Exhibit 10.4



SERVICES AGREEMENT 


This Services
Agreement is made and entered into as of September 18, 2001, with an effective
date of December 1, 2000 (“Effective Date”), between IndyMac Bank F.S.B., of
155 N. Lake Avenue, Pasadena, California 91101 (“Client”), and Card Management
Corporation, an Indiana corporation, of One Riverfront Place, Evansville,
Indiana 47708 (“CMC”). 


Article 1. EXHIBITS


	
 

	
 


	
 

	
The
  following exhibits are incorporated by reference into this Agreement: 


	
 

	
 


	
 

	
Exhibit A, Services 


	
 

	
Exhibit B, Payment 


	
 

	
Exhibit C-1, Performance Guidelines for
  Non-Collection Services 


	
 

	
Exhibit C-2, Collection Procedures and
  Performance Guidelines for Collection Services 


	
 

	
Exhibit D, Form Participation Agreement 


	
 

	
Exhibit E-1, Empowerment Policy (Customer
  Services) 


	
 

	
Exhibit E-2, Intentionally Omitted 


	
 

	
Exhibit E-3, Intentionally Omitted 


	
 

	
Exhibit F, Responsibilities of Client 


	
 

	
Exhibit G, Glossary 





If any or all
of Exhibits C-2, E-2 or E-3 are inapplicable to this
Agreement, the same shall be attached in blank and labeled “Intentionally
Omitted.” 


Article 2. SERVICES


          2.1
Services. CMC shall provide to Client the
Customer Services and Client Services and shall perform the empowered actions
in Exhibit E-1. CMC shall, through its Service Agreement with FDR,
provide Processing Services. If Exhibit C-2 is not intentionally
omitted, CMC shall provide Collection Services to Client. Client hereby
authorizes CMC to provide the additional services and to take the actions set
forth in whichever of Exhibits E-2 and E-3 are not intentionally
omitted. The foregoing services shall be referred to collectively as the
Services. CMC shall assign to Client a Client Account Executive (CAE) for daily
communication between Clients Authorized Representatives and CMC. Except as otherwise
expressly provided in this Agreement, CMC shall be responsible for providing
the facilities, personnel and other resources necessary to provide the Services
and shall maintain internal controls over its operations. 


          2.2
Compliance with Laws. Subject to the
limitations in this Section 2.2 and in paragraph 5 of Exhibit F
regarding written materials, CMC shall perform Services hereunder in compliance
with: (i) the Rules of any applicable Card Associations; and (ii) all
Requirements of Law applicable to the Services, including, with respect to the
provision of Collection Services hereunder, the Fair Debt Collection Practices
Act (“FDCPA”) (to the extent the same is applicable to such Collection
Services) and the United States Bankruptcy Code (“the Code”) (the Rules, the
Requirements of Law applicable to the Services, the FDCPA and the Code
collectively referred to as the “CMC Laws”). Notwithstanding anything to the
contrary in this Agreement, any act or omission by CMC which is represented by or
in accordance with: (i) Client’s PCF settings or 






other System
settings; (ii) the form, content and triggering parameters of Computer Letters,
Cardholder Account statements and other written materials provided to
Cardholders; or (iii) the written or verbal instruction of Client, shall in no
event be deemed a negligent act of omission by CMC or a breach of this
Agreement for failure to comply with CMC Laws. In the event CMC believes that
any written materials or any verbal or written instruction from Client is in
violation of a Rule or a Requirement of Law, CMC shall notify Client. If Client
nevertheless requests in writing that CMC use such written material or comply
with such instruction (“Client Request”), CMC shall comply with such Client
Request, subject to the provisions of Section 6.2. 


          2.3
Performance Standards. 


          (a)
Performance Guidelines, Other Standards.
As to those Services for which a Performance Guideline is set forth in Exhibit
C-1 or C-2, CMC shall perform such Services in compliance with such Performance
Guidelines. Any failure(s) of performance which occurs before the tolerance in
a Performance Guideline has been exceeded or which does not constitute a
Non-Performance Event shall not be deemed a negligent act by CMC or breach of
this Agreement for failure to comply with Performance Guidelines. As to all
other Services, CMC shall perform such Services in accordance with the average
levels of timeliness and accuracy achieved by other providers of similar
services, including Card Issuers and Acquirers. CMC shall correct or cause to
be corrected within a reasonable period of time any data processing or other
billing errors of which CMC has knowledge that occur in the performance of the
Services. Such correction shall be performed at no additional expense to
Client; provided, however, that CMC’s reasonable expenses incurred in
performing the correction shall be applied against the annual aggregate limit
of liability of CMC to Client set forth in Section 7.1.  


          (b)
Problem Analysis. If CMC
fails to meet any Performance Guideline and Client requests an analysis in
writing, CMC shall (i) investigate and report on the causes of the problem; and
(ii) use reasonable efforts to correct the problem and to begin meeting the
Performance Guidelines as soon as practicable. Client’s failure to request an
analysis of any failure of a Performance Guideline shall not be deemed a waiver
by Client, for any purpose under this Agreement, of such failure the
Performance Guideline. 


          (c)
Improvements to Services. In
the event CMC plans to offer to any of its Clients an improvement in the
quality of its Services over the Services offered as of the date of this
Agreement, CMC shall make such improvement available to Client, provided Client
agrees to any associated price increase. 


          2.4
License to System. CMC hereby grants to Client
and its Affiliates a non-exclusive, worldwide and unlimited right and license
to access and use the System in furtherance of its business purposes in connection
with the receipt of Services under this Agreement. 


          2.5
Delegation of Responsibility. CMC shall not
subcontract or otherwise delegate any of its main business functions under this
Agreement to any Third-Party Service Provider or any other third party without
the prior written consent of Client, which consent cannot be unreasonably
withheld. Notwithstanding the provision of any such consent, CMC shall (i)
remain responsible for its obligations performed by any Third-Party Service
Provider (other than FDR) to the same extent as if such obligations were
performed by CMC s employees, and (ii) cause all 


2






such
Third-Party Service Providers (other than FDR) to agree to and abide by the
terms of this Agreement. CMC shall have no liability to Client, under any
theory, for any act or omission by FDR taken in connection with the Services
provided hereunder, and no such occurrence shall be deemed the negligence of
CMC or a breach of this Agreement; provided, however, that CMC shall be fully
responsible and accountable to Client for enforcing all material aspects of the
Service Agreement dated January 22, 1996, as amended, between CMC and FDR
(“CMC/FDR Service Agreement”). 


Article 3. CLIENT RESPONSIBILITIES


          Client
shall pay CMC the Service Fees and other fees and charges in accordance with Exhibit
B. Client retains all responsibilities of operating its Home Equity Line of
Credit (HELOC) program which are not expressly assumed by CMC hereunder,
including those set forth in Exhibit F. Notwithstanding the foregoing,
CMC s right to early terminate this Agreement as the result of a breach by
Client of its obligations hereunder shall be limited and conditioned as set
forth in Section 10.1(b). 


