CONFIDENTIAL TREATMENT REQUESTED INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***”. AN UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN PROVIDED TO THE SECURITIES AND EXCHANGE COMMISSION. FIRST AMENDED...

Exhibit 10.72

CONFIDENTIAL TREATMENT REQUESTED

INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED

IS OMITTED AND NOTED WITH “***”.

AN UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN PROVIDED TO THE

SECURITIES AND EXCHANGE COMMISSION.

FIRST AMENDED AND RESTATED

TECHNOLOGY SOURCING AGREEMENT

between

RETAILER CREDIT SERVICES, INC.

and

FIRST DATA RESOURCES INC.

Dated

December 10, 1998

First Amended and Restated as of April 1, 2003

TABLE OF CONTENTS


1.	BACKGROUND AND OBJECTIVES		2
	1.1	Background.	2
	1.2	Objectives.	2
	1.3	Construction.	3

2.	DEFINITIONS		3

3.	SERVICES		3
	3.1	Provision of Services.	3
	3.2	Integration of Processing Platforms	5
	3.3	Future First Data System Architecture.	6
	3.4	Conversion Portfolios.	8

4.	TERM		9
	4.1	Term.	9
	4.2	Extension.	9

5.	FIRST DATA PERSONNEL		10
	5.1	Key First Data Positions.	10
	5.2	Qualifications, Retention and Replacement of First Data Personnel.	11
	5.3	Compliance with RCSI Regulations and Policies.	11

6.	RCSI FACILITIES		13
	6.1	Provision of RCSI Facilities.	13
	6.2	First Data Obligations Regarding RCSI Facilities.	13

7.	PROPRIETARY RIGHTS		14
	7.1	RCSI Intellectual Property.	14
	7.2	First Data Intellectual Property; Interfaces.	15
	7.3	Rights in Modified, Enhanced or Newly Developed Intellectual Property.	16
	7.4	Patent Rights	17
	7.5	Residual Knowledge.	18
	7.6	Required Consents.	19
	7.7	Export.	19

8.	PERFORMANCE STANDARDS		19
	8.1	General.	19
	8.2	Failure to Meet Service Levels; Exceeding Service Levels.	19
	8.3	Failure to Perform Key Services.	21
	8.4	Periodic Reviews.	22
	8.5	Measurement and Monitoring Tools.	22

9.	PROJECT AND CONTRACT MANAGEMENT		22
	9.1	First Data - RCSI Contacts.	22
	9.2	Steering Committee.	23
	9.3	Reports and Meetings.	23

FINAL


	9.4	Procedures Manual.	25
	9.5	Change Control.	26
	9.6	Use of Subcontractors.	27
	9.7	Quality Assurance and Improvement Programs.	28
	9.8	Productivity and Management Tools.	29
	9.9	Restrictive Covenant.	29

10.	AUDITS		29
	10.1	Audit Rights.	29
	10.2	Audit Follow-up.	30
	10.3	Annual Audit.	31
	10.4	Record Keeping and Record Retention.	31

11.	RCSI’S RESPONSIBILITIES		32
	11.1	Responsibilities.	32
	11.2	Savings Clause.	32

12.	CHARGES		32
	12.1	General.	32
	12.2	Pass-Through Expenses.	33
	12.3	Incidental Expenses.	33
	12.4	Personnel Utilization.	34
	12.5	Taxes	34
	12.6	New Services And Enhancements.	36
	12.7	***	37
	12.8	Benchmarks for Charges.	37

13.	INVOICING AND PAYMENT		38
	13.1	Invoicing.	38
	13.2	Payment Due.	38
	13.3	Accountability.	39
	13.4	Proration.	39
	13.5	Refundable Items.	39
	13.6	Deduction.	39
	13.7	Disputed Charges.	40

14.	SAFEGUARDING OF DATA; CONFIDENTIALITY		40
	14.1	RCSI Information.	40
	14.2	Safeguarding RCSI Data.	40
	14.3	First Data Information.	41
	14.4	Safeguarding First Data Data.	41
	14.5	Confidentiality.	42
	14.6	Provisions For Data Privacy Compliance.	45
	14.7	Survival	46

15.	REPRESENTATIONS AND WARRANTIES		46
	15.1	Work Standards.	46
	15.2	Maintenance.	46
	15.3	Efficiency and Cost Effectiveness.	47
	15.4	Technology.	47

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FINAL


	15.5	Non-Infringement.	47
	15.6	Ownership and Use of Software and Related Materials.	47
	15.7	Compliance with Laws and Regulations.	47
	15.8	Absence of Litigation.	48
	15.9	Authorization.	48
	15.10	Inducements.	49
	15.11	Viruses.	49
	15.12	Disabling Code.	49
	15.13	Software Deliverables.	49
	15.14	First Data Personnel.	50
	15.15	Disclaimer.	50

16.	MISCELLANEOUS COVENANTS		50
	16.1	Special Terms	50
	16.2	Effect of the Modification Agreement.	51
	16.3	Services Similar to the Patni Agreement Services	51

17.	INSURANCE AND RISK OF LOSS		51
	17.1	Insurance.	51
	17.2	Risk of Loss.	53

18.	INDEMNITIES		53
	18.1	Indemnity by First Data.	53
	18.2	Indemnity by RCSI.	53
	18.3	Additional Indemnities.	54
	18.4	Infringement.	54
	18.5	Indemnification Procedures.	55
	18.6	Subrogation.	55

19.	LIABILITY		56
	19.1	General Intent.	56
	19.2	Liability Restrictions.	56
	19.3	Force Majeure.	56

20.	DISPUTE RESOLUTION		57
	20.1	Informal Dispute Resolution.	57
	20.2	Arbitration.	58
	20.3	Litigation.	59
	20.4	Continued Performance.	60
	20.5	Governing Law.	60

21.	TERMINATION		61
	21.1	Termination for Cause.	61
	21.2	Termination by First Data for Cause.	61
	21.3	Termination for Convenience.	62
	21.4	Termination for Failure to ***.	62
	21.5	Termination Upon Change of Control.	62
	21.6	Extension of Termination Effective Date.	63
	21.7	Termination/Expiration Assistance.	63

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FINAL


	21.8	Equitable Remedies.	66

22.	WAIVER OF CLAIMS; PAYMENTS TO RCSI BY FIRST DATA		66
	22.1	Waiver.	66
	22.2	Payments to RCSI.	67

23.	GENERAL		67
	23.1	Binding Nature and Assignment.	67
	23.2	Entire Agreement; Amendment.	67
	23.3	Notices.	68
	23.4	Counterparts.	69
	23.5	Headings.	69
	23.6	Relationship of the Parties.	69
	23.7	Solicitation of Employment.	70
	23.8	Severability.	70
	23.9	Consents and Approval.	70
	23.10	Waiver of Default; Cumulative Remedies.	70
	23.11	Survival.	71
	23.12	Public Disclosures.	71
	23.13	Service Marks.	71
	23.14	Third Party Beneficiaries.	71
	23.15	Covenant of Good Faith.	71

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SCHEDULES AND ATTACHMENTS

Schedule A:		Services
Schedule B:		Service Levels
Schedule C:		Charges
Schedule D:		Key First Data Positions
Schedule E		Glossary

Attachment 1		Modification Agreement
Attachment 2		Amended and Restated Additional Terms and Conditions Addendum Number 3
Attachment 3		GEBPS Letter Amendment to Conversion and Addendum Agreement
Attachment 4		GE Capital Guaranty Agreement

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FIRST AMENDED AND RESTATED TECHNOLOGY SOURCING AGREEMENT (the “Agreement”), effective as of December 10, 1998 (the “Effective Date”) and amended and restated as of April 1, 2003 (the “First Amended and Restated Effective Date” or “FAAR Effective Date”), is entered into by and between RETAILER CREDIT SERVICES, INC. (“RCSI”), a Utah corporation with offices at 0000 Xxxxx Xxxxxxxxx Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, and FIRST DATA RESOURCES INC. (“First Data”), a Delaware corporation with offices at 00000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000.

PRELIMINARY STATEMENTS

A. General Electric Capital Corporation (“GE Capital”) and First Data originally entered into the Agreement on the Effective Date. GE Capital was then a New York corporation and had since been reincorporated in Delaware.

B Since the Effective Date GE Capital and First Data have twice amended and modified the Agreement through execution of:

(i) a First Amendment to the Technology Sourcing Agreement (the “First Amendment”), dated as of January 28, 2000, which provided for, among other things, the inclusion of certain xxxx processor services in the Services;

(ii) a Modification Agreement (the “Modification Agreement”), dated as of September 29, 2000, among Monogram Credit Services, LLC (“MCS”), RCSI (then known as Xxxxxxxxxx Xxxx Credit Corporation), GE Capital, and First Data (a copy of which is attached as Attachment 1) providing for, among other things, the provision of the Services to certain MCS card accounts.

C. RCSI is an Affiliate of GE Capital. Immediately prior to the execution and delivery of this Agreement, GE Capital assigned to RCSI, and RCSI assumed, all of GE Capital’s rights and obligations under the Agreement.

D. The Parties have undertaken a renegotiation of the Agreement, including certain First Data obligations in connection with the Services and the overall pricing of the Services, and wish to amend and restate the Agreement in its entirety in order to:

(i) provide for RCSI to receive a more favorable and competitive pricing structure for the Services;

(ii) modify key First Data development and other obligations;

(iii) provide for RCSI to convert all Conversion Portfolios subject to Section 3.4;

(iv) incorporate into the body of the Agreement the amendments and modifications agreed to pursuant to the Modification Agreement, with such amendment and restatement of the Agreement being effective as of the FAAR Effective Date; and

(v) provide for releases as described in Section 22.

FINAL

E. First Data and RCSI have also entered into a separate Production Services Agreement (the “PSA”), dated November 16, 1999, which is not intended to be amended or superseded hereby.

F. Simultaneously with the execution and delivery of this First Amended and Restated Technology Sourcing Agreement, GE Capital and PaySys International Inc., an Affiliate of First Data, have executed an Amended and Restated Additional Terms and Conditions Addendum Number 3 in the form of Attachment 2.

G. Simultaneously with the execution and delivery of this First Amended and Restated Technology Sourcing Agreement, GE Capital, GE Business Productivity Solutions, Inc. (“GEBPS”), which is an Affiliate of both GE Capital and RCSI, First Data, and RCSI have entered into a letter amendment agreement, in the form of Attachment 3, modifying the Conversion and Addendum Agreement, dated October 18, 2002, among GE Capital, GEBPS, First Data, and RCSI.

NOW, THEREFORE, the Parties, intending to be legally bound, agree to amend and restate the Agreement as follows:

1.	BACKGROUND AND OBJECTIVES

1.1

Background.

This Agreement is being amended and restated with reference to the following:

(a) RCSI desires that certain transaction processing, software development and related activities be performed and managed by an experienced and capable vendor skilled in the performance of these functions.

(b) First Data wishes to perform the requested services for RCSI and has the skills, qualifications, and experience necessary to perform and manage such services in an efficient, cost-effective and controlled manner with a high degree of quality and responsiveness.

1.2

Objectives.

The following are specific goals and objectives for this Agreement:

(a) enable RCSI to focus on core competencies and on those activities which provide a competitive advantage;

(b) deliver to RCSI Six Sigma level quality, including through the provision of information technology skills, methods, practices and standards;

(c) enable RCSI to combine and use common technologies, processes and procedures to perform the various functions related to the Services;

(d) establish a flexible framework within which to quickly respond to evolving technologies, competitive conditions, and changing RCSI business needs;

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(e) identify means to improve services and reduce costs to RCSI and to enable RCSI to improve and expand its business operations;

(f) provide the uninterrupted transitioning of responsibility for performing the services from RCSI and its contractors to First Data; and

(g) provide the uninterrupted transitioning of responsibility for performing the services back to RCSI or its designee(s) in connection with the termination or expiration of this Agreement.

1.3

Construction.

The provisions of this Article 1 are intended to be a general introduction to this Agreement and are not intended to expand the scope of the Parties’ obligations under this Agreement or to alter the plain meaning of the terms and conditions of this Agreement. However, to the extent the terms and conditions of this Agreement do not address a particular circumstance or are otherwise unclear or ambiguous, such terms and conditions are to be interpreted and construed so far as to give effect to the provisions in this Article 1.

2.	DEFINITIONS

Certain terms used in this Agreement are defined in Schedule E (Glossary) hereto. Other capitalized terms used in this Agreement are defined in the context in which they are used and shall have the meaning there indicated. References to this Agreement shall mean this Agreement and all Exhibits, Schedules, Attachments and Addenda hereto, as may be amended from time to time. Unless otherwise provided to the contrary, (a) any reference herein to a “Section” or “Article” shall be deemed to refer to a Section or Article of the Main Body of the Agreement, and (b) any reference herein to a “Schedule” or “Exhibit” shall be deemed to refer to a Schedule or Exhibit to this Agreement.

3.	SERVICES

3.1

Provision of Services.

(a) In General. First Data shall provide the services, functions and responsibilities described in this Agreement as those services, functions and responsibilities may evolve during the Term and as they may be supplemented, enhanced, modified or replaced (collectively, the “Services”). First Data will perform, as part of the Services the detailed services, functions and responsibilities described in Schedule A.

(b) Implied Services. If any services, functions, or responsibilities not specifically described in this Agreement are necessarily required for the proper performance and provision of the Services, they shall be deemed to be implied by and included within the scope of the Services to the same extent and in the same manner as if specifically described in this Agreement. Except as otherwise expressly provided in this Agreement, First Data shall be responsible for providing the facilities, personnel, and other resources as necessary to provide the Services.

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(i) Except as provided in Article 16, RCSI has the right during the Term to perform itself, or retain third parties to perform, any of the Services. RCSI retains the right to sell or divest Accounts, portfolios or lines of business which are receiving the Services and, subject to Section 3.1(e), such Accounts, portfolios or lines of business will no longer be subject to this Agreement. RCSI also retains the right to acquire Accounts, portfolios and lines of business and manage such Accounts, portfolios and lines of business separately from this Agreement and the Services.

(ii) If RCSI performs any of the Services itself, through an Affiliate, or retains a third party to do so, First Data shall cooperate with RCSI, such Affiliates, or any such third party as necessary to enable RCSI and such third party to perform its respective work, which cooperation shall include:

(A) providing access to RCSI Facilities being used to provide the Services;

(B) providing access to the First Data System (to the extent permitted under any underlying agreements with third parties); and

(C) providing such information regarding the operating environment (including the First Data System), system constraints and other parameters as a person with reasonable commercial skills and expertise would find reasonably necessary for RCSI or a third party to perform its work.

Third parties retained by RCSI shall comply with First Data’s reasonable security and confidentiality requirements, and shall, to the extent performing work interfacing with the First Data System or equipment, comply with First Data’s reasonable work standards, methodologies, and procedures.

(iii) First Data shall promptly notify RCSI if an act or omission of such a third party may cause a problem or delay in providing the Services and shall work with RCSI to prevent or circumvent such problem or delay. If the Services are reduced pursuant to this Section 3.1(c), the charges for the Services shall be equitably adjusted to reflect projected cost savings to First Data resulting from First Data’s ceasing to provide the Services no longer required. The Parties recognize that due to the structure of the Charges in Schedule C in many instances no changes will be required to such Charges.

(d) Services to Be Provided to RCSI and RCSI Affiliates. First Data shall provide the Services to RCSI and RCSI Affiliates and on their behalf to those entities identified by RCSI. To the extent Services are characterized herein as being provided to RCSI, those references will be deemed to include those Services provided to the RCSI Affiliates and such other entities referenced in this Section 3.1(d) on RCSI’s behalf. Services provided to RCSI Affiliates or the entities referenced in this Section 3.1(d) shall be deemed to be Services provided to RCSI. In recognition of the bank regulatory environment, those RCSI Affiliates which are regulated as banks will be deemed to have individually the right to receive the Services to be provided such RCSI Affiliates under this Agreement, and such banking Affiliates shall have the right independently to enforce their rights under this Agreement.

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(e) Continued Provision of the Services to Former Affiliates. As designated by RCSI, Former Affiliates may continue to receive the Services for the period (up to *** months) designated by RCSI that is reasonably necessary for such Former Affiliate to arrange to convert and then to actually convert its processing in an orderly manner, whether directly with First Data or to another system. Subject to the overall aspects of the transaction pursuant to which the sale or divestiture occurred, RCSI will use Commercially Reasonable Efforts to assist any Former Affiliates to convert their processing to the First Data System (or such system as they are converting to) as expeditiously as possible. During such period, First Data’s relationship shall continue to be with RCSI and (unless otherwise agreed between First Data and the Former Affiliate) First Data shall have no obligation directly to the Former Affiliate.

(f) Geographic Scope Constraints. The scope of the Services to be provided under this Agreement is not constrained geographically. Pricing in this Agreement is for the Services as if they are provided in the United States or Canada. If RCSI requests First Data to provide Services outside of the United States and Canada, and First Data incurs or would incur costs associated with the provision of Services outside of the United States and Canada that are different (other than insubstantial differences) than the corresponding costs First Data would incur in the United States and Canada, then First Data shall provide pricing and performance proposals to RCSI addressing such provision of Services outside the United States and Canada. RCSI shall reimburse First Data for First Data’s actual Out-of-Pocket Expenses (with no xxxx-up or profit) incurred in the preparation of any pricing or performance proposal requested by RCSI under this Section 3.1(f). Prior to preparing any such proposal, First Data shall provide RCSI an estimate of its actual Out-of-Pocket Expenses to be incurred in the preparation of such proposal and shall notify RCSI when actual Out-of-Pocket Expenses incurred by First Data have exceeded such estimate. If RCSI desires to expand the geographic scope of the Services under this Agreement outside of the United States, at such time the Parties will amend the Agreement to include any additional provisions that are required by the jurisdictions to which such Services are expanded, and such additional provisions shall be set forth in a manner that is consistent with the allocation of responsibility for compliance with laws as set forth in Section 15.7.

3.2

Integration of Processing Platforms

(a) Global Integrated Platform and the Platform Integration Plan. In addition to processing United States credit card accounts using the Services, RCSI and its Affiliates process certain loans in the United States and loans and credit cards in other countries using PaySys Software (taken together, the First Data System and the PaySys Software system constitute the “Original Platform(s)”), which is owned by an Affiliate of First Data. Having its global processing on the disparate Original Platforms is not optimal for RCSI and its Affiliates. RCSI and its Affiliates desire as a long term matter that First Data provide a common platform solution (the “Global Integrated Platform”) for all of RCSI’s and its Affiliates’ processing needs world-wide. Within one hundred eighty (180) days following the Final Conversion Date (the

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“Platform Integration Plan Delivery Date”), First Data shall provide to RCSI for RCSI’s review and comment a detailed plan for consolidation of RCSI’s and its Affiliates’ worldwide account processing into a single strategic Global Integrated Platform (the “Platform Integration Plan”). The Platform Integration Plan shall:

(i) address the then current differences between the First Data System and the PaySys Software;

(ii) have the objective of not being less profitable for First Data and its Affiliates (taken as a whole) (including then-current investments and costs of development of, and migration and conversion to, the Global Integrated Platform);

(iii) for the services formerly provided on each Original Platform not be more expensive than the then-current all-in costs to RCSI or its Affiliates of operating on such Original Platform;

(iv) meet RCSI’s then-current business and technical requirements; and

(v) contain specific milestones, with corresponding dates, by which First Data shall complete key integration activities.

(b) Platform Integration Plan Finalization Date. First Data and RCSI shall cooperate in good faith to reach final agreement upon the Platform Integration Plan within one hundred eighty (180) days following the Platform Integration Plan Delivery Date (the “Platform Integration Plan Finalization Date”).

(c) Completion of the Approved Platform Integration Plan. First Data shall commence implementation of the Platform Integration Plan approved by RCSI (the “Approved Platform Integration Plan”) within twelve (12) months following the Platform Integration Plan Finalization Date.

(d) ***

(e) Disputes. Any dispute between the Parties under Section 3.2 shall be escalated to the President of GECF-A (or his or her designee) and the Chairman of FDC (or his designee) for attempted resolution. However, if they fail to agree, RCSI’s requirements shall prevail.

3.3

Future First Data System Architecture.

(a) First Data Acknowledgments. First Data acknowledges that:

(i) the successful implementation of the Future First Data System Architecture Plan and the resulting increased and improved functionality of the First Data System is a material inducement to the agreement of RCSI to undertake, and allow First Data to undertake, the Conversions; and

(ii) were First Data to abandon the Future First Data System Architecture Plan or otherwise fail to undertake and complete the Future First Data System Architecture Plan, the First Data System would not provide RCSI with the

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competitive benefits the Parties expect will be made available to RCSI, and First Data shall have deprived RCSI of the principal benefit the Parties intend GECF-A to enjoy by providing for the provision of Services in connection with the Designated Accounts in the Agreement.

(b) Review of First Data System Architectural Features. Promptly following the Final Conversion Date, the Parties shall jointly review and discuss the architectural features of the First Data System with the objective of determining whether any new architectural features (the “Future First Data System Architecture”) are important to allow RCSI to substantially increase its revenue by enabling new product development, attracting new customers and accounts, and growing existing customer relationships. The Parties will incorporate into such review and discussion the Future First Data System Architecture CTQs attached as Exhibit A-6. The Parties shall discuss the benefits of pursuing any such architectural features, in light of:

(i) the business criticality to RCSI of implementing such features (which business-criticality analysis shall include factors such as RCSI’s ability to substantially grow revenues and achieve back-room cost efficiencies) balanced against the cost to each Party of developing and implementing the architectural features (including ongoing and maintenance costs of both Parties);

(ii) the respective experiences of the Parties with the Services and the First Data System since the Effective Date;

(iii) the architectural modifications to the First Data System since the Effective Date;

(iv) the functionality implemented into the First Data System and the Services in connection with the Conversion and the Conversion Portfolios; and

(v) any synergies and interdependencies with the approved Platform Integration Plan.

As a result of these discussions, the Parties will devise a plan with milestones and related performance dates for implementing the foregoing (the “Future First Data System Architecture Plan”). Following the Parties reaching agreement on the Future First Data System Architecture Plan, First Data will obtain RCSI’s approval of amendments to the plan.

(c) Cost of Developments and Implementation. First Data shall *** the costs of developing and implementing into the First Data System the architectural features agreed to in the Future First Data System Architecture Plan. RCSI shall *** the costs of implementing the changes required to interface with such architectural features into its own system and operations.

(d) Disputes. If within one hundred eighty (180) days following the Final Conversion Date the Parties have not agreed on the Future First Data System Architecture Plan, the points of dispute between the Parties regarding such shall be escalated to the President of GECF-A (or his or her designee) and the Chairman of FDC (or his designee) for attempted resolution.

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(e) Termination. If the representatives of the Parties provided in Section 3.3(d) do not reach agreement on the substance of the Future First Data System Architecture Plan by the date provided in such Section 3.3(d), then RCSI may at any time (subject to the next sentence) exercise its right to terminate this Agreement pursuant to Section 21.4. However, at any time after the expiration of the period provided in Section 3.3(d), First Data may provide notice to RCSI that if RCSI desires to exercise its rights under this Section 3.3(e) it must do so within one hundred eighty (180) days following the date of such notice, and unless RCSI exercises such right within such period, its right to terminate pursuant to this Section 3.3(e) shall expire and no longer be exercisable. The termination right described in the first sentence of this Section 3.3(e) shall be RCSI’s exclusive remedy (monetary and non-monetary) for the failure to reach agreement on the substance of the Future First Data System Architecture Plan by the date provided in Section 3.3(d).

(f) Failure to Achieve Plan. If the Parties reach agreement on the substance of the Future First Data System Architecture Plan and First Data materially fails to implement or fulfill its obligations under the Future First Data System Architecture Plan (including missing Key Milestones), due to causal factors not attributable to RCSI (or its third party providers), RCSI shall provide First Data with written notice of such failure, which notice shall describe such failure in reasonable detail. If within one hundred eighty (180) days following receipt of such notice First Data has not substantially cured such failure (which cure may include the provision by First Data of substantially equivalent functionality through a development work-around reasonably acceptable to RCSI or through a third party reasonably acceptable to RCSI), then RCSI may terminate this Agreement pursuant to Section 21.1(a) without First Data being afforded the notice and cure period otherwise provided in such Section 21.1(a).

3.4

Conversion Portfolios.

(a) Conversion Obligations. Subject to First Data’s completion of its obligations under this Section 3.4, RCSI unconditionally agrees that the Conversion Portfolios shall be Converted to the First Data System. The “Conversion Portfolios” are the account portfolios that as of the FAAR Effective Date are being processed on the GECF-A existing internal receivables system in the United States other than those Non Revolving Loan Products that are being or will be converted to any PaySys Software system. At RCSI’s option, the Conversion Portfolios need not include any commercial account portfolios being processed on the RCSI GECOM system, the CommerciaLine system, any portfolios not being processed in such existing internal receivables system as of the FAAR Effective Date, any liquidating or similar portfolios, or any portfolios of RCSI’s Affiliates other than GECF-A.

(b) Final Conversion Date. The Conversion of all of the Conversion Portfolios (“Final Conversion”) shall be completed by First Data by the Final Conversion Date. The “Final Conversion Date” shall be the date agreed upon by the Parties not later than October 31, 2003; provided, however, that if the Parties fail to agree on the Final Conversion Date by such date, the Final Conversion Date shall be June 30, 2005. The Final Conversion Date shall be extended to accommodate delays only to the extent due to RCSI requiring the Conversion to the First Data System of account portfolios other than the Conversion Portfolios to the extent such additional

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Conversions cause delays in First Data’s performance of its obligations in connection with the Conversion of the Conversion Portfolios that First Data could not have prevented by reasonable precautions and cannot reasonably circumvent through the use of alternate sources, workaround plans or other means. RCSI will not unreasonably withhold or delay Conversion.

(c) No Further Extensions of Final Conversion Date. The Final Conversion Date shall not be otherwise extended due to any First Data failure to meet its obligations under this Agreement or in connection with the Conversion of any of the Conversion Portfolios, including the development and implementation of any functionality required in connection with such Conversions.

(d) No Further RCSI Obligations. RCSI shall have no obligation under this Agreement or otherwise (i) to refrain from selling, otherwise transferring, or liquidating any Conversion Portfolio or any portion thereof or (ii) to cause to be Converted to the First Data System any Conversion Portfolio that RCSI has sold or otherwise transferred to any third party. Additionally, RCSI shall have no obligation under this Agreement to ***. Once Converted, GE Capital shall not be required to maintain Conversion Portfolios on the First Data System for any particular period of time.

(e) Payments to RCSI for Conversion Costs. First Data shall pay RCSI *** as reimbursement to RCSI for conversion costs incurred and expected to be incurred by RCSI and its Affiliates pursuant to the terms of this Agreement. Within sixty (60) days after the FAAR Effective Date, First Data agrees to pay RCSI such sum of *** by wire transfer of immediately available federal funds to such bank account as RCSI may direct.

TERM

4.1

Term.

The term of this Agreement shall begin on the Effective Date and shall expire on June 30, 2016 (the “Initial Term”) unless terminated earlier or extended in accordance with the provisions of this Agreement.

4.2

Extension.

RCSI may extend the Initial Term for up to three (3) one year periods (each such period, a “Renewal Term”) on the terms in effect at the time of such extension by RCSI providing First Data with at least twelve (12) months notice prior to the then-current expiration date of the Term. As used in this Agreement, the defined word “Term” shall include the Initial Term and any Renewal Terms thereof.

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XXXXX

0.	FIRST DATA PERSONNEL

5.1

Key First Data Positions.

(a) Key Positions. “Key First Data Positions” are listed in Schedule D. First Data shall cause each of the personnel filling the Key First Data Positions to devote his or her full time and effort to the provision of the Services.

(i) RCSI may from time to time change the positions designated as Key First Data Positions under this Agreement, provided that without First Data’s consent the number of Key First Data Positions shall not exceed the number specified in Schedule D.

(ii) In accordance with Section 5.1(b) below, First Data shall designate an individual to serve as the “First Data Contract Executive”. The First Data Contract Executive shall:

(A) serve as the single point of accountability for First Data for the Services;

(B) have day-to-day authority for undertaking to ensure customer satisfaction; and

The First Data Contract Executive’s compensation shall include significant financial incentives based on RCSI’s satisfaction with the (X) performance of Services, (Y) First Data’s contribution to RCSI’s achievement of its objectives, as relevant, and (Z) retention of applicable First Data Personnel. Such basis for financial incentives shall be in conjunction and consistent with those objectives in equivalent RCSI and First Data management positions.

(b) Assignment of Individuals to Key First Data Positions. Before assigning an individual to a Key First Data Position, whether as an initial assignment or a subsequent assignment, First Data shall notify RCSI of the proposed assignment, shall introduce the individual to appropriate RCSI representatives (and, upon request, provide such representatives with the opportunity to meet with the individual) and shall provide RCSI with a resume and other information about the individual reasonably requested by RCSI. If RCSI in good faith objects to the proposed assignment, the Parties shall attempt to resolve RCSI’s concerns on a mutually agreeable basis, including through discussions of the pertinent issues by senior management of the Parties. If the Parties have not been able to resolve RCSI’s concerns within ten (10) days, First Data shall not assign the individual to that position and shall propose to RCSI the assignment of another individual of suitable ability and qualifications. Personnel filling Key First Data Positions may not be transferred or re-assigned until a suitable replacement has been approved by RCSI and the replacement has been successfully transitioned into the Key First Data Position. Further, the timing for any transfer or reassignment of persons filling Key First Data Positions will be closely coordinated with the requirements of ongoing projects and other elements of the Services, and no transfer or reassignment will occur at a time that would adversely impact the Services in a non-trivial manner.

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(c) Approved Personnel. The personnel approved as of the FAAR Effective Date to fill the Key First Data Positions are listed in Schedule D. Subject to promotions, dismissals, resignations, and medical leave, such persons will remain in these positions for the period specified in Schedule D.

5.2

Qualifications, Retention and Replacement of First Data Personnel.

(a) Adequate Number of Qualified Personnel. First Data shall assign an adequate number of personnel to perform the Services. The personnel First Data assigns to perform the Services shall be properly educated, trained, and fully qualified for the Services they are to perform.

(b) Personnel Turnover. RCSI and First Data both agree that it is in their best interests to keep the turnover rate of the First Data Personnel performing the Services to a reasonably low level. Accordingly, if RCSI believes that First Data’s turnover rate may be excessive and so notifies First Data, First Data shall provide data concerning its turnover rate, meet with RCSI to discuss the reasons for, and impact of, the turnover rate and otherwise use its best efforts to keep such turnover rate to a reasonably low level. If appropriate, First Data shall submit to RCSI its proposals for reducing the turnover rate, and the Parties will mutually agree on a program to bring the turnover rate down to an acceptable level. In any event, notwithstanding transfer or turnover of personnel, First Data remains obligated to perform the Services without degradation and in accordance with this Agreement.

(c) Replacement of First Data Personnel. If RCSI determines in good faith that the continued assignment to the RCSI account of one of the First Data Personnel is not in the best interests of RCSI, then RCSI will give First Data written notice to that effect. After receipt of such notice, First Data shall have a reasonable period of time (not greater than ten (10) days) in which to investigate the matters stated in such notice, discuss its findings with RCSI, and resolve any problems with such person. As requested by First Data, senior management of the Parties shall address and discuss the pertinent issues during the referenced time period. If, following this period, RCSI requests replacement of such person, First Data shall replace that person with another person of suitable ability and qualifications.

5.3

Compliance with *** Regulations and Policies.

(a) Requirements for Compliance. First Data and its agents and subcontractors shall when performing the Services comply with *** rules and regulations made known to First Data that are generally applicable to RCSI’s or its Affiliates’ employees, invitees and contractors, including those regarding:

(i) RCSI Information;

(ii) access to computer networks;

(iii) security;

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(iv) when on RCSI’s or its Affiliates’ premises only, use of RCSI’s equipment, facilities and personnel;

(v) when on RCSI’s or its Affiliates’ premises only, conduct and safety; and

(vi) RCSI’s applicable “Integrity” policies governing service providers.

Additionally, First Data will brief all First Data Personnel on the scope of restrictions on First Data and such First Data Personnel concerning the safeguarding of RCSI Confidential Information, including making such individuals aware of applicable federal, state and local laws, rules and regulations against disclosure or use of Non-Public Personal Information and any other personally identifiable financial information that may be included in the RCSI Confidential Information.

(b) Additional Requirements Regarding First Data Personnel. As of the FAAR Effective Date, First Data agrees that First Data Personnel will be subject to the following screening activities in connection with their hiring:

(i) a five (5) panel drug screen (except to the extent restricted by law);

(ii) a federal and state criminal background check that (except to the extent restricted by law) includes discovery of any conviction of a financial related crime (as specified by RCSI) or a felony during the last ten (10) years if the person would be working regularly on RCSI premises or during the last seven (7) years if the person is providing Services to RCSI outside of RCSI premises;

(iii) a determination as to whether the person has been identified by the Department of Treasury Office of Foreign Assets Control (“OFAC”) as an individual that U.S. persons are prohibited from engaging in transactions with; and

(iv) the individual’s employment complies with relevant immigration law.

First Data shall not assign any person to perform the Services who (A) has failed the drug screen; (B) has in the last ten (10) years (or, if the person is providing Services to RCSI outside of RCSI premises, in the last seven (7) years) been convicted of a financial related crime (as specified by RCSI) or a felony; (C) has been identified by OFAC as an individual that U.S. persons are prohibited from engaging in transactions with; or (D) does not meet the requirements under immigration law to be employed. First Data shall not be required to, and First Data shall not, provide RCSI with the results of any of drug testing or screening, criminal or credit background checks or other employment verification processes that First Data performs or causes to be performed with respect to First Data Personnel. The Parties shall work together to develop and implement improved screening and background checking processes in response to changing legal requirements and technological advancements over the course of the Term.

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6.	RCSI FACILITIES

6.1

Provision of RCSI Facilities.

(a) Responsibilities in Connection with RCSI Facilities. RCSI will provide to First Data space, equipment, furnishings and fixtures within RCSI’s or its Affiliates’ control as is mutually agreed by the Parties (the “RCSI Facilities”). First Data acknowledges that RCSI Facilities are to be very limited in scope. With respect to the RCSI Facilities, RCSI will manage and maintain the building and property, electrical systems, water, sewer, lights, heating, telephone services, ventilation and air conditioning systems, physical security services and general custodial/landscape services. First Data will be responsible to provide any other facilities and support it needs to provide the Services. RCSI will retain the costs of applicable facilities leases and related leasehold improvements with respect to the RCSI Facilities.

(b) Relocation of RCSI Facilities. RCSI will inform First Data of any relocation of the RCSI Facilities which RCSI is contemplating or has made a final decision to make so that First Data will have a reasonable amount of time to prepare for and implement such change or relocation as it impacts First Data.

(c) RCSI Facilities Provided “As Is, Where Is”. The RCSI Facilities are made available to First Data on an “as is, where is” basis.

6.2

First Data Obligations Regarding RCSI Facilities.

(a) Use of RCSI Facilities. First Data shall use the RCSI Facilities for the sole and exclusive purpose of providing the Services. Use of such RCSI Facilities by First Data does not constitute a usufruct or leasehold interest in favor of First Data.

(b) Specific First Data Obligations. First Data and First Data Personnel shall:

(i) use the RCSI Facilities in an efficient manner;

(ii) keep the RCSI Facilities in good order;

(iii) not commit or permit waste or damage to the RCSI Facilities;

(iv) not use the RCSI Facilities for any unlawful purpose or act or for any purpose not permitted by the applicable lease agreement(s); and

(v) comply with RCSI’s standard policies and procedures as made available to First Data including with regard to and use of the RCSI Facilities and procedures for the physical security of the RCSI Facilities.

(c) Responsibility for Damage. First Data shall be responsible for any damage to the RCSI Facilities resulting from the abuse, misuse, neglect, or gross negligence of First Data, its employees and subcontractors or other failure to comply with its obligations respecting the RCSI Facilities.

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(d) Access to RCSI Facilities. First Data shall permit RCSI and its agents and representatives to enter into those portions of the RCSI Facilities occupied by First Data staff at any time to (i) inspect the premises, (ii) show the premises, and (iii) perform facilities-related services.

(e) Improvements to RCSI Facilities. First Data shall not make any improvements or changes involving structural, mechanical, or electrical alterations to the RCSI Facilities without RCSI’s prior written approval. Any improvements to the RCSI Facilities will become the property of RCSI.

(f) Return of RCSI Facilities. When the RCSI Facilities are no longer required for performance of the Services, at RCSI’s option First Data shall return such facilities to RCSI in substantially the same condition as when First Data began use of such facilities, subject to reasonable wear and tear.

7.	PROPRIETARY RIGHTS

Unless otherwise agreed by the Parties, the Parties’ respective rights in Intellectual Property shall be as set forth in this Article 7.

7.1

RCSI Intellectual Property.

(a) Grant of Right to First Data. Subject to Section 7.3(a), RCSI grants to First Data a fully paid-up, royalty-free (except as provided in Section 7.3(b)(iii)) non-exclusive right during the Term to use, for the sole purpose of providing the Services pursuant to this Agreement, (i) the RCSI Intellectual Property agreed by RCSI as necessary for First Data to provide the Services, (ii) RCSI New Materials and, (iii) subject to obtaining Required Consents, third party Intellectual Property licensed to RCSI agreed by RCSI as necessary for First Data to provide the Services (the Intellectual Property identified in clauses (i) and (iii) of this Section 7.1(a) being referred to collectively herein as the “RCSI TSA Intellectual Property”). First Data may not use RCSI TSA Intellectual Property for the benefit of any entities other than RCSI and its Affiliates, except as provided in Section 3.1(c), or for any other purpose than as permitted in this Section 7.1(a). Except as otherwise requested or approved by RCSI, First Data shall cease all use of RCSI TSA Intellectual Property upon the later of (A) expiration or termination of this Agreement and (B) expiration or termination of the Termination/Expiration Assistance.

(b) Ownership. Except as expressly provided herein, as between the Parties, RCSI and its Affiliates, as the case may be, retains all rights in Intellectual Property owned by RCSI or any such RCSI Affiliate as of the FAAR Effective Date or thereafter. As between the Parties, RCSI or its Affiliates will own all right, title, and interest in any Intellectual Property it develops or has developed by any third party independent of this Agreement. The Intellectual Property identified in this Section 7.1(b) is referred to collectively herein as “RCSI Intellectual Property”.

(c) License to Use any Non-Shared Cost Interfaced New Materials. Upon the expiration or termination of this Agreement and upon request by First Data, RCSI shall grant to First Data, upon such terms and conditions as may be agreed upon by the Parties, a right and license to use any Non-Shared Cost Interfaced New Materials.

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7.2

First Data Intellectual Property; Interfaces.

(a) First Data Intellectual Property. As between the Parties, First Data and its Affiliates will be the sole and exclusive owner of all Intellectual Property owned by First Data and its Affiliates as of the FAAR Effective Date or which is developed or acquired by First Data or its Affiliates thereafter, except as otherwise provided in this Article 7. As between the Parties, First Data or its Affiliates will own all right, title, and interest in any Intellectual Property it develops or has developed by any third party independent of this Agreement. The Intellectual Property which this Section 7.2(a) provides as being owned by First Data or its Affiliates is referred to collectively herein as “First Data Intellectual Property”.

(b) Grant of Right to RSCI. As and to the extent necessary for RCSI, its Affiliates or a third party (pursuant to Section 3.1(c)) to access and utilize the First Data System and the Services, and to perform work as permitted under this Agreement, First Data grants to RCSI and its Affiliates and such third party a fully paid-up, non-exclusive right and license to have access to and use the First Data System during the Term. If RCSI requires access to the First Data System which is different than the kinds of access currently contemplated as of the FAAR Effective Date, such access shall be subject to First Data obtaining any necessary Required Consents.

(c) Interfaces. Interfaces to First Data Software and interfaces to the First Data System will be defined, supported, and made available by First Data to and for RCSI. Custom interfaces for RCSI will be changed only with RCSI’s prior approval. Subject to Section 17.3 of Schedule A, other interfaces (e.g., industry interfaces, standard client-wide system interfaces, etc.) may change without RCSI’s prior approval but First Data shall provide RCSI with sufficient advance notice of such changes for RCSI to prepare for such changes, and First Data shall provide to RCSI complete Documentation regarding such changes.

(d) “Integrated New Materials” are New Materials which are (i) written inside of existing modules in the First Data Software or *** (as defined in Exhibit A-5), or (ii) new modules in the First Data Software or *** which utilize pre-existing or common copybooks, subroutines, objects, libraries, data stores, procedures or JCL.

(e) “Interfaced New Materials” means any New Materials that are not Integrated New Materials, including Shared-Cost Interfaced New Materials and Non-Shared-Cost Interfaced New Materials.

(f) “Shared-Cost Interfaced New Materials” means Interfaced New Materials developed by First Data for RCSI at the rate of half of the then-current Development Hour rate set forth in Section 11.3 of Schedule C.

(g) “Non-Shared-Cost Interfaced New Materials” means Interfaced New Materials other than Shared-Cost Interfaced New Materials.

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7.3

Rights in Modified, Enhanced or Newly Developed Intellectual Property.

(a) RCSI Development Requests. RCSI may, from time to time, request that First Data develop software, documentation, methods, processes or procedures relating to the Services, and First Data shall perform such development in accordance with the provisions of Article 15 of Schedule A. RCSI’s request and related materials shall be deemed RCSI Confidential Information (except to the extent that such requests and materials incorporate First Data Intellectual Property), and if First Data does not undertake or complete such development First Data shall not use such RCSI Confidential Information for any other purpose.

(b) Modified, Enhanced or Newly Developed Intellectual Property. The respective rights of the Parties in modified, enhanced or newly developed Intellectual Property created solely or jointly by First Data pursuant to this Agreement (collectively, “New Materials”) are as follows:

(i) All New Materials which are (A) modifications to or enhancements of (1) RCSI Intellectual Property, or (2) Intellectual Property licensed to RCSI belonging to a third party, or (B) Non-Shared-Cost Interfaced New Materials will be deemed proprietary to, and “works made for hire” for, RCSI (collectively, the “RCSI New Materials”), except to the extent that such New Materials incorporate then-existing First Data Intellectual Property and First Data has given RCSI notice thereof prior to such incorporation. For avoidance of doubt, RCSI New Materials shall not include any materials that are otherwise First Data Intellectual Property which may have been based upon, to the extent based upon, or incorporated with RCSI New Materials into a deliverable.

(ii) If any of the RCSI New Materials are not deemed a “work for hire” by operation of law, First Data hereby irrevocably assigns, transfers and conveys to RCSI without further consideration all Intellectual Property rights in such RCSI New Materials. First Data acknowledges that RCSI and the assigns of RCSI may obtain and hold in their own name any Intellectual Property rights in and to such work product. First Data agrees to execute any documents or take any other actions as may reasonably be necessary, or as RCSI may reasonably request, to perfect RCSI’s ownership of any such RCSI New Materials.

(iii) RCSI New Materials shall be used solely for RCSI and may not be provided to, or used to provide services for, any third party by First Data or otherwise used by First Data for the benefit of any third party. If RCSI agrees that First Data may use specified RCSI New Materials to provide services for other customers of First Data, First Data shall pay RCSI a per-product (including all billing elements under such product) royalty for use of such RCSI New Material (“Royalty Material”). Such Royalty Material shall be billed incrementally by First Data, and First Data will create a separate individual billing element for such Royalty Material with an associated charge which is not unfairly influenced by cross-subsidization through other charges which the customer is required to pay in order to receive the billing element for which the royalty is payable. For the first *** years after the commencement of any use or enjoyment of Royalty Material by a third party, royalties for such use shall be equal to *** of the *** that First Data and First Data Affiliates

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receive from the use or enjoyment of such Royalty Material by entities other than RCSI and its Affiliates. Following such *** year period, the royalty for such use or enjoyment of Royalty Material shall be *** of *** until such third party use or enjoyment terminates. Payments of such royalties shall be accounted for, and paid, to RCSI on a quarterly basis. The royalties payable under this Section 7.3(b)(iii) shall be due for each calendar year in which such aggregate gross receipts for such product are at least ***. If any portion of the Royalty Term is not a full calendar year, then the *** amount provided in this Section 7.3(b)(iii) shall be appropriately pro-rated for such year.

(iv) All New Materials developed under this Agreement (other than RCSI New Materials) will be owned by First Data and will become a part of First Data Intellectual Property; provided that if such New Material is designated by RCSI in its sole discretion as ***. Each such New Material shall be treated as Royalty Material under Section 7.3(b)(iii). The obligations set forth in this Section 7.3(b) shall continue beyond expiration or termination of the Agreement.

(c) Non-Software Materials. RCSI shall own those copies of literary works and other works of authorship generated under this Agreement such as manuals, training materials, and other documentation containing First Data’s technical or operational procedures, including the Procedures Manual and the Change Control Procedure, which it receives during the Term, regardless of the media on which they are contained. Additionally, First Data hereby grants to RCSI a fully paid-up, non-exclusive right during the Term to use, reproduce, adapt and create derivative works based upon, and to distribute for internal RCSI business purposes, such literary works and works of authorship.

(d) Clean Room Intellectual Property Development. Notwithstanding the other provisions of this Section 7.3(d), but in all cases subject to the provisions of Article 14, First Data may independently develop Intellectual Property that is similar in business functionality to software owned by RCSI, including RCSI New Materials or under development for RCSI by First Data and designated by RCSI as providing RCSI with a competitive advantage as provided in Section 7.3(a)(ii) provided that:

(i) no First Data employees or contractors with knowledge of RCSI’s software, processes or business practices are involved in any phase of the analysis, design, development, testing or implementation;

(ii) no software developed by First Data at RCSI expense or which incorporates RCSI Intellectual Property is used to aid or inspire the development during the Exclusivity Period; and

(iii) the independent development effort does not benefit in any way from the activities of RCSI.

7.4

Patent Rights

(a) Except as provided in Section 7.1(a), nothing in this Agreement shall be deemed, by implication or otherwise, to be a grant of right or license from RCSI or any RCSI Affiliate to First Data (or to any First Data Affiliate), to any contractor or service provider of First Data, or to any First Data Affiliate to any patent in which RCSI or any RCSI Affiliate has any right, title or interest.

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(b) First Data covenants that after the expiration or termination of this Agreement it shall not (and shall cause its Affiliates not to) assert claims against, or xxx, RCSI or any RCSI Affiliate for infringement of a “7.4(b) Patent” owned by First Data or a First Data Affiliate, if and to the extent (i) RCSI’s or its Affiliate’s alleged infringement of such patent relates to a process or function which was part of the Services being provided to RCSI by First Data at the time this Agreement terminated or expired (such Services, collectively, the “7.4(b) Services”), and (ii) less than one (1) year has passed since the date that First Data first gave RCSI notice in good faith that one or more identified 7.4(b) Patents relates to the 7.4(b) Services. For the avoidance of doubt, First Data or its Affiliates may not recover claims for damages for infringement of a 7.4(b) Patent accruing prior to the expiration of such one (1) year notice period. The term “7.4(b) Patent” shall mean those (i) patents issued to First Data or its Affiliates by the U.S. Patent and Trademark Office as of the date of expiration or termination of this Agreement, and (ii) patents applied for as of the date of expiration or termination of this Agreement and issued within one (1) year after the date of expiration or termination of this Agreement. Notices from First Data identifying the 7.4(b) Patents may only be provided after any notice of termination or non-renewal of this Agreement which results in termination or expiration hereof. For purposes of this Section 7.4(b) only, Affiliates shall be limited to those entities where (x) Control is measured at fifty percent (50%) or greater and (y) such Control relating to the respective Party hereto existed as of the date of expiration or termination of this Agreement. For the avoidance of doubt, the covenant set forth in this Section 7.4(b) shall not apply to any infringement by RCSI or its Affiliates of a patent or any portion thereof to the extent such infringement does not relate to processes or functions which constitute 7.4(b) Services.

7.5

Residual Knowledge.

Nothing contained in this Agreement shall restrict either Party from the use of any ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques retained as the unaided mental impressions of such Party’s personnel relating to the Services which the other Party, individually or jointly, develops or discloses under this Agreement, provided that in doing so such Party does not breach its obligations under Article 14 or infringe the Intellectual Property Rights of the other Party or third parties who have licensed or provided materials to the other Party. Except as specifically stated in this Agreement, neither this Agreement nor any disclosure made hereunder grants, by implication or otherwise, any license to either Party or either Party’s Affiliates under any patents or copyrights or other Intellectual Property of the other Party or its Affiliates. Neither Party may take any action which will infringe the Intellectual Property Rights of the other Party or third parties who have licensed or provided materials to the other Party. This Section 7.5 shall survive termination or expiration of this Agreement.

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7.6

Required Consents.

First Data, with the cooperation of RCSI, shall obtain any Required Consents for RCSI to have access to and make use of First Data Software as required to receive and make use of the Services, and First Data shall pay such fees as may be required to obtain such Required Consents. RCSI, with the cooperation of First Data, shall obtain any Required Consents for First Data to have access to and make use of RCSI Software to provide the Services, and First Data shall pay such fees as may be required to obtain such Consents.

7.7

Export.

The Parties acknowledge that certain software and technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the laws and regulations of the United States and other countries. Neither Party shall export or re-export any such items or any direct product thereof or undertake any transaction in violation of any such laws or regulations. To the extent within First Data’s control, First Data shall be responsible for, and shall coordinate and oversee, compliance with such export laws in respect of such items exported or imported hereunder.

8.	PERFORMANCE STANDARDS

8.1

General.

First Data shall perform the Services at least at the same level and with at least the same degree of accuracy, quality, completeness, timeliness, responsiveness and efficiency as the best of: (i) that which was provided by RCSI or RCSI’s Affiliates prior to the FAAR Effective Date, (ii) that which has been provided by First Data during the period from the Effective Date through the FAAR Effective Date, and (iii) as is provided by ***. Quantitative performance standards for certain of the Services (“Service Levels”) are set forth in Schedule B, and such Service Levels shall supercede any performance standard required by this Section 8.1(i), 8.1(ii) or 8.1(iii) set forth above. At all times First Data’s level of performance of the Services shall meet or exceed the Service Levels.

8.2

Failure to Meet Service Levels; Exceeding Service Levels.

(a) Failure to Meet Service Levels. First Data recognizes that its failure to meet any of the Service Levels identified as “critical” in Schedule B (the “Critical Service Levels”) may have a material adverse impact on the business and operations of RCSI and that the damage from First Data’s failure to meet a Critical Service Level is not susceptible of precise determination. Accordingly, in the event that First Data fails to meet Critical Service Levels for reasons other than the wrongful actions of RCSI or circumstances that constitute a Force Majeure Event under this Agreement, then in addition to any non-monetary remedies available to RCSI under this Agreement, at law, or in equity, RCSI may, in lieu of pursuing other monetary remedies, elect to recover as its sole and exclusive monetary remedy for such failure to meet Critical Service Levels the Service Level Credits specified in Schedule B as liquidated damages; provided, however, that this provision shall not limit RCSI’s right

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to recover monetary damages (other than Service Level Credits) in the case of its termination of this Agreement pursuant to Section 21.1. The aggregate Service Level Credits due RCSI for First Data’s failure to meet Critical Service Levels during a given month shall not exceed *** of the Processing Fees for that month.

(b) Exceeding Service Levels. If First Data’s performances of the Services exceeds the performance required by the Critical Service Levels in the manner described in Schedule B, RCSI shall pay to First Data the Service Level Bonuses specified in Schedule B.

(c) Obligations of First Data in the Event of a Service Level Failure. If First Data fails to meet any Service Level or fails to perform a Key Service (as defined in Section 8.3) in the manner required by this Agreement, First Data shall promptly:

(i) investigate, assemble and preserve pertinent information with respect to, and report to RCSI on the causes of the problem(s) causing the failure, including performing a Root Cause Analysis of the problem(s);

(ii) advise RCSI, as and to the extent requested by RCSI, of the status of remedial efforts being undertaken with respect to such problem(s);

(iii) minimize the impact of the failure and notify RCSI of the steps which First Data believes should be taken to correct the problem(s);

(iv) upon RCSI’s approval, correct the problem(s) and begin meeting the Service Levels or performing the Key Service as required by this Agreement; and

(v) take appropriate preventive measures so that the failure and related problem(s) do not recur.

(d) Recovery of Performance. First Data will give the recovery of its capabilities to perform the Services and the resumption of its actual performance of the Services the ***.

(e) Revising and Updating Service Levels. As of each anniversary of the Effective Date or as otherwise permitted in the Agreement, RCSI may:

(i) change the designation of Service Levels as Critical Service Levels;

(ii) reallocate the Service Level Credits and Service Level Bonuses among the Critical Service Levels; and

(iii) for the purpose of allocating Service Level Credits or Service Level Bonuses, aggregate two (2) or more Service Levels into a single aggregate Service Level, which RCSI may designate as a Critical Service Level, provided that, with respect to each of the foregoing, the change does not, in the aggregate, significantly increase First Data’s responsibility for Critical Service Levels.

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8.3

Failure to Perform Key Services.

(a) Failure to Perform Key Services. First Data recognizes that its failure to perform in the manner required by this Agreement the following Services will have a material adverse impact on the business and operations of RCSI:

(i) completion of the Known Software Conversion Modifications;

(ii) completion of the Conversions of the Conversion Portfolios;

(iii) fulfillment of First Data’s obligations under Section 3.2(d); and

(iv) completion of the Future First Data System Architecture Plan, (each a “Key Service”).

Accordingly, if First Data fails to perform any Key Service as required by this Agreement for reasons other than (A) the wrongful actions of RCSI or (B) circumstances that constitute a Force Majeure Event under this Agreement (and First Data has complied with its obligations under Section 19.3 in connection with such Force Majeure Event), and (as between the Parties) such failure is the sole responsibility of First Data, then in addition to any non-monetary remedies available to RCSI under this Agreement, at law or in equity, RCSI may elect, in lieu of pursuing other monetary remedies, to recover as its sole and exclusive monetary remedy for such failure an amount equal to the sum of the direct costs incurred by RCSI as a result of such failure and, notwithstanding Section 19.2(a), certain Key Service credits (“Key Service Credits”).

(b) Amounts Payable by First Data. The amounts payable by First Data under this Section 8.3 shall include the following “Key Service Failure Costs”:

(i)***

(ii)***

(iii)***

(iv)*** and

(v) the Key Services Credits set forth in Section 8.3(a).

Key Service Failure Costs in connection with: (A) completion of the Conversion of the Conversion Portfolios shall include the incremental cost of continued operation of the relevant RCSI systems past the scheduled dates of the relevant Conversions of the Conversion Portfolios; and (B) completion of the Future First Data System Architecture Plan shall include the incremental cost of continued operation of the relevant RCSI systems past the scheduled dates of the relevant Future First Data System Architecture Plan deliverables. Key Service Credits shall be paid by First Data as follows: *** per-failure (except that for Known Software Conversion Modifications the per failure amount shall be *** with a cumulative limit on payments for each

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individual Key Service category of *** (resulting in a cumulative limit on Key Service Credits under this Section 8.3(b) of ***. For the avoidance of doubt, any amounts paid by First Data under this Section 8.3(b) shall be cumulative from the Effective Date, not the FAAR Effective Date, and credited toward any amounts owed by First Data hereunder.

(c) Key Service Incentive Payments. In addition to the right of RCSI to collect Key Service Credits for failures that are the responsibility of First Data as provided in Sections 8.3(a) and 8.3(b), RCSI shall make one-time incentive payments associated with performance of the Key Services when performance exceeds the minimum performance requirements for the Key Services and where such superior performance results (as between the Parties) solely from the actions of First Data (“Key Service Incentive Payments”). Such Key Service Incentive Payments shall be paid as follows: *** per success (except that for Known Software Conversion Modifications the per-success amount shall be *** with a cumulative limitation on payment for each individual Key Service category of *** (resulting in a cumulative cap on Key Service Incentive Payments under this Section 8.3(c) of ***.

8.4

Periodic Reviews.

At least annually during the Term RCSI and First Data will review the Service Levels and will make adjustments to them as appropriate to reflect improved performance capabilities associated with advances in technology, processes and methods. The Parties expect and understand that the Service Levels will be improved over time. As new technologies and processes are introduced, additional Service Levels reflecting industry best practices for those technologies and processes will be established in accordance with the procedures described in Schedule B.

8.5

Measurement and Monitoring Tools.

First Data shall utilize the necessary measurement and monitoring tools and procedures required to measure and report First Data’s performance of the Services against the applicable Service Levels. Such measurement and monitoring shall permit reporting at a level of detail sufficient to verify compliance with the Service Levels, and shall be subject to audit by RCSI. First Data shall provide RCSI with information and access to such tools and procedures upon request, for purposes of verification.

9.	PROJECT AND CONTRACT MANAGEMENT

9.1

First Data - RCSI Contacts.

In terms of both providing daily operational support and supporting long-term strategic needs, First Data’s account management structure during the Term, unless otherwise requested by RCSI, shall provide for direct contact with its Chief Information Officer and his or her designees and representatives. First Data shall adjust contact as requested by RCSI. However, First Data Personnel are not to take any action respecting any request that is inconsistent with this Agreement or with any directions of the RCSI Contract Executive or his or her designee. First Data will inform RCSI of its receipt of any such inconsistent request. Only RCSI or a designee of RCSI (as identified by RCSI to First Data in writing) will be authorized to make commitments on the part of RCSI with First Data that amend this Agreement or waive compliance.

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9.2

Steering Committee.

(a) Formation of Steering Committee. Within thirty (30) days of the FAAR Effective Date the Parties shall form a steering committee (“Steering Committee”) to support and coordinate the relationship between First Data and RCSI. This support will include high-level discussions regarding policies, procedures, guiding principles of the relationship, issues associated with First Data’s execution of the Services, allocation of resources, support and understanding of RCSI’s strategic direction, review of priorities, introduction and approval of new Service Levels, data collection techniques, and modifications to existing Service Levels and related metrics. The Steering Committee shall also serve in an advisory role. Anything to the contrary herein notwithstanding, the Steering Committee and the actions it takes shall in no way shall diminish the rights and authority provided to RCSI in this Agreement. Further, the RCSI Contract Executive shall retain the right to review and reverse the decisions of the Steering Committee.

(b) Composition of the Steering Committee. The Steering Committee shall be comprised of at least six (6) individuals: three (3) appointed by RCSI and three (3) appointed by First Data. The Quality Leaders from First Data and RCSI shall also be members of the Steering Committee, as well as other persons as may be mutually agreed by the Parties.

9.3

Reports and Meetings.

(a) Reports. First Data will issue performance, financial, utilization and status reports as reasonably requested by RCSI. Such reports will be pursuant to the reporting structure jointly developed by the Parties and will be issued at the frequency reasonably requested by RCSI. First Data shall provide RCSI with suggested formats for such reports, for RCSI’s review and approval. The reports shall include the following:

(i) First Data shall provide a monthly performance report, which shall be delivered to RCSI within thirty (30) days after the end of each month describing First Data’s performance of the Services in the preceding month (the “Monthly Performance Report”). Such report shall:

(A) separately address First Data’s performance in each area of the Services including, as requested by RCSI, by RCSI customer, lines of business, marketing segment and portfolio;

(B) for each area of the Services, assess the degree to which First Data has attained or failed to attain the pertinent objectives in that area, including measurements with respect to the Service Levels;

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(D) explain deviations from the Service Levels and include for each deviation a plan for corrective action and root cause analysis;

(E) set forth a record of the equipment, software, personnel changes and other changes to the Services environment including the First Data System during the reporting period that affect, or could affect, the Services and describe the planned changes during the upcoming month that may affect the Services; and

(F) include the documentation and other information which RCSI may request to verify compliance with this Agreement.

(ii) First Data will, subject to RCSI review and approval, establish a Dashboard Report format for each Service Level. A sample format and structure is attached to Schedule B as Exhibit B-3.1. The purpose of a Dashboard Report is to report on First Data’s success in achieving the standards set forth in the relevant Service Level. Dashboard Reports shall be generated using the RCSI approved measurement and monitoring tools and procedures required to measure and report on First Data’s performance of the relevant Services as well as supporting metrics. Dashboard Reports will be provided to RCSI no less frequently than monthly and may be required more often as set forth in the individual Service Level. Dashboard Reports will be provided at no additional charge to RCSI.

(iii) First Data will provide a quarterly planned activities report, which will be delivered to RCSI within thirty (30) days after the end of each RCSI fiscal quarter, describing the activities to be undertaken by First Data in connection with the Services during the then-current fiscal quarter and the three (3) subsequent fiscal quarters (the “Quarterly Plan”). The Quarterly Plan will:

(A) separately describe each material activity to be undertaken by First Data in connection with the Services, including on-going and planned Conversions, Software Conversion Modification projects and other AD projects, deconversions, the introduction of new systems and software and the maintenance releases, enhancements, upgrades, patches, new versions and other releases implemented in connection with the First Data Software;

(B) explain for each such activity the time budgeted for its completion and the manner in which First Data is being compensated for that activity;

(D) disclose the location(s) of First Data’s activities;

(E) report the expenditure of personnel hours and discretionary resources as of the end of the immediately preceding fiscal quarter, the related cost to RCSI and the discretionary resources still available to RCSI; and

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(F) be accompanied by related documentation which may be reasonably requested in advance by RCSI.

(b) Meetings. Within sixty (60) days after the FAAR Effective Date, the Parties shall determine an appropriate set of meetings to be held between representatives of RCSI and First Data. First Data shall prepare and circulate an agenda sufficiently in advance of each such meeting to give participants an opportunity to prepare for the meeting. First Data shall incorporate into such agenda items that RCSI desires to discuss. At RCSI’s request, First Data shall prepare and circulate minutes promptly after a meeting. As of the FAAR Effective Date, such meetings shall include the following:

(i) weekly meetings of the RCSI Contract Executive and the First Data Contract Executive to discuss on-going operations, problems in or interruptions of the Services such other matters as appropriate, and weekly meetings between the RCSI project planning and scheduling teams and the First Data project management teams to insure synchronization of development, testing, change control and such other matters as appropriate;

(ii) monthly meetings among operational personnel (including those involved in service and solution delivery) representing RCSI and First Data to discuss First Data’s performance (including by reviewing open problem management tickets and the overall quality of the Services) and planned or anticipated activities, changes that might adversely affect performance, assess and evaluate any RCSI plans relating to the Services which RCSI may submit to First Data and otherwise address, review, and discuss any other matters specific to RCSI;

(iii) a quarterly management meeting of the Steering Committee to review the Monthly Performance Reports for the quarter, review First Data’s overall performance under this Agreement, review the performance of the First Data System, review progress on the resolution of issues, provide a strategic outlook for RCSI in connection with the Services, and discuss such other matters as appropriate; and

(iv) a semi-annual senior management meeting by senior officers of the Parties to review relevant contract and performance issues.

9.4

Procedures Manual.

(a) Establishment of a Procedures Manual. A procedures manual (the “Procedures Manual”) is to be established for the Services. The Procedures Manual shall describe how First Data performs and delivers the Services under this Agreement, the equipment and software being used, and the documentation (e.g., operations manuals, user guides, specifications) which provide further details of such activities. The Procedures Manual shall describe the activities First Data proposes to undertake in order to provide the Services, including those direction, supervision, monitoring, staffing, reporting, planning and oversight activities normally undertaken at facilities that provide services of the type First Data shall provide under this Agreement. The Procedures Manual shall also document certain roles and responsibilities of RCSI and include descriptions of the acceptance testing, release

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management, and quality assurance procedures, First Data’s problem management, escalation procedures, Root Cause Analysis procedures and the other standards and procedures of First Data pertinent to RCSI’s interaction with First Data in obtaining the Services. The Procedures Manual shall be suitable for use by RCSI to understand the Services.

(b) Completion of the Procedures Manual. Within one hundred and twenty (120) days after the FAAR Effective Date, First Data shall deliver a draft Procedures Manual to RCSI, for RCSI’s comments and review. First Data shall incorporate reasonable comments or suggestions of RCSI and shall finalize the Procedures Manual within sixty (60) days of receipt of final comments from RCSI. The final Procedures Manual shall be subject to the approval of RCSI. First Data shall periodically, but at least annually, update the Procedures Manual to reflect changes in the operations or procedures described therein and performance of Known Software Conversion Modifications. Updates of the Procedures Manual shall be provided to RCSI for review, comment, and approval. First Data shall perform the Services in accordance with the Procedures Manual. If there is a conflict between the provisions of this Agreement and the Procedures Manual, the provisions of this Agreement shall control unless the Parties expressly agree otherwise and that agreement is set forth in the relevant portion of the Procedures Manual.

9.5

Change Control.

(a) Change Control Requirements. First Data shall comply with the following change control requirements:

(i) Prior to using any new software or new equipment to provide the Services, First Data shall have verified that the item has been properly installed, tested, is operating in accordance with its Specifications, continues to meet RCSI’s functional requirements (as made known to First Data) at least as well as the prior software or equipment, and is performing its intended functions in a reliable manner.

(ii) Subject to Section 15.3 of Schedule A which governs changes in the First Data System, First Data shall not take an action or make a decision which adversely affects the function or performance of, or may decrease the resource efficiency of, the Services, or RCSI’s costs or efficiency in conducting its business, including implementing changes in technology or equipment and software configuration, without first ***. First Data may make temporary changes required by an emergency if it has been unable to contact an appropriate RCSI manager to obtain such approval after making reasonable efforts. First Data shall document and promptly report such emergency changes to RCSI. First Data shall, as requested by RCSI, provide support for changes to the RCSI systems and procedures, if any, necessitated by changes in the First Data Software or First Data System.

(iii) First Data shall move programs from development and test environments to production environments in a controlled and documented manner, so that no changes are introduced into the programs during such activity.

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(iv) First Data shall, as requested by RCSI, support RCSI’s testing of changes to the First Data System.

(b) Change Control Procedures. Within sixty (60) days after the FAAR Effective Date, First Data shall prepare and provide to RCSI a change control procedure (“Change Control Procedure”) detailing how First Data will comply with the requirements set forth in Section 9.5(a) above and otherwise control changes in or affecting the processing environment. The Change Control Procedure may not modify or change the scope of Services to be provided under, or any other terms or conditions of, this Agreement. The Change Control Procedure shall be provided to RCSI for review, comment, and approval. First Data shall perform the Services in accordance with the Change Control Procedure.

(c) Change Control Committee. Within thirty (30) days after the FAAR Effective Date, the Parties shall appoint a change control committee (“Change Control Committee”), which shall manage and support the Parties in regard to changes, joint testing and other AD and AM issues. The RCSI Chief Information Officer shall have final authority to settle all disputes in, and in connection with, the Change Control Committee.

9.6

Use of Subcontractors.

(a) Use of Subcontractors; Flow-Down Provisions. Subject to Section 9.6(b) below, First Data’s use of subcontractors to perform material obligations under this Agreement shall be subject to the ***; provided, however, that First Data may subcontract, ***, any of its obligations hereunder to (i) a First Data Affiliate (so long as it remains a First Data Affiliate), or (ii) a pre-approved subcontractor certified by RCSI, which as of the FAAR Effective Date includes Patni Computer Systems, Ltd. RCSI shall not *** for First Data to use a subcontractor. First Data shall include in its subcontracts as flow-down provisions, provisions substantially similar to Article 5 (First Data Personnel), Article 10 (Audit Rights), Article 14 (Safeguarding of Data; Confidentiality), Section 15.1 (Representation as to Work Standards), and Section 23.6 (Relationship of the Parties) of this Agreement and any other provisions as necessary for First Data to fulfill its obligations under this Agreement.

(b) Subcontracting of Non-Material Services. First Data may, in the ordinary course of business, subcontract for third party services or products that are not dedicated to RCSI, that are not material to a particular function constituting a part of the Services, and that do not result in a material change in the way First Data conducts its business, provided such subcontract does not adversely affect RCSI, whether in performance of or charges for the Services or otherwise. If RCSI expresses concerns to First Data about a subcontract covered by this Section 9.6(b), First Data shall discuss such concerns with RCSI and work in good faith to resolve RCSI’s concerns on a mutually acceptable basis.

(c) First Data Subcontracting Obligations. First Data shall remain responsible for obligations, services, and functions performed by subcontractors to the same extent as if such obligations, services and functions were performed by First Data employees and for purposes of this Agreement such work shall be deemed work performed by First Data. First Data shall be RCSI’s sole point of contact regarding the

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Services, including with respect to payment. First Data shall not disclose RCSI Confidential Information to a subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information in a manner substantially equivalent to that required of First Data under this Agreement.

9.7

Quality Assurance and Improvement Programs.

(a) Total Quality Management Process. First Data, as part of its total quality management process, shall provide continuous quality assurance and quality improvement through:

(i) the identification and application of proven techniques and tools from other installations within its operations (i.e., “Best Practices”) that would benefit RCSI either operationally or financially; and

(ii) the implementation of concrete programs, practices and measures.

Such procedures shall include checkpoint reviews, testing, acceptance, and other procedures for RCSI to assure the quality of First Data’s performance, and shall be included in the Procedures Manual.

(b) Six Sigma. First Data will implement the following RCSI Six Sigma requirements:

(i) By not later than twelve (12) months following the FAAR Effective Date, First Data shall deliver Level 1, 2, 3, 4, and 5 process flows for all of its processes which affect the Services or RCSI.

(ii) By not later than twelve (12) months following the FAAR Effective Date, First Data shall implement SIPOC, FMEA and PCS for each of the foregoing processes.

(iii) By not later than six (6) months following the FAAR Effective Date, First Data shall undertake and complete a Six Sigma baseline analysis of those of its operations relating to or affecting the Services and provide the results of that analysis to RCSI.

(iv) First Data shall *** improvement in all of its operations relating to or affecting the Services and will provide RCSI information sufficient to demonstrate such improvement.

(v) Each year of the Term, First Data shall devote at least *** of its general and administrative expenses to establishing and operating programs to introduce and maintain a level of quality of the Services consistent with this Section 9.7.

(vi) By not later than the *** anniversary of the FAAR Effective Date, or for those individuals first assigned to the RCSI account after the FAAR Effective Date, within *** months of their being assigned responsibility in connection with providing management services on the First Data’s RCSI account, *** First Data

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Personnel providing management services on First Data’s RCSI account shall successfully complete RCSI’s Six Sigma Green Belt instruction and not less than *** of the First Data Personnel on the First Data RCSI account (but at least *** such individuals) shall have successfully completed RCSI’s Six Sigma Black Belt instruction.

(vii) Any Six Sigma instruction provided by RCSI to First Data Personnel shall be to classes comprised solely of First Data Personnel.

(viii) A First Data employee will be identified and will be certified as a Master Black Belt (a “Quality Leader”). This individual will be identified within thirty (30) days of the FAAR Effective Date.

(ix) First Data will maintain a staff of full-time Black Belts equal to at least *** (rounded up to the next whole number) of the total number of individuals assigned to the RCSI Account Management Team dedicated to the RCSI-First Data relationship. These individuals will each be required to complete one project per year directly benefiting the provision of Services by First Data to RCSI.

9.8

Productivity and Management Tools.

First Data shall utilize project management tools, including productivity aids and project management systems, as reasonably necessary to perform the Services. First Data shall use project management tools in all major projects and employ a mutually agreed upon regular reporting mechanism to identify project tasks, resource allocations and schedule milestones, present current status reports, and identify potential bottlenecks and problems.

9.9

Restrictive Covenant.

***

10.

AUDITS

10.1

Audit Rights.

(a) Audits Generally. First Data shall maintain a complete audit trail of financial and non-financial transactions resulting from this Agreement. First Data shall provide to RCSI, its auditors (including internal audit staff and external auditors), inspectors, regulators and other representatives as RCSI may from time to time designate in writing, access at reasonable times to any facility or part of a facility from which either First Data or any of its subcontractors is providing the Services and to data and records relating to the Services for the purpose of performing audits and inspections of either First Data or any of its subcontractors to:

(i) verify the accuracy and amount of charges and invoices, and the inventory of RCSI supplies and other RCSI assets, if any;

(ii) verify the integrity of RCSI Data and examine the systems that process, store, support and transmit that data including the First Data System; and

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(iii) examine First Data’s performance of the Services including, to the extent applicable to the Services performed by First Data and to the charges therefor, performing audits:

(A) of practices and procedures;

(B) of systems;

(D) of disaster recovery and back-up procedures;

(E) of the efficiency of First Data in performing the Services (but only to the extent affecting charges for, or timing of, Services hereunder); and

(F) necessary to enable RCSI to meet, or confirm that First Data is meeting, applicable regulatory and other legal requirements.

(b) Audit Cooperation and Frequency. First Data shall provide to such auditors, inspectors, regulators, and representatives such assistance as they require, including, subject to First Data’s reasonable requirements designed to maintain the security of First Data’s Data, installing and operating audit software. First Data shall cooperate fully with RCSI or its designees in connection with audit functions and with regard to examinations by regulatory authorities. RCSI’s auditors and other representatives shall comply with First Data’s reasonable security requirements. With respect to RCSI initiated general audits that are conducted on-site at First Data, RCSI shall give First Data reasonable prior notice of RCSI’s intent to audit and the notice shall include a description of the scope of the audit. There will not be more than two (2) such RCSI initiated general audits during any calendar year, and the period during which such audits will each be conducted on-site at First Data will not exceed ten (10) days. In the case of a RCSI audit respecting particular identified problems, RCSI will provide such notice, if any, as is appropriate under the circumstances. RCSI’s audit of the charges shall be limited to the three (3) most prior recent years of the Term.

10.2

Audit Follow-up.

(a) Audit Reports. Within fifteen (15) days following RCSI’s receipt of an audit or examination, to the extent possible, RCSI or its auditor shall provide First Data with a report of the audit findings that pertain to First Data. Thereafter RCSI may conduct (in the case of an internal audit), or request its external auditors or examiners or regulatory agencies to conduct, an exit conference with First Data to obtain factual concurrence with issues identified in the review. First Data promptly shall notify RCSI if any review or audit conducted by First Data, its Affiliates, or their contractors, agents or representatives (including internal and external auditors or a regulatory agency), reveals that a material failure to perform in accordance with this Agreement has occurred or may occur and shall provide RCSI with a copy of the applicable portions of the audit and shall advise RCSI of the status of remedial efforts being undertaken with respect to such failure or potential failure to perform.

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(b) Audit Review. First Data and RCSI shall meet to review each audit report promptly after the issuance thereof and to mutually agree upon the appropriate manner, if any, in which to respond to the changes suggested by the audit report. RCSI and First Data agree to develop operating procedures for the sharing of audit and regulatory findings and reports related to First Data’s operating practices and procedures produced by auditors or regulators of either Party; provided, however, that the sharing of audit information (i) must relate to an audit relevant and specific to the Services provided to RCSI, and (ii) will be subject to First Data’s confidentiality obligation to other customers; and further provided, however, that First Data shall extend every reasonable effort to gain permission to release their confidentiality obligation to support these audit efforts.

(c) Audit Problem Resolution. If an audit report indicates that a problem exists, then within ten (10) days following RCSI’s receipt of the report, the Parties will meet to review that problem and to agree mutually upon the appropriate manner, if any, in which to address the problem.

(d) Audit Overcharges. If an audit shows that First Data has overcharged RCSI, First Data will be obligated, at RCSI’s option, to credit to RCSI’s account an amount equal to the amount of the overcharge plus interest at the Default Rate calculated from the date the overcharge was paid by RCSI to First Data, or to pay the amount to RCSI directly. If an audit shows that First Data overcharged RCSI on any invoice by more than two and one half percent (2.5%) (including Pass-Through Expenses) of the correct amount of the invoice, then First Data will also pay RCSI an amount equal to the cost of the audit.

10.3

Annual Audit.

Annually, First Data will cause to be conducted a third party audit of its operations as they relate to the Services. The audit will be conducted by a national major auditing firm, in conformance with the American Institute of Certified Public Accountants Statements of Auditing Standards No. 70 Type II (“SAS 70”), or any successor or substitute statement adopted by such, and its scope will include the processes and internal controls maintained by First Data to provide the Services. Promptly after completion of each audit, First Data will provide RCSI with a copy of the audit report. In addition, First Data will promptly correct any concerns or weaknesses expressed in the audit report and will provide a summary report promptly to RCSI of those responses and First Data’s success in correcting those concerns or weaknesses.

10.4

Record Keeping and Record Retention.

(a) Record Retention. First Data will maintain complete and accurate records of, and supporting documentation for, the amounts billable to and payments made by RCSI under this Agreement. First Data agrees to provide RCSI with documentation and other information with respect to each invoice as may be reasonably requested by RCSI to verify accuracy and compliance with the provisions of this Agreement.

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(b) Access to Records. Until no longer required to meet RCSI’s records retention policy, as that policy may be adjusted from time to time but no later than the date three (3) years after the date of the invoice to RCSI of the related charges unless otherwise required by law, First Data will maintain and provide access upon request to the records, documents and other information required to meet RCSI’s requirements and audit rights under this Agreement.

11.

RCSI’S RESPONSIBILITIES

11.1

Responsibilities.

In addition to RCSI’s responsibilities as expressly set forth elsewhere in this Agreement, RCSI shall be responsible for the following:

(a) RCSI Contract Executive. RCSI shall designate one individual to whom all First Data communications concerning this Agreement may be addressed (the “RCSI Contract Executive”). The RCSI Contract Executive as of the FAAR Effective Date is Xxxxx Xxxxxxxxx.

(b) RCSI Cooperation. RCSI shall cooperate with First Data by, among other things, making available, as reasonably requested by First Data, management decisions, information, approvals and acceptances so that First Data may accomplish its obligations and responsibilities hereunder. The RCSI Contract Executive or his or her designee will be the principal point of contact for obtaining such decisions, information, approvals, and acceptances.

11.2

Savings Clause.

***. First Data’s nonperformance of its obligations under this Agreement shall be excused if and to the extent:

(a) such First Data nonperformance results from RCSI’s failure to perform its responsibilities; and

(b) First Data provides RCSI with reasonable notice of such nonperformance and, if so requested by RCSI, uses Commercially Reasonable Efforts to perform notwithstanding RCSI’s failure to perform (with RCSI reimbursing First Data for its additional Out-of-Pocket Expenses for such efforts).

12.

CHARGES

12.1

General.

All Charges for the Services are set forth in this Article 12, Section 11.2(b), Section 21.7(f) and in Schedule C. RCSI shall not be required to pay First Data any amounts for the Services in addition to those payable to First Data under this Article 12, the Sections referenced above, or Schedule C.

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12.2

Pass-Through Expenses.

(a) Pass-Through Expenses are charges to be paid directly by RCSI or through First Data. All Pass-Through Expenses are listed in Schedule C. If the Parties agree that a particular Pass-Through Expense is to be paid by RCSI directly, First Data shall promptly provide RCSI with the original third-party invoice for such expense together with a statement that First Data has reviewed the invoiced charges and made a determination of which charges are proper and valid and should be paid by RCSI. Otherwise, First Data shall act as payment agent for RCSI and shall pay third-party charges comprising the Pass-Through Expense. Prior to making any such payment, however, First Data shall review the invoice charges to determine whether such charges are proper and valid and should be paid. Upon request and subject to First Data’s confidentiality requirements with its suppliers, First Data shall provide RCSI with a reasonable opportunity to review the invoice to confirm First Data’s determination. Following such review by First Data and RCSI, First Data shall pay the amounts due and shall invoice RCSI for such charges.

(b) First Data shall use Commercially Reasonable Efforts to ***. With respect to services or materials paid for on a Pass-Through Expenses basis, RCSI reserves the right to:

(i) obtain such services or materials ***;

(ii)*** for such services or materials;

(iii)*** or materials (e.g., equipment make and model) First Data shall obtain, provided that if First Data demonstrates to RCSI that such designation will have an adverse impact on First Data’s ability to meet the Service Levels, such designation shall be ***;

(iv) require First Data to *** share the results thereof with RCSI; and

(v) review and approve the Pass-Through Expense for such services or materials ***.

12.3

Incidental Expenses.

First Data acknowledges that, except as may be otherwise provided in this Agreement, expenses that First Data expects to incur in performing the Services (including travel and lodging, document reproduction and administrative correspondence shipping, and long-distance telephone) are included in First Data’s charges and rates set forth in this Agreement. Accordingly, such First Data expenses are not separately reimbursable by RCSI unless, on a case-by-case basis for unusual expenses, RCSI has agreed in advance and in writing to reimburse First Data for the expense. RCSI acknowledges that it will be responsible for its own incidental expense (including travel and lodging, document reproduction and administrative correspondence shipping, and long-distance telephone).

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12.4

Personnel Utilization.

(a) ***.

(b) Staffing of RCSI Account Management Team. The following list sets forth the RCSI Account Management Team functions portions of which have been assumed by RCSI in exchange for a reduced Monthly Active Account Services Fee. It has been assumed that RCSI will provide these resource levels for the functions identified below to augment the resources levels provided by the RCSI Account Management Team to support these functions for the Term. It has been mutually determined by RCSI and First Data that if First Data is requested to assume such responsibilities of the RCSI resources at any time during the Term, First Data will hire the necessary personnel (up to a maximum of *** FTE’s) and will charge RCSI the actual direct Out-of-Pocket Expenses of employing such individuals.


Reduction by Function

Reporting – RMS		*** FTE

Documentation		*** FTE

Client Training		*** FTE

Client Services Management		*** FTE

Client Services Representatives		*** FTE

Technical Documentation		*** FTE

Testing Support		*** FTE

Project Management		*** FTE

TOTAL		*** FTE

12.5

Taxes

The Parties’ respective responsibilities for taxes arising under or in connection with this Agreement shall be as follows:

(a) Personal Property Taxes. Each Party shall be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.

(b) Sales Taxes on First Data Goods and Services. First Data shall be responsible for any sales, use, excise, gross receipts, value-added, services, consumption, and other taxes and duties payable by First Data on any goods or services used or consumed by First Data in providing the Services where the tax is imposed on First Data’s acquisition or use of such goods or services and the amount of tax is measured by First Data’s costs in acquiring such goods or services.

(c) Sales Taxes on Services. RCSI shall be responsible for any sales, use, excise, gross receipts, value-added, services, consumption, or other tax existing as of the Effective Date that is assessed on the provision of the Services as a whole, or

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on any particular Services received by RCSI from First Data. RCSI will be responsible for any sales, use, excise, gross receipts, value-added, services, consumption, or other tax becoming applicable during the Term (or that is increased during the Term) that is assessed on the provision of the Services as a whole, or on any particular Service received by RCSI from First Data.

(d) Segregation of Tax Payments. If a sales, use, excise, gross receipts, value-added, services, consumption, or other tax is assessed on the provision of any of the Services, the Parties shall work together to segregate the payments under this Agreement into three (3) payment streams:

(i) those for taxable Services;

(ii) those in which First Data functions merely as a payment agent for RCSI in receiving goods, supplies, or services (including leasing and licensing arrangements); and

(iii) those for other nontaxable Services.

(e) Cooperation. The Parties agree to cooperate with each other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible. First Data’s invoices shall separately state the amounts of any taxes First Data is collecting from RCSI, and First Data shall remit such taxes to the appropriate authorities. Each Party shall provide and make available to the other any resale certificates, information regarding out-of-state or out-of-country sales or use of equipment, materials or Services, other exemption certificates, power of attorney or other necessary authorizations or information reasonable requested by the other Party.

(f) Review Of and Responses To Taxes. First Data shall promptly notify RCSI of, and coordinate with RCSI the response to any claim for taxes asserted by applicable taxing authorities for which RCSI is responsible hereunder. RCSI shall, at its option and expense (including, if required by a taxing authority, payment of any such tax, interest or penalty prior to final resolution of the issue) have the right to request, which request shall not be denied, delayed, subject to any conditions, or withheld by First Data, to seek administrative relief, a ruling, judicial review (original or appellant level) or other appropriate review (hereinafter referred to as “Proceeding(s)”) (in a manner deemed appropriate by RCSI), as to the applicability of any tax, interest or penalty, or to protest any assessment and participate with First Data in any legal challenge to such assessment, but RCSI shall be responsible hereunder for payment of any such amount ultimately determined to be due. Notwithstanding the above, such responsibility is subject to First Data providing RCSI notice within ten (10) business days of receiving any proposed assessment of any additional taxes, interest or penalty due by First Data, and First Data shall provide RCSI with the necessary authority or powers to enable RCSI the opportunity to participate in such Proceeding(s) or other appropriate review as to the applicability of any such taxes prior to any assessment of additional taxes; provided, however, that First Data’s failure to provide timely notice shall not effect the indemnity hereunder to the extent such failure does not actually prejudice RCSI. First Data shall, when requested by RCSI and at RCSI’s expense, cooperate with and/or allow RCSI to

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participate with First Data in any such Proceeding, protest or legal challenge related to matters for which RCSI is responsible. In any proceeding which involves issues affecting both RCSI and other First Data customers, First Data shall make reasonable efforts to sever the issues relating to RCSI from all other issues raised in the Proceeding, so that RCSI may control the portion of the Proceeding relating to RCSI, and First Data may control the portion of the Proceeding relating to those issues that do not relate to RCSI; provided, however, that if First Data is unable to sever the issues in a Proceeding, First Data shall control the Proceeding, but shall give RCSI the right to participate in any Proceeding(s). Notwithstanding the above, RCSI’s participation in any Proceeding shall not prohibit or inhibit First Data from concluding or resolving matters related to First Data or First Data’s other clients, provided, however, that First Data shall not pay any claimed liability or settle any Proceeding unless RCSI has consented in writing to such payment or settlement, which consent shall not be unreasonably withheld.

(g) Refunds and Rebates. RCSI shall be entitled to any tax refunds or rebates granted to the extent such refunds or rebates are of taxes that were paid by RCSI.

12.6

New Services And Enhancements.

(a) Definition of New Services. “New Services” shall refer to functionality, services or products (i) that are materially different from and in addition to the Services or those services explicitly priced in Schedule C, and (ii) that are reasonably and logically connected to the Services, including skip tracing. Any changes to functionality, services or products that relate to the Services are enhancements. It is the expectation of the Parties that ***. For avoidance of doubt, RCSI may elect to receive New Services under this Section 12.6 that could also be characterized as new services under the PSA or services or new services under any other agreement between the Parties. For the further avoidance of doubt, ***. RCSI will not terminate a service that RCSI is receiving under the PSA as of the FAAR Effective Date or any replacement of such service in order to request a replacement product for such service as a New Service under this Agreement.

(b) First Data-Initiated Enhancements. First Data may ***.

(c) RCSI-Initiated Enhancements. RCSI shall pay the applicable Development Hour rate as set forth in Schedule C for labor required to develop enhancements requested by RCSI (“RCSI-Initiated Enhancements”) on the terms agreed upon by the Parties with respect to such engagement. ***.

(d) RCSI-Initiated New Services. RCSI shall pay the applicable Development Hour rate as set forth in Schedule C for labor required to develop New Services requested by RCSI (“RCSI-Initiated New Services”) on the terms agreed upon by the Parties and may be subject to new charges proposed by First Data and agreed to by RCSI.

(e) New Service Charges. ***.

(f) New Services Subject to this Agreement. If RCSI elects to have First Data perform the additional functions, the charges under this Agreement shall be

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adjusted, if appropriate, to reflect such functions, in a manner consistent with the other provisions of this Section 12.6. If RCSI so elects, such services shall then be deemed “Services” and shall be subject to the provisions of this Agreement.

(g) Third Parties. ***.

(h) Replacement System. If a First Data Initiated Enhancement is proposed by First Data to be provided using a replacement system, First Data shall:

(i)***; or

(ii)***.

12.7

***.

***

12.8

Benchmarks for Charges.

(a) Benchmarking. At RCSI’s request, the quality and pricing of the Services shall be measured to determine ***, to their respective customers (such process, the “Benchmarking”). With respect to Benchmarking, the following shall apply:

(i) The Parties will establish a joint RCSI - First Data Benchmarking committee (the “Benchmarking Committee”) comprised of an equal number of RCSI and First Data Personnel.

(ii) Within thirty (30) days of formation, or by such other date as is agreed by the Parties, the Benchmarking Committee will select a consultant (the “Benchmarker”) who is an independent industry-recognized benchmarking service provider to perform the Benchmarking. If the Benchmarking Committee fails to select the Benchmarker by such required date, RCSI may select one of Gartner Group, Compass Management Consulting Ltd. and Meta Group (or their successors) or any other entity proposed by First Data as the Benchmarker, and such choice shall be deemed accepted by the Benchmarking Committee.

(iii) Each Party shall provide to the Benchmarker reasonable access to its knowledgeable personnel and pertinent documents and records required to perform the Benchmarking. To the extent any document or record is subject to confidentiality obligations under an agreement with a third party, the Party having a duty of non-disclosure will use Commercially Reasonable Efforts to provide the required documents and records subject to appropriate redaction of the identity of such third party or if such redaction will not sufficiently comply with its obligations, each Party shall limit disclosure to such documents to which it has obtained third party consent for disclosure. The Services shall be Benchmarked in the aggregate, taking into account RCSI volumes (including mix of Services), then-current pricing, and then-current Service Levels, and the Benchmarker shall identify in writing to the Benchmarking Committee all variances which, in the aggregate, could be material, ***.

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(iv) If any variances that in the aggregate are unfavorable to RCSI are identified by the Benchmarker, First Data shall, upon agreement by the Benchmarking Committee, make the necessary adjustments to the pricing, Service Levels, and other components of this Agreement in order to ***.

(v) The first Benchmarking may not occur until after six (6) months following the Final Conversion Date, and further Benchmarking may occur no more frequently than every *** years thereafter.

(b) Costs. The charges of the Benchmarker will be shared equally by the Parties.

13.

INVOICING AND PAYMENT

13.1

Invoicing.

(a) Invoicing in Arrears. First Data shall invoice RCSI for all amounts due under this Agreement on a monthly basis in arrears. First Data will provide RCSI with all necessary information on-line in order for RCSI to validate the charges, and a monthly paper invoice will follow. The invoice shall show details as to charges as reasonably specified by RCSI. First Data shall include the calculations utilized to establish the charges in sufficient detail to enable RCSI to confirm the accuracy of the charges included in the invoice.

(b) Credits. To the extent a credit may be due RCSI pursuant to this Agreement, First Data shall provide RCSI with an appropriate credit against amounts then due and owing; if no further payments are due to First Data, First Data shall pay such amounts to RCSI within thirty (30) days.

(c) Consolidated Invoices. First Data shall render a single consolidated invoice for each month’s charges, showing such details as reasonably specified by RCSI, including as necessary to satisfy RCSI’s internal accounting and chargeback requirements (such as allocating charges among RCSI Affiliates and business units, Service components, projects, locations, and departments). Such invoice shall separately state the amounts of any taxes First Data is collecting from RCSI. For each item or Service charged the invoice shall provide the clause in Schedule C authorizing First Data to charge for such item or Service.

(d) Omitted Amounts. If First Data discovers that an invoice failed to include any amounts that were properly billable to RCSI, First Data will identify those amounts in detail and will explain the reason for the omission at the time of the appropriate invoice. First Data waives, and RCSI shall not be responsible for, any amount that is invoiced later than *** after RCSI’s receipt of the related invoice.

13.2

Payment Due.

(a) Payment Due Date. Other than Pass-Through Expenses for postage and subject to the other provisions of this Article 13, invoices provided for under Section 13.1 and properly submitted to RCSI pursuant to this Agreement shall be due and payable by RCSI within *** days after receipt thereof. Any other amount

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due under this Agreement for which a time for payment is not otherwise specified also shall be due and payable within *** days after receipt of a proper invoice for such amount.

(b) Payment by e-Pcard. If First Data so elects, RCSI may pay all charges due (other than Pass-Through Expenses for postage) more than ninety (90) days after the FAAR Effective Date by e-Pcard, without gross-up or surcharge of any kind. First Data shall be responsible for all fees or charges (including all inter-exchange fees) associated with payment by e-Pcard. Payments by e-Pcard shall be made within three (3) business days following RCSI’s receipt of the relevant invoice.

13.3

Accountability.

First Data shall maintain complete and accurate records of, and supporting documentation for, the amounts billable to and payments made by RCSI hereunder, in accordance with generally accepted accounting principles applied on a consistent basis. First Data agrees to provide RCSI with documentation and other information with respect to each invoice as may be reasonably requested by RCSI to verify accuracy and compliance with the provisions of this Agreement. RCSI and its authorized agents and representatives shall have access to such records for purposes of audit during normal business hours during the Term and during the period for which First Data is required to maintain such records.

13.4

Proration.

Periodic charges under this Agreement are to be computed on a calendar month basis, and shall be prorated for any partial month.

13.5

Refundable Items.

(a) Prepaid Amounts. Where RCSI has prepaid for a service or function for which First Data is assuming financial responsibility under this Agreement, First Data shall refund to RCSI, upon either Party identifying the prepayment, that portion of such prepaid expense which is attributable to periods on and after the Effective Date.

(b) Refunds and Credits. If First Data should receive a refund, credit or other rebate for goods or services previously paid for by RCSI, First Data shall promptly notify RCSI of such refund, credit or rebate and shall promptly pay the full amount of such refund, credit or rebate, as the case may be to RCSI. Unless previously paid to RCSI, First Data will reflect any refund, credit or rebate as a reduction of the amounts payable to First Data in the next invoice delivered to RCSI under this Agreement. If no further payments are due to First Data under this Agreement, First Data shall pay such amounts to RCSI within thirty (30) days of RCSI’s request therefore.

13.6

Deduction.

With respect to an amount to be paid by RCSI hereunder, RCSI may deduct from that amount any amount that First Data is obligated to pay or credit to RCSI.

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13.7

Disputed Charges.

Subject to Section 13.6, RCSI shall pay undisputed charges when such payments are due under this Article 13 and Schedule C. RCSI may withhold payment of particular charges that RCSI disputes in good faith. RCSI agrees to notify First Data within one hundred eighty (180) days and use best efforts to resolve in a timely manner any material disputed charges.

14.

SAFEGUARDING OF DATA; CONFIDENTIALITY

14.1

RCSI Information.

(a) Ownership of RCSI Information. RCSI Information shall be and remain the property of RCSI. First Data shall not assert any lien or other right against or to RCSI Information. No RCSI Information, or any part thereof, shall be sold, assigned, leased, or otherwise disposed of to third parties by First Data or commercially exploited by or on behalf of First Data, its employees or agents.

(b) Return of RCSI Information. Upon any of (i) RCSI’s request, (ii) the expiration of this Agreement, or (iii) the termination of this Agreement for any reason (including termination for cause) or, with respect to any particular data, on such earlier date that the same shall be no longer required by First Data in order to render the Services hereunder, such RCSI Information (including copies thereof in the possession or under the control of First Data, except as necessary to comply with regulatory requirements applicable to First Data) shall be promptly returned to RCSI by First Data in a form reasonably requested by RCSI or, if RCSI so elects, shall be destroyed by First Data.

(c) Use of RCSI Information. RCSI Information shall not be utilized by First Data for any purpose other than that of rendering the Services under this Agreement.

14.2

Safeguarding RCSI Data.

(a) Safeguards. First Data shall establish and maintain safeguards against the destruction, loss, or alteration of RCSI Data in its possession which are no less rigorous than the most stringent safeguards maintained by First Data for its other customers of services similar to the Services. RCSI may establish backup security for data and to keep backup data and data files in its possession if it chooses.

(b) First Data Obligations. Without limiting the generality of Section 14.2(a) above:

(i) First Data Personnel shall not attempt to access, or allow access to, any RCSI Data or RCSI Information which is not required for performance of the Services by such First Data Personnel. If such access is attained, First Data shall use best efforts to promptly report such incident to RCSI, describe in detail any accessed materials and return to RCSI any copied or removed materials.

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(ii) First Data shall institute industry *** systems security, backup and disaster recovery measures that are at least as stringent as the DR Standards set forth in Exhibit A-7 to guard against the unauthorized access, alteration, destruction or loss of RCSI Data. Such measures shall include the installation of software which:

(A) requires all users to enter a user identification number and password prior to gaining access to the information systems;

(B) controls and tracks the addition and deletion of users;

(D) requires passwords to be changed periodically and under specified circumstances.

(c) Inventory. First Data will be responsible for the security of all RCSI customized inventory, including plastics, in its possession or under its control.

14.3

First Data Information.

(a) Ownership of First Data Information. First Data Information shall be and remain the property of First Data. RCSI shall not assert any lien or other right against or to First Data Information. Subject to the rights of RCSI provided in Section 3.1(c), no First Data Information, or any part thereof, shall be sold, assigned, leased, or otherwise disposed of to third parties by RCSI or commercially exploited by or on behalf of RCSI, its employees or agents.

(b) Return of First Data Information. Upon (i) the expiration of this Agreement, (ii) the termination of this Agreement for any reason (including termination for cause) or, (iii) with respect to any particular data, on such earlier date that the same shall be no longer required by RCSI in order to receive and use the Services hereunder, but subject in all cases to the provisions of Sections 7.3(c) and 21.7, such First Data Information (including copies thereof in the possession or under the control of RCSI, except as necessary to comply with regulatory requirements applicable to RCSI) shall be promptly returned to First Data by RCSI in a form reasonably requested by First Data or, if First Data so elects, shall be destroyed.

(c) Use of First Data Information. First Data Information shall not be utilized by RCSI for any purpose other than that of receiving and using the Services under this Agreement.

14.4

Safeguarding First Data Data.

(a) Safeguards. RCSI shall establish and maintain safeguards against the destruction, loss, or alteration of First Data Data in its possession which are no less rigorous than those maintained by RCSI for its own information of a similar nature. First Data may establish backup security for data and to keep backup data and data files in its possession if it chooses.

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(b) Obligations. Without limiting the generality of Section 14.4(a) above, RCSI employees shall not attempt to access, or allow access to, any First Data Data or First Data Information which is not required for receiving or using the Services. If such access is attained, RCSI shall use best efforts to promptly report such incident to First Data, describe in detail any accessed materials and return to First Data any copied or removed materials.

14.5

Confidentiality.

(a) Confidential Information. First Data and RCSI each acknowledge that they may be furnished with, receive, or otherwise have access to information of or concerning the other Party or its Affiliates which such Party or its Affiliates considers to be confidential, proprietary, a trade secret or otherwise restricted. As used in this Agreement, “Confidential Information” shall mean all information, in any form, furnished or made available directly or indirectly by one Party to the other which is marked confidential, restricted, proprietary, or with a similar designation. The terms and conditions of this Agreement shall be deemed Confidential Information.

(b) RCSI Confidential Information. In the case of RCSI, Confidential Information also shall include, whether or not designated “Confidential Information”,

(i) all specifications, designs, documents, correspondence, software, documentation, data and other materials and work products produced by RCSI, its Affiliates, or its or their agents or representatives;

(ii) all information concerning the operations, affairs and businesses of RCSI or its Affiliates (including ideas, marketing plans, business strategies, data and other information that are trade secrets or are competitively sensitive), the financial affairs of RCSI or its Affiliates, and the relations of RCSI with its customers, employees and service providers (including RCSI lists, RCSI information, account information, transaction information, and consumer markets);

(iii) software provided to First Data by or through RCSI;

(iv) RCSI New Materials;

(v) information about, regarding or provided by, a RCSI customer (including RCSI Customer Information); and

(vi) other information or data concerning RCSI and its businesses or customers stored on magnetic media or otherwise or communicated orally, and obtained, received, transmitted, processed, stored, archived, or maintained by First Data under this Agreement (collectively, the “RCSI Confidential Information”).

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(c) First Data Confidential Information. In the case of First Data, Confidential Information also shall include, whether or not designated “Confidential Information”,

(i) all User Manuals, specifications, designs, documents, correspondence, software, software documentation, data and other materials and work products owned or produced by First Data or its Affiliates in the course of performing the Services, except for RCSI New Materials;

(ii) all information concerning the operations, affairs and businesses of First Data (including ideas, marketing plans, business strategies, data and other information that are trade secrets or are competitively sensitive), the financial affairs of First Data or its Affiliates, and the relations of First Data with its customers, employees and service providers (including First Data lists, First Data information, account information and consumer markets);

(iii) software provided to RCSI by or through First Data, and

(iv) other information or data concerning First Data and its businesses or other customers stored on magnetic media or otherwise or communicated orally, and obtained, received, transmitted, processed, stored, archived, or maintained by First Data under this Agreement (collectively, the “First Data Confidential Information”); provided, however, that First Data Confidential Information shall not include RCSI New Materials or any other RCSI Confidential Information.

(d) Obligations.

(i) Each Party’s Confidential Information shall remain the property of that Party except as expressly provided otherwise by the other provisions of this Agreement. RCSI and First Data shall each use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature; provided that the Parties may disclose such information to an employee, officer, director, agents, representative, external or internal auditors and independent contractors of the Party or of an Affiliate of the Party requiring access to the same in the course of his or her employment or his, her or its engagement, provided that such individual or entity is bound either by contract or professional obligation to confidentiality obligations no less restrictive than those binding on the Party hereunder. Furthermore, the Parties may disclose such information to entities performing services required hereunder where:

(A) use of such entity is authorized under this Agreement;

(B) such disclosure is necessary or otherwise naturally occurs in that entity’s scope of responsibility; and

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(ii) As requested by a Party during the Term but, in the case of First Data Information except as required by RCSI in order to receive and use the Services and upon expiration or any termination of this Agreement and completion of the other Party’s obligations under this Agreement, and as permitted by the next sentence, such other Party shall return or destroy, as the requesting Party may direct, all material in any medium that contains, refers to, or relates to the requesting Party’s Confidential Information. Neither Party shall retain copies of the other Party’s Confidential Information (except as may be necessary to comply with regulatory requirements applicable to the retaining Party).

(iii) Each Party shall take reasonable steps to ensure that its employees comply with these confidentiality provisions.

(iv) Neither Party shall alter or remove any identification, copyright or proprietary rights notice which indicates the ownership of any part of the other Party’s Confidential Information.

(e) Exclusions. This Section 14.5 shall not apply to any particular information which First Data or RCSI can demonstrate:

(i) was, at the time of disclosure to it, in the public domain;

(ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving Party;

(iii) was received from a third party who had a lawful right to disclose such information to it without any obligation to restrict its further use or disclosure; or

(iv) was independently developed by the receiving Party without reference to Confidential Information of the furnishing Party or its Affiliates.

In addition, a Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other Party as required to satisfy any legal requirement of a competent government body, and First Data shall not be considered to have breached its obligations by making, in the course of providing the Services, RCSI Confidential Information available to VISA, MasterCard, other Associations, or to supervisory or regulatory authorities of RCSI or First Data upon the written request of any of the foregoing, provided that, immediately upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party promptly and prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

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(f) Loss of Confidential Information. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the furnishing Party, the receiving Party shall promptly, at its own expense:

(i) notify the furnishing Party in writing;

(ii) take such actions as may be necessary or reasonably requested by the furnishing Party to minimize the violation or the damage resulting therefrom; and

(iii) cooperate in all reasonable respects with the furnishing Party to minimize the violation and any damage resulting therefrom.

(g) No Implied Rights. Except as otherwise specifically provided in this Agreement, nothing this Section 14.5 shall be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the Confidential Information of the other Party.

(h) Release of Information. Despite the foregoing, RCSI agrees that RCSI Confidential Information may be made available to VISA, MasterCard, other Associations, or to supervisory or regulatory authorities of RCSI or of First Data upon the written request of any of the foregoing; provided, however, upon receipt of the request and prior to making the information available, First Data shall provide notice to RCSI of such request and shall provide RCSI a reasonable period of time in which RCSI may object to such disclosure, including obtaining suitable contractual protection of Confidential Information.

14.6

Provisions For Data Privacy Compliance.

(a) In addition to and not in limitation of First Data’s other obligations of confidentiality and non-disclosure under this Agreement: (i) First Data will implement appropriate administrative, technical, and physical safeguards and other appropriate measures to protect the security, confidentiality and integrity of Non-Public Personal Information relating to customers of RCSI and its Affiliates and, to the extent relevant to the GLB Act, other RCSI Information received by First Data from RCSI and its Affiliates, all as may be appropriate to meet the objectives of the GLB Act, including its implementing regulations promulgated thereunder and the guidelines issued pursuant to § 501 of the GLB Act; and (ii) First Data shall not use any Non-Public Personal Information relating to RCSI’s customers received from RCSI or its Affiliates or obtained as a result of Services performed for RCSI (“RCSI Customer Information”) except as necessary in the ordinary course of business to perform Services hereunder or as authorized in writing by RCSI. First Data will ensure that any such third party to whom RCSI authorizes First Data to transfer or provide access to RCSI Customer Information (other than those who RCSI has instructed First Data to transfer or provide access, who shall be RCSI’s responsibility):

(i) signs a written agreement to restrict its use of RCSI Customer Information to the use specified in the agreement between the First Data and the third party (which use must be in conjunction with First Data’s performance of its obligations hereunder);

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(ii) agrees to restrict disclosure of Non-Public Personal Information of RCSI and its Affiliates as provided in this Section; and

(iii) agrees to implement and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of all RCSI Customer Information as provided herein.

(b) First Data will be responsible for the acts or omissions of any third party to whom it transfers or provides access to RCSI Customer Information hereunder, other than a third party whom RCSI or its Affiliates has instructed First Data to make such disclosure.

14.7

Survival

The obligations under this Article 14 will survive the expiration or termination of this Agreement.

15.

REPRESENTATIONS AND WARRANTIES

15.1

Work Standards.

Unless expressly addressed in another provision of this Agreement, First Data represents and warrants that the Services shall be rendered with promptness and diligence and shall be executed in a xxxxxxx-like manner, in accordance with the practices and high professional standards used in well-managed operations performing services similar to the Services. First Data represents and warrants that it shall use adequate numbers of qualified individuals with suitable training, education, experience, and skill to perform the Services.

15.2

Maintenance.

First Data represents and warrants that it shall maintain the equipment and software used in connection with the Services, including the First Data System and First Data Software, so that they operate in accordance with their specifications, including:

(a) maintaining such equipment in good operating condition, subject to normal wear and tear;

(b) undertaking repairs and preventive maintenance on such equipment in accordance with the applicable equipment manufacturer’s recommendations; and

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15.3

Efficiency and Cost Effectiveness.

First Data represents and warrants that it shall use efficiently the resources or services necessary to provide the Services. First Data represents and warrants that it shall perform the Services in a reasonably cost-effective manner consistent with the required level of quality and performance.

15.4

Technology.

First Data represents and warrants that it shall provide the Services using, consistent with the Change Control Procedure, proven, current technology that will enable RCSI to take advantage of ***.

15.5

Non-Infringement.

First Data represents and warrants that it shall ***

15.6

Ownership and Use of Software and Related Materials.

First Data represents and warrants that ***

15.7

Compliance with Laws and Regulations.

(a) Compliance and Adverse Impact. First Data is solely responsible for compliance with all laws, regulations, ordinances and codes (including identifying and procuring required permits, certificates, approvals and inspections), and including applicable Association rules and regulations applicable to First Data as a third party provider of processing services. If a charge of non-compliance with any such laws, regulations, ordinances, codes, by-laws, rules, or regulations or other legal requirements which may have an adverse impact on RCSI occurs, First Data promptly shall notify RCSI of such charges in writing. First Data shall maintain the First Data System so that the First Data System (including the Services provided thereunder) contains functionality enabling RCSI to comply with the Legal Requirements ***, to the extent the Legal Requirements pertain to RCSI and to any RCSI activities for which RCSI uses the Services. ***

(b) RCSI’s Responsibilities. RCSI is responsible for monitoring and interpreting the federal, state and local laws, regulations, ordinances and codes pertaining to usury, equal credit opportunity, truth in lending, fair credit billing, fair credit reporting, fair debt collection practices, general consumer protection, the GLB Act, the Privacy Directive and any legislation enacted by relevant European Union Member States and European Economic Area members to implement the Privacy Directive, and VISA, MasterCard and other Association by-laws, rules and regulations applicable to RCSI in connection with RCSI’s use of the Services (collectively, the “Legal Requirements”). RCSI is responsible for selecting the available parameter settings and programming features and options within the First Data System that apply to RCSI’s use of the Services in compliance with the Legal Requirements and for determining that such selections are consistent with the Legal Requirements and with the terms and conditions of RCSI’s contracts with its Cardholders. In making such determinations, RCSI may rely on the descriptions of such settings, features, and options provided by First Data. First Data shall review with and explain to RCSI such settings, features and

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options and shall provide clarification on the operation of such features as requested by RCSI. First Data shall perform the Services in a manner that complies with the directives of RCSI based on RCSI’s interpretation of the Legal Requirements and its selection of First Data System parameter settings and programming features and options.

(c) Information and Records. Subject to Article 14, each Party shall cooperate in providing information and/or records to the other Party in connection with the examinations, requests or proceedings of its regulatory agencies.

(d) Compliance Practices. Whenever relevant information is available to First Data, and subject to Article 14, First Data shall share with RCSI information concerning the various compliance practices and interpretive positions taken by its customer base related to or in connection with the use of the Services and any functionality available on the First Data System, as well as the understandings which First Data Personnel may have with respect to such practices and positions.

(e) Agreement Execution. First Data represents and warrants that its execution, delivery, and performance of this Agreement shall not constitute a violation of any judgment, order, or decree; a material default under any material contract by which it or any of its material assets are bound; or an event that would, with notice or lapse of time, or both, constitute such a default.

15.8

Absence of Litigation.

First Data represents and warrants that there is no claim, or any litigation, proceeding, arbitration, investigation or material controversy pending to which First Data or any of First Data’s Affiliates, agents, or representatives is a party, relating to the provision of the services offered by First Data, including the Services, or which would have a material adverse effect on First Data’s ability to enter into this Agreement and perform its obligations thereunder and, to the best of First Data’s knowledge, no such claim, litigation, proceeding, arbitration, investigation, or material controversy has been threatened or is contemplated. First Data shall promptly notify RCSI in writing if it receives written notice of any claim, litigation, proceeding, arbitration, investigation or material controversy to which First Data or any of its Affiliates, representatives or agents is a party, that, if adversely determined, would have a material and adverse affect on RCSI or any of its Affiliates, on any of the Services or First Data’s ability to perform any of its obligations under this Agreement.

15.9

Authorization.

Each Party represents and warrants to the other that:

(a) Entering into the Agreement. It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and

(b) Proper Authorization. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party.

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15.10 Inducements.

First Data represents and warrants to RCSI that it has not knowingly violated any applicable laws or regulations or any RCSI policies of which First Data has been given notice regarding the offering of unlawful inducements in connection with this Agreement. If at any time during the Term, RCSI determines that the foregoing warranty is inaccurate, then, in addition to any other rights RCSI may have at law or in equity, RCSI may terminate this Agreement for cause without affording First Data an opportunity to cure.

15.11 Viruses.

First Data represents and warrants that it will ensure that no Viruses are coded or introduced into the First Data System or into the RCSI information environment through the First Data System or the Services. If (a) a Virus which has adversely effected, or could adversely effect, the Services or the RCSI Data in the possession or under the control of First Data, is found to have been introduced into the First Data System or (b) a Virus has been introduced into the RCSI information environment through the First Data System or the Services, First Data promptly will:

(i) notify RCSI of the introduction and the extent of any known damage to the RCSI Data;

(ii) if the Virus is in the First Data System, eradicate the Virus, repair any damage to the RCSI Data and eliminate any adverse effect on the Services resulting from the Virus or the eradication thereof; and

(iii) if the Virus has been introduced into the RCSI information environment through the First Data System or the Services, assist RCSI in eradicating the Virus and reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, assist RCSI to mitigate and restore those losses.

15.12 Disabling Code.

First Data represents and warrants that, without the prior written consent of RCSI, First Data shall not knowingly insert into the First Data Software any code which would have the effect of disabling or otherwise shutting down all or any portion of the First Data Software or Services. First Data further represents and warrants that, with respect to any disabling code that may be part of the First Data Software, First Data shall not invoke such disabling code at any time, including upon expiration or termination of this Agreement for any reason, without RCSI’s prior written consent.

15.13 Software Deliverables.

Unless expressly addressed elsewhere in this Agreement, with respect to each software deliverable from First Data, First Data represents and warrants that for the

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entire Term following acceptance of the deliverable by RCSI, the deliverable will conform to its Specifications, will be properly installed, operate properly and be error free. To the extent a deliverable does not comply with the foregoing, First Data will correct such problem(s) at no cost and at no loss of resources to RCSI.

15.14 First Data Personnel.

(a) First Data represents and warrants that:

(i) First Data is not a party to a collective bargaining agreement applicable to the First Data employees;

(ii) none of the First Data employees are represented by any labor organization;

(iii) First Data is not aware of any campaign or effort by any labor organization or any person to organize the First Data Personnel; and

(iv) no First Data personnel are employed whose employment is not in full compliance with all applicable immigration laws.

Prior to engaging any subcontractor with respect to the Services, First Data will make reasonable inquiry of such subcontractor with respect to the foregoing topics and, if inquiry responses are affirmative, First Data will notify RCSI.

15.15 Disclaimer.

EXCEPT AS PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER EXPRESS WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS AGREEMENT IS A SERVICE AGREEMENT AND THE PROVISION OF THE UNIFORM COMMERCIAL CODE SHALL NOT APPLY TO IT.

16.

MISCELLANEOUS COVENANTS

16.1

Special Terms

(a) Notwithstanding anything to the contrary in this Agreement, with respect to Accounts identified by RCSI as being covered by this Section 16.1, from among those contributed by Banc One in accordance with the Banc One/RCSI Agreement (“Banc One Accounts”), the following shall apply:

(i) First Data shall provide the Services, including those which are distinguishable services for Designated Accounts, as provided under this Agreement with respect to the Banc One Accounts, and First Data shall provide, and the Services shall be deemed to include, with respect to the Banc One Accounts, at least the features, functions and capabilities that were being provided with respect to the Banc One Accounts under the Banc One Private Label Processing Agreement (“Banc One Private Label Processing Agreement”) by and between Bank One N.A. and First Data dated June 30, 1998 (collectively, the “Banc One Account Services”). First Data shall provide such Services with respect to all or any portion of the Banc One

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Accounts as of the effective date of the termination of the Banc One Private Label Processing Agreement. The Banc One Account Services shall constitute Services under this Agreement and shall not constitute New Services.

(ii) The Service Levels used to measure First Data’s performance of the Banc One Account Services shall be those Service Levels set forth in Schedule B and as set forth in the Banc One Private Label Processing Agreement or as designated by RCSI.

(iii) If RCSI terminates this Agreement as to the Services provided to GECF-A, such Banc One Accounts shall continue to receive the Banc One Account Services.

(b) This Section 16.1 shall not be used to interpret any other provision in this Agreement and the responsibilities of the Parties set forth in this Section 16.1 shall not affect the application or interpretation of any other provisions of this Agreement.

16.2

Effect of the Modification Agreement.

The terms and conditions of the Modification Agreement, a copy of which is attached hereto as Attachment 1, are hereby incorporated into and made a part of this Agreement. To the extent that any term or condition of the Modification Agreement conflicts with or is inconsistent with any term or condition of this Agreement, the terms or conditions of this Agreement shall prevail.

16.3

Services Similar to the Patni Agreement Services

RCSI shall use Commercially Reasonable Efforts (which shall not require any expense on RCSI’s part) to assist First Data to obtain services from Patni Computer Systems, Ltd. (“Patni”) that are similar in scope and price as those services available to RCSI through the July 1, 2002 Task Order among GE Capital, Patni, and Data Conversion, Inc. (“DCI”) (the “Patni Agreement”), which was entered into pursuant to the Software Services Agreement between DCI and General Electric International, Inc. dated February 26, 2002 (the “Patni Agreement Services”). The inability of First Data to obtain from Patni any services similar in scope and pricing to the Patni Agreement Services will not be a breach of this Agreement by RCSI.

17.

INSURANCE AND RISK OF LOSS

17.1

Insurance.

First Data shall during the Term have and maintain in force the following insurance coverages:

(a) Worker’s Compensation Insurance. Worker’s Compensation Insurance, including occupational illness or disease coverage, or other similar social insurance in accordance with the laws of the country, state, or territory exercising jurisdiction over the employee and Employer’s Liability Insurance with a minimum limit of $1,000,000 per occurrence.

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(b) Comprehensive General Liability Insurance. Comprehensive General Liability Insurance, including Products, Completed Operations Liability and Personal Injury, Contractual Liability and Broad Form Property Damage Liability coverage for damages to any property with a minimum combined single limit of $5,000,000 per occurrence. This policy shall be endorsed to name RCSI and its Affiliates as additional insureds.

(c) Electronic Data Processing Insurance. Electronic Data Processing All Risk Property Insurance on equipment, data, media and valuable papers, including extra expense coverage, with a minimum limit adequate to cover such risks on a replacement costs basis.

(d) Automotive Liability Insurance. Automotive Liability Insurance covering use of all owned, non-owned, and hired automobiles with a minimum combined single limit of $5,000,000 per occurrence for bodily injury and property damage liability. This policy shall be endorsed to name RCSI and its Affiliates as additional insureds.

(e) Umbrella Liability Insurance. Umbrella Liability Insurance with a minimum limit of *** in excess of the insurance under policies indicated in Sections 17.1(a), 17.1(b) and 17.1(d).

(f) Employee Dishonesty and Computer Fraud Insurance. Employee Dishonesty and Computer Fraud coverage for loss arising out of or in connection with any fraudulent or dishonest acts committed by the employees of First Data, acting alone or in collusion with others, including the property and funds of others in their care, custody or control, in a minimum amount of $10,000,000. This policy shall name RCSI and its Affiliates as loss payees.

(g) Errors and Omissions Liability Insurance. Errors and Omissions Liability Insurance covering the liability for financial loss due to error, omission, negligence of employees and machine malfunction in an amount of at least $10,000,000.

The foregoing insurance coverages shall be primary and non-contributing with respect to any other insurance or self insurance which may be maintained by RCSI. Upon request by RCSI, First Data shall cause its insurers to issue certificates of insurance evidencing that the coverages and policy endorsements required under this Agreement are maintained in force and that not less than thirty (30) days written notice shall be given to RCSI prior to any modification, cancellation or non-renewal of the policies. The insurers selected by First Data shall have an A.M. Best rating of A- or better or, if such ratings are no longer available, with a comparable rating from a recognized insurance rating agency. First Data shall assure that its subcontractors, if any, maintain insurance coverages as specified in this Article 17 or that, to the extent that any a subcontractor does not maintain the coverages, each such subcontractors will be listed as an additional named insured on the related coverage of First Data, as applicable.

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17.2

Risk of Loss.

Each Party shall be responsible for risk of loss of, and damage to, any equipment, software or other materials in its possession or under its control.

18.

INDEMNITIES

18.1

Indemnity by First Data.

First Data agrees to indemnify, defend and hold harmless RCSI and its Affiliates and their respective officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following:

(a) First Data’s breach of any of its duties or obligations under this Agreement; and

(b) Any claims of infringement of any patent, trade secret, copyright or other proprietary rights, alleged to have occurred because of systems or other resources provided by First Data to RCSI, or based upon performance of the Services by First Data, except to the extent the claim:

(i) is caused by RCSI’s use of the First Data System outside the intended scope of Services; or

(ii) directly relates to technical or business specifications and/or designs required by RCSI in connection with RCSI-Initiated Enhancements, RCSI-Initiated New Services, customized Evolve Applications or Evolve statement of work (but excluding the development and/or execution of same by First Data Personnel required by such specifications and/or designs).

18.2

Indemnity by RCSI.

RCSI agrees to indemnify, defend and hold harmless First Data and its Affiliates and their respective officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following:

(a) RCSI’s breach of any of its duties or obligations under this Agreement;

(b) Any claims of infringement of any patent, trade secret, copyright or other proprietary rights, alleged to have occurred because of:

(i) RCSI’s use of the First Data System in a manner outside the intended scope of Services; or

(ii) technical or business specifications and/or designs provided by RCSI in connection with RCSI-Initiated Enhancements or RCSI-Initiated New Services, Customized ESP Applications or ESP Statement of Work (but excluding the development and/or execution of same by First Data Personnel required by such specifications and/or designs).

(c) Any claims that arise in connection with First Data’s use of other RCSI TSA Intellectual Property as authorized in Section 7.1(a) for the benefit of RCSI and its Affiliates; provided, however, that such indemnity obligation will not apply to usage thereof following the date RCSI has instructed First Data to cease all use of the allegedly infringing RCSI TSA Intellectual Property,

except to the extent the claim is caused by First Data’s use of the systems, software or other resources, or detailed business and technical specifications in combination with other systems not expressly authorized by RCSI.

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18.3

Additional Indemnities.

Each Party shall indemnify, defend and hold harmless the other Party, and the other Party’s Affiliates, officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following:

(a) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person caused by the tortious conduct of the indemnitor;

(b) the damage, loss or destruction of any real or tangible personal property caused by the tortious conduct of the indemnitor;

(c) any claim, demand, charge, action, cause of action, or other proceeding asserted against the indemnitee but resulting from an act or omission of the indemnitor in its capacity as an employer of a person;

(d) any claim by any person arising out of his or her employment with the indemnitor, any application for such employment or the termination thereof; and

(e) any claim by any person alleging that such person is jointly employed by the indemnitee as a result of performing any services as an employee or independent contractor of the indemnitor.

18.4

Infringement.

(a) Each Party shall disclose to the other Party the existence of a written notice received from a third party alleging a claim of infringement or misappropriation regarding (i) in the case of First Data, any item which in First Data’s reasonable discretion is materially or substantially related to the Services, and (ii) in the case of RCSI, any item which in RCSI’s reasonable discretion is materially or substantially related to the RCSI TSA Intellectual Property. Such written disclosure by either Party shall be made to the other Party within ten (10) business days after a Party’s receipt of notice of such claim.

(b) If any item used by First Data to provide the Services becomes, or in First Data’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, or if RCSI’s use of such item or any related Service is enjoined, First Data shall, in addition to indemnifying RCSI as provided in this Article 18 and to the other rights RCSI may have under this Agreement, promptly at First Data’s expense take the following actions:

(i) secure the right to continue using the item or replace or modify the item to make it non-infringing, provided that any such replacement or modification will not degrade the performance or quality of the affected component of the Services; or

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(ii) if (i) is not available to First Data, remove the item from the Services without diminishing any functionality and equitably adjust First Data’s charges to adequately reflect such removal.

18.5

Indemnification Procedures.

With respect to third-party claims, the following procedures shall apply:

(a) Notice. Promptly after receipt by any entity entitled to indemnification under Sections 18.1 through 18.3 of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which the indemnitee will seek indemnification pursuant to any such Section, the indemnitee shall notify the indemnitor of such claim in writing. No failure to so notify an indemnitor shall relieve it of its obligations under this Agreement except to the extent that it can demonstrate damages attributable to such failure. Within fifteen (15) days following receipt of written notice from the indemnitee relating to any claim, but no later than ten (10) days before the date on which any response to a complaint or summons is due, the indemnitor shall notify the indemnitee in writing if the indemnitor elects to assume control of the defense and settlement of that claim (a “Notice of Election”).

(b) Procedure Following Notice of Election. If the indemnitor delivers a Notice of Election relating to any claim within the required notice period, the indemnitor shall be entitled to have sole control over the defense and settlement of such claim; provided that (i) the indemnitee shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim, and (ii) the indemnitor shall obtain the prior written approval of the indemnitee before entering into any settlement of such claim or ceasing to defend against such claim. After the indemnitor has delivered a Notice of Election relating to any claim in accordance with the preceding paragraph, the indemnitor shall not be liable to the indemnitee for any legal expenses incurred by the indemnitee in connection with the defense of that claim. In addition, the indemnitor shall not be required to indemnify the indemnitee for any amount paid or payable by the indemnitee in the settlement of any claim for which the indemnitor has delivered a timely Notice of Election if such amount was agreed to without the written consent of the indemnitor.

(c) Procedure Where No Notice of Election Is Delivered. If the indemnitor does not deliver a Notice of Election relating to any claim within the required notice period, the indemnitee may defend the claim in such manner as it may deem appropriate, at the cost and expense of the indemnitor. The indemnitor shall promptly reimburse the indemnitee for all such costs and expenses.

18.6

Subrogation.

If an indemnitor shall be obligated to indemnify an indemnitee pursuant to Sections 18.1 through 18.3, the indemnitor shall, upon payment of such indemnity in full, be subrogated to all rights of the indemnitee with respect to the claims to which such indemnification relates.

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19.

LIABILITY

19.1

General Intent.

Subject to the specific provisions of this Article 19, it is the intent of the Parties that each Party shall be liable to the other Party for any actual damages incurred by the non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the manner required by this Agreement.

19.2

Liability Restrictions.

(a) Damages Exclusion. IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, LOST PROFITS, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; provided, however, subject to limitations set forth in Section 19.2(b), ***.

(b) Limitation of Liability. Subject to Section 19.2(c), each Party’s total liability to the other for events occurring within a calendar year, whether in contract or in tort (including breach of warranty, negligence and strict liability in tort) shall be limited to an amount equal to the greater of (i) the Charges incurred by RCSI (or, GE Capital, as the case may be) under this Agreement during the *** and (ii) ***; provided, however, to the extent any such liability results from (a) ***, or (b) ***, First Data’s total liability under the preceding clause shall be the greater of (x) the processing fees incurred by RCSI (or, GE Capital, as the case may be) under this Agreement during *** and (y) ***.

(d) Duty of Mitigation. Each Party shall have a duty to mitigate damages for which the other Party is responsible.

19.3

Force Majeure.

(a) Force Majeure Events. No Party shall be liable for any default or delay in the performance of its obligations under this Agreement:

(i) if and to the extent such default or delay is caused, directly or indirectly, by: fire, flood, earthquake, elements of nature or acts of God or any other cause beyond the reasonable control of such Party (each such event, a “Force Majeure Event”); and

(ii) provided the non-performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means (including with respect to First Data by First Data meeting its obligations for performing disaster recovery services as described in this Agreement).

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(b) Excuse from Performance. In such event the non-performing Party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any Party so delayed in its performance shall immediately notify the Party to whom performance is due by telephone (to be confirmed in writing within two (2) days of the inception of such delay) and describe at a reasonable level of detail the circumstances causing such delay.

(c) Alternate Sources. If any event under Section 19.3(a) above substantially prevents, hinders, or delays performance of the Services necessary for the performance of RCSI functions reasonably identified by RCSI as critical for more than two (2) consecutive days, then at RCSI’s option RCSI may procure such Services from an alternate source, and First Data shall be liable for payment for such Services from the alternate source for so long as the delay in performance shall continue. If any event described in Section 19.3(a) above substantially prevents, hinders, or delays performance of the Services necessary for the performance of RCSI functions reasonably identified by RCSI as critical for more than thirty (30) consecutive days, then at RCSI’s option:

(i) RCSI may terminate any portion of this Agreement so affected and the charges payable hereunder shall be equitably adjusted to reflect those terminated Services; or

(ii) RCSI may terminate this Agreement without liability to RCSI or First Data as of a date specified by RCSI in a written notice of termination to First Data.

First Data shall not have the right to any additional payments from RCSI for costs or expenses incurred by First Data as a result of any Force Majeure Event.

20.

DISPUTE RESOLUTION

Any dispute between the Parties arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement and with respect to the performance by First Data or RCSI, shall be resolved as provided in this Article 20.

20.1

Informal Dispute Resolution.

Prior to the initiation of formal dispute resolution procedures, the Parties shall first attempt to resolve their dispute informally, as follows:

(a) Informal Dispute Resolution Proceedings.

(i) Upon the written request of a Party, each Party shall appoint a designated representative who does not devote substantially all of his or her time to performance under this Agreement, whose task it will be to meet for the purpose of endeavoring to resolve such dispute.

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(ii) The designated representatives shall meet as often as the Parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the Parties believe to be appropriate and germane in connection with its resolution. The representatives shall discuss the problem and attempt to resolve the dispute without the necessity of any formal proceeding.

(iii) During the course of discussion, all reasonable requests made by one Party to another for nonprivileged information, reasonably related to this Agreement, shall be honored in order that each of the Parties may be fully advised of the other’s position.

(iv) The specific format for the discussions shall be left to the discretion of the designated representatives.

(b) Formal Dispute Resolution Proceedings. Formal proceedings for the resolution of a dispute may not be commenced until the earlier of:

(i) the designated representatives concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely; or

(ii) thirty (30) days after the initial written request to appoint a designated representative pursuant to Section 20.1(a) above (this period shall be deemed to run notwithstanding any claim that the process described in this Section 20.1 was not followed or completed).

This Section 20.1 shall not be construed to prevent a Party from instituting, and a Party is authorized to institute, formal proceedings earlier to avoid the expiration of any applicable limitations period, or to preserve a superior position with respect to other creditors, and as provided in Sections 20.3 and 21.8 (Equitable Remedies).

20.2

Arbitration.

If the Parties are unable to resolve any dispute as contemplated by Section 20.1 and if such dispute is not subject to Sections 20.3 or 21.8 (Equitable Remedies), then such dispute shall be submitted to mandatory and binding arbitration at the election of either Party (the “Disputing Party”) pursuant to the following conditions:

(a) Selection of Arbitrator. The Disputing Party shall notify the CPR Institute for Dispute Resolution (“CPR”) and the other Party in writing describing in reasonable detail the nature of the dispute (the “Dispute Notice”), and shall request that the CPR furnish a list of five (5) possible arbitrators who shall have substantial experience in the areas of information technology, card processing and software development. Each Party shall have fifteen (15) days to reject two (2) of the proposed arbitrators. If only one individual has not been so rejected, he or she shall serve as arbitrator; if two or more individuals have not been so rejected, the CPR shall select the arbitrator from those individuals.

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(b) Conduct of Arbitration. The arbitrator shall allow reasonable discovery to the extent consistent with the purpose of the arbitration. The arbitrator shall have no power or authority to amend or disregard any provision of this Section 20.2 or any other provision of this Agreement (in particular, the arbitrator shall not have the authority to exclude the right of a Party to terminate this Agreement when a Party would otherwise have such right). The arbitration hearing shall be commenced promptly and conducted expeditiously, with each of RCSI and First Data being allocated one-half of the time for the presentation of its case. Unless otherwise agreed by the Parties, an arbitration hearing shall be conducted on consecutive days.

(c) Replacement of Arbitrator. Should the arbitrator refuse or be unable to proceed with arbitration proceedings as called for by this Section 20.2, such arbitrator shall be replaced by an arbitrator selected from the other four (4) arbitrators originally proposed by the CPR and not rejected by the Parties, if any, or if there are no remaining proposed arbitrators who have not been rejected, by repeating the process of selection described in Section 20.2(a) above. If an arbitrator is replaced pursuant to this Section 20.2(c), then a rehearing shall take place in accordance with the provisions of this Section 20.2.

(d) Findings and Conclusions. The arbitrator rendering judgment upon disputes between Parties as provided in this Section 20.2 shall, after reaching judgment and award, prepare and distribute to the Parties a writing describing the findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator shall be final and binding on the Parties, and judgment thereon may be entered in a court of competent jurisdiction.

(e) Place of Arbitration Hearings. Arbitration hearings hereunder shall be held in Stamford, Connecticut or such other locations to which the Parties agree.

(f) Time of the Essence. The arbitrator is instructed that time is of the essence in the arbitration proceeding, and that the arbitrator shall have the right and authority to issue monetary sanctions against either of the Parties if, upon a showing of good cause, that Party is unreasonably delaying the proceeding. The arbitrator shall render his or her judgment or award within fifteen (15) days following the conclusion of the hearing. Recognizing the express desire of the Parties for an expeditious means of dispute resolution, the arbitrator shall limit or allow the Parties to expand the scope of discovery as may be reasonable under the circumstances.

20.3

Litigation.

(a) Immediate Injunctive Relief. The Parties agree that the only circumstance in which disputes between them shall not be subject to the provisions of Sections 20.1 and 20.2 is as provided in Section 20.1 and where a Party makes a good faith determination that a breach of the terms of this Agreement by the other Party is such that a temporary restraining order or other injunctive relief is the only adequate

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remedy. If a Party files a pleading with a court seeking immediate injunctive relief and this pleading is challenged by the other Party and the injunctive relief sought is not awarded in substantial part, the Party filing the pleading seeking immediate injunctive relief shall pay all of the costs and attorneys’ fees of the Party successfully challenging the pleading.

(b) Jurisdiction. The Parties consent to venue in the State of New York and to the non-exclusive jurisdiction of competent State of New York court or the federal courts in the Southern District of New York for all litigation which may be brought, subject to the requirement for arbitration hereunder, with respect to the terms of, and the transactions and relationships contemplated by, this Agreement. The Parties further consent to the jurisdiction of any state court located within a district which encompasses assets of a Party against which a judgment has been rendered, either through arbitration or through litigation, for the enforcement of such judgment or award against the assets of such Party.

20.4

Continued Performance.

Each Party agrees to continue performing its obligations under this Agreement while any dispute is being resolved except to the extent the issue in dispute precludes performance; provided that a dispute over payment shall not be deemed to preclude performance.

20.5

Governing Law.

This Agreement and performance under it shall be governed by and construed in accordance with the laws of State of New York without regard any provisions of to its choice of law principles which would apply different law (the parties expressly intend to avail themselves of the benefits of Section 5-1401 of the New York General Obligations Law).

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21.

TERMINATION

21.1

Termination for Cause.

(a) Breach. If First Data:

(i) commits a material breach of this Agreement, which breach is not cured within thirty (30) days after notice of breach from RCSI to First Data; provided, however, that, unless (A) a different period of time to cure is specified in this Agreement or (B) an extension of time to cure which is contingent upon the exercise by First Data of diligent efforts to cure is not specifically provided, if First Data is making diligent efforts to cure any such breach from the start of the thirty-day (30) cure period, then such cure period shall be extended for an additional period (not to exceed thirty (30) days) of time necessary to effectuate such cure);

(ii) commits a material breach of this Agreement which is not capable of being cured within thirty (30) days; or

(iii) commits numerous breaches of its duties or obligations which collectively constitute a material breach of this Agreement and are not cured within a sixty (60) day period after notice of breach from RCSI to First Data,

then RCSI may, by giving written notice to First Data, terminate this Agreement, in whole or in part, as of a date specified in the notice of termination. If RCSI chooses to terminate this Agreement in part, the charges payable under this Agreement will be equitably adjusted to reflect those services that are terminated.

(b) Specific Material Breaches. Breaches which individually are material breaches under Section 21.1(a)(i) include the following:

(i) First Data otherwise fails to meet a Key Milestone due to causal factors not attributable to RCSI (or its third party providers);

(ii) If First Data fails to complete the Conversion of the Conversion Portfolios by the Final Conversion Date (as it may be extended from time to time) due to causal factors not attributable to RCSI (or its third party providers); and

(iii) Any breach of Article 7 of Exhibit A-7 (Disaster Recovery and Business Continuation Plans).

21.2

Termination by First Data for Cause.

If, and only if:

(a) RCSI fails to pay First Data when due undisputed charges under this Agreement totaling at least *** under this Agreement within sixty (60) days of the time specified for such payment and such default remains uncured thirty (30) days after written notice from First Data specifying the nature and extent of such default, First Data may by giving written notice to RCSI terminate this Agreement as of a date specified in the notice of termination not less than twelve (12) months following the date of such notice;

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(b) RCSI materially breaches its obligations under *** and does not either (A) cure such breach promptly upon notice or (B) if such breach is not curable with commercially reasonable efforts, provide adequate assurances to First Data that RCSI has taken diligent steps to remedy the circumstances that led to such breach, First Data may by giving written notice to RCSI terminate this Agreement as of a date specified in the notice of termination not less than twelve (12) months following the date of such notice; or

(c) RCSI fails to pay any Daily Amount as provided in Schedule A to this Agreement and such failure is not cured within thirty (30) calendar days from notice, RCSI will be responsible for interest charges after five (5) days after RCSI receives written notice from First Data of such failure.

21.3

Termination for Convenience.

(a) RCSI may terminate this Agreement for convenience and without cause effective after June 30, 2011 by giving First Data at least six (6) months prior notice designating the termination date. In such event RCSI shall be liable to pay to First Data on the effective date of such termination any undisputed amount provided as the Termination for Convenience Fee in Section 18.1 of Schedule C (Termination for Convenience Fees). Such payment shall not be a condition to the effectiveness of RCSI’s termination pursuant to this Section 21.3.

(b) If a purported termination for cause by RCSI under Section 21.1 having an effective date after June 30, 2011 is determined by a competent authority not to be properly a termination for cause, then such termination by RCSI shall be deemed to be a termination for convenience under Section 21.3(a).

21.4

Termination for Failure to ***.

RCSI may terminate this Agreement for failure to *** by giving First Data at least six (6) months prior written notice designating the termination date. In such event RCSI shall be liable to pay to First Data on the effective date of such termination any undisputed amount as provided in Section 18.2 of Schedule C (Termination Fees Under Section 21.4 of the Main Body of the Agreement). Such payment shall not be a condition to the effectiveness of RCSI’s termination pursuant to this Section 21.4.

21.5

Termination Upon Change of Control.

If a change in Control of First Data occurs where such Control is acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of the assets of First Data are acquired, by an entity which is a “major competitor” of RCSI, or First Data is merged with or into another entity to form a new entity, then RCSI may, in its sole discretion, terminate this Agreement by giving First Data at least ninety (90) days prior written notice and designating a date upon which such termination shall be effective. For the purposes of this Section 21.5, a RCSI “major competitor” shall mean one or more of the following entities or successors thereof or their Affiliates: ***.

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21.6

Extension of Termination Effective Date.

RCSI may extend the effective date of termination one or more times as it elects, at its sole discretion, provided that the total of all such extensions shall not exceed one hundred eighty (180) days following the original effective date of termination. For any notice or notices of such extensions provided to First Data within thirty (30) days of the actual date of termination, RCSI shall reimburse First Data for additional out-of-pocket expenses caused by such notices.

21.7

Termination/Expiration Assistance.

Commencing twelve (12) months prior to expiration of this Agreement or on such earlier date as RCSI may request, or commencing upon any notice of termination or of non-renewal of this Agreement (including notice based upon default by RCSI), First Data shall provide the assistance that RCSI requests, either on its own behalf or on the behalf of any successor provider of services (collectively, “Successor”) which may reasonably be required in connection with the transition of the Services and related Conversions (“Termination/Expiration Assistance”). If the Successor is an entity other than RCSI, RCSI shall obtain from the Successor written assurance that the Successor will maintain the confidentiality of First Data’s Confidential Information disclosed or provided to the Successor in the course of receiving such Termination/Expiration Assistance. RCSI shall return all First Data Confidential Information provided to RCSI under this Section 21.7 within thirty (30) days after the transition of Services is completed. First Data’s Termination/Expiration Assistance shall include and be governed by the following:

(a) General. First Data shall:

(i) Provide a plan for the transition of requested operations from First Data which plan is subject to approval by RCSI.

(ii) Provide RCSI access to and use of the information and of the personnel, third parties and other resources then being used by First Data to provide the Services to RCSI. First Data shall, upon request by RCSI, provide to the Successor master file and field descriptions and record layouts and other similar information necessary for RCSI to deconvert from the First Data System and convert to another platform, the Transferred Accounts without disruption to RCSI’s operations.

(iii) First Data shall provide RCSI all required deconversion files within two weeks of request. Multiple requests may be required.

(iv) Provide RCSI with such information regarding the Services as is reasonably prudent or necessary in order for the Successor to assume responsibility for, and continue the performance of, the Services as to the Transferred Accounts in an orderly manner, so as to minimize, as much as possible, disruption in the operations of RCSI.

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(b) Pre-Migration Services. First Data shall:

(i) Provide to RCSI copies of copy books used by First Data in performing the Services.

(ii) Provide to RCSI copies of other information regarding the Services that are required to implement the transition plan, including the following:

(A) copies of the security tables, if any, utilized in the provision of Services to RCSI which are necessary to effect the necessary conversion;

(B) documentation describing the functionality of customized system modifications created on behalf of RCSI, including documentation relating to or affecting the Transferred Accounts; and

(iii) Provide to RCSI (and, at RCSI’s election, to the Successor) both the then-current and new versions of any First Data System documentation related to any RCSI initiated software changes implemented by First Data to the First Data System during such period in order to allow RCSI to review those changes.

(iv) Provide assistance to RCSI in notifying third party vendors of the procedures to be followed during the turnover phase.

(v) Assist RCSI in understanding naming conventions.

(vi) Provide test tapes to assist RCSI in its analysis of the space required for data.

(vii) Provide to RCSI access to First Data Personnel who were performing the Services in order that such personnel may answer the Successor’s questions.

(viii) Provide to RCSI interim tapes of RCSI’s data relating to or affecting the Transferred Accounts.

(ix) Provide to RCSI multiple tape copies of RCSI’s data relating to the Transferred Accounts in First Data’s possession.

(x) Cooperate with RCSI in the preparation for and conduct of migration testing to ensure the orderly transfer of Services.

(xi) Provide to RCSI current and pending project plans and status to enable RCSI to perform enhancement services with minimum disruption to RCSI’s operation.

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(i) Unload all requested data files and other RCSI Information subject to a release from RCSI at the Development Hour rate set forth in Schedule C.

(ii) Deliver to the Successor as requested by RCSI tapes of the requested data files (without content listing) and printouts of control file information relating to or affecting the Transferred Accounts.

(iii) Provide reasonable assistance to the Successor in loading the data files.

(d) Post Migration Services. First Data shall:

(i) Provide additional assistance at RCSI’s request to assure continuity of operations relating to or affecting the Transferred Accounts. Upon request by RCSI, First Data shall maintain account information on-line for a period of time to be specified by RCSI.

(ii) As requested by RCSI, return to RCSI at RCSI’s request, any remaining property of RCSI in First Data’s possession, including any remaining reports, data, and other RCSI Information with respect to the Transferred Accounts. Alternatively, as required by RCSI, First Data shall destroy such property.

(iii) As requested by RCSI, certify to RCSI in writing that all of RCSI’s data and files and all other RCSI Information with respect to the Transferred Accounts have been removed from the First Data System, premises and control and returned or destroyed; provided, however, RCSI specific coding in subroutines which only would be activated upon First Data’s processing of the Transferred Accounts need not be either removed or destroyed.

(e) Third Party Services. To the extent necessary to complete the transition and to the extent permitted by First Data’s contract with the third party, First Data shall make available or use its best efforts to make available to the extent not permitted by First Data’s contract with the third party to Successor or its designee, pursuant to reasonable terms and conditions, any third party services then being utilized by First Data in the performance of the Services including services being provided through third party service or maintenance contracts on software. First Data will be entitled to retain the right to utilize any such third party services in connection with the performance of services for any other First Data customer. First Data will, upon request, deliver to RCSI the RCSI New Materials and any RCSI New Materials work in progress in First Data’s possession or under First Data’s control. Additionally, to the extent not included in the items to be delivered in connection with the foregoing sentence, First Data shall deliver, upon request, to RCSI the Conversion mapping specifications, the documentation relating to the Known Software Conversion Modifications including design functionals documenting technically the changes made or to be made in connection with the Known Software Conversion Modifications and Evolve/*** functional designs for any work completed in connection with the customized Evolve Application.

(f) Survival; Continuity of Services. This Section 21.7 shall survive termination/expiration of this Agreement. For eighteen (18) months following the

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effective date of termination/expiration under other provisions of this Agreement, First Data shall provide, at RCSI’s request, any or all of the Services being performed by First Data prior to such effective date, including any of the Services under this Section 21.7. To the extent First Data is to perform Services under this Section 21.7(f), the provisions of this Agreement shall be applicable as such provisions would have been applicable to such Services prior to such effective date, at the rates set forth in Schedule C except for Sections 3.2, 3.3 and 3.4 of the Main Body of the Agreement and Section 16 of Schedule C.

21.8

Equitable Remedies.

First Data acknowledges that, in the event it breaches (or attempts or threatens to breach) its obligation to provide Termination/Expiration Assistance as provided in Section 21.7 or breaches its obligation of confidentiality pursuant to Article 14, RCSI will be irreparably harmed. In such a circumstance, RCSI may proceed directly to court. If a court of competent jurisdiction should find that First Data has breached (or attempted or threatened to breach) its obligation to provide Termination/Expiration Assistance or its obligation of confidentiality, First Data waives its right to request or obtain any additional findings of irreparable injury or other conditions to injunctive relief, and First Data agrees that it shall not oppose the entry of an appropriate order compelling performance by First Data and restraining it from any further breaches (or attempted or threatened breaches). This Section 21.8 does not limit the rights of the Parties under Section 20.3(a).

22.

WAIVER OF CLAIMS; PAYMENTS TO RCSI BY FIRST DATA

22.1

Waiver.

(a) Each Party on its own behalf (and, in the case of RCSI, its assignor) releases, discharges, and acquits the other Party and its Affiliates from any and all breaches, causes of action and claims, including damages and costs related thereto (whether known or unknown, matured or unmatured, asserted or unasserted) arising out of the Agreement prior to the FAAR Effective Date, other than:

(i) liabilities for taxes;

(ii) RCSI’s obligation to pay invoices for Services rendered in the prior ninety (90) days;

(iii) breaches of obligations of confidentiality not actually known to the injured Party’s senior officers responsible for dealing with the other Party;

(iv) breaches of obligations which give rise to third party liability, whether known or unknown, and which are subject to the indemnity under Section 18.1(a), Section 18.2(a) (and the similar clauses in the Agreement prior to this First Amended and Restated Technology Sourcing Agreement applicable to the Parties or their predecessor entities, including Sections 17.1(a) and 17.2(a)), Section 18.3(c), Section 18.3(d) or 18.3(e);

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(v) infringement of a Party’s rights in Intellectual Property and which are subject to the indemnify under Section 18.1(b) and 18.2(b) (and the similar clauses in the Agreement prior to this First Amended and Restated Technology Sourcing Agreement applicable to the Parties’ predecessor entities, including Sections 17.1(b) and 17.2(b)), for which First Data has an obligation of indemnification to RCSI hereunder; and

(vi) claims for personal injury or property damage which are the subject of insurance coverage.

(b) The exclusive remedy for any breach, cause of action or claim related to any of the foregoing exceptions shall be monetary damages only and no such breaches, causes of action or claims shall serve as the basis for termination of this Agreement, except for breaches of confidentiality which were significant in scope and which are subject to Section 22.1(a)(iii).

22.2

Payments to RCSI.

Within sixty (60) days after the FAAR Effective Date, in consideration of resolution of known disputed items between the Parties, First Data agrees to pay RCSI the sum of *** by wire transfer of immediately available federal funds to such bank account as RCSI may direct.

23.

GENERAL

23.1

Binding Nature and Assignment.

This Agreement shall be binding on the Parties hereto and their respective successors and assigns. Neither Party may, or shall have the power to, assign this Agreement without the prior written consent of the other, except that RCSI may assign its rights and obligations under this Agreement without the approval of First Data to:

(a) any entity which acquires (i) all or substantially all of the assets of RCSI, or (ii) all or substantially all of the assets of one or more of the business units of GECF-A;

(b) any RCSI Affiliate; or

provided, however, that in all such circumstances any permitted successor or assign shall agree in writing to be bound by and assume all of RCSI’s rights and obligations hereunder.

23.2

Entire Agreement; Amendment.

This Agreement, including any exhibits, schedules and addenda referred to herein and attached hereto, each of which is incorporated herein for all purposes, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements (including the First Amendment), whether written or oral, with respect to the subject matter contained in this

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Agreement, other than the PSA. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such change, waiver, or discharge is sought to be enforced.

23.3

Notices.

All notices, requests, demands, and determinations under this Agreement (other than routine operational communications), shall be in writing and shall be deemed duly given:

(a) when delivered by hand (against a signed receipt);

(b) one (1) business day after being given to an express courier with a reliable system for tracking delivery;

(d) six (6) days after the day of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:

If to RCSI to:

Retailer Credit Services, Inc.

c/o President

GE Consumer Finance- Americas

0000 Xxxxxx Xxxxxx

Xxxxxxxx, Xxxxxxxxxxx 00000

With a copy to:

Xxxxx Xxxxxx, Esq.

Vice President & Counsel

GE Consumer Finance- Americas

0000 Xxxxxx Xxxxxx

Xxxxxxxx, Xxxxxxxxxxx 00000

and (for notices of default or termination)

ShawPittman LLP

0000 X Xx., XX

Xxxxxxxxxx, XX 00000

Attn: Xxxxx X. Xxxxxx, Esq.

If to First Data to:

President

First Data Resources Inc.

00000 Xxxxxx Xxxxx

Xxxxx, Xxxxxxxx 00000

With a copy to:

General Counsel

First Data Resources Inc.

00000 Xxxxxx Xxxxx

Xxxxx, Xxxxxxxx 00000

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Either Party may from time to time change its address or designee for notification purposes by giving the other prior written notice of the new address or designee and the date upon which it will become effective.

23.4

Counterparts.

This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the Parties.

23.5

Headings.

The article and section headings and the table of contents used herein are for reference and convenience only and shall not enter into the interpretation hereof.

23.6

Relationship of the Parties.

(a) Independent Contractor. First Data is, and shall at all times be, an independent contractor under this Agreement and not an agent of RCSI. Nothing in this Agreement nor any actions taken by or arrangements entered into between the Parties in accordance with the provisions of this Agreement shall be construed as or deemed to create as to the Parties any partnership or joint venture. First Data shall not have any authority to bind or commit RCSI contractually or otherwise to any obligations whatsoever to third parties.

(b) First Data Human Resource Functions. First Data shall be solely responsible for performing all obligations in connection with the labor and employment relations with First Data employees. First Data shall assign its own human resources staff to perform functions including new hire processing and orientation, employee relations (conflict resolution), compensation (increases and reviews), records administration and reporting.

(c) Taxes; Employee Benefits. First Data shall be solely responsible for the payment of any and all employment taxes and/or assessments imposed on the account of the payment for the services of First Data employees, including any unemployment insurance tax, federal, state, local and foreign income taxes, federal social security payments (FICA) and disability insurance taxes, as well as any and all contributions or payments required pursuant to any employee pension, welfare, bonus or other benefit plan, however defined or described, applicable to any of the First Data employees. First Data shall bear sole responsibility for maintaining and administering workers’ compensation, unemployment and any other insurance required for the First Data employees under law or any plan, as well as for compliance of all statutes and regulations applicable to the employer of the First Data employees. The Parties recognize and agree that the First Data employees providing the Services shall not be entitled to any benefits established and maintained by RCSI or the RCSI Affiliates for their employees, and First Data shall so advise the First Data employees. Any severance payments payable to First Data employees upon termination of their employment with First Data shall be the sole responsibility of First Data. First Data will make appropriate reporting of compensation paid to First Data employees as required by the Internal Revenue Service (“IRS”) including filing of Forms 1099 with the IRS, if applicable.

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(d) First Data Subcontractors. To the extent the First Data Personnel include employees of First Data subcontractors or individuals acting as subcontractors to First Data, First Data shall cause each such subcontractor to comply with Sections 23.6(a), 23.6(b), and 23.6(c) as though all references to “First Data” or “First Data Affiliates” were references to such subcontractor or such subcontractor’s Affiliates.

(e) Proof of Compliance. Upon RCSI’s request, First data shall provide written proof that First Data has complied with its obligations under this Section 23.6.

23.7

Solicitation of Employment.

During the Term and for a period of twelve (12) months following termination of this Agreement, neither Party will solicit for employment any employee of the other Party who had or has any direct participation in the negotiation of this Agreement or the provision of Services hereunder.

23.8

Severability.

If any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by an arbitrator or a court with jurisdiction over the Parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect.

23.9

Consents and Approval.

Except where expressly provided as being in the discretion of a Party, where agreement, approval, acceptance, consent, or similar action by either Party is required under this Agreement, such action shall not be unreasonably delayed or withheld. An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.

23.10 Waiver of Default; Cumulative Remedies.

(a) Waiver. A delay or omission by either Party to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant in this Agreement.

(b) Cumulative Remedies. Except as otherwise expressly provided in this Agreement, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.

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23.11 Survival.

Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement, including those provisions relating to the obligations of First Data in connection with the termination/expiration assistance, shall survive any termination or expiration of this Agreement and continue in full force and effect.

23.12 Public Disclosures.

All media releases, public announcements, and public disclosures by either Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, shall be coordinated with and approved by the other Party prior to release.

23.13 Service Marks.

First Data agrees that it shall not, without RCSI’s prior written consent, use the name, service marks or trademarks of RCSI or its Affiliates.

23.14 Third Party Beneficiaries.

Except as provided in Article 18 (Indemnification), this Agreement is entered into solely between, and may be enforced only by, RCSI and First Data; and this Agreement shall not be deemed to create any rights in third parties, including suppliers and customers of a Party, or to create any obligations of a Party to any such third parties.

23.15 Covenant of Good Faith.

Each Party agrees that, in its respective dealings with the other Party under or in connection with this Agreement, it shall act in good faith.

IN WITNESS WHEREOF, RCSI and First Data have each caused this Agreement to be signed and delivered by its duly authorized officer, all as of the date first set forth above.


RETAILER CREDIT SERVICES, INC.		FIRST DATA RESOURCES INC.

By:	/s/ Xxxxx X. Xxxxxxx	By:	/s/ Xxxxxxx X. Xxxx

Printed:	Xxxxx X. Xxxxxxx	Printed:	Xxxxxxx X. Xxxx

Title:	Vice President, RCSI	Title:	CEO

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SCHEDULE A – SERVICES

TO THE

FIRST AMENDED AND RESTATED

TECHNOLOGY SOURCING AGREEMENT

between

RETAILER CREDIT SERVICES, INC.

and

FIRST DATA RESOURCES INC.

Dated

December 10, 1998

First Amended and Restated as of April 1, 2003

TABLE OF CONTENTS


1. INTRODUCTION.			1

	1.1	GENERAL.	1
	1.2	DEFINITIONS.	1

2. PERFORMANCE OF THE INITIAL CONVERSIONS AND THE KNOWN SOFTWARE CONVERSION MODIFICATIONS			1

	2.1	INITIAL CONVERSIONS.	1
	2.2	RESOLUTION AGREEMENTS.	2
	2.3	KNOWN SOFTWARE CONVERSION MODIFICATIONS.	4
	2.4	INITIAL CONVERSIONS/KSCM PLAN.	4

3. FUTURE FIRST DATA SYSTEM ARCHITECTURE PLAN			6

	3.1	OPERATIONAL AND FINANCIAL RESPONSIBILITY.	6
	3.2	CONTENTS OF THE FUTURE FIRST DATA SYSTEM ARCHITECTURE PLAN.	6
	3.3	UPDATES TO THE FUTURE FIRST DATA SYSTEM ARCHITECTURE PLAN.	6

4. PRIORITY OF DESCRIPTIONS OF SERVICES			7

	4.1	USER MANUALS.	7
	4.2	PERFORMANCE OF SERVICES	7
	4.3	REFUSAL TO AUTHORIZE IMPLEMENTATION OF A RESOLUTION AGREEMENT	7
	4.4	GAP-RELATED SERVICES	8

5. TRANSACTION AND ACCOUNT PROCESSING SERVICES			8

	5.1	GENERAL.	8
	5.2	DESCRIPTION OF TRANSACTION AND ACCOUNT PROCESSING SERVICES – GENERAL SERVICES.	8
	5.3	DESCRIPTION OF TRANSACTION AND ACCOUNT PROCESSING SERVICES – SUPPORT SERVICES.	30
	5.4	LICENSE TO ODS SOFTWARE; THIRD PARTY LICENSING TERMS	32
	5.5	MANUALS AND BULLETINS.	32
	5.6	COMMUNICATION LINKS.	33
	5.7	INTERFACES.	34

6. STATEMENT AND PRODUCTION PROCESSING SERVICES			34

	6.1	STATEMENT PRODUCTION, INSERTION AND DISTRIBUTION.	34
	6.2	TRANSACTION CARD PRODUCTION, INSERTION AND DISTRIBUTION.	35
	6.3	REPORTING OBLIGATIONS AND PROVISION OF INFORMATION.	37

7. MERCHANT SERVICES/ACQUIRER FUNCTIONS			38

8. PERSONNEL RESOURCES			38

	8.1	***	38
	8.2	***	39
	8.3	*** RESOURCES.	40

9. START-UP SERVICES			40

10. ACQUISITION SUPPORT SERVICES			41

	10.1	GENERAL FIRST DATA RESPONSIBILITIES.	41
	10.2	SPECIFIC FIRST DATA RESPONSIBILITIES	41

11. CONVERSIONS, TRANSFERS AND FLIPS			42

	11.1	CONVERSION SERVICES.	42
	11.2	CONVERSION MANAGER, CONVERSION REPRESENTATIVE, AND CONVERSION TEAM.	43

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	11.3	DISCOVERY.	43
	11.4	RESOLUTION AGREEMENTS.	43
	11.5	CONVERSION PLANS.	43
	11.6	SOFTWARE CONVERSION MODIFICATIONS.	45
	11.7	TRANSFERS	45
	11.8	FLIPS.	46

12. DECONVERSION ASSISTANCE			46

	12.1	GENERAL FIRST DATA RESPONSIBILITIES.	46
	12.2	SPECIFIC FIRST DATA RESPONSIBILITIES.	47

13. PROBLEM MANAGEMENT SERVICES			48

	13.1	GENERAL FIRST DATA RESPONSIBILITIES.	48
	13.2	SPECIFIC FIRST DATA RESPONSIBILITIES.	49

14. DISASTER AND BUSINESS RECOVERY			50

15. APPLICATION DEVELOPMENT AND APPLICATION MAINTENANCE			51
	15.1	GENERAL.	51
	15.2	APPLICATION DEVELOPMENT RESPONSIBILITIES.	51
	15.3	FIRST DATA SYSTEM/NON-SHARED-COST INTERFACED NEW MATERIALS	54
	15.4	CLIENT ADVISORY GROUPS.	55

16. TRAINING OF RCSI EMPLOYEES			56

	16.1	TRAINING SERVICES.	56
	16.2	TRAINING LOCATIONS.	58
	16.3	DOCUMENTATION.	58

17. INTERCHANGE SETTLEMENT			59

	17.1	INTERCHANGE SETTLEMENT ACCOUNT.	59
	17.2	TRANSFER OF FUNDS.	59
	17.3	DAILY AMOUNT.	59
	17.4	FAILURE TO TRANSFER.	59
	17.5	SETTLEMENT LATE PAYMENT FEE.	60
	17.6	NO INDEPENDENT OBLIGATION.	60
	17.7	VIOLATION OF RULES.	60
	17.8	RELIANCE ON OTHER PARTIES.	61
	17.9	COMPLIANCE WITH INSTRUCTIONS.	61
	17.10	RESTRICTIONS ON SETOFF.	61
	17.11	TRAILING ACTIVITY.	62

Exhibits Attached to Schedule A


A-1		Discovery Guidelines
A-2		User Manuals
A-3		Adaptive Control Addendum
A-4		RCSI Account Management Team Services
A-5		Third Party Terms
A-6		Future First Data System Architecture CTQs
A-7		Disaster Recovery/Business Continuity

Schedule A

SERVICES

1.	INTRODUCTION.

1.1

General.

(a) First Data shall provide the services, functions and responsibilities described in this Schedule A. RCSI operates in a business environment characterized by constant change that directly affects the delivery of information technology services. First Data shall provide the Services as they may evolve, change, be updated and enhanced during the Term due to changes in technology and in RCSI’s business needs.

(b) The Services relating to CommerciaLine will only include those Services involving the subjects and activities listed below:

(i) settlement/funding;

(ii) correspondence/letters;

(iii) recovery/agency tracking;

(iv) statement file creation; and

(v) embossing file creation.

1.2

Definitions.

Certain terms used in this Schedule A are defined in Schedule E (Glossary) to the Agreement. Other capitalized terms used in this Schedule A are defined in the context in which they are used and shall have the meaning there indicated. References to the Agreement shall mean the text of the Main Body of the Agreement and any and all Exhibits, Schedules, Attachments or Addenda thereto, as it may be amended from time to time. Unless otherwise provided to the contrary, any reference herein to a “Section,” “Article,” or “Exhibit” shall be deemed to refer to a Section or Article of, or Exhibit to, this Schedule A.

2.	PERFORMANCE OF THE INITIAL CONVERSIONS AND THE KNOWN SOFTWARE CONVERSION MODIFICATIONS

2.1

Initial Conversions.

(a) As of the FAAR Effective Date, the Parties have not identified or finalized all of the Known Software Conversion Modifications. Within sixty (60) days after the FAAR Effective Date, First Data shall update and send to RCSI for review and approval the latest agreed-upon version of the Discovery plan for RFS (the “RFS Discovery Plan”) (such updated RFS Discovery Plan, the “GECF-A Discovery Plan”). The version of the GECF-A Discovery Plan provided by First Data to RCSI shall be sufficient to

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enable First Data to complete the detailed and comprehensive review and analysis by First Data of the features, functions and capabilities of the systems on which the Conversion Portfolios are, as of the date of such review and analysis, being processed. The review and analysis required under this Section 2.1(a) shall incorporate, update, and build on the results of the Discovery process for RFS (“RFS Discovery”) and shall be referred to herein as the “GECF-A Discovery”. The GECF-A Discovery Plan shall include the schedule for undertaking and completing the GECF-A Discovery. First Data shall incorporate into the GECF-A Discovery Plan the changes and additions requested by GECF-A and shall provide an updated draft incorporating such changes and additions within thirty (30) days following its receipt of such changes and additions. Upon final approval of the GECF-A Discovery Plan by GECF-A, First Data shall resume and complete the GECF-A Discovery in accordance with the schedule set forth in the approved GECF-A Discovery Plan, which will require completion of GECF-A Discovery within a period of sixty (60) days following GECF-A’s final approval.

(b) The GECF-A Discovery will be conducted in accordance with the GECF-A Discovery Plan and the “Discovery Guidelines” attached as Exhibit A-1. RCSI can request changes to the GECF-A Discovery Plan. In response to any such request, First Data shall identify the schedule impacts of the requested change. First Data shall proceed with the change, or not proceed, as so directed by RCSI. Changes to the GECF-A Discovery Plan desired by First Data will be subject to the approval of RCSI.

(c) As part of the GECF-A Discovery, First Data shall determine and identify to RCSI the Gaps between the GECF-A systems (as such systems may be modified, or identified as requiring modification, in connection with GECF-A and other initiatives, the specifics of which modifications shall be determined and described to First Data by RCSI) and the First Data System, propose Resolution Agreements and identify the KSCMs, all as further described below.

2.2

Resolution Agreements.

(a) First Data shall prepare for each Gap a resolution agreement (each a “Resolution Agreement”), which it shall present to GECF-A for consideration and approval. For any existing Resolution Agreement created under the Agreement prior to the FAAR Effective Date, the Parties shall review and validate the content of such Resolution Agreement, and any impact identified in such Resolution Agreement as to a billing element included in Exhibit C-1 of Schedule C shall not be applicable. Each Resolution Agreement shall:

(i) identify a single Gap;

(ii) propose alternate solutions for providing to GECF-A the missing functionality;

(iii) provide the work effort for development and other work necessary to implement each proposed solution; and

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(iv) identify the impact to the billing elements for each proposed solution, if any, under Schedule C.

First Data and RCSI will discuss the comprehensive testing requirements for each Resolution Agreement. First Data agrees that the proposed hours for each Resolution Agreement solution is inclusive of all activities required to support testing at the level requested by RCSI. If one of the proposed solutions is not a change to the First Data System, First Data shall explain why and its justifications for such omission; provided, however that if (A) RCSI is requesting a change in process and/or Services relating to a Designated Account, and (B) if RCSI explicitly requests, then one of the solutions proposed by First Data must include an integrated change in the First Data System.

(b) Following receipt of a Resolution Agreement, RCSI shall:

(i) identify and communicate to First Data which solution it wants First Data to implement;

(ii) propose modifications to one or more of the alternate solutions; or

(iii) propose one or more different alternate solutions. If RCSI chooses to propose one or more different alternate solutions, First Data shall have the option to explain any objections it may have to such solution(s). RCSI shall then designate the solution First Data is to adopt. RCSI shall also prioritize the performance of the Resolution Agreement according to RCSI’s desire to implement such Resolution Agreement before or after the relevant Initial Conversion.

(c) As part of the GECF-A Discovery and the GECF-A Discovery Plan, the Parties will cooperate in good faith and re-examine the scope and timing of all of the solutions selected in the Resolution Agreements addressing the Gaps with the mutual goal of consolidating such Resolution Agreements and solutions to those that are “business critical” (i.e., those solutions pertaining to client-specific requirements or compliance issues or potentially having a non-trivial financial or operational impact) as designated by RCSI. Consistent with this objective, the Parties agree that:

(i) in cases where existing First Data functionality or processes are substantially equivalent to functionality or processes proposed by RCSI, First Data may request that RCSI defer to the First Data approach in the interests of minimizing development and completing the Conversions in a timely manner; and

(ii) if RCSI, after due consideration and discussion with First Data, disagrees with such First Data request, the Parties will escalate their disagreement to the Chief Information Officer of GECF-A (or his or her designee) and the Chairman of FDC (or his or her designee) for attempted resolution.

If an issue is escalated pursuant to this Section 2.2(c) and not resolved, then the approach originally requested by RCSI shall prevail.

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(d) Once RCSI has identified the solution to be adopted, First Data shall revise the Resolution Agreement to reflect:

(i) the chosen solution; and

(ii) its schedule for development and work necessary to implement the chosen solution; and

(iii) identify the impact to the billing elements, if any, under Schedule C.

2.3

Known Software Conversion Modifications.

(a) In accordance with the applicable Resolution Agreements, First Data shall undertake and complete the Known Software Conversion Modifications pursuant to the AD processes set forth in Section 15.2(a), Sections 15.2(b)(iv) through 15.2(b)(xi) and Section 15.2(c). The obligations set forth in those Resolution Agreements which are approved by RCSI are binding. The completion date set forth in the Initial Conversions/KSCM Plan for each Resolution Agreement (as set forth below in Section 2.4) shall also be binding on First Data. Nothing in this Section 2.2 shall be construed to relieve First Data of its obligation to complete the work noted in a Resolution Agreement, and First Data shall remain obligated to perform the work required, even if such performance causes, or has caused, First Data to expend a number of hours in excess of any estimated amount set out in any Resolution Agreement.

(b) Each KSCM shall be completed by the date specified in the Initial Conversions/KSCM Plan (as described below in Section 2.4). Upon RCSI’s approval of the contents of the Resolution Agreement, RCSI will approve the Resolution Agreement and use its best efforts to return the Resolution Agreement to First Data within ten (10) business days after RCSI’s receipt of such Resolution Agreement.

(c) As provided in Article 5 of Schedule C, there shall be no charge to RCSI under the Agreement for, or in connection with, performance of the Known Software Conversion Modifications, including preparation, maintenance and updating of the GECF-A Discovery Plan, the Initial Conversion/KSCM Plan (as defined below in Section 2.4), performance of the GECF-A Discovery, and preparation, finalization and implementation of the Resolution Agreements and the work authorized thereby.

2.4

Initial Conversions/KSCM Plan.

(a) First Data shall undertake and complete the Conversion of the Conversion Portfolios (each such Conversion, an “Initial Conversion” and all such Conversions, collectively, the “Initial Conversions”) in accordance with the Initial Conversions/KSCM Plan.

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(b) First Data shall complete the Initial Conversions by the Final Conversion Date. Except as otherwise agreed by the Parties, First Data shall perform the KSCMs:

(i) upon completion of the GECF-A Discovery and throughout the period of time from the FAAR Effective Date until and including the Final Conversion Date (such period, the “Initial Conversion Period”); and

(ii) in accordance with the Initial Conversions/KSCM Plan.

(c) Within forty-five (45) days after completion of the GECF-A Discovery, First Data shall, subject to review and approval by GECF-A, produce a plan for the Initial Conversions and performance of the KSCMs (the “Initial Conversions/KSCM Plan”). The Initial Conversions/KSCM Plan, which shall be part of the Agreement, shall include Key Milestones and the dates by which those Key Milestones must be achieved for the Initial Conversions and the performance of the KSCMs and shall specify the procedure by which the Parties will determine when each Initial Conversion is complete. The Initial Conversions/KSCM Plan shall include a schedule for completion of each Initial Conversion and KSCM proposed by First Data and approved by GECF-A. KSCMs required in connection with an Initial Conversion may be performed on a schedule consistent with the agreed performance of such Initial Conversion.

(d) In response to any request from GECF-A for changes to existing Resolution Agreements already agreed upon by GECF-A, additional enhancements or Software Conversion Modifications beyond the Known Software Conversion Modifications following approval of the Initial Conversions/KSCM Plan, First Data shall identify:

(i) the potential alternative approaches to effect the change; and

(ii) the incremental (or decremental) cost and schedule impacts of each of the alternative approaches.

First Data will proceed with the alternative chosen by RCSI, or not proceed if so determined by RCSI. Changes desired by First Data will be subject to the approval of RCSI and shall not increase any charges, fees or expenses to RCSI under the Agreement. To the extent a change directed by RCSI causes a delay, identified by First Data, in the implementation or performance of a Resolution Agreement, the schedule shall be adjusted to reflect such delay. First Data shall use its best efforts to ensure that any change has minimal adverse impact to the schedule.

(e) First Data shall include in each Monthly Performance Report a description of the status of the implementation of each Initial Conversion, and the performance of the KSCMs as against the Initial Conversions/KSCM Plan. First Data shall also include in each Monthly Performance Report notification to RCSI of any delays or potential delays in the implementation of each Initial Conversion and the performance of the KSCMs. If either Party becomes aware of an event which has delayed, or will likely cause a delay in, the performance of the Initial Conversions/KSCM Plan, such Party will notify the other Party. If RCSI approves of an amendment which causes a delay in the initial or ongoing implementation of the Initial Conversions/KSCM Plan, each of First Data and RCSI shall use its best efforts to recover the schedule set forth in the Initial Conversions/KSCM Plan without having to assume or carry out the responsibilities of the other Party.

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3.	FUTURE FIRST DATA SYSTEM ARCHITECTURE PLAN

3.1

Operational and Financial Responsibility.

First Data shall have the sole operational and financial responsibility for successful implementation of the Future First Data System Architecture in accordance with the Future First Data System Architecture Plan.

3.2

Contents of the Future First Data System Architecture Plan.

Subject to any changes required or approved by GECF-A under Section 3.3 of the Main Body of the Agreement, the Future First Data System Architecture Plan shall include:

(a) a Six Sigma plan for undertaking and performing each of the individual projects and initiatives required in order to implement the Future First Data System Architecture;

(b) a schedule for the development, testing, and implementation of the subprojects of the Future First Data System Architecture Plan; and

(c) identification of progress measurements and Key Milestones for the implementation of the Future First Data System Architecture.

3.3

Updates to the Future First Data System Architecture Plan.

First Data shall provide to GECF-A updates to the Future First Data System Architecture Plan no less frequently than once each calendar quarter. In its planning and execution of the Future First Data System Architecture Plan, First Data shall keep RCSI advised of possible required, and First Data proposed, changes to the Future First Data System Architecture Plan and shall consider in good faith all requests from RCSI for changes to and suggestions of modifications to the Future First Data System Architecture Plan and the individual projects undertaken in connection with the Future First Data System Architecture Plan. First Data shall include in each Monthly Performance Report a detailed report of First Data’s performance in achieving the Future First Data System Architecture Plan Key Milestones and dates, as well as progress measurements and the information required for applicable tollgate checkpoints, if any. First Data shall also include in each Monthly Performance Report a detailed report of:

(a) the progress made by First Data on the Future First Data System Architecture Plan in general;

(b) each Future First Data System Architecture Plan sub-project in progress at the time of the Monthly Performance Report; and

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(c) each Future First Data System Architecture Plan sub-project scheduled to be undertaken by First Data within the next twelve (12) months.

4.	PRIORITY OF DESCRIPTIONS OF SERVICES

4.1

User Manuals.

Except as provided herein, User Manuals (including those attached at Exhibit A-2) in effect as of the FAAR Effective Date may explain and describe the manner in which First Data may fulfill part of its requirement to provide the Services, but such User Manuals shall not diminish the requirement that First Data provide the Services as required under the Agreement.

4.2

Performance of Services

The manner in which such Services are to be performed, as explained and described in such User Manuals, shall be modified, supplemented or superceded, as applicable, through:

(a) the implementation of the Resolution Agreements and the performance of the work authorized thereby;

(b) implementation of the results of the AD projects completed by First Data;

(d) implementation of the Approved Platform Integration Plan.

Unless otherwise agreed by RCSI, neither the manner in which the Services are to be performed nor the Services themselves shall be affected by any description of the Services contained in new User Manuals or in revised or updated User Manuals (“Subsequent User Manuals”).

4.3

Refusal to Authorize Implementation of a Resolution Agreement

If RCSI refuses to authorize implementation of a Resolution Agreement which has been prepared in accordance with the procedures set forth in Section 2.2, First Data shall no longer be responsible for providing the portion of the relevant Service which would have been provided had such Resolution Agreement been successfully implemented; provided, however, that if after the final Initial Conversion RCSI requests First Data to perform AD in order to provide such portion of such relevant Service, First Data shall then be required to provide such portion of such relevant Service and, pursuant to Section 4.1(b), the manner in which such Service is to be performed shall be modified, supplemented or superceded, as applicable, through the implementation of the results of such AD projects and shall prevail over the description of such Service contained in Subsequent User Manuals.

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4.4

Gap-Related Services

If, after the final Initial Conversion, the Parties discover a Gap and:

(a) the User Manuals in effect as of the FAAR Effective Date are silent as to such Gap-related Service, in whole or in part;

(b) such Gap-related Service is set forth in this Schedule A; and

then First Data must provide such Gap-related Service if and when requested by RCSI, and RCSI shall pay for the authorized Development Hours expended to complete such Gap at one half (1/2) of the Development Hour rate as set forth in Schedule C.

5.	TRANSACTION AND ACCOUNT PROCESSING SERVICES

5.1

General.

First Data shall provide transaction and Account processing services for the Designated Accounts as more fully described in this Section 5.1. These services include those related to authorizations, Designated Account updating and posting, settlement/funding, new Designated Account applications, creation and processing, PIN management, Designated Account management, customer service, correspondence, chargebacks and retrievals, adjustments, monetary transactions, disputes, Evolve, collections, charge-off processing, account billing, statement file creation, embossing file creation, recovery and agency tracking, behavior scoring/adaptive control, fraud control, securitization, reports management, data extraction, delivery and receipt, statement access and storage, recurring runs, data warehousing, systems administration, servicing of closed end loans, administrative and subject matter expert support and record retention. The specific activities constituting, and the responsibilities of First Data in connection with, these Services are more specifically described in this Article 5. First Data shall provide transaction and Account processing services for Designated Accounts related to an Association in the manner required to deliver the most advantageous intercharge rates and fraud protection for RCSI.

5.2

Description of Transaction and Account Processing Services – General Services.

(a) Authorizations.

(i) First Data shall accept electronic, both in batch and in real-time, requests for authorization of monetary transactions (including purchases, payments, cash advances and merchandise returns) in connection with the Designated Accounts.

(ii) First Data shall respond to interactive messages immediately upon completion of processing of each individual message. Requests arriving in batch form shall be processed with responses returned following the completion of processing for the batch of requests received from RCSI or its third party provider(s).

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(iii) First Data shall process each request according to:

(A) the authorization control parameters established by RCSI within the First Data System; and

(B) RCSI Rules.

For each authorization request the First Data System shall follow the processing logic invoked by the specified parameters and the RCSI Rules and generate a response of approved and any special handling requirements, declined or referred for special handling.

(iv) First Data shall communicate with RCSI’s front-end authorization systems through its CPU to CPU authorization facility to support RCSI’s operations. The GECF-A front-end system will capture individual Cardholder authorizations from its client locations and transmit them to the First Data System in a standard message format or GECF-A’ standard message formats via a telecommunications facility. Such transmissions may originate from more than one RCSI facility (i.e., Raleigh, North Carolina and Alpharetta, Georgia). Upon receipt, the First Data System will process each request and return the response in standard formats required by GECF-A or other formats specified by RCSI to the GECF-A front-end authorization system.

(v) The GECF-A system will be responsible for providing stand-in authorization processing in the event of a failure of the First Data System and First Data’s back-up system or a failure of the telecommunications facility interconnecting the two (2) systems.

(vi) Authorization requests for Designated Accounts may flow directly from Visa, MasterCard, other Associations and other third party sources to the First Data System. First Data shall be responsible for adhering to standard message formats required by Visa and MasterCard and such other Associations and third party sources for such authorization requests.

(vii) The accessing of Designated Accounts for an authorization at the card level or account level, including, but not limited to, PIN verification and cardholder address verification is included in the Services.

(viii) First Data shall update the Designated Account information with the results of each authorization request and provide an on-line audit trail for every entered authorization. First Data shall follow the RCSI Rules pertaining to alternative processing if the message is received but the authorization system is not available.

(ix) First Data shall switch to the backup authorization capability of the First Data System immediately upon failure of the primary system. The backup system shall reside on a separate hardware platform and possess a separate copy of the RCSI client data required to grant authorizations.

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(b) Account Updating and Posting.

First Data will provide transaction processing services with the capabilities required to receive, enter, process and post account transaction activity. The processing and posting of transactions shall be accomplished using a wide variety of controls and settings available to and selected by RCSI. Monetary transactions, including sales, returns, refunds, adjustments, chargebacks, and payments shall be performed and supported by First Data. Other non-monetary transactions shall be supported and used to maintain non-monetary account information. Authorization transactions shall also be performed and supported by First Data. The User Manuals, listed and described in Exhibit A-2, provide detail on both basic and enhanced transaction processing capabilities.

(i) First Data shall provide to RCSI the functionality necessary to enable RCSI to create new Designated Accounts on the First Data System according to RCSI Rules.

(ii) First Data shall provide to RCSI real-time information/communications links from RCSI to the First Data System enabling RCSI to send to the First Data System the information and communications necessary to enable RCSI to operate fully the functionality of the GENASYS Application(s), Surveyor and all successor RCSI new Account application, creation and processing applications and processes.

(iii) First Data will receive transmissions from RCSI or its designee, or enable RCSI to open accounts through manual entry, that include new account and other non-monetary information. First Data shall process such information according to RCSI Rules and will establish new Designated Account records. In all cases, First Data shall cause the new Designated Account to be available for use by the Cardholder and accessible on-line by RCSI for viewing and editing.

(iv) First Data shall maintain a database of all Designated Account numbers and will periodically update the First Data System to reflect such information.

(d) PIN Management.

(i) As and in the manner requested by RCSI, First Data shall establish and deliver PINs to Cardholders in a secure manner and enable Cardholders to request changes to their PINs including by use of a touch-tone telephone. If a Cardholder chooses a customized PIN number, First Data shall provide a secure procedure for processing and delivering that PIN number to RCSI or its designee.

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(ii) First Data shall maintain PIN offsets based on the Designated Account number, the PIN and other factors. First Data shall correctly perform offset calculations, as defined by RCSI, in order to store the appropriate values for Cardholder use and to verify the validity of the PINs required by particular transactions (e.g., ATM transactions). First Data shall maintain the PINs under strict security (e.g., by providing an environment suitable for the use of encryption keys).

(e) Account Management Services.

(i) First Data shall enable RCSI to develop and maintain on the First Data System as many different types of Designated Account pricing terms as RCSI determines, and in doing so, provide requested assistance to RCSI. These pricing terms shall include interest charges, income options, penalty fees, and payment options. RCSI shall be able to change the values within the set of existing First Data System parameters that define the pricing terms on-line or without having to incur any fees. Such functionality shall, as of the Effective Date, be made available to RCSI through, in part, the First Data On-Line Product Control File Management System.

(ii) First Data shall enable RCSI to assign a separate pricing strategy to each individual Designated Account. The individual pricing strategies shall include RCSI-defined values for the following pricing parameters:

(A) interest charges;

(B) income options (e.g., annual fees, item charges);

(D) payment options (e.g., skip payment, fixed payment); and

(E) rebates, bonus points and rewards.

Such functionality shall, as of the Effective Date, be made available to RCSI through, in part, the First Data “Account Level Processing Services,” “Transaction Level Processing Services” and “Transaction Level Rewards Services”.

(iii) First Data shall enable RCSI to assign unique terms, conditions and processing options to different types of Designated Account transactions, and in doing so provide requested assistance to RCSI. These terms shall include such features as billing promotions, interest rates, fees, special terms on balance transfers, rebates and discounts on qualified purchases. First Data shall enable RCSI to make such offers through consumer agreements, letters, statement inserts, or statement messages. Such functionality shall, as of the Effective Date, be made available to RCSI through, in part, the First Data Transaction Level Processing Services.

(iv) First Data shall enable RCSI to design and implement an unlimited number of simultaneous reward, rebate, bonus and transaction pricing programs and offer Cardholders value propositions such as introductory rates,

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interest-free balance repayment periods and reduced fees. Each Cardholder transaction shall be able to qualify for such programs, as determined by RCSI. RCSI shall be able to determine and define transaction and Account eligibility, calculation, and reward distribution. Such functionality shall be made available to RCSI through the First Data Transaction Level Processing Services and the First Data Transaction Level Rewards Services.

(f) Customer Service.

(i) First Data shall provide RCSI with access to the First Data System sufficient to enable RCSI to utilize all the functionality of RCSI’s chosen front-end customer service Applications, including 3270 access, Evolve, GE Workstation and any other interface requirements specified by RCSI.

(ii) In connection with the foregoing, First Data shall provide RCSI with access to the First Data System sufficient to enable RCSI to:

(A) use the functionality in the customer assisted front-end Application and related Applications and all successor RCSI customer service applications and processes (“GE Workstation”); and

(B) communicate updates (including the processing of monetary and non-monetary transactions) to Designated Accounts through GE Workstation and Evolve on a real-time basis. First Data shall immediately update the Designated Accounts and the First Data System to reflect such updates.

(iii) First Data shall provide to RCSI data packets meeting the RCSI specifications. First Data shall provide technical support for connectivity as required by RCSI.

(iv) First Data shall provide RCSI with complete access to a 3270-based customer service system fully integrated with the First Data System. At a minimum, the 3270-based customer service system will permit RCSI to access on-line the Designated Account information residing on the First Data System, including:

(A) demographics, balance and status information, including current and historical conditions;

(B) cycle-to-date activity, including monetary transactions which have posted to each Designated Account and authorizations which have been approved or denied since completion of the last billing cycle;

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(D) payment history;

(E) memos concerning the subject Designated Account;

(F) individual Designated Account pricing strategies and any unique Designated Account level and transaction level pricing terms and conditions; and

(G) real-time authorizations activity enabling RCSI to view approved and denied authorizations for each Designated Account.

The 3270-based customer service system will include a real-time, on-line workflow management system enabling RCSI to log, track, assign, manage and monitor incoming customer inquiries and will provide those tools necessary for RCSI to consistently and efficiently resolve Cardholder inquiries while providing RCSI with the statistical information required to manage customer service. The 3270-based customer service system shall enable RCSI, directly or through interfaces with one or more other First Data System subsystems, to create and transmit by mail, facsimile and e-mail, communications with third parties, including RCSI customers, Cardholders, and Merchants. The 3270-based customer service system shall also enable RCSI to design and use customized transaction response screens. Such functionality shall be made available to RCSI through, in part, the First Data “Customer Inquiry System” (“CIS”) and the “Customer Inquiry Management System” (“CIMS”).

(g) Correspondence and Letters.

First Data shall make available to RCSI functionality enabling RCSI to create, maintain, revise, update, and organize letter formats in accordance with RCSI’s business requirements. At RCSI’s request, First Data shall maintain or enhance the First Data correspondence systems in accordance with RCSI’s business requirements. The First Data correspondence system providing such functionality, in accordance with system parameters and RCSI Rules, will interface with the other appropriate First Data Systems, RCSI systems, and RCSI-designated systems so that First Data or RCSI’s designee may prepare, produce and mail Cardholder correspondence and related materials.

(h) Chargebacks and Retrievals.

(i) First Data shall make available to RCSI functionality enabling RCSI to initiate chargeback transactions, representment transactions and retrieval requests, as required by RCSI, by entering the applicable codes and fields into the First Data System.

(ii) First Data shall perform the necessary pre-processing edits in accordance with applicable legal requirements and will deliver the pre-processed transactions to Visa, MasterCard, other Associations and, at RCSI’s request, RCSI

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customers. First Data shall reflect the successful and rejected transactions in the nightly batch processing so that the daily success and reject reports include notification of all such transactions.

(iii) First Data shall, at the times specified by RCSI, provide settlement reports reflecting the disputed chargebacks. In the event of a disputed chargeback, First Data shall provide RCSI with use of functionality enabling RCSI to initiate a further transaction by entering the applicable codes and fields. First Data shall process the transaction in order to clear the appropriate Designated Account(s) by either processing a second chargeback or by transferring the funds to another Designated Account, in accordance with RCSI Rules.

(iv) First Data shall promptly route all retrieval requests or dispute correspondence letters that it receives or produces to the appropriate RCSI personnel or RCSI customer.

(i) Adjustments, Monetary Transactions and Disputes.

(i) Adjustments and Monetary Transactions. First Data shall process transactions to credit or debit Designated Accounts and Merchant Accounts in accordance with RCSI Rules and First Data System parameters. First Data shall update the Designated Accounts and the First Data System to reflect such transactions.

(ii) Disputes. First Data shall make available to RCSI functionality which will enable RCSI to initiate disputes as determined by RCSI and enable RCSI to:

(A) retain disputed amounts in Designated Accounts;

(B) permit or prevent those amounts from accruing interest or any other fees;

(D) report to the credit bureau reporting agencies designated dispute information; and

(E) cause the First Data System to reassess and recalculate previous interest and charges based upon amounts readjusted due to the existence or resolution of a dispute.

(j) Data Access Tools.

(i) First Data shall enable RCSI to access and update the Designated Accounts and other information stored on the First Data System through the client/server data access tools chosen by RCSI (collectively, the “Data Access Tools”). As of the FAAR Effective Date, that tool is the First Data proprietary product “Open

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Data Streams” (“ODS”). First Data shall make the Data Access Tools available to RCSI as the mechanism to exchange transactional-oriented data between the First Data System and RCSI-developed workstation systems such as GE Workstation or GE interactive voice response systems (“IVRS”). Through the Data Access Tools First Data shall enable RCSI to retrieve and update Designated Account data in customized groupings known as “Views.” As requested by RCSI, First Data shall provide to RCSI Documentation concerning the operation and functionality pertaining to the Data Access Tools, available data elements and system configuration requirements and shall, during the Term, provide to RCSI updates and modifications to the Documentation as necessary to keep such Documentation current.

(ii) As requested by RCSI, First Data shall create additional Views (read transactions) and “Remote Procedure Calls” (update transactions), install additional Data Access Tool gateways, develop and program custom data access, and provide Development Hours to RCSI. Such Services shall be provided within the time periods specified in Section 15.1(e). First Data shall provide support for:

(A) the latest versions of third party software used in the installation and operation of the Data Access Tool and the base Evolve Application (“Base Evolve Application”) at RCSI; and

(B) third party products as required by RCSI.

(iii) When the Data Access Tool is used by RCSI as the mechanism to exchange transactional-oriented data, RCSI shall adhere to the programming interface requirements set forth in the Data Access Tool reference manuals. RCSI shall maintain the minimum required hardware and software operating environments as defined in the Data Access Tool reference manuals

(iv) First Data shall at all times (subject to scheduled downtime as set forth in Schedule B) make available to RCSI a Data Access Tool that will enable RCSI to communicate updates (including the processing of monetary and non-monetary transactions) to Designated Accounts on a real-time basis. First Data shall immediately update the Designated Accounts, and the First Data System, to reflect such updates.

(v) The provision to RCSI of access to (and RCSI’s use of) the Data Access Tool is included in the Services.

(k) Collections.

(i) First Data shall provide RCSI with access to the First Data System sufficient to enable RCSI to utilize all the functionality of RCSI’s chosen front-end collections Applications, including 3270 access, Evolve, GE Workstation and all successor collections applications and processes, and any other interface requirements specified by RCSI.

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(ii) First Data shall recognize and report as specified by RCSI past due, special handling (may not be delinquent or overlimit) and/or overlimit accounts as defined in the First Data System using parameters approved by RCSI. First Data shall furnish past due and overlimit Designated Account information to RCSI and/or its designee(s) via data feeds in the manner specified by RCSI including but not limited to functionality provided by adaptive control. Pursuant to RCSI Rules, First Data shall provide the capability for RCSI to take action, such as generating letters, generating statement messages, blocking Designated Accounts, feeding data to related systems, and receiving, updating and maintaining collections data from RCSI and/or its designees. First Data shall process charged-off Designated Accounts and special handling Designated Accounts, such as bankruptcy, deceased, skip tracing and legal Designated Accounts, and interface with the RCSI information environment as requested by RCSI. First Data shall provide to RCSI the functionality necessary for assigning to collectors and collection agencies delinquent Designated Account debts, transmitting delinquent Designated Account information in connection with First Data’s automated customer calling system, tracking and managing collectors and collection agencies, letter generation, Designated Account termination, and performance reporting.

(iii) First Data shall provide RCSI with complete access to a 3270-based collections system fully integrated with the First Data System. Notwithstanding the technical aspects of the collections systems used by RCSI, First Data shall permit RCSI’s collectors to use on-line transactions to view the Designated Accounts and related information in the First Data System and in their assigned queues, record actions taken, and re-queue Accounts for future review. First Data shall make available to RCSI a combination of on-line screens and reports which will enable RCSI to monitor collector and collection system productivity as often as required by RCSI. First Data shall also make available to RCSI the ability to use on-line transactions to reassign work among queues.

(l) Charge-Off Processing.

First Data shall make available to RCSI the functionality necessary to manually charge-off Designated Account balances via on-line entry or automatically by establishing applicable parameters within the First Data System determining Designated Account qualification for charge-off as well as charge-off timing. The First Data System shall, at a minimum, enable RCSI to engage in the following activities:

(i) automatic charge-offs;

(ii) small debit balance write-offs;

(iii) small debit balance carry-overs;

(iv) small credit balance write-offs and carry-overs;

(v) interest write-offs; and

(vi) interest/fees write-offs.

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(m) Recovery and Agency Tracking System-Recovery1.

(i) First Data shall provide RCSI the use of a fully automated recovery and agency tracking system, which as of the Effective Date shall be Recovery1, which RCSI may use to organize, track, and work charged-off Designated Accounts including charge-off special handling Designated Accounts such as bankruptcy, deceased and legal Designated Accounts.

(ii) The recovery system shall enable RCSI, using on-line screens, to cause charged-off Designated Accounts to be assigned to specific collectors and collection agencies, to monitor recovery efforts through RCSI-designed reports, and to manually and automatically recall Designated Accounts from collectors and collection agencies. It shall also enable RCSI to enter monetary and non-monetary information into the First Data System in connection with individual Designated Accounts and cause such monetary and non-monetary information to be automatically passed back and forth between the Cardholder masterfile and the recovery system database, in order to keep both current.

(n) Interface to Recovery Systems.

(i) At the request of RCSI, First Data shall transmit to RCSI files of newly charged-off Designated Accounts suitable for immediate loading by RCSI to RCSI’s in-house recovery system, based upon RCSI’s requirements.

(ii) RCSI shall transmit to First Data files of newly charged-off Designated Accounts suitable for immediate loading by First Data to First Data’s in-house recovery system (which as of the Effective Date shall be the Recovery1 system), based upon RCSI’s requirements.

(o) Behavior Scoring and Adaptive Control.

(i) Adaptive Control. First Data shall provide RCSI with data and functionality sufficient to enable RCSI to make specialized decisions at the Designated Account level for authorizations, collections, reissues and credit line management and at the transaction level for authorizations.

(ii) Behavior Scoring. At the intervals, and upon the occurrence of events specified by RCSI, for each Designated Account identified by RCSI, First Data shall provide a behavior score calculating the statistical probability that such Designated Account will become past due in the time period(s) specified by RCSI, along with the information First Data used to assess such risk.

(iii) Custom Scorecard Development At RCSI’s request, First Data shall implement ad hoc custom developed scores and will update the data in the First Data System and the ancillary systems.

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(iv) Behavior scoring and adaptive control (“Adaptive Control”) services shall, in part, be provided to and used by RCSI pursuant to the terms of the agreement attached as Exhibit A-3. Within one hundred and eighty (180) days following the FAAR Effective Date, First Data, with the assistance of RCSI, will obtain the consent of Fair, Xxxxx and Company, Inc. to the amendment letter attached as Exhibit A-3. The Parties acknowledge that all pricing terms set forth in the Adaptive Control and Behavior Scoring Addendum at Exhibit A-3 are superseded by the pricing terms set forth in Schedule C.

(p) Fraud Services.

(i) General. First Data shall provide information, functionality and services as requested by RCSI to enable RCSI to minimize and manage fraud (“Fraud Management Services”). First Data shall make available and perform for RCSI the Fraud Management Services set forth below. Such Fraud Management Services to be performed by First Data for RCSI shall include all of the fraud-related services offered by First Data to its customers, including, as of the FAAR Effective Date, the Services designated under the First Data System as Fraud Prevention, Fraud Detection and Fraud Control.

(ii) Fraud Prevention. Upon RCSI’s request, First Data shall provide RCSI with the fraud prevention services available through the First Data System, as well as the following fraud prevention Services (the “Fraud Prevention Services”) by utilizing First Data’s fraud management system (“Fraud Management System”). First Data’s Fraud Management System shall provide RCSI with the ability to status, change, monitor or delete RCSI’s Cardholder Designated Account detail on First Data’s security masterfile.

(A) Fraud Reporting. First Data shall provide RCSI with lost/stolen reporting services. Lost or stolen reports from RCSI’s Cardholders shall be recorded on the security master file by on-line entries which shall automatically change the external status on the security master file and block authorizations on the Designated Account. RCSI shall also have the ability to use the extended lost or stolen transaction to review potential fraud transactions at the time of the lost or stolen report. As the First Data operator verifies the legitimacy of each transaction, the items shall be coded to identify fraudulent transactions. The transaction shall automatically transfer Cardholder transactions to a new Designated Account and shall prevent the transfer of fraud activity, eliminating the need for manual adjustments.

(B) Warning Bulletins. According to RCSI Rules and any applicable legal requirements, First Data shall report appropriate information to Visa, MasterCard, and other

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Associations, receive information (including alerts) from Visa, MasterCard and other Association, and inform RCSI of any alerts in a timely manner in accordance with Service Levels. The services shall enable MasterCard, Visa and other Association accounts to be placed on the warning bulletin or exception file automatically through lost or stolen report entry. Listing a Designated Account on the warning bulletin shall provide RCSI with chargeback and authorization protection. RCSI may list a Designated Account on the exception file for authorization protection only. First Data shall also provide a warning bulletin alert queue that can be monitored on a daily basis by RCSI to place at-risk Designated Accounts on the warning bulletin.

(C) Account Transfer and Reissue. As part of its Fraud Prevention Services provided to RCSI, First Data will automatically transfer Designated Accounts when a lost or stolen report is entered. If the account transfer fails it will be displayed in real time on-line queues. Once the account transfer is complete, the account goes through reissue criteria. If such Designated Account fails reissue criteria the account will appear on the “account transfer pending reissue queue”.

(D) Hot Calls. First Data shall accurately respond to Merchant hot calls and RCSI’s Cardholder information verification requests. A “hot call” is an authorization request which is immediately transferred to First Data’s fraud management operations (“Fraud Management Operations”) when: the account is statused, a Merchant is suspicious, or a request exceeds the parameters defined by the card issuer. A number of parameters, controlled by product control file settings, shall be available to RCSI to enable RCSI to determine the calls that are transferred to First Data’s Fraud Management Operations (i.e., excessive transactions, large purchases, first use of plastics, positive ID calls).

(E) Authorization Services. First Data shall provide to RCSI, as requested, authorization override tables to override normal authorization procedures per RCSI Rules.

(F) “RAPID” Services. First Data’s “Returned Account Plastics Immediately Delivered” or successor (“RAPID”) department shall process returned plastics from the postal service for wrong address. The Designated Account is researched and the Cardholder is contacted. If the correct address is obtained the Cardholder master file shall be updated with

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new information, and the plastic shall be re-mailed. If the Cardholder cannot be reached, the plastic shall be destroyed in a secure manner. A priority memo shall be placed by First Data on the Account to prevent unnecessary lost or stolen reports.

(G) Emergency Services. In connection with First Data’s Fraud Prevention Services to be provided to RCSI, First Data can serve as the twenty four (24) hours a day, seven (7) days per week authorizing agent for MasterCard, VISA and other Association emergency services. For emergency plastics or cash to be disbursed, product control file settings shall be capable of being set so as to designate the maximum credit limit to be issued and/or the maximum cash authorized per RCSI Cardholder Designated Account.

(H) Card Activation. First Data’s card activation processes and procedures shall enable RCSI to flag specific Designated Accounts at the time of issue or reissue requiring the Cardholder to call a toll-free number to activate their card(s) before first use. Verification by the Cardholder shall release the block on the Account and prevent the need for referrals at the point-of-sale. Cardholders shall be able to activate their cards by calling a toll-free number (displayed on a label affixed to the plastic) and responding to specific questions or by automatic number identification.

(iii) Fraud Detection. First Data shall provide RCSI and RCSI’s Transaction Card clients with credit card fraud management and fraud detection services (the “Fraud Detection Services”), which shall be as of the Effective Date in conjunction with HNC, Inc., and its Falcon™ software (the “HNC Software”), which services shall consist of those services set forth in this Section.

(A) First Data shall provide RCSI with Fraud Detection Services by utilizing the output of the “Falcon Neural Engine” computational model (designed to detect credit card fraud) which encompasses or contains the Falcon credit neural network-based system, as such software is licensed to First Data by HNC and is commonly known as the “Falcon Credit Card Fraud Detection Model” (hereinafter referred to as the “Credit Card Output Access”) solely for the purpose of assisting RCSI in detecting possible fraudulent transaction account activity on the Cardholder accounts of RCSI and for no other purpose. Except as expressly provided in this Section, no right or license under any patent, copyright, trade secret, trademark or other intellectual property of First Data or other person is granted or is to be inferred

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from this Section. RCSI agrees that First Data’s providing of Fraud Management/Fraud Detection Services does not confer upon RCSI any license in or to the Falcon Credit Card Computation Model.

(B) First Data and RCSI acknowledge First Data’s representation that the HNC Software, from which the Credit Card Output Access is generated, is licensed to First Data pursuant to a license agreement (the “HNC License Agreement”). First Data shall use Commercially Reasonable Efforts to extend or renew the initial or any renewal terms, as the case may be, of the HNC License Agreement and if the HNC License Agreement expires or is terminated, First Data shall promptly notify RCSI of such termination or expiration. First Data shall use Commercially Reasonable Efforts to substitute for HNC one or more software vendors from whom First Data shall license, on commercially reasonable terms, one or more software packages that will generate output access that provides, in all material respects, the utility and performance provided by the Credit Card Output Access generated by the HNC Software.

(C) First Data shall assist RCSI in establishing fraud detection strategies (“Falcon Fraud Strategies”) on-line to fulfill RCSI’s fraud detection requirements. These Falcon Fraud Strategies will be available on-line for review.

(D) Together with HNC, upon RCSI’s request, First Data will provide RCSI with the following call processing Services (the “Call Processing Services”):

(1) First Data will monitor authorizations queued as a result of the Falcon Fraud Strategies and/or fraud score.

(2) First Data will initiate outbound telephone calls to the Cardholders of RCSI who have had authorization activity on their Designated Account and appear in a Falcon queue group (the “Falcon Queue Group”). At RCSI’s option, First Data shall either (i) use a predictive dialer (a mechanism by which outbound calls to the Cardholder accounts to be worked hereunder are automatically dialed by the system based upon the telephone number indicated by the Cardholder master files of RCSI resident at First Data) to place calls or (ii) manually review accounts for fraud activity (based upon RCSI-defined criteria) in order to call only selected accounts.

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(3) First Data will make up to four (4) attempts to reach the Cardholder within a 48-hour period. All attempts will be made within the hours of 8:00 a.m. and 9:00 p.m. in the time zone of the Cardholder’s address on file.

(4) First Data will attempt all home and business telephone numbers as provided by RCSI’s Cardholder masterfile.

(5) If First Data is unable to contact the Cardholder, a message for the Cardholder to contact First Data at a to-be-provided toll-free number will be delivered to the Cardholder’s home message machine and/or to responsible adults.

(6) When the First Data call results in contact with the Cardholder, and the Cardholder validates the authorization activity, First Data will record an on-line account memo (to the “RCSI Inquiry System”) indicating the results of the call.

(7) When the First Data call results in contact with the Cardholder and the Cardholder is unable to validate the activity, First Data will initiate a lost/stolen report (the “Lost/Stolen Report”) and place a block on the account. First Data will record an on-line account memo (to the RCSI Inquiry System) indicating the results of the call.

(8) If First Data encounters activity which appears uncharacteristic or unusual for a Cardholder Designated Account and First Data is unable to successfully contact the Cardholder, then First Data may place a block on the Cardholder Designated Account to prevent further authorization approvals until either the Cardholder or RCSI successfully verifies the activity. On a daily basis, First Data will make available to RCSI via a real-time online system the current list of Designated Accounts which have been blocked because of uncharacteristic or unusual account activity. The Designated Account will remain blocked until RCSI removes or instructs First Data via the real-time online system to remove such block.

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(9) Upon the request of RCSI, First Data shall provide additional services, including the following: telephone number look-ups, inbound call processing after the 48-hour period, fraud control services, customized reporting, etc.

(10) Upon RCSI’s request, at least annually, First Data shall require HNC to analyze month-end reports within the 12-month period being produced by the HNC Software that measure the effectiveness of RCSI’s existing algorithms within the Falcon model, provided that RCSI has over 200,000 Designated Accounts that are Active Accounts. First Data shall then provide to RCSI HNC’s written analysis of the reports interpreting the performance of the existing algorithms and strategies within the Falcon model and written recommendations for changes or updates to such algorithms or strategies to improve their performance, provided that RCSI promptly provides First Data with the two necessary month-end reports.

(11) At RCSIs request, First Data, through HNC, shall provide RCSI with up to five (5) hours per month, for the first six (6) months following the date of commencement of Fraud Management/Fraud Detection Services (the “Falcon Start Date”), and three (3) hours per month thereafter, of score-related assistance over the telephone at no additional charge, provided that RCSI has over 200,000 Designated Accounts that are Active Accounts as of the Falcon Start Date. If such service exceeds the hours permitted for that particular month, First Data may be entitled to charge RCSI for such services as set forth in Schedule C. First Data shall make appropriately qualified First Data Personnel available to RCSI consult with RCSI on fraud strategy management upon RCSI’s request.

(12) Upon request by RCSI, First Data shall provide the following to RCSI: custom system installation, additional training, and fraud user interface licensing. First Data, through HNC, shall provide custom fraud models to RCSI upon request.

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(13) HNC has established a fraud control consortium (the “Fraud Control Consortium” or “Consortium”) whereby users of Card Output Access contribute data for use by HNC to study fraud patterns, which enables HNC to improve fraud detection methods. If RCSI chooses to join such Consortium, First Data, upon request of RCSI, shall provide RCSI data to the Fraud Control Consortium as required within thirty (30) days after the Falcon Start Date and on a calendar quarterly basis thereafter. If RCSI does not wish to join the Fraud Control Consortium, First Data, through HNC, upon request of RCSI shall construct a custom fraud model for RCSI, as an additional service, at a cost agreed upon among First Data and RCSI. RCSI acknowledges that First Data will employ the HNC Software using the Fraud Control Consortium algorithms to produce Credit Card Output Access for RCSI only if RCSI contributes data to the Fraud Control Consortium.

(14) First Data shall cause HNC to provide, once every calendar quarter, a review of the consortium model which will identify changes in fraud trends and if such changes are of statistical significance, then First Data shall cause HNC to update the consortium model.

(E) Notwithstanding any other provisions of the Agreement, RCSI may terminate the Credit Card Fraud Management/Fraud Detection Services hereunder upon thirty (30) days written notice to First Data.

(iv) Fraud Control. First Data shall make available to RCSI, as requested by RCSI, First Data’s fraud control services (the “Fraud Control Services”) which shall include the use of the First Data “On-Line Fraud Management System,” “Fraud Detail Management Screens” and the other fraud control services and functionalities available from the First Data System. Without limiting the forgoing, the Fraud Control Services shall also include the services described below.

(A) Fraud Detail Management Screens. First Data’s Fraud Detail Management Screens shall give RCSI the ability to process monetary items on-line which post to lost or stolen Designated Accounts. The transactions may be coded to generate adjustments and identify individual fraudulent items for automatic reporting to MasterCard, Visa, and other Associations. The screens allow simplified entry of fraud reporting, retrieval requests and chargebacks and also provides a tracking mechanism for affidavits.

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(B) Affidavit Processing. First Data shall provide affidavit processing services as required by RCSI. An affidavit can be created, printed and sent by entering an on-line transaction. The affidavit will display all transactions identified as fraud on an account. The First Data System also provides tracking reports to determine if the affidavit was received, or if an additional affidavit must be sent.

(C) Automatic Chargebacks. Automatic chargebacks shall be generated by the First Data System when RCSI defined criteria is met and statused Designated Accounts qualify for specific chargeback rights. This service shall be provided for Designated Accounts statused as either lost or stolen; provided, however, that RCSI may include all internal and external status codes. The chargeback rights included in this product are warning bulletin, expired card and late presentment. The First Data System shall allow RCSI to review pending retrievals and have the First Data System automatically chargeback unfulfilled retrieval requests. RCSI may specify the number of days allowed for receipt of retrieval documentation before the First Data System automatically charges an item back.

(D) Fraud Reporting. As part of the Fraud Control Services provided to RCSI, First Data shall provide the following fraud reporting Services (“Fraud Reporting Services”) to RCSI. Security detail transactions shall be used to add, update or delete transaction records on First Data’s security master file. These transactions shall generate a fraud advice record to the MasterCard, Visa and other Association fraud reporting systems. First Data shall enable RCSI to research lost or stolen Accounts and enter disposition codes sufficient to record fraud, counterfeit, and chargebacks. Fraud detail information, including all fraud account information automatically transmitted to RCSI’s clearing house (“Clearing House”), shall be automatically transmitted to MasterCard, Visa and the other Associations by First Data in compliance with regulations for fraud and counterfeit reporting.

(E) On-Line Item Transfer Services. RCSI’s Cardholder non-clearing adjustments may be entered through First Data’s Customer Inquiry System from the on-line statements. While viewing the statements, the transactions may be tagged to initiate the adjustment.

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(F) Potential Chargeback Queue. As part of its Fraud Control Services, First Data’s potential chargeback queue shall identify unauthorized sales and cash advances over the Merchant’s floor limit. The queue shall include toggle options to view on-line statements and authorization activity to research the activity on the account.

(q) Securitization Functionality. First Data shall provide functionality sufficient to enable RCSI to:

(i) identify Designated Accounts, subject to RCSI Rules, to be securitized by RCSI;

(ii) xxxx and maintain pooled Designated Accounts; and

(iii) report on pooled Designated Accounts as required by RCSI at the intervals specified by RCSI.

(r) Cardholder Selects. First Data shall provide RCSI functionality sufficient to enable RCSI to isolate a specific group of Cardholders whose Designated Accounts are on the First Data System in accordance with criteria defined by RCSI. As of the Effective Date that ability is provided through the “Cardholder Select System.” The First Data System shall permit RCSI to choose different processing options in accordance with RCSI’s requirements, and provide directions to First Data regarding the same, such as placing Accounts on a tape for use by a RCSI designated third party or with First Data’s special reporting system (e.g., credit line increases generated automatically or non-monetary transactions automatically generated to the selected Designated Accounts). Upon RCSI’s request and in accordance with RCSI’s requirements and defined criteria, First Data shall select and process the group of Designated Accounts meeting the criteria specified by RCSI.

(s) Reports Management. First Data shall provide report management functionality pursuant to which First Data shall, as requested by RCSI, produce reports requested by RCSI on a daily, weekly, monthly, quarterly and yearly basis. First Data shall generate, print and distribute such reports as directed by RCSI or, at RCSI’s direction, shall transmit the reports directly to RCSI in the manner requested by RCSI and in a format which permits RCSI to view, manipulate, print, and store the reports. When requested by RCSI, First Data shall transmit directly to RCSI copies of the Designated Account files requested by RCSI in the format requested by RCSI. The report management Services provided by First Data shall enable RCSI to regulate the number of reports and method of distribution (e.g., on-line, DVD or file transmission) and to store the reports for on-line viewing. RCSI shall be able to access the reports using one or more of the following methods:

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(i) on-line reports;

(ii) report transmission to a RCSI location (such as “Network Data Mover” or “Remote Job Entry”); and

(iii) via long-term archival storage (such as DVD)

(t) Data Extraction, Delivery and Receipt Services.

(i) At RCSI’s request, First Data shall provide periodic scheduled and ad hoc requests for file extracts of data from the First Data System pertaining to the Designated Accounts. The data provided will be in the formats directed by GE. First Data shall provide a file record layout for each unique file type provided to RCSI. As directed by RCSI, First Data shall transmit the extracted data electronically via a telecommunication facility or transfer the extracted data to a magnetic tape media and physically transport the tape(s) to the location(s) designated by RCSI. In each request for the extraction of such data, RCSI will define the data to be extracted, the file format for the extracted data and the frequency and method by which the data should be transferred to RCSI.

(ii) First Data shall receive and load into the First Data System as requested by RCSI files and other data pertaining to the Designated Accounts or the Services. The data provided will be in the formats determined by RCSI.

(iii) The generation by First Data of any record for, and the delivery of such record to RCSI or a third party acting on RCSI’s behalf, including, but not limited to, PINs and/or PIN offsets, credit balance refund check files, and on-line report printing, is included in the Services.

(iv) The (A) transmission or receipt of RCSI Data by First Data via a central processing unit to central processing unit transmission using a tape to tape interface, (B) transmission or receipt by First Data of RCSI Data RCSI via a central processing unit to central processing unit transmission using Remote Job Entry or Network Data Mover or their equivalents, and (C) forwarding of data to RCSI from First Data via mail or courier-delivered magnetic media, including diskettes and magnetic tapes, are included in the Services.

(u) Statement Access and Storage.

(i) First Data shall provide RCSI functionality enabling RCSI to access and to view on-line statement information for the billing cycles required by RCSI. As RCSI requires, First Data shall provide access and the ability to view on-line statement information for current and prior billing cycles. First Data shall also provide RCSI on-line functionality enabling RCSI to initiate duplicate statement requests, transaction retrieval requests, place an item in dispute, create chargebacks and establish the statement retention periods.

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(ii) The process of storing the Designated Account transaction details each year which will be used to create the “Annual Activity Summary” for such year is included in the Services.

(v) Recurring Runs. First Data shall provide to RCSI the ability to schedule recurring runs of RCSI’s custom programs on the First Data System. These jobs can be scheduled on a regular basis. A “Recurring Run” is each scheduled daily, weekly, monthly, or other regularly scheduled production run of a custom data set on behalf of RCSI that is in addition to the “standard” data outputs produced by the First Data System. As of the Effective Date, the standard outputs include the following:

Applications Non-Monetary Tape Format

Application Record Tape Format

Balance And Status Tape Format: 268

Balance And Status Tape Format: 80 Byte

Balance And Status Tape Format: 96 Byte

Batch Authorization Tape Format

Cardholder Master File

Cardholder Non-Monetary Transaction Tape Format

Cardholder Statement Tape Format

Expanded Cardholder Statement Tape Format (Eff: 06/96)

Central Information File

Authorization Response Format

Merchant Non-Monetary

Aps Applications File

Debit Card File Layout

Embossing Tape Format

General Ledger Tape Format

Company Card Master File

Cardholder Authorization (DCA)

Merchant/Cardholder Monetary Ach Tape Fmt

Merchant Authorization (DCA)

Merchant Master File

Merchant New Account Tape Format

Monetary Detail Record

Monetary Tape Deposit Format

Dmgt Monetary Tape Deposit Format

Valid Transaction File Format (CTWIBUFF)

Third Party Auth Tape Format

Cardholder Debit Monetary ACH Tape Format

New Accounts Card Layout

Aps Deposit (DRA) File

Aps Validation File

Report Tape Statement

Clearing Adjustment Detail Record

Aps Fraud Extract File

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Taptrans Confirmation Files Layout

Chargeback/Adjustment Confirmation Files Layout

Retrieval Confirmation Files Layout

Competitive Master Record Layout

Batch Account Transfer File

Combined Cardholder/Flap File

IRS 1099-C Reporting Record File Layout

Card-Issuance-Unit Update Record File

Batch Transmitted Adjs. Record Layout

(w) Data Warehousing. First Data shall provide files, transmissions or tapes, at the request of RCSI and at the intervals requested by RCSI sufficient for RCSI to analyze and populate its data warehouse to perform trend analysis of the Cardholder base, its client base and other areas determined by RCSI. First Data shall also perform for RCSI, at RCSI’s request, the data warehouse related services pertaining to the “KnowledgeSight Software.”

(x) On-line System Administration. First Data shall provide to RCSI functionality enabling an on-line system to enable RCSI to define rules and criteria (such as establishing passwords and limiting user access and edits by user ID) governing RCSI employees’ and agents’ use of the First Data System. As of the Effective Date, the on-line system provided by First Data is the “On-Line Control System” or “OCS” through which RCSI can develop, monitor and maintain the necessary records to authorize on-line access for RCSI personnel and agent personnel using the First Data System. The on-line system administration functionality will enable RCSI to assign to each RCSI employee and agent accessing the First Data System and each logical terminal device connected to the First Data System levels of access by RCSI. The on-line system administration functionality shall provide that the combination of the individual and terminal device access privileges shall determine the access rights granted for a particular instance of use. Access to the First Data System shall be controlled both at a group level for transactions with similar functions and at a transaction-by-transaction level. Daily reporting by the on-line system administration functionality shall create an audit trail describing security violations as well as the configuration of each individual and terminal access characteristics. RCSI shall be responsible for administering RCSI’s rules concerning access to the First Data System as security administrator for RCSI personnel and for establishing and maintaining the definitions within the First Data systems providing the on-line system administration functionality to meet its corporate security policies.

(y) Special Requirements and Exceptions for Loan Accounts:

(i) The First Data System shall enable RCSI to manage and track collateral against the loan accounts as per RCSI Rules.

(ii) First Data shall enable RCSI to store, maintain and report against data designed specific to loan accounts as per RCSI Rules.

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(z) Administrative Support. In connection with First Data performance and delivery of and RCSI’s use of the Services, First Data shall provide to RCSI the administrative and SME support as required including support referenced in Exhibit A-4 (RCSI Account Management Team Services).

(aa) Account Billing. First Data will collect, organize, decipher, calculate and present (on-line, paper and/or electronically) data collected from the First Data System and all applicable ancillary systems as required by RCSI Rules, including “Account Level Pricing,” “Transaction Level Rewards,” “Transaction Level Pricing” and Adaptive Control.

(bb) Statement File Creation

(i) First Data will prepare print ready files for such communication pieces, including customer statements and letters in accordance with RCSI Rules. First Data will promptly provide RCSI with the opportunity to review and sign off on such communication pieces.

(ii) Based on RCSI Rules (including RCSI’s requirements pertaining to weight management), First Data will include in customer statement files the appropriate print marks for any applicable inserts, letters and messages. First Data will provide RCSI the ability to approve and sign off on each month’s statement insert, letters and message set up prior to mailing.

(cc) Embossing File Creation. First Data shall collect, organize, decipher, calculate and present (including through reports and embossing tapes) the necessary data collected from the First Data System or any relevant electronic Transaction Card files from RCSI and including other files containing information concerning production of the Transaction Cards based on RCSI’s Rules sufficient for creation by RCSI of an embossing file.

(dd) Record Retention Services. Notwithstanding anything to the contrary in the Agreement, First Data will retain sufficient records and information such that every transaction in connection with every Designated Account can be reconstructed in its entirety for a period of *** years following the month in which such transaction occurred. RCSI reserves the right to require First Data to retain such sufficient records for a period longer than *** years, and, in such event, RCSI will reimburse First Data for any additional incremental expense, if any, that results from such additional retention.

5.3

Description of Transaction and Account Processing Services – Support Services.

(a) Data Center. First Data shall, in connection with providing the Services, utilize a data center (the “Data Center”). The Data Center will provide the conditioned facility, computer hardware, telecommunications infrastructure, operating software and seven (7) days per week, twenty-four (24) hours per day skilled staff sufficient to properly operate the First Data System and to enable First Data to deliver the Services to RCSI as required under the Agreement.

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(b) Separate Cycle.

(i) Initial Build. First Data shall build in the First Data System a separate processing cycle for its processing of the Designated Accounts (a “RCSI Cycle”) if requested by RCSI. That activity will include creating the environment, including hardware, software and operating procedures, and populating the RCSI Cycle with the RCSI-specific data required for such purpose. As part of this activity First Data shall provide deliverables to RCSI which include the following on the schedule agreed by the Parties:

(A) analysis and specification of necessary hardware, system software and network resource configurations;

(B) provision of baseline Application programs, JCL procedures, control cards and schedule;

(D) validation through mock testing of input, output and processing functions including reports, statements, screens transactions and interfaces.

RCSI will participate in the planning and analysis phases of the building of the RCSI Cycle to review the environment created by First Data and inform First Data as to whether in RCSI’s opinion, given its limited understanding of the First Data System, the RCSI Cycle is configured to meet RCSI’s requirements. RCSI shall provide such assistance to First Data as is proposed by First Data and approved by RCSI.

(ii) Support. First Data shall provide ongoing support for each RCSI Cycle sufficient to maintain such RCSI Cycle in the condition necessary for First Data’s performance of the Services without unplanned interruptions. Such support shall include:

(A) the ongoing operational monitoring and reporting specific to the RCSI Cycle to support proper performance of the Services and meet performance standard goals;

(B) identification and resolution of First Data software failures specific to the RCSI Cycle;

(C) creation and administration of implementation plans for each major release of First Data Software specific to the unique aspects of the RCSI Cycle;

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(D) execution of changes specific to the RCSI Cycle during daily, weekly and major implementations;

(E) operational performance improvement efforts to increase attainment of critical to quality goals;

(F) data pulls to populate First Data test environments customized for RCSI-specific testing requirements; and

(G) supporting business continuity plan development and regular testing.

RCSI will use documented problem and change management processes proposed by First Data and approved by RCSI.

5.4

License to ODS Software; Third Party Licensing Terms

(a) First Data hereby grants to RCSI and its Affiliates, and RCSI accepts, a nonexclusive, and except as provided in Section 23.1 of the Main Body of the Agreement, nontransferable right and license, exercisable during the Term, to connect to, use and modify the ODS Software maintained on the First Data System and to use the related Services.

(b) RCSI agrees to, and will be bound by, those terms and conditions set forth in Exhibit A-5 (the “Third Party Terms”) to the extent, and only to the extent, such Third Party Terms do not in any manner:

(i) increase the responsibility, liability or potential liability of either RCSI or RCSI Affiliates or their respective customers and clients under the Agreement;

(ii) constrain, modify, or reduce RCSI’s rights or benefits;

(iii) constrain, modify or reduce RCSI’s use of, or right to use, the Services and any portion thereof; or

(iv) increase fees or expenses payable by RCSI.

5.5

Manuals and Bulletins.

(a) User Manuals.

(i) First Data shall maintain user manuals explaining how the First Data System operates, including report descriptions and formats (“User Manuals”). First Data shall, on the FAAR Effective Date, provide to RCSI current, up to date versions of all of the User Manuals for the Services that exist as of the FAAR Effective Date. These are as identified by First Data in Exhibit A-2. As further User Manuals may be developed for the Services and as existing Services are revised, First Data shall

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promptly provide RCSI with the new or revised User Manuals. First Data shall promptly provide new and/or updated information about enhancements or new products based upon First Data’s major implementation schedule which normally occurs six (6) times each calendar year. In addition to the User Manuals, First Data shall also provide to RCSI, not later than it makes available generally to its customers (sixty (60) days prior to implementation) operational bulletins. These bulletins shall provide advance notice regarding upcoming enhancements to the First Data System. These bulletins shall be produced on a regular basis and shall provide implementation dates, features, benefits and specific directions on where to locate more detailed information. The information documented in operational bulletins shall later be included in updates to the User Manuals and/or new User Manuals.

(ii) User Manuals and updates thereto will be distributed to RCSI via hard copy and CD-ROM. The hard copy updates will be sent directly following each implementation in shrink-wrapped, clear plastic complete with an update letter that explains what pages to take out and where to insert new pages. CD-ROM updates will be sent on new compact discs to RCSI. Each successive User Manual update shall be identified by a revision number so RCSI can easily determine when an enhancement is implemented and can verify that the User Manuals are up to date.

(iii) When errors are detected in the User Manuals, they will be corrected by First Data. When errors are detected by RCSI, RCSI will endeavor to submit a “User Documentation Change Request” or “UDCR” form describing the error. First Data shall prioritize resolution of the UDCR and the timeliness of the correction to the User Manuals. Category “A” UDCRs, involving liability or client risk, shall be completed in the next update to the User Manual. Category “B” UDCRs, involving procedural clarifications, shall be completed within the next two (2) updates to the User Manual. Category “C” UDCRs, involving cosmetic changes, such as fixing typographical errors, shall be completed as time and resources permit.

5.6

Communication Links.

As requested by RCSI, First Data shall install, provide or cause to be installed or provided the means for communicating data from its facilities or equipment to the facilities or equipment of:

(a) RCSI designated by RCSI;

(b) third-parties designated by RCSI, including a communication link that will allow RCSI to access Designated Account data on-line.

First Data shall, during the Term, maintain such means for communicating in good working order. First Data shall provide RCSI with an on-line terminal facility (not the terminals themselves), on-line access to the First Data System, adequate computer time and other services relating to accessing the First Data System as directed by RCSI. The method of transmission and the media employed will be proposed by First Data and be subject to approval by RCSI. The Parties shall take into consideration relevant factors such as traffic type, inbound and outbound message sizes, traffic loading distribution, and the equipment or devices which are or may be used.

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5.7

Interfaces.

First Data shall define, support, and make available to RCSI various interfaces to the First Data System as specified by RCSI. As of the first Initial Conversion, First Data shall provide at least one hundred and twenty (120) days prior written notice to RCSI regarding any change to common or core interfaces (e.g., industry interfaces, standard client wide system interfaces) and shall provide complete documentation regarding any such changes at least ninety (90) days prior to implementation of such changes. First Data may not change those interfaces which are custom or specific to RCSI without prior written approval from RCSI.

6.	STATEMENT AND PRODUCTION PROCESSING SERVICES

As and when required by RCSI, First Data shall provide the Services described in this Article 6 for the Designated Accounts.

6.1

Statement Production, Insertion and Distribution.

(a) Based on RCSI Rules, First Data shall collect, organize, decipher, and present (on-line, in tangible written form, and/or electronically) data collected from the First Data System. From such data, First Data shall prepare the billing statements, letters and other communications required by RCSI (the “Statements”) in the format required by RCSI Rules (e.g., electronic, paper) in quantities and on the schedule specified by RCSI. First Data’s responsibilities shall include the following:

(i) Create a print ready file for the production operation containing the Statement information needed to print Statements as per RCSI Rules.

(ii) Print Statements.

(iii) Trim, burst and fold Statements and prepare for insertion as necessary.

(iv) Per RCSI’s request, order and stock materials required for Statement production, including statement envelopes and statement paper, so that there is a sufficient supply available. First Data shall make available to RCSI on-line inventory management reports for statements and envelope stock.

(v) Provide inventory procurement, and inventory management of the RCSI forms and envelopes.

(vi) Produce requested replacement Statements via an on-line request by RCSI and mail the requested statements directly to the specified address entered through the on-line request. RCSI may use CD-ROM or Microfiche for replacement of statements.

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(vii) Presort and qualify the mailings for the lowest possible United States Postal Service and other applicable courier discounts, taking into account discounts available to First Data.

(viii) Provide RCSI with the opportunity to review and approve Statements.

(b) First Data shall perform the functions necessary to insert and deliver to their intended recipients Statements as required by RCSI. First Data’s responsibilities shall include the following:

(i) Review marketing material received from RCSI clients or their agents to determine, in accordance with RCSI Rules, including those regarding weight restrictions for mailings, whether and when such materials will be included in the applicable Statement mailings. RCSI is to ensure the materials provided adhere to the size specifications for purposes of insertion.

(ii) Insert Statements and other RCSI-approved materials into correct envelopes in the order and priority required by RCSI Rules.

(iii) Provide inventory management of the RCSI insert materials.

(iv) Presort and qualify the mailings.

(v) Supply required postage for those envelopes being transmitted to their respective intended recipients by the United States Postal Service.

(vi) Seal and deliver to the appropriate United States Postal Service facility/representative, in compliance with the time frames required by RCSI, envelopes containing Statements and/or other RCSI-approved material which are to be transmitted to their respective intended recipients by the United States Postal Service.

(vii) Seal and deliver to non-United States Postal Service facility/representative, in compliance with RCSI Rules, envelopes containing Statements and/or marketing materials which are to be delivered to their respective intended recipients by a courier other than the United States Postal Service.

(viii) Confirm delivery of Statements and associated materials within service standards established by RCSI.

6.2

Transaction Card Production, Insertion and Distribution.

(a) First Data shall perform the functions necessary to produce, in quantities and on the schedule specified by RCSI, Transaction Cards using only processes and facilities certified by VISA, MasterCard and any other Association. First Data’s responsibility shall include the following:

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(i) Receive and inspect plastics required in Transaction Card production. Notify suppliers, and obtain replacements for, plastics which do not meet the applicable specifications. (Custom materials can be ordered with RCSI’s approval via plastic proof or RCSI may order their own plastics.)

(ii) Collect, organize, decipher, calculate and present (including through reports and embossing tapes) the necessary data collected from the First Data System, including any relevant electronic Transaction Card files from RCSI and other files containing information concerning production of the Transaction Cards.

(iii) Emboss plastics, including adding text, numbers, logos and Cardholder photos, in compliance with RCSI’s specifications and chosen embossing parameters.

(iv) Encode the resulting Transaction Cards in compliance with RCSI’s Rules.

(v) Print required customer information on Transaction Card carriers.

(vi) Produce 24-hour rush plastic Transaction Cards based upon RCSI’s Rules.

(vii) Based upon reports provided by First Data to RCSI concerning the inventory of plastics, card carriers and envelopes under the control of First Data, RCSI will control and manage the level of inventory of plastics, card carriers and envelopes.

(viii) If plastics are ordered through First Data, First Data will provide design support including support related to magnetic stripe parameters.

(ix) Perform as requested by RCSI services respecting the following: ultraphic/graphic imaging, CRV labeling, CRV status removal, card mailers, ultraforms, photocard, rush plastics and card pulls.

(b) First Data shall perform the functions necessary to insert and deliver to their intended recipients Transaction Cards. First Data’s responsibilities shall include the following:

(i) Trim, burst and fold the Transaction Card credit card carriers.

(ii) Data match the Transaction Cards and the credit card carriers.

(iii) Insert the Transaction Cards into the corresponding credit card carriers.

(iv) Insert the credit card carriers and RCSI-approved materials into the correct envelopes in the order and priority required by RCSI Rules. RCSI is to adhere to material size and paper specifications as outlined in First Data User Manuals.

FINAL

(v) Presort and qualify the mailings for the lowest United States Postal Service discounts.

(vi) Supply the required postage on those Transaction Card credit card carrier envelopes being transmitted to their respective intended recipients by the United States Postal Service.

(vii) Seal and deliver to United States Postal Service facility/representatives Transaction Card credit card carrier envelopes being transmitted to their respective intended recipients by the United States Postal Service.

(viii) Seal and deliver to non-United States Postal Service facility/representative card carrier envelopes which are to be delivered to their respective intended recipients by a courier other than the United States Postal Service.

(ix) Confirm delivery of the Transaction Card credit card carrier envelopes and associated materials within service standards established by RCSI.

6.3

Reporting Obligations and Provision of Information.

(a) First Data shall produce and deliver to RCSI, at the time and in the frequency specified by RCSI reports, at the individual RCSI client level as required concerning First Data’s statement and Transaction Card production, insertion and distribution services. These reports shall include the following:

(i) Daily status report of (A) Statement and Transaction Card production and mailings and (B) associated quality measurements including defect and cycle time reporting.

(ii) Monthly inventory report for the supplies, including reconciliation of any lost and damaged materials.

(iii) Monthly Transaction Card inventory report.

(iv) Monthly Statement identifying for the previous month (A) mailings, (B) Transaction Card production, and (C) related Services, with associated costs.

(v) Monthly Transaction Card analysis report of Transaction Cards embossed and mailed with associated costs.

(vi) Other reports as requested by RCSI.

(b) First Data shall provide to RCSI, in the format and at the times specified by RCSI, data relating to Statements, Transaction Card storage, production and distribution and such other related information as requested by RCSI for RCSI’s use in creating reports for RCSI and its customers.

FINAL

7.	MERCHANT SERVICES/ACQUIRER FUNCTIONS

(a) First Data shall provide RCSI access to and use of certain Services related to Merchant Accounts (“Merchant Services”) as further set forth in Exhibits C-1 and C-6, including Merchant settlement services sufficient for RCSI to perform RCSI’s settlement and funding activities.

(b) As and in the manner requested by RCSI, First Data shall:

(i) Accept, balance and edit transmissions based on RCSI Rules;

(ii) Determine the net settlement amounts based on RCSI Rules;

(iii) Provide Merchant settlement reports (on-line, electronic, or hard copy) as requested based on RCSI Rules; and

(iv) Provide Merchant settlement / funding file based on RCSI Rules

8.	PERSONNEL RESOURCES

8.1

***.

As required by RCSI, First Data shall make available a *** for performing AD Services, and such *** shall be *** to such work at the minimum functional and skill levels set forth in Exhibit C-5. The *** shall be managed by, and receive directions and work assignments from, First Data only. It is anticipated that the *** comprising the *** will, following the Initial Conversions, be approximately ***. Within thirty (30) days into each calendar quarter, the Parties shall meet and agree on the function, skill, tenure and *** of the ***, taking into account, among other issues, the planned AD Services to be performed in such quarter and subsequent quarters. First Data shall use its best efforts to accommodate all of RCSI’s requests for *** of, or modifying the function, tenure or skill set of, the *** within three (3) months following any such requests.

(a) Staffing of the ***.

(i) First Data shall at all times maintain a complete and current list of job function, tenure, skill and experience level of all *** personnel. Promptly upon RCSI’s request or any significant change in the information on such list or a successive list, First Data shall provide RCSI with an updated list incorporating the revisions.

(ii) If the work requests for the *** exceed or are likely to exceed the capacity of the ***, First Data shall promptly advise RCSI of such a situation or the potential of the situation. First Data shall take such steps as RCSI requests, which may include increasing the ***. RCSI may also adjust existing priorities, extend schedules, or other such action as may be appropriate under the circumstances.

FINAL

(b) Priority of Work for ***. The *** shall perform its functions in accordance with the priorities established by RCSI but shall, for all purposes, be under the direct supervision, management and control of First Data. First Data shall propose such priorities which shall be subject to RCSI’s approval. In the absence of explicit direction from RCSI, First Data shall prioritize the *** work in a manner appropriate to the circumstances taking into account First Data’s understanding of RCSI’s priorities. If and to the extent that sudden changes in the schedule or priority or work are necessary and timely consultation with RCSI is not possible, then First Data shall take such actions without the requirement for prior approval from RCSI. First Data shall promptly notify RCSI of such actions, and, if requested by RCSI, document the basis for taking such actions.

(c) *** Performance. The efficiency and productivity of the *** shall, at a minimum, be consistent with that of First Data employees performing similar services.

8.2

***

(a) Reversion to the ***. The actual performance of the *** will be reviewed by the Parties fifteen (15) months after the FAAR Effective Date. If, after such review, RSCI is unsatisfied with the performance of the ***, then, at the discretion of RCSI, the *** will cease and revert, within ninety (90) days following notice, to a *** performing Services at the minimum functional and skill levels set forth in Exhibit C-5. Such *** shall be *** as the average of the previous twelve (12) months plus ten percent (10%). If RCSI requests the reversion to a *** under this Section 8.2, then within thirty (30) days into each calendar quarter, the Parties shall meet and agree on the function, skill, tenure ***, taking into account, among other issues, the planned AD Services to be performed in such quarter and subsequent quarters. First Data shall use its best efforts to accommodate all of RCSI’s requests for increasing or decreasing *** modifying the function, tenure or skill set of, the *** within three (3) months following any such requests.

(b) *** Turnover. If at any time during the Term the Parties revert back to a *** and if a *** of such *** ceases to work on the RCSI account and is replaced, RCSI shall not be charged for the first thirty (30) days of work performed by the replacement *** unless one of the following conditions exist:

(i) The individual is being replaced at RCSI’s direct request for other than performance-related reasons; or

(ii) The individual being replaced is hired directly by RCSI or a RCSI Affiliate either as RCSI or RCSI Affiliate full time employee or a contract basis for RCSI or a RCSI Affiliate subject to the terms of Section 23.7 of the Main Body of the Agreement.

(c) Reporting *** Time. First Data shall provide to RCSI each month a report showing the breakdown, by project or assignment, of all hours worked and reported by the *** for the previous month.

FINAL

(d) Notice regarding Upcoming *** Member Down-Time. First Data will provide RCSI with as much advance notice regarding possible *** down-time as is reasonably possible but no less than forty-eight (48) hours advance notice.

8.3

Pooled Resources.

At such time as First Data may require additional personnel resources to complete the work assigned to the *** or the *** (including when required increases to the *** or *** cannot be met in time), First Data shall use resources available from First Data’s Pooled Resources.

9.	START-UP SERVICES

(a) General and Start-up Plan. First Data shall provide those start-up services (“Start-up Services”) in connection with new portfolios of Designated Accounts as are requested by RCSI. These Start-up Services shall include:

(i) performing those activities necessary to enable the First Data System to recognize and process a new portfolio of Designated Accounts;

(ii) assisting RCSI by providing information concerning the Services and the First Data System to RCSI customers and prospective customers and by demonstrating the functionality of the First Data System relating to the processing of Designated Accounts.

Start-up Services necessary to enable the First Data System to recognize and process a new portfolio of Designated Accounts shall be provided pursuant to a plan developed by First Data, with input from RCSI, and approved by RCSI (a “Start-up Plan”). Unless otherwise agreed by RCSI, First Data shall use best efforts to complete the Start-up Plan, and the Start-up Services required by the Start-up Plan, within sixty (60) days of RCSI’s request for such Start-up Services.

(b) Standard Start-Up Services. First Data shall provide the Standard Start-up Services in connection with each proposed Start-up. The “Standard Start-up Services” shall include the following:

(i) One (1) additional new system level added within the existing RCSI account hierarchy structure;

(ii) One (1) additional new principle level added within the new system level or existing system level;

(iii) If suppressed principle or agent are required, then a single principal shall be added within either the new system or existing system level. A suppressed agent range of up to ten (10) agents will be added to an existing or new suppressed principle level;

(iv) Use of standard RCSI interfaces then used;

FINAL

(v) Use of standard existing statement template currently used by RCSI (no programming changes required); and

(vi) Use of standard embossing designs/formats currently used by RCSI (no programming changes required)

10.

ACQUISITION SUPPORT SERVICES

10.1

General First Data Responsibilities.

With respect to a potential acquisition by RCSI of Accounts after the Effective Date (whether in conjunction with a corporate acquisition or otherwise), upon RCSI’s request, First Data shall assist RCSI in assessing the portion of the acquisition to which the Services will relate and provide other acquisition support, as requested by RCSI (“Acquisition Support Services”). Acquisition Support Services shall be provided within the time frame as reasonably required to support RCSI’s acquisition activities. In connection with such time frame, First Data acknowledges that RCSI may request that First Data personnel be available to render Acquisition Support Services at a location specified by RCSI in as little as twenty-four (24) hours of RCSI’s initial request for the Acquisition Support Services. Acquisition Support Services shall include the following:

(a) support of RCSI’s assessment of the target portfolio and of the Services necessary for converting and/or processing the target portfolio using the Services;

(b) support of RCSI’s assessment of the functionality, capability, performance, and other relevant aspects of the target portfolio’s processing services requirements;

(d) a comprehensive description to RCSI of potential integration approaches and related complexities, and the potential net economic impact of the acquisition in connection with the Services;

(e) support in RCSI efforts to respond to a request for proposal and related activities; and

(f) any technical and product information concerning the Services and the First Data System required to be provided to the selling/transferring party.

10.2

Specific First Data Responsibilities

The support described in Section 10.1 may, at RCSI’s option, require First Data to analyze, among other things, the target portfolio’s file structure and processing software/system and to perform the financial and technical analysis necessary to enable First Data to formulate and communicate to RCSI, in the form requested by RCSI (e.g., reports in tangible or electronic format, electronic and telephonic communication, oral presentations) the information requested by RCSI.

FINAL

11.

CONVERSIONS, TRANSFERS AND FLIPS

At RCSI’s request, First Data shall undertake and complete Conversions, Transfers, and Flips and will provide the other Services described in this Article 11.

11.1

Conversion Services.

(a) First Data shall perform each Conversion requested by RCSI and shall do so as further described in Section 11.5.

(b) In addition to other Services requested by RCSI, First Data shall provide the Standard Conversion Services for Accounts in connection with each proposed Conversion of Accounts. The “Standard Conversion Services” for Accounts include the following:

(i) the Conversion activities described in Sections 11.2 through 11.5;

(ii) use of any interface supported on the First Data System;

(iii) use of two (2) customized statement designs;

(iv) use of two (2) embossing designs;

(v) performance of three (3) mock Conversions with RCSI in preparation of the proposed Conversion;

(vi) provision to RCSI of a translator or cross-reference file; and

(vii) data mapping and other related data mapping activities necessary to convert the Accounts.

(c) First Data shall provide the following Standard Conversion Services for Merchant Accounts on file in connection with each proposed Conversion of Merchant Accounts on file:

(i) the conversion activities described in Sections 11.2 through 11.5;

(ii) data mapping of merchant masterfiles, merchant history files and merchant memos;

(iii) performance of two (2) mock merchant conversions; and

(iv) provision to RCSI of a cross reference file.

FINAL

(d) Services other than Standard Conversion Services (“Non-Standard Conversion Services”) shall be provided as requested by RCSI.

11.2

Conversion Manager, Conversion Representative, and Conversion Team.

(a) First Data shall assign a manager for each Conversion (the “Conversion Manager”). Each Conversion Manager shall manage one or more Conversions, based upon the size and complexity of the related Accounts being converted.

(b) RCSI will designate one individual who will coordinate RCSI activities in connection with each Conversion (the “RCSI Conversion Representative”).

(c) First Data shall assign to each Conversion a team consisting of an adequate number of First Data personnel who, based upon the size and complexity of the Conversion, may be dedicated full time to perform the Conversion Services. The Conversion Manager shall manage the Conversion team.

11.3

Discovery.

As part of the Conversion process, First Data shall complete for each proposed Conversion the process of identifying what is required for the successful completion of that Conversion (the “Discovery”). First Data shall provide to RCSI a report of the results of its Discovery (the “Discovery Report”).

11.4

Resolution Agreements.

Based upon its review of the Discovery Report, additional information RCSI may obtain from First Data, and such other factors as it may, in its sole discretion, deem relevant, RCSI shall determine whether completion of a proposed Conversion will likely require modifications to the First Data System. If RCSI decides that modifications to the First Data System will likely not be required, RCSI may:

(a) refrain from requiring First Data to perform the Services described in this Section 11.4;

(b) request that First Data proceed to perform the Services described in Section 11.5.

If RCSI decides that modifications to the First Data System will likely be required, RCSI may request that First Data using the information obtained pursuant to Section 11.3, undertake an analysis to define the Gaps and develop Resolution Agreements addressing those Gaps. Such Resolution Agreements shall be prepared, approved and implemented in the manner set forth in Section 2.2.

11.5

Conversion Plans.

(a) For each Conversion, the Conversion Manager shall, with input from the RCSI Conversion Representative and other RCSI individuals identified to First Data, develop and present to RCSI a plan setting forth in detail the activities required for the successful Conversion of the relevant portfolio (a “Conversion Plan”).

FINAL

(b) Each Conversion Plan shall include:

(i) a plan for testing the elements of the Conversion to the satisfaction of RCSI prior to the implementation thereof;

(ii) a plan for managing and monitoring the Conversion including regular progress reports by First Data against the Conversion Plan and status reviews by the Parties;

(iii) a plan for controlling and minimizing Conversion risks, including a contingency plan identifying those risks and proposing mitigation efforts for each element of the Conversion, and providing backup and contingency plans in the event Conversion activities do not proceed as planned or are interrupted;

(iv) a plan for the transfer of responsibility for providing the Services;

(v) the identification and descriptions of the major deliverables and key milestones in connection with the Conversion and the related completion criteria;

(vi) a schedule for implementing the Conversion and achieving the key milestones in order to meet RCSI’s requirements;

(vii) identification of the date upon which the Conversion will be completed (the “Conversion Completion Date”);

(viii) the procedure by which the Parties will determine when the Conversion is complete; and

(ix) any other relevant details required for a smooth transition of services in connection with the Conversion.

(c) Each Conversion Plan and each Conversion Completion Date shall be subject to RCSI’s approval. RCSI and First Data shall meet as often as necessary during the planning and implementation of a Conversion to review the Conversion’s status and discuss the need to make modifications to the Conversion Plan, if any. RCSI may, in connection with any Conversion, request changes to the Conversion Plan and changes to the Conversion Completion Date. In response to such request, First Data shall identify the potential alternative approaches to affect the change and the incremental (or decremental) cost and schedule impacts of each of the alternative approaches. First Data shall proceed with the alternative chosen by RCSI, or not proceed if so determined by RCSI. Changes desired by First Data shall be subject to the approval of RCSI.

FINAL

(d) Except as otherwise agreed by the Parties, First Data shall complete each Conversion as reasonably requested by RCSI, but, in any event, will complete the Standard Conversion Services portion of each Conversion within one hundred twenty (120) days of receiving master files. For every Conversion, if First Data should experience a delay in completing its Conversion-related responsibilities, First Data shall devote the necessary resources to cure the delay and recover the Conversion schedule.

(e) Project activities, time frames, deliverables and critical paths associated with the Conversion Plans shall be tracked by First Data and reported to RCSI, as requested by RCSI.

11.6

Software Conversion Modifications.

Software Conversion Modifications shall be performed in accordance with Section 11.4, Section 15.2(a)), 15.2(b)(iv) through 15.2(b)(xi)and Section 15.2(c) and in a manner so as not to adversely affect RCSI or its business operations. Software Conversion Modifications related to a particular Conversion and the plan for performing these Modifications shall be identified in the Conversion Plan for that Conversion.

11.7

Transfers

(a) A “Transfer” is defined as the process of reflecting in the First Data System the transfer of responsibility for and control of a group of Designated Accounts being processed on the First Data System from another First Data client to RCSI.

(b) First Data shall perform each Transfer requested by RCSI.

(c) In addition to other Services requested by RCSI, First Data shall provide the Standard Transfer Services in connection with each proposed Transfer, whether or not completed. The “Standard Transfer Services” include the following:

(i) selectively identifying Designated Accounts (from the master file field) or non-selectively identifying Designated Accounts (client, system, principal and agent levels) that are, at the time of the Transfer, being processed on the First Data System (the portfolio selection is based upon no more than two (2) systems with five (5) principals each and a cross reference/transfer table);

(ii) use of any of interface supported on the First Data System;

(iii) use of two (2) customized statement designs;

(iv) performance of two (2) mock Transfers with RCSI in preparation of the proposed Transfer; and

(v) provision to RCSI of a translator or cross-reference file.

FINAL

(d) First Data shall provide the following Standard Transfer Services for Merchant Accounts on file in connection with each proposed Transfer of Merchant Accounts on file:

(i) Selectively identifying Merchant Accounts on file (from the masterfile) or non-selectively identifying Merchant Accounts on file (client, system, principal, and agent levels) that are, at the time of the transfer, being processed on the First Data System (the portfolio selection is based upon no more than two (2) systems with five (5) principals each and a cross reference transfer table);

(ii) use of any interface supported on the First Data System;

(iii) performance of two (2) mock Transfers; and

(iv) provision to RCSI a translator or cross reference file.

(e) Any Transfer-related services in addition to those described above shall be charged to RCSI at the rate(s) set forth in Schedule C.

11.8

Flips.

A “Flip” is defined as replacing an existing Designated Account with a new Designated Account. RCSI regularly engages in two (2) types of Flips: (i) the replacement of, or the addition to, an Account with a new Accounts (a GECF-A Flip”) where no past billing history is brought over, and (ii) a transfer of responsibility for and control of a group of Designated Accounts from one RCSI Affiliate to another RCSI Affiliate (an “Internal Flip”). First Data shall perform the Flips requested by RCSI. Unless otherwise specified by RCSI, First Data shall complete each Flip within thirty (30) days of RCSI’s request for such Flip and shall complete each Internal Flip following the applicable conversion dates (each portfolio needs to have been converted to the First Data System) within the calendar month of RCSI’s request for such Flip.

12.

DECONVERSION ASSISTANCE

12.1

General First Data Responsibilities.

As and upon the schedule established by RCSI, First Data shall provide the assistance (the “Deconversion Assistance”) that RCSI and any successor owner or holder (collectively, “Transferee”) of a portfolio of Accounts which are or were, at the time held by RCSI, Designated Accounts (collectively, “Transferred Accounts”) may reasonably require in connection with the transfer of the Transferred Accounts and related conversions. First Data’s Deconversion Assistance shall include the Services described in this Article 12.

FINAL

12.2

Specific First Data Responsibilities.

(a) General. First Data shall:

(i) Provide a plan for the transition of requested operations from First Data which plan is subject to approval by RCSI.

(ii) Provide RCSI access to and use of the information and of the personnel, third parties and other resources then being used by First Data to provide the Services to RCSI. First Data shall, upon request by RCSI, provide to the Transferee master file and field descriptions and record layouts and other similar information necessary for RCSI to deconvert from the First Data System and the Transferee to convert to another platform, the Transferred Accounts without disruption to RCSI’s operations.

(iii) First Data shall provide the Transferee all required deconversion files within two (2) weeks of request. Multiple requests may be required.

(iv) Provide RCSI with such information regarding the Services as is reasonably prudent or necessary in order for the Transferee to assume responsibility for, and continue the performance of, the Services as to the Transferred Accounts in an orderly manner, so as to minimize, as much as possible, disruption in the operations of RCSI.

(b) Pre-Migration Services. First Data shall:

(i) Provide to RCSI copies of copy books used by First Data in performing the Services.

(ii) Provide to RCSI copies of other information regarding the Services that are required to implement the transition plan, including the following:

(A)

copies of the security tables, if any, utilized in the provision of Services to RCSI which are necessary to effect the necessary conversion;

(B)

documentation describing the functionality of customized system modifications created on behalf of RCSI, including documentation relating to or affecting the Transferred Accounts; and

(C)

copies of the manuals required support the environment relating to the Transferred Accounts.

(iii) Provide assistance to RCSI in notifying third party vendors of the procedures to be followed during the turnover phase.

(iv) Assist RCSI in understanding naming conventions.

(v) Provide test tapes to assist RCSI in its analysis of the space required for data.

FINAL

(vi) Provide to RCSI access to First Data Personnel who were performing the Services in order that such personnel may answer the Transferee’s questions.

(vii) Provide to RCSI interim tapes of RCSI’s data relating to or affecting the Transferred Account.

(viii) Provide to RCSI multiple tape copies of RCSI’s data relating to the Transferred Accounts in First Data’s possession.

(ix) Cooperate with RCSI in the preparation for and conduct of migration testing sufficient to the transfer of the Transferred Accounts in an orderly manner.

(i) Deliver to the Transferee as requested by RCSI tapes of the requested data files (without content listing) and printouts of control file information relating to or affecting the Transferred Accounts.

(ii) Provide reasonable assistance to the Transferee in loading the data files.

(d) Post Migration Services. First Data shall:

13.

PROBLEM MANAGEMENT SERVICES

13.1

General First Data Responsibilities.

First Data shall identify, track and manage the problems arising from or relating to the Services (“Problem Management” or “Problem Management Services”).

FINAL

First Data shall implement and maintain processes under which a single point of contact has end-to-end responsibility for each problem arising from or relating to the Services in order to minimize redundant contacts with RCSI.

13.2

Specific First Data Responsibilities.

(a) First Data’s responsibilities with respect to Problem Management shall include the following:

(i) logging reported problems upon receipt from RCSI or its third party providers, and as identified by First Data;

(ii) monitoring, controlling and managing each problem arising from or relating to the Services until it is corrected or resolved;

(iii) correcting or resolving the problems relating to the Services (problem corrections will be subject to verification by the authorized RCSI affected end user or control person);

(iv) adhering to the procedures for problem escalation, review and reporting specified in Schedule B and agreed upon by the Parties and also taking appropriate measures to avoid recurrence of problems; and

(v) monitoring, measuring and providing reports in the format required by RCSI on problems, including statistics on the types of problems, total number of problems, outstanding problems and resolution times (including the average time to resolve problems) for the Services in general, for specific portions of the Services, and for individual RCSI customers.

(b) First Data shall improve the average time to resolve problems during the Term.

(c) First Data shall maintain communications with RCSI on the problems through resolution. First Data shall, for each problem, provide prompt notification to RCSI of system outages on critical systems, and shall otherwise provide regular and timely progress updates that clearly indicate the nature of the problem, the estimated time to correction, and potential short-term alternatives. First Data shall make known to RCSI information regarding the status of significant problems on at least a daily basis or more frequently as appropriate. First Data shall track and report any backlog of unresolved problems.

(d) First Data shall implement an appropriate Problem Management infrastructure tool set which has been customized with processes to provide tracking databases. The tool set shall include:

(i) a knowledge management mechanism to capture, store and retrieve solutions for reuse by First Data personnel and end users; and

FINAL

(ii) a knowledge database to enable the sharing of policies, procedures, best practices and methods among employees and end users.

First Data shall provide to RCSI reports from the problem database on an ongoing basis and will grant RCSI access to monitor and view the problem database on an ongoing basis. In addition, First Data will have access to, and shall if approved by RCSI, use for RCSI First Data-wide cross-customer solutions from central problem resolution databases maintained by First Data.

(e) First Data shall have available for contact by RCSI help desk skilled personnel with appropriate problem management capabilities and technical knowledge with respect to the First Data System and the Services, including product and technical specialists, twenty-four (24) hours per day, seven (7) days per week to provide problem resolution services to RCSI and, if requested by RCSI, directly to RCSI customers. Such personnel shall serve in a “second line” capacity and shall answer questions concerning, and resolve problems with, delivery of the Services to or performance of the Services for RCSI. During business days the First Data problem management personnel shall be available by telephone between the hours of 6:00 a.m. and 8:00 p.m.(Eastern Time Zone) and, by pager, all other hours. First Data shall have available on call, and shall dispatch as required, support specialists twenty-four (24) hours per day, seven (7) days per week to provide troubleshooting and maintenance response as necessary to identify and resolve problems. The specialists will be skilled personnel with appropriate problem management capabilities and technical knowledge with respect to the First Data System, the Services and to RCSI activities typically occurring during the time period for which they are on duty. The specialists will be staffed as required by RCSI at various First Data and RCSI locations.

(f) First Data shall engage and manage third party suppliers and vendors as necessary to localize and resolve problems that arise from or relate to the Services.

14.

DISASTER AND BUSINESS RECOVERY

As further detailed in Exhibit A-7, First Data shall provide support as reasonably requested by RCSI to meet RCSI’s disaster recovery and business recovery requirements. In connection with that support, First Data shall participate, as required by RCSI, in RCSI disaster recovery tests, agree to use reasonable efforts to accommodate RCSI’s disaster recovery and business recovery requirements, and, to the extent there are requirements First Data cannot accommodate, make reasonable efforts to find alternative solutions. If it is determined that system modifications must be made or unique services provided, pricing for such services will be proposed to RCSI.

FINAL

15.

APPLICATION DEVELOPMENT AND APPLICATION MAINTENANCE

15.1

General.

(a) First Data shall provide the Application development services (“AD”) and Application maintenance services (“AM”) described in this Schedule A and elsewhere in the Agreement.

(b) First Data shall provide AD and AM in the priority and on the schedule specified by ***.

(c) First Data shall provide progress reports on individual AD project activities as part of the Monthly Performance Report and shall, as requested by RCSI, advise on developments in technology of potential interest to RCSI.

(d) First Data shall provide to RCSI each month a detailed, written plan (the “Development Hours Plan”) setting forth its proposed expenditure of Development Hours in the following month. RCSI’s approval will be necessary in order for First Data to implement the Development Hours Plan.

(e) First Data shall complete AD and AM work within time frames meeting RCSI’s business requirements, including the time frames required to meet RCSI’s customer’s business requirements, as such time frames are made known to First Data, as long as resources to satisfy such requests are available. Availability will be dependent on joint planning and forecasting for capacity with enough lead time to ramp-up and ramp-down.

(f) First Data shall use technologically current development/maintenance tools and languages as appropriate to improve programmer productivity, code stability and reusability.

15.2

Application Development Responsibilities.

(a) First Data shall be responsible for designing, developing, and implementing ongoing and new AD projects as and to the extent requested by RCSI. First Data shall consider any suggestion of RCSI as to the location of First Data personnel performing particular AD projects, but First Data shall make such AD location decisions. First Data shall perform the AD in accordance with industry-accepted, repeatable, systems development life cycle methodology. The methodology will include the processes comprehensively covering the AD activities next described. That methodology will also include the following:

(i) developing appropriate documentation, preserving the knowledge base for reuse, and developing and implementing appropriate user training; and

(ii) a change procedure under which RCSI may request enhancements, customizations, interfaces, or other changes to the AD project.

That procedure will include the performance of an analysis by First Data to determine the impact (including financial, allocation and use of resources, and scheduling) of the requested enhancement(s), customization(s), development of interface or other change(s) on the AD project and will require that no change will be made until reduced to a written change order describing the change order and associated costs with particularity and approved by RCSI.

FINAL

(b) Except as otherwise approved by RCSI, AD projects performed by First Data shall include the activities next described and the Parties’ respective responsibilities will be as next described. These provisions also apply, as appropriate, to the extent portions of AD projects are assigned to First Data.

(i) Initial Evaluation/Structure. Upon receipt from RCSI of a request for AD, First Data shall perform an initial feasibility assessment sufficient for RCSI to make a reasonable business decision on whether to continue with the requested AD project. Such assessment will include an analysis of the impact of the performance of the AD project on the performance of the Services as a whole, including existing AD projects. As requested by RCSI, First Data shall provide assistance in evaluating, and will make recommendations respecting, the use of available First Data and third party software for the AD project versus building the Application software. First Data shall then provide its findings in writing to RCSI.

(ii) Analysis and Identification of RCSI’s Requirements. First Data shall be responsible for analyzing in-depth and identifying substantially all the business and user requirements of RCSI in connection with the AD project. These requirements will be stated at a level of detail sufficient to formulate acceptance criteria and will be set forth in a business/user requirements document drafted by First Data, submitted to RCSI for review and comment, and finalized by First Data as directed by RCSI. This phase of activity will be completed upon RCSI’s approval and sign-off of the business/user requirements document.

(iii) Resolution Plan. First Data shall prepare a resolution plan (“Resolution Plan”) which s

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