
February 2002 would be calculated using the average actual monthly fees for
those services for the nine months starting with May 2001 and ending January
2002. The TSOL and Remittance Minimum Fees for March 2002 would be calculated
using the average actual monthly fees for those services for the nine month
period starting with June 2001 and ending with February 2002 with the
February 2002 amount being zero (0). The TSOL and Remittance Minimum Fees for
April 2002 would be calculated using the average actual monthly fees for
those services for the nine month period starting with July 2001 and ending
with March 2002 with the February 2002 and the March 2002 amount both being
zero (0). These sequence
of calculations would continue until November 2002 when the TSOL and
Remittance Minimum Fees would be calculated as zero (0) since the actual
monthly fees for all nine months used in the calculation would be zero (0).
Likewise, moving forward the TSOL and Remittance Minimum Fees for any future
months would be zero (0) as well. Please note: the financial projections that
CompuCredit provides to CB&T, pursuant to Section 1 (B) (3) of the Agreement,
affect only the service level variances and whether bonuses/incentives or
liquidated damages are available to the Parties. Such financial projections
shall not affect the calculation of the TSOL and Remittance Minimum Fees.
"TSYS Minimum Fees" shall be calculated on a Servicing Year basis as
follows:
Servicing Year 1 (1/1/2001 - 12/31/2001) $_________
Servicing Year 2 (1/1/2002 - 12/31/2002) $_________
Servicing Year 3 (1/1/2003 - 12/31/2003) $_________
Servicing Year 4 (1/1/2004 - 12/31/2004) $_________
If, at the end of any Servicing Year the actual Fees due to CB&T for
such Servicing Year are less than the Minimum Fees for such Servicing Year,
then CB&T shall invoice CompuCredit for the difference. CompuCredit agrees to
pay all invoices from CB&T for Minimum Fees within thirty (30) days of
receipt thereof. As used in this Section 3.C and in Section 2.C, "Servicing
Year" shall mean the 12 month periods ending on December 31 of each year
during the Initial Term and any Renewal Terms, commencing with the 12 month
period ending on December 31, 2001 which is also referred to herein as
"Servicing Year 1".
This Section 3.C, and Section 2.C above, shall apply irrespective of
any change in the CompuCredit Cards covered by this Agreement, or in the
number of Accounts being serviced by CB&T under this Agreement, or in the
nature of the Services furnished under this Agreement with respect to all or
any of such CompuCredit Cards or Accounts." CompuCredit's liability for
Minimum Fees is excluded from the limitation of liability in Section 6.K of
this Agreement.
(f) Section 9.B of the Agreement is amended by adding the
following language to the end of that Section:
"Notwithstanding the foregoing, or any other
provision hereof to the contrary, CB&T shall have the right at any time
to provide CompuCredit with a written undertaking by TSYS Total
Solutions, Inc., pursuant to which TSYS Total Solutions, Inc. assumes
all of CB&T's obligations under this Agreement in which event CB&T
shall be deemed to be relieved and released of and from all of its
obligations under this Agreement (except for CB&T's obligations under
Section 4 of this Agreement), effective upon the later of (1) delivery
to CompuCredit of such undertaking by TSYS Total Solutions, Inc., and
(2) the termination of the Affinity Agreement."
(g) Effective as of November 11, 1998 and September 29,
2000, respectively, Section 9.W of the Agreement is amended to read as
follows:
"In the event of any inconsistency between any of the
provisions of this Agreement and any of the provisions of Sections 6, 7
and 9 of the Amendment dated March 26, 1998 to the Affinity Agreement
or of Sections 6, 7 and 9 of the Amendment dated November 11, 1998 to
the Affinity Agreement and this Agreement or of Sections 6, 7 and 9 of
the Amendment dated September 29, 2000 (as further amended on October
9, 2000) to the Affinity Agreement and this Agreement, the provisions
of such Sections 6, 7 and 9 of said Amendments shall control to the
extent of such inconsistency."
(h) Section 1.B of the Agreement shall be amended to
include a new subsection 1.B(5) which shall read as follows:
"Wherever in this Agreement, any Exhibits hereto, or
any other documents or papers referenced herein or incorporated herein
by reference, all provisions for "penalties" shall mean only
"liquidated damages." The parties acknowledge and agree that all such
liquidated damages are provided and intended solely as damages and for
no other reason. Furthermore, the actual damages for which the
liquidated damages are applicable are difficult or impossible to
accurately estimate; the parties hereto intend to provide for
compensatory damages rather than a penalty; and the stipulated sums or
calculations are a reasonable pre-estimate of the probable losses."
2. EFFECT OF AMENDMENT. Except as set forth expressly hereinabove,
all terms of the Agreement shall be and remain in full force and effect, and
shall constitute the respective legal, valid, binding and enforceable
obligations of the parties thereto. The amendments contained herein shall be
deemed to have prospective application only, unless otherwise specifically
stated herein
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but one and the
same instrument.
4. SECTION REFERENCES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
5. GOVERNING LAW. This Amendment shall be governed by and construed
and interpreted in accordance with, the laws of the State of Georgia.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be duly executed by its duly authorized officer as of the day
and year first above written.
COLUMBUS BANK & TRUST COMPANY
By:
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Title:
COMPUCREDIT CORPORATION
By:
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Title:
ADDENDUM TO FACILITIES MANAGEMENT SERVICES AGREEMENT
Whereas, Columbus Bank and Trust Company ("CB&T"), a Georgia state
chartered bank, and CompuCredit Corporation ("CompuCredit"), a Georgia
Corporation, are parties to a Facilities Management Services Agreement dated
as of August 1, 1998 (as amended from time to time, the "Facilities
Agreement").
For good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree that:
To the extent that services which are the same as or similar to
those which shall have been provided or made available by CB&T pursuant to or
in connection with the Facilities Agreement, may instead be provided by
CompuCredit itself or by third parties pursuant to arrangements with
CompuCredit, CompuCredit agrees that it shall indemnify and hold CB&T
harmless from and against any and all claims, damages (including special and
punitive damages), liabilities and costs (including attorneys' fees), which
CB&T may become obligated to pay as a result of any act, error or omission of
CompuCredit or any such third party in connection with CompuCredit's or any
such third party's performance or nonperformance of any such services; and
from and against any and all loss, damages (including special and punitive
damages) and expense which CB&T may sustain or incur by reason of or in
connection with any claim, demand or cause of action at any time asserted
against it which is based upon or attributed to an alleged violation of or
noncompliance with any applicable state or federal laws and/or regulations
pertaining to such services or to their performance or nonperformance.
In the event of any inconsistency between any provisions of this
Addendum and any other provisions of the Facilities Agreement, the provisions
of this Addendum shall control.
Termination of the Facilities Agreement shall not terminate any
indemnity provided for herein.
This _____ day of ______________________, 2000.
COLUMBUS BANK AND
TRUST COMPANY COMPUCREDIT CORPORATION
By: By:
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Name: Name:
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Title: Title:
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