Article 4. SCOPE OF RELATIONSHIP


          4.1
Non-Exclusive Relationship. Client will not,
during the term of this Agreement, as to Client’s HELOC program, obtain any
services which are available from CMC from any other provider of similar
services, including Client or any of Client’s Affiliates, or obtain Processing
Services directly from FDR. Nothing in this Agreement shall be construed as a
requirements contract, other than as to Client’s HELOC program. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be
interpreted to prevent Client from obtaining from third parties, or providing
to itself, any or all of the services described in this Agreement, other than
as to Client’s HELOC program. 


          4.2
Option to Transfer Accounts. Client agrees that
it shall notify CMC in writing of the terms under which it decides to transfer
any portion of its Accounts processed under this Agreement, as soon as such
terms are established. Upon such notification, Client may, at its sole
discretion, grant CMC a right of first refusal for sixty (60) days from such
notice to identify another financial institution or client of CMC which is
interested in purchasing such Accounts, on terms yielding a reasonably
equivalent or greater economic benefit to Client, and Client shall allow CMC a
reasonable period thereafter to complete the sale and conversion of such
Accounts to such Person. The Termination Fee shall not apply to whatever
portion of such Accounts CMC is able to convert to such Person. Client may
transfer any portion of the Accounts to its Affiliate provided that such
Affiliate agrees to enter a written joinder agreement with CMC, agreeing to all
terms of this Agreement; however, Client shall not be released from its
obligations hereunder by virtue of such transfer. The parties acknowledge and
agree that Client may, from time to time after the date of this Agreement,
securitize some or all of the Accounts with various investors. The parties
agree that securitization of the Accounts shall be permitted under the terms of
this Agreement and shall not trigger the foregoing right of first refusal. 


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Article 5. CONFIDENTIALITY


          5.1
Proprietary Information. Neither Client, CMC,
nor any of their Affiliates shall obtain any proprietary rights in any of the
other party’s Proprietary Information which may be disclosed at any time,
directly or indirectly, to a party or any of their Affiliates. Client, CMC, and
their Affiliates agree to return to the appropriate party all Proprietary
Information upon the termination of this Agreement. 


          5.2
Confidentiality. Both parties agree to maintain
and to cause their own Affiliates to maintain in strict confidence the other
party’s Proprietary Information. Without limiting the generality of the
foregoing, Client and CMC agree for themselves and their respective Affiliates:



          (a)
Not to disclose or permit any other Person access to the other party’s
Proprietary Information, except that such disclosure or access shall be
permitted to an Affiliate, agent, professional advisor, external or internal
auditor, independent contractor, Card Association or supervisory or regulatory
authority of the party or the Affiliate (“Permitted Parties”), solely to the
extent required in the course of Permitted Parties’ employment or services. 


          (b)
To prevent their Permitted Parties from taking any action prohibited under this
Article. 


          (c)
Not to alter or remove any identification, copyright or proprietary rights
notice which indicates the ownership or confidential nature of each other’s Proprietary
Information. 


          (d)
Not to use the Proprietary Information to compete against the other party for
provision to a third party of any of the services offered by the other party. 


          (e)
CMC acknowledges that all information and documents disclosed by Client to CMC,
or which come to CMC’s attention during the course of its performance of
Services under this Agreement, constitute valuable assets of and are
proprietary to Client, and also acknowledges that Client has a responsibility to
its customers and employees to keep Client’s records and information
confidential and proprietary. Therefore, CMC agrees not to disclose, other than
as is necessary to perform its obligations under this Agreement, either
directly or indirectly, to any Person, firm or corporation, non-public personal
information (as that term is defined in the Gramm Leach Bliley Act) of any
kind, nature or description concerning matters affecting or relating to the
business of Client unless the information is already in the public domain.
Further, CMC shall establish and maintain an information security program
designed to: ensure the security and confidentiality of non-public personal
information supplied by Client; protect against any anticipated threats or
hazards to the security or integrity of such information; and protect against
unauthorized access to or use of such information that could result in
substantial harm or inconvenience to Client. The provision of this subsection
5.2(e) shall survive termination of this Agreement. 


          5.3
Exclusions. Nothing in this Article shall apply
to information or data identical or similar to that contained in the other
party’s Proprietary Information which: 


          (a)
that party rightfully possessed without restrictions on its disclosure, as
evidenced by written documentation, before it received the information from the
other party; or 


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          (b)
has become publicly available through no fault of that party or its Permitted
Parties; or 


          (c)
is subsequently furnished rightfully to that party by a third party (no
Affiliate of Client or CMC shall be considered to be a third party) not known
to that party (without any reasonable basis for that party’s belief to the
contrary) to be under restrictions on use or disclosure; or 


          (d)
is independently developed by an employee, agent or contractor of such party
without knowledge of or any use of or access to any Proprietary Information; or



          (e)
is required to be disclosed by law, regulation or court order, provided that
the disclosing party will notify the other party prior to disclosure, if
permitted by such law, regulation or court order. 


          5.4 Use of Client Data. CMC shall
keep all of the Client Data strictly confidential and shall not utilize any
Client Data for any purpose other than that of rendering the Services under
this Agreement. CMC shall not withhold any Client Data as a means of resolving
any dispute. None of the Client Data shall be sold, assigned, leased, or
otherwise transferred to third parties by CMC or commercially exploited by or
on behalf of CMC. 


          5.5
Data Security. CMC shall establish and maintain
environmental, safety and facility procedures, data security procedures and
other safeguards against the destruction, corruption, loss or alteration of the
Client Data, and to prevent access, intrusion, alteration or other interference
by any unauthorized third parties of the same, that are: (a) no less rigorous
than those maintained by CMC for its own information or the information of its
customers of a similar nature; and (b) no less rigorous than best practices in
the industry. Without limiting the generality of the foregoing, CMC shall: (i)
maintain applicable equipment and software in physically secure premises protected
at least by fire and flood protection and access controlled doors; (ii) utilize
industry-accepted virus and intrusion checking software and firewalls; and
(iii) limit access to the Client Data to only those of CMC’s employees and
agents who need such access for the provision of the Services. CMC shall
immediately inform Client when CMC has reason to believe that any unauthorized
access to Client Data has occurred. 


          5.6
Data Backup. Client acknowledges receipt and
approval of a copy of CMC’s disaster recovery contract with ComDisco. CMC
shall, throughout the term of this Agreement, maintain in force a substantially
similar contract with a provider of disaster recovery services. CMC shall
correct, at Client’s request and sole discretion, any destruction, loss or
alteration of any data or information caused by CMC or any CMC personnel. Such
correction shall be performed at no additional expense to Client; provided, however,, that CMC’s
reasonable expenses incurred in performing the correction shall be applied
against the annual aggregate limit of liability of CMC to Client set forth in
Section 7.1. 


          5.7
Data Segregation. CMC shall maintain procedures
to logically segregate Client Data from CMC’s data and data belonging to CMC’s
other customers (and the data associated with individual Customers from each
other), which procedures shall be subject to Client’s review and approval. 


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          5.8
Audit Rights. Upon Client’s written request,
CMC shall provide Client or Client’s external auditors with access to all or
any portion of any CMC facility (and any facility of any Third-Party Service
Provider) or any of the Client Data in CMC’s possession as is necessary for
Client’s external auditor to conduct audits from time to time. If requested by
Client, CMC shall provide to such external auditors any assistance that they
might reasonably require in connection with such audits. Client shall receive a
copy of CMC’s SAS70 report upon completion of each such report, which reports
shall be performed on a reasonable periodic basis. Subject to Client’s
approval, CMC shall make all reasonable changes requested by, and take any
other reasonable action necessitated by, any such audit or examination. CMC
shall provide Client with documentation regarding resolution of any deficiency
disclosed in an audit referred to in this Section 5.8. Client agrees that costs
incurred by CMC for such audits shall be reimbursed to CMC. 


          5.9
Access to System. The parties acknowledge that
certain System features allow certain of Client’s Proprietary Information to be
accessed by Client and the public via touch tone phones, personal computer, or
other access methods, such that unauthorized Persons could access such
information. The parties agree that neither party shall be liable to the other
party under this Agreement for unauthorized use of or access to the System by
unauthorized Persons, except to the extent such access results from a party’s
breach of this Agreement. 


          5.10
Use of Marks. CMC agrees that without Client’s
prior written consent, CMC shall not use the names, service marks, trademarks
and/or logos of Client or any of its Affiliates. 


          5.11
Remedy. The parties agree that, in the event of
any breach of this Article 5, the non-breaching party will suffer irreparable
harm and the total amount of monetary damages for any injury to the
non-breaching party will be impossible to calculate and will therefore be an
inadequate remedy. Accordingly, the parties agree that the non-breaching party
shall be entitled to temporary and permanent injunctive relief against the
breaching party, its Affiliates, employees, officers, directors, agents,
professional advisors, independent contractors and any Card Association, and
all other rights and remedies, including monetary damages, to which the
non-breaching party may be entitled at law, in equity and under this Agreement.
The breaching party hereby waives its right to require the party seeking the
injunction to post a bond in support of its application for an injunction. 


Article 6. INDEMNIFICATION


          6.1
Indemnification by CMC. CMC shall indemnify and
hold harmless Client and its Affiliates, and their respective officers,
directors, employees, successors and permitted assigns (Client Group Members)
from and against any and all claims, liabilities, losses and damages, including
reasonable attorney fees and costs and costs of settlement (hereinafter,
collectively, “Losses”), arising out of, or resulting from: (i) the breach of
this Agreement by CMC or its Third-Party Service Providers (other than FDR and
others with whom Client has contracted directly); (ii) the breach by CMC of its
agreement with FDR; (iii) any infringement or misappropriation of any patent,
copyright, trade secret, trademark or other intellectual property right of any
third party caused or alleged to have been caused by any portion of the System
or other Proprietary Information provided to any Client Group Member or used by
CMC or its Third Party Service Providers (other than FDR and others with whom
Client has contracted directly) in 


6






the
performance of the Services, except to the extent any such infringement or
misappropriation is caused by (1) modifications to the System or CMC
Proprietary Information made by Client without the approval of CMC, or (2)
CMC’s compliance with detailed technical or design specifications provided by
Client; and (iv) any acts of intentional tortious conduct by CMC or any of its
Third Party Service Providers (other than FDR and others with who Client has contracted
directly). 


          6.2
Indemnification by Client. Client shall
indemnify and hold harmless CMC and its officers, directors, employees,
successors and permitted assigns (CMC Group Members) from and against any
Losses arising out of, or resulting from (i) the breach of this Agreement by
Client or its agents; (ii) the breach by Client of its agreement with FDR;
(iii) any suit, claim or demand brought by any third party against CMC to the
extent relating to the conduct of Client’s business and not relating to any
negligence, breach of this Agreement or other act or omission of CMC, its
employees, agents or contractors; (iv) CMC’s compliance with Client Requests;
and (v) any acts of intentional tortious conduct by Client or its agents. 


          6.3
Claims Period. Subject to the provisions of
paragraphs 4 and 11 of Exhibit F, any claim for indemnification
(Indemnification Claim) under this Agreement must be made by notice, from the
Person asserting the indemnification right (Indemnified Party) to the Person
obligated to provide indemnification (Indemnifying Party), provided prior to
the earliest of:  


          (a)
Ninety (90) days after receipt by the Indemnified Party of notice of a claim,
suit or proceeding made or filed by a third party (Third Party Claim) upon
which the Indemnification Claim is based; 


          (b)
One-hundred twenty (120) days after the date any employee or agent of the
Indemnified Party first becomes aware of the event giving rise to the
Indemnification Claim; or 


          (c)
If the event giving rise to the Indemnification Claim was discoverable through
review of an RMS report, one-hundred twenty (120) days after the date any
employee or agent of the Indemnified Party should have (employing a level of
diligence customary in the industry) become aware of the event, but in no case
later than one-hundred fifty (150) days after the date of the event; provided
however, that if such event was not discoverable through review of an RMS
report, the claims period shall be one-hundred fifty (150) days after the date
of the event giving rise to the Indemnification Claim; or 


          (d)
One-hundred twenty (120) days after the final Deconversion Date under this
Agreement. 


If notice
complying with the requirement of Section 6.4 is not provided within such time
limits, the claimant’s recovery shall be limited to the amount of (i) the
Indemnification Claim which had accrued as of the applicable notice deadline,
plus (ii) that additional amount which the claimant demonstrates would have
accrued even if the claimant had provided notice within such time limit.
Notwithstanding the foregoing, in the event notice complying with the
requirements of Section 6.4 is not provided within the time limit in Section
6.3(d), no Indemnification Claim may be made and such event shall not be
indemnifiable hereunder or be considered a breach of this Agreement. 


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          6.4
Notice of Indemnification Claim. Notice of an
Indemnification Claim must be in writing and include a description and
supporting documentation of the event giving rise to the Indemnification Claim.



          6.5
Third Party Claims. 


          (a)
Election to Defend, Selection of Counsel.
The Indemnifying Party, within thirty (30) days (or such shorter period as
is required to avoid any prejudice in the Third-Party Claim) after receipt of
notice of a Third-Party Claim from the Indemnified Party, may elect to defend,
compromise, or settle the Third-Party Claim at its expense. If the Indemnifying
Party elects to defend, compromise or settle the Third-Party Claim, the
Indemnified Party may participate therein; however, notwithstanding anything to
the contrary herein, the Indemnifying Party shall not bear the attorney fees
and expenses of the Indemnified Party incurred either before or after such election
unless such fees were reasonably incurred by the Indemnified Party, prior to
such election, to avoid prejudice in the Third-Party Claim. The Indemnified
Party shall provide to the Indemnifying Party all information, assistance and
authority reasonably requested in order to evaluate any Third-Party Claim and
effect any defense, compromise or settlement. 


          (b)
Settlement of Claims. In
any Third-Party Claim, the defense of which the Indemnifying Party shall have
assumed, the Indemnified Party will not consent to the entry of any judgment or
enter into any settlement with respect to a matter for which indemnification
may be sought in excess of One Thousand Dollars ($1,000.00) without the consent
of the Indemnifying Party. The Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement affecting the Indemnified Party
(i) unless it assumes the obligation to indemnify for all Losses arising from
the same; or (ii) to the extent that the judgment or settlement seeks any
non-monetary relief, without the written consent of the Indemnified Party. 


          6.6 Indemnification Payments. Subject
to the next sentence and except as provided in subsection 7.1(b) hereof,
indemnifiable Losses shall be net of any recoveries received by the Indemnified
Party from any third Persons, including Customers or FDR, which recoveries are
directly and solely attributable to the event which gave rise to the
Indemnification Claim. If, by virtue of having been indemnified under this
Agreement, an Indemnified Party has been reimbursed in full for its Losses,
such Indemnified Party, promptly upon receipt, shall reimburse the Indemnifying
Party for any recoveries it receives in excess of full reimbursement. In the
case of Client’s Losses arising from funds erroneously loaned to Cardholders,
payment by the Cardholder to Client of, or indemnification by CMC for, the
principal amount of such funds, and any finance charges accruing on such funds
under the terms of the HELOC contract until payment or indemnification in full,
shall constitute full reimbursement. Any finance charges accruing on such
principal amounts after payment to Client in full or indemnification of Client
in full, and any late fees, if paid by or collected from such Cardholder, shall
be reimbursed to CMC. 


          6.7 Subrogation. Solely to the
extent an Indemnifying Party’s payments to an Indemnified Party hereunder are
not reimbursed by payments from the Indemnifying Party’s insurance carrier(s),
the Indemnifying Party shall be subrogated to any claims or rights of the
Indemnified Party as against any other Person with respect to any amount paid
by the Indemnifying Party. The Indemnified Party shall cooperate with the
Indemnifying Party, at the Indemnifying Party’s expense, in the assertion by
the Indemnifying Party of any such claim 


8






against such
other Persons. Specifically, Client hereby authorizes CMC, to the extent
legally permissible, to enforce Client’s rights of recovery against Client’s
Customers by means of the System, in Client’s name and using Client’s forms,
including billing of Client’s Cardholders; provided, however, that CMC shall
not bring suit against Client’s Customers in Client’s name for purposes of
exercising CMC’s subrogation rights hereunder and provided further that CMC
shall indemnify and hold Client harmless from and against any and all Losses
arising out of, or resulting from, any such exercise by CMC of Client’s rights
of recovery against its Customers. The indemnification and hold harmless
obligation of CMC set forth in the preceding sentence shall not be subject to
any of the limitation of liability provisions of Article 7. Client further
agrees to bring suit, at CMC’s expense, in its own name against a
Cardholder for collection of any unpaid Account balances for which CMC has
indemnified Client hereunder, if, and in the manner that, such a suit would
otherwise be initiated against such Cardholder in the normal course of Client’s
customary collection procedures. 


          6.8
Insurance. 


          (a)
Requirements. CMC agrees to
keep in full force and effect and maintain at its sole cost and expense the
following policies of insurance (“Insurance Policies”) during the term of this
Agreement: 


	
 

	
 

	
 

	
 


	
 

	
(1)

	
Workers’
  Compensation and Employer’s Liability Insurance: 


	
 

	
 

	
 

	
 


	
 

	
 

	
(i)

	
Statutory
  Worker’s Compensation including occupational disease in accordance with the
  law; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
(ii)

	
Employer’s
  Liability Insurance with minimum limits of $1,000,000 per occurrence. 


	
 

	
 

	
 

	
 


	
 

	
(2)

	
Commercial
  General Liability Insurance (including contractual liability insurance)
  providing coverage for bodily injury and property damage with combined single
  limits of not less than $2,000,000 per occurrence and Excess Liability in an
  amount not less than $5,000,000 per occurrence. 


	
 

	
 

	
 


	
 

	
(3)

	
Professional
  Liability and Errors and Omissions Liability Insurance covering acts, errors,
  omissions and machine malfunctions arising out of CMC’s operations or
  Services in an amount not less than $10,000,000 per occurrence. 


	
 

	
 

	
 


	
 

	
(4)

	
Employee
  Dishonesty and Computer Fraud Insurance covering losses arising out of or in
  connection with any fraudulent
  or dishonest acts committed by personnel of CMC or its Third-Party Service
  Providers, acting alone or with others, in an amount not less than $1,000,000
  per occurrence. 





          (b)
Approved Companies. All
Insurance Policies shall be procured from insurance companies having policy
holder ratings no lower than “A” and financial ratings not lower than “XII” in
the then-current Best’s Insurance Guide.



          (c)
Endorsements. CMC’s
Professional Liability and General Liability insurance policies shall name
Client as an additional insured for any and all liability arising at any time
in 


9






connection
with CMC’s performance under this Agreement. CMC’s Fidelity Bond shall name
Client as a loss payee. CMC shall obtain such endorsements to its policy or
policies of insurance as are necessary to cause the policy or policies to
comply with the requirements stated herein. Notwithstanding Client’s status as
an additional insured or loss payee under any of the Insurance Policies, Client
and CMC agree that Client shall not, except to the extent set forth in Section
7.1(a), file a claim directly with any of CMC’s insurance carriers. 


          (d)
Certificates. CMC shall
provide Client with certificates of insurance evidencing compliance with this
Section 6.8 (including evidence of renewal of insurance) signed by authorized
representatives of the respective carriers for each year that this Agreement is
in effect. Each certificate of insurance shall include a statement that the
issuing company shall endeavor to provide Client notice simultaneously with
notice to CMC of any cancellation or non-renewal of the insurance afforded
under the above policies. 


          (e)
No Implied Limitation. The
obligation of CMC to provide the insurance specified herein shall not limit in
any way any obligation or liability of CMC provided elsewhere in this
Agreement. 


          (f)
Insurance Subrogation. With
respect to insurance coverage to be provided by CMC pursuant to Sections
6.8(a)(1), (2) and (3), the applicable Insurance Policies shall provide that
the insurance companies waive all rights of subrogation against Client and its
subsidiaries, affiliates, officers, directors, agents, servants and employees. 


Article 7. LIMITATION OF LIABILITY


          7.1
Limitation of Liability. 


          (a)
Except as set forth below and as provided in subsection 7.1(b), the aggregate
liability of each party in each Annual Period, for any and all claims against
such party arising in such Annual Period (Indemnification Claims shall be
deemed to arise in the Annual Period during which notice thereof is first
provided to the Indemnifying Party) in respect to this Agreement or the
Services to be provided hereunder (including but not limited to claims for
indemnification of Third-Party Claims) shall not exceed six (6) times the
Average Monthly Service Fees owed to CMC pursuant to this Agreement.
Notwithstanding the foregoing, the limitation of liability of CMC for Special
Claims brought by Client in connection with this Agreement shall be, for each
such Special Claim: (i) the remainder of the aggregate cap set forth in the
preceding sentence for the Annual Period in which the Special Claim arises plus (ii) any and all amounts that are
actually recovered under the applicable Insurance Policies and which are
allocable to such Special Claim. To the extent any such Special Claim exceeds
the remainder of the aggregate cap set forth in the first sentence for the Annual
Period in which the Special Claim arises, Client shall have the right to
proceed directly against CMC’s insurance carrier(s) under the
applicable Insurance Policie(s) under which Client is named as an additional
insured, provided Client provides CMC reasonable advance written notice of its
intention to so proceed. 


          “Special
Claim” shall mean any claim by Client against CMC (including any right of
Client to claim indemnification hereunder) arising out of or resulting from: 


	
 

	
 

	
 


	
 

	
(1)

	
a breach by
  CMC of Section 2.2 of this Agreement; 





10






	
 

	
 

	
 


	
 

	
(2)

	
a breach by
  CMC of Article 5 of this Agreement; 


	 

	
 

	
(3)

	
any
  infringement or misappropriation claim to the extent covered by Section
  6.1(iii); 


	 

	
 

	
(4)

	
any acts of
  intentional tortious conduct by CMC or any of its Third Party Service
  Providers (other than FDR and others with who Client has contracted
  directly); or 


	 

	
 

	
(5)

	
a claim
  against Client by any third party for damage to any tangible personal
  property, bodily injury or death caused by the acts or omissions of CMC or
  any of its Third Party Service Providers (other than FDR and others with who
  Client has contracted directly). 





          For
purposes of this subsection 7.1(a) only, “Average Monthly Service Fees” shall
be determined only once during each Annual Period and shall be determined as
follows. If this Agreement has been in effect for twelve (12) months or more at
the time of determination, “Average Monthly Service Fees” means the average of
the monthly Service Fees (excluding those Service Fees attributable to
Processing Fees charged by or paid to FDR) owed to CMC hereunder for the twelve
(12) calendar months prior to the month in which the event first occurs, which
event gives rise to the first claim arising in such Annual Period. For example,
in the event the first of multiple claims raised by the Client in the 2002
Annual Period arises from an event which first occurred in June 2002, the
foregoing aggregate limit of CMC’s liability to Client in the 2002 Annual
Period would be six (6) times the average of the monthly Service Fees
(excluding those Service Fees attributable to Processing Fees charged by or
paid to FDR) owed to CMC hereunder for the twelve (12) calendar months prior to
June 2002. If this Agreement has been in effect for less than twelve (12)
months at the time of such determination, then “Average Monthly Service Fees”
means the highest monthly total of Service Fees (excluding those Service Fees
attributable to Processing Fees charged by or paid to FDR) which has been owed
to CMC hereunder prior to and including the month in which such determination
is made. 


          (b)
Each party shall enforce to the fullest extent practicable any provision of
their respective contracts with FDR for the other party’s benefit and provide
to the other party all reasonable assistance in seeking indemnification or
other recovery from or enforcing performance by FDR of its obligations to each
party under FDR’s agreements with each party. If either party obtains any
recovery from FDR for Losses incurred by the other party, that party shall pay
such recovery to the other promptly upon receipt, less any amounts already
payed by that party to the other as an advance against amounts subsequently
paid to the other by FDR. Any amounts due to CMC from Client under any
provision of this Agreement (as any such obligation may be limited under
subsection 7.1 (a) hereof), shall be due in addition to, and not in lieu of,
all Service Fees due hereunder from Client to CMC. 


          7.2 Limitation of Theories, Damages. IN
NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY LOST
REVENUES OR PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY PRECLUDED AND WAIVED BY
AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS SECTION 7.2, THIS SECTION 7.2 SHALL NOT LIMIT ANY CLAIM BY ANY
PARTY HEREUNDER FOR 


11






INDEMNIFICATION
FOR PUNITIVE OR CONSEQUENTIAL DAMAGES OWING TO A CARDHOLDER. AN ACTION TO
RECOVER DIRECT DAMAGES FOR BREACH OF THIS AGREEMENT SHALL BE THE EXCLUSIVE
REMEDY BETWEEN CLIENT AND CMC. NOTHING HEREIN SHALL BE CONSTRUED TO PREVENT CMC
FROM COMMENCING AN ACTION AGAINST CLIENT FOR COLLECTION OF ANY FEES OR COSTS
DUE HEREUNDER. 


Article 8. DISCLAIMER OF WARRANTIES


          CMC
AND CLIENT HEREBY AGREE THAT CMC’S OBLIGATIONS TO CLIENT ARE FOR THE PROVISION
OF SERVICES, THAT THIS AGREEMENT IS A SERVICE AGREEMENT FOR PURPOSES OF THE UCC
AND THAT THE PROVISIONS OF THE UCC SHALL THEREFORE NOT APPLY TO THIS AGREEMENT.
IN THE EVENT THE UCC IS FOUND APPLICABLE TO THIS AGREEMENT, CMC SPECIFICALLY
DISCLAIMS ALL WARRANTIES (OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN) OF ANY
KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES. 


Article 9. TERM


          This
Agreement shall become effective upon the Effective Date hereof, shall remain
in effect for an initial term of sixty (60) months following the Effective Date
(Initial Term), and shall automatically renew for successive renewal terms of
thirty (30) months each (Renewal Term). 


Article 10. TERMINATION


          10.1
Termination. This Agreement may be terminated: 


          (a)
By notice from
either party to the other party not less than six (6) months prior to the
date of expiration (Expiration Date) of the then-current Initial Term or
Renewal Term. In such event, the Termination Date shall be the Expiration Date;



          (b)
By either party, if the other party materially breaches this Agreement (other
than a violation of a Performance Guideline by CMC or a failure of Client to
pay Service Fees) and such breach is not cured within thirty (30) days after
delivery of notice to the breaching party which states the nature of the breach
with sufficient particularity to permit the breaching party to identify the
breach. In such event, the Termination Date shall be the final day of the
applicable cure period; 


          (c)
By CMC, if Client fails to pay any Service Fees within ten (10) Business Days
of receipt of notice that such payment is overdue, or if Client fails to meet
its Interchange Settlement obligation within two (2) days of receipt of notice
of such failure. In such event, the Termination Date shall be the date specified
in the overdue notice from CMC to Client. CMC shall have the option to, subject
to ten (10) Business Days notice to Client, cease providing any or all of the
Services hereunder without further demand on or notice to Client, specifically
including the right 


12






to begin
referring Customer phone calls and other Services to Client for handling, until
such overdue amounts are paid in full, plus any associated interest, costs,
processing or other fees due under Exhibit B; 


          (d)
By Client, if CMC commits a Failure of Performance Guidelines and Client
provides notice to CMC of its intention to terminate as a result thereof within
sixty (60) days after Client notifies CMC of the third Failed Month
(Non-Performance Termination). In such event, the Termination Date shall be the
date of the notice of termination; 


          (e)
By Client, at its sole option for convenience, by providing no less than six
(6) months prior written notice to CMC. In such event, the Termination Date
shall be the date of the notice of termination; 


          (f)
By CMC, at its sole option, after notice to Client, if FDR should stop
providing services to CMC or to Client that are necessary for CMC to properly
perform Services under this Agreement, so long as such cessation of services is
not due to CMC’s breach of its agreement with FDR and CMC promptly provides
Client with copies of all notices from FDR concerning the cessation. In such
event, the Termination Date shall be the date of the cessation of FDR’s
services; or 


          (g)
By either party, upon sixty (60) days’ written notice, upon a Change of Control
of the other party, in which the Surviving Entity does not maintain, at the
time of the Change of Control, a net worth at least as high as Client or CMC,
as applicable. “Change of Control” shall mean that either CMC or, in the case
of Client, Client’s ultimate parent or any successor thereto (“Parent”), in one
transaction or a series of transactions, directly or indirectly, merges or
otherwise combines with, acquires, or is acquired by, another Person in a
transaction: (i) constituting a merger of equals; or (ii) in which CMC or
Parent is not the Surviving Entity. CMC or Parent will not be considered to be
the “Surviving Entity” in a merger, combination or acquisition if either the
stockholders or the members of the Board of Directors of CMC or Parent
immediately prior to the merger, combination or acquisition constitute less
than a majority of the stockholders or the Board of Directors resulting from
the merger, combination or acquisition, respectively. Notwithstanding the
foregoing, no Change of Control shall be deemed to have occurred as to CMC in
the event the stock of CMC should be acquired, in one transaction or a series
of transactions, by any person or persons who are, at the time of such
acquisition, a member of CMC’s management. In such event, the Termination Date
shall be the date of the notice of termination. 


          10.2
Termination Fee. In the event of the
discontinuation of CMC’s provision of the Services to all or any portion of the
Accounts prior to the end of the Initial Term or any Renewal Term of this
Agreement, which discontinuation is at the initiation or election of Client
(including, but not limited to, a discontinuation due to the sale or transfer of
any or all Accounts such that CMC no longer provides the Services to the
Accounts) and which discontinuation is due to any reason other than Client
terminating this Agreement under subsection 10.1(b), 10.1(d), 10.1(f) or
10.1(g), Client shall pay to CMC, at least sixty (60) days prior to the
initially scheduled Deconversion Date, as liquidated damages a “Termination
Fee” which shall be the greater of $75,000 or the formula below: 


13






	
 

	
 


	
 

	
The average
  monthly Service Fees (attributable to the portion of Accounts to undergo
  Deconversion or the discrete portion of Services no longer to be provided by
  CMC) owed to CMC hereunder for the twelve months (or such shorter period for
  which Cardholder statements have been produced) preceding the earlier of the
  Termination Date or the date Client notifies CMC of its intention to conduct
  a Deconversion, shall be multiplied by seventy percent (70%) unless, at the
  time of calculation, this Agreement has been in effect for less than two (2)
  years, in which case such multiplier shall be ninety percent (90%). That
  product shall be multiplied by the number of months (partial months shall be
  fractionalized), remaining in the then-current Initial Term or Renewal Term
  following the initially scheduled Deconversion Date (subsequent changes or
  delays in the Deconversion Date not caused or requested directly by CMC shall
  not result in a decrease in the Termination Fee). 





Notwithstanding
the foregoing, no Termination Fee shall be due under this Agreement if any
Accounts are transferred to another client of CMC pursuant to Section 4.2, with
the result that CMC continues to service such Accounts. The parties agree it
would be difficult or impossible to ascertain CMC’s actual damages arising from
the events set forth in this Section 10.2. The parties further agree that the
Termination Fee set forth above is a reasonable estimation of the actual
damages which CMC would suffer if CMC were to fail to provide the full Services
for the full Initial Term. Each party acknowledges and agrees, after taking
into account all relevant circumstances at the date hereof, that the
Termination Fee set forth above represents a reasonable and genuine
pre-estimate of the damages which would be suffered in such events and does not
constitute a penalty. Moreover, each party acknowledges and agrees that
Client’s payment of the Termination Fee shall constitute CMC’s sole and
exclusive remedy, and Client’s entire liability, for the discontinuation of
CMC’s provision of the Services which resulted in Client’s obligation to pay
the Termination Fee. The parties agree that Client’s payment of the Termination
Fee shall be in lieu of, and not in addition to, the payment of any Service
Fees from Client to CMC for any Services not actually provided by CMC. 


          10.3
Post-Expiration Services. Service Fees for any
Services performed after the Expiration Date and before the final Deconversion
Date will be twenty percent (20%) greater than those rates in effect
immediately prior to the end of the then-current Initial or Renewal Term,
unless such termination is by Client under the terms of subsection 10.1(b),
10.1(d), or 10.1(e), in which case such Services will be provided, but such
twenty percent (20%) price increase shall not take effect. 


          10.4
Deconversion. Upon any form of termination of
this Agreement, or the transfer of all or any portion of the Accounts such that
CMC will no longer be providing Services therefor, a full or partial
Deconversion, as applicable, is necessary. If Deconversion is not completed (through
no lack of cooperation or postponing of the Deconversion Date by FDR or the
nonterminating party) within twelve (12) months from the Termination Date, then
any Service Fees (excluding Processing Fees) accruing hereunder after such
twelfth month shall be increased by twenty percent (20%) over the rates of fees
then in effect, after giving effect to any other rate increases otherwise
applicable hereunder during such period. In the event the Termination Fee or
the Deconversion Fees are not timely received by CMC (as provided in Exhibit B
as to Deconversion Fees), the Deconversion may be canceled or postponed by CMC
or FDR.  


14






          10.5
Volume Increases. Unless this Agreement is
terminated by Client under subsection 10.1(b) or 10.1(d), in the event Clients
monthly statement volume increases by more than ten thousand (10,000) or the
number of monthly Merchant transactions increases by more than fifty thousand
(50,000) at any time during the period between the occurrence of the
Termination Date (or, in the case of a termination under subsection 10.1(a),
after Client gives CMC the advance notice referred to in subsection 10.1(a))
and the final Deconversion, Client shall reimburse CMC for any reasonably
incurred equipment, training, personnel or other expenses necessitated by
Clients increase in volume. 


Article 11. DISPUTE RESOLUTION


          11.1
Informal Dispute Resolution. In the event of
any dispute between the parties hereto arising out of or relating to this
Agreement (Dispute), other than a Billing Dispute, neither party may commence
litigation or arbitration regarding the Dispute prior to completion of the
following procedure. A representative from each party with authority to bind
the respective party to the results of the meeting shall meet at a mutually
agreed location to attempt to resolve the Dispute. If, after one (1) eight
(8)-hour day of discussion, the Dispute is not resolved, either party may end
such informal dispute resolution process. Neither party may commence litigation
or arbitration regarding a Billing Dispute prior to completion of the process
set forth in Section 6 of Exhibit B.  


          11.2
VENUE, GOVERNING LAW. IN THE EVENT ANY JUDICIAL
ACTION OR PROCEEDING IS INSTITUTED IN CONNECTION WITH THIS AGREEMENT, THE SAME
SHALL BE BROUGHT IN THE EVANSVILLE DIVISION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA OR THE VANDERBURGH SUPERIOR COURT OF THE
STATE OF INDIANA, IN THE CASE OF ACTIONS INITIATED BY CLIENT, AND IN THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA OR THE SUPERIOR
COURT FOR THE COUNTY OF LOS ANGELES, IN THE CASE OF ACTIONS INITIATED BY CMC.
AS TO ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE COURTS SPECIFIED IN THE
FOREGOING SENTENCE, EACH PARTY WAIVES IN ALL RESPECTS ANY CLAIM THAT THE
RELEVANT COURT LACKS PERSONAL JURISDICTION OVER SUCH PARTY OR THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY AGREES
THAT SERVICE OF PROCESS IN ACCORDANCE WITH THE LAW OF THE STATE IN WHICH THE
ACTION IS VENUED SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON SUCH PARTY.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF IN WHICH THE SUIT, ACTION OR PROCEEDING IS
COMMENCED WITHOUT REGARD TO ITS CHOICE OF LAW DOCTRINE. 


Article 12. REPRESENTATIONS, WARRANTIES AND
COVENANTS


          12.1
CMC’s Representations, Warranties and Covenants. In
addition to any other representations, warranties or covenants made herein, CMC
represents, warrants and covenants to Client that: 


15






          (a)
its is a corporation validly organized and existing under the laws of the State
of Indiana; 


          (b)
it has full power and authority under its organizational documents and the laws
of the State of Indiana to execute and deliver this Agreement and to perform
its obligations hereunder; 


          (c)
it has by proper action duly authorized the execution and delivery of this
Agreement and when validly executed and delivered, this Agreement shall
constitute a legal, valid and binding Agreement of CMC enforceable in
accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law); 


          (d)
the execution and delivery of this Agreement and the consummation of the
transaction herein contemplated does not conflict in any material respect with
or constitute a breach of its organizational documents or a material breach of
default under the terms of any agreements to which it is a party; 


          (e)
CMC complies and shall comply with the published guidelines and regulations
promulgated by the Federal Financial Institutions Examination Council in
connection with the identification, renovation and testing of issues and
problems relating to the processing of data and the functioning of computers
and related equipment before, during and after the year 2000; and 


          (f)
it has obtained at its own expense, and will maintain at its own expense
throughout the term of this Agreement, any necessary consents, permits,
licenses or authorities from third parties, whether related to computer
hardware, software, networking or telecommunications equipment or otherwise,
that are required for CMC to perform the Services under this Agreement, and CMC
shall indemnify and hold harmless the Client Group Members for any Losses
arising out of, or resulting from, its failure to obtain such consents or to
comply in all respects with the requirements of any relevant licenses or
leases. 


          12.2
Clients Representations, Warranties and Covenants. In
addition to any other representations, warranties or covenants made herein, Client
represents, warrants and covenants, as applicable, to CMC that: 


          (a)
it is a financial institution validly organized and chartered under the laws of
the federal government or of the state in which Client is primarily or
principally located; 


          (b)
it has full power and authority under its organizational documents and the laws
of the federal government and/or such state to execute and deliver this
Agreement and to perform its obligations hereunder, 


          (c)
it has by proper action duly authorized the execution and delivery of this
Agreement and when validly executed and delivered, this Agreement shall
constitute a legal, valid and binding Agreement of Client enforceable in
accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the 


16






rights of
creditors generally and by principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); 


          (d)
the execution and delivery of this Agreement and the consummation of the
transaction herein contemplated does not conflict in any material respect with
or constitute a breach of its organizational documents or a material breach of
default under the terms of any agreements to which it is a party; and 


          (e)
Client complies and shall comply with all guidelines and regulations
established or promulgated by the Federal Financial Institutions Examination
Council in connection with the identification, renovation and testing of issues
and problems relating to the processing of data and the functioning of
computers and related equipment before, during and after the year 2000. 


Article 13. MISCELLANEOUS


          13.1
Notices. All notices or other communications required
or permitted hereunder shall be in writing, sent by certified mail, postage
prepaid, return receipt requested to the addresses set forth below, and shall
be deemed given upon the date sent: 


	
 

	
 

	
 

	
 


	
 

	
If to CMC:

	
 

	
with a copy
  to:


	
 

	
Card
  Management Corporation

	
 

	
Bamberger,
  Foreman, Oswald and


	
 

	
One
  Riverfront Place, 8th Floor

	
 

	
Hahn, LLP


	
 

	
Evansville,
  Indiana 47708

	
 

	
Hulman
  Building, 7th Floor


	
 

	
Attn: Legal
  Counsel

	
 

	
Evansville,
  Indiana 47708


	
 

	
 

	
 

	
Attn: CMC
  Corporate Counsel


	
 

	
 

	
 

	
 


	
 

	
If to
  Client, to:

	
 

	
with a copy
  to:


	
 

	
IndyMac
  Bancorp, Inc.

	
 

	
IndyMac Bank
  F.S.B.


	
 

	
3465
  Foothill Blvd.

	
 

	
155 N. Lake
  Avenue


	
 

	
Pasadena,
  California 91107

	
 

	
Pasadena,
  California 91107


	
 

	
Attn: HELOC
  Division Manager

	
 

	
Attn: Legal
  Department





          Any
party from time to time may change its address or other information for the
purpose of notices by notice given by the method set forth in this Section
13.1. 


          13.2
Entire Agreement. This Agreement constitutes
the entire agreement between the parties and contains all of the agreements
between the parties and any of their Affiliates with respect to the subject
matter hereof. This Agreement replaces and supersedes any and all other
agreements (including any confidentiality agreement between the parties, even
if such agreement by its terms should remain in effect beyond the Effective
Date hereof), representations, warranties, covenants, marketing materials,
documents, or any other item, either oral or written, between the parties and
their respective Affiliates with respect to the subject matter hereof. 


          13.3
Amendment. No correspondence, memos, marketing
materials, or any other documentation or oral agreements arising before or
subsequent to the Effective Date hereof, shall be deemed to modify this
Agreement. This Agreement may be amended only by a writing executed by
Authorized Representatives of Client and CMC. 


17






          13.4
Waiver. Any term or provision of this Agreement
may be waived, or the time for its performance may be extended, by the party
entitled to the benefit thereof, if waived in writing by an Authorized
Representative of such party. The failure of any party to enforce at any time
any provision of this Agreement shall not be construed to be a waiver of such
provision thereafter. 


          13.5
Survival. The provisions of Articles 5, 6, 7
and 11 shall survive the expiration or termination of this Agreement due to any
reason for the longest time permitted by applicable law. 


          13.6
Force Majeure and Restricted Performance. If
performance by any party of any obligation hereunder is prevented or delayed by
reason of an act of God; severe weather; natural disaster; labor dispute; war
or civil commotion; embargo; utility or communication failures; failure to
perform by a Card Association, FDR, or any other Third Party Service Provider
with whom Client contracts directly; or any other similar act or omission which
is beyond the reasonable control of such party (collectively, a “Force Majeure
Event”), such failure to perform shall not be considered a breach of this
Agreement during the period of such disability. CMC shall, throughout the term
of this Agreement, contract with a provider of disaster recovery services for
minimal operational functionality and, upon the occurrence of a Force Majeure
Event lasting more than two (2) Business Days for which recovery is available
under such contract, will seek such recovery from such provider. 


          13.7
Successors and Assigns. The rights and
obligations of either party under this Agreement shall not be assigned to
another Person without the prior written consent of the other party, which
shall not be unreasonably withheld; provided, however, that either party may
assign this Agreement without the consent of the other party in connection with
any merger, reorganization or sale of all or substantially all of the assets of
such party that does not constitute a Change in Control entitling the
non-assigning party to terminate the Agreement pursuant to Section 10.1(g). The
parties agree that it shall be reasonable for CMC to withhold its consent if,
in CMC’s reasonable opinion, the proposed assignee does not maintain, at the
time of the proposed assignment, a net worth at least as high as Client.
Consent of the other party shall not be required for assignment to an Affiliate
of the assigning party; provided, however, that in such event the assigning
party shall not be released from its obligations hereunder. This Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
successors (other than as limited by Section 10.1(g)) and permitted assigns. 


          13.8
Delivery of Tangible Items and Information. The
parties agree that each may deliver to the other all tangible items (including
statements, embossed cards and hard copy or diskettes containing data or
reports) via U.S. Postal Service or any commercially recognized delivery
company and shall not be responsible for any damages attributable to the loss,
misdirection, or delay of such items once they have been delivered to the
carrier. The parties may also transfer information electronically (via
electronic mail, internet, facsimile, or other similar process) to each other
or to FDR, and shall not be responsible for any damages attributable to the
loss, misdirection, or delay of such tangible items once the transfer of such
information has been initiated. It is expressly understood that the U.S. Postal
Service, any commercially recognized delivery company, and any carrier of
electronic information are not the agents of either party. 


          13.9
Referred Vendors. CMC may, from time to time,
advise Client of certain third-party vendors who provide services or equipment
supplemental to, but not required for, the 


18






operation of
Client’s Card programs. CMC will not enter into a contractual relationship with
such vendors. However, Client may choose to enter into direct relationships
with such vendors for such services or equipment. In such event, Client
acknowledges that the decision to contract with, or otherwise use the services
or products of, any such vendor (including any due diligence analysis of any
such vendor) is Client’s sole decision, and that CMC shall have no liability to
Client for any such vendor’s actions or failures to act or breach of any
contract with Client, by virtue of having referred Client to such vendor or
otherwise. This provision shall in no way limit CMC’s obligation for
performance of the Services under this Agreement by any Third-Party Service
Provider, other than FDR. 


          13.10
No Third Party Beneficiaries. This Agreement
does not create any rights, claims or benefits inuring to any Person that is
not a party hereto or establish any third-party beneficiary of any of the
obligations of the parties set forth herein. Specifically, but not by way of
limitation, the parties agree that Investors shall not be considered
third-party beneficiaries of any of the obligations of CMC set forth herein.
The parties further agree that, for all purposes, Client is the owner of all
Accounts. 


          13.11
Joint Drafting. The parties have jointly
participated in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption or burdens
of proof shall arise favoring any party by virtue of the authorship of any
provisions of this Agreement. 


          13.12
Severability. If any provision of this
Agreement is held invalid or unenforceable for any reason, the invalidity shall
not affect the validity of the remaining provisions of this Agreement, and the
parties shall substitute for the invalid provision a valid provision which most
closely approximates the intent and economic effect of the invalid provision. 


          13.13
No Joint Venture; Relationship of Parties. Nothing
in this Agreement is intended, or shall be deemed, to constitute a partnership
or joint venture between the parties. CMC, in furnishing Services to Client
hereunder, is acting as an independent contractor, and CMC has the sole right
and obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed, all work to be performed by CMC under this Agreement,
other than to the extent that CMC’s performance is dictated by the express
authorizations set forth in Exhibit E-1. CMC is not an agent of Client and has
no authority to represent Client as to any matters, except as expressly
authorized in this Agreement.  


          13.14
Interpretation. Capitalized terms herein shall
have the meanings given them in Exhibit G or elsewhere in this Agreement. Each
definition used in this Agreement includes the singular and the plural.
Headings in this Agreement are for convenience of reference and shall not
affect the meaning or interpretation hereof. Except as otherwise stated,
reference to articles, sections, subsections and exhibits means the articles,
sections, subsections and exhibits of this Agreement. The words including or
includes or similar terms used herein shall be deemed to be followed by the
words without limitation, whether or not such additional words are actually set
forth. The words “herein” and “hereunder” shall refer to this entire Agreement. 



19






          13.15
Counterparts. This Agreement may be executed in
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. 


          13.16
Cumulative Remedies. 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. 


          13.17
Publicity. CMC shall make no media releases,
public announcements or other public disclosures relating to this Agreement
without the prior written consent of Client. 


          IN
WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the duly Authorized Representatives of the parties hereto as
of the date first above written. 


	
 

	
 

	
 

	
 


	
CLIENT

	
CARD
  MANAGEMENT CORPORATION


	
 

	
 

	
 

	
 


	
By: /s/
  Richard Wohl

	
By: /s/
  James C. Bailey Jr.


	
 

	


	
 

	



	
Name:
  Richard Wohl

	
Name: James
  C. Bailey Jr.


	
 

	


	
 

	



	
 

	
                    
Please
  Print

	
 

	
                    
     Please
  Print


	
 

	
 

	
 

	
 


	
Title:
  President/Chief Operating Officer

	
Title: Chief
  Operating Officer





20






EXHIBIT A

TO SERVICES AGREEMENT


SERVICES


          The
following is a general description of services to be provided by CMC under the
Agreement.  Where an inconsistency
exists between the general descriptions of Services to be provided to Client
under this Agreement and the specific descriptions contained in any other
documentation, including correspondence, operations manuals, procedures
manuals, or implementation manuals (other than an inconsistency consisting
solely of a greater degree of detail in such documentation than in this
Agreement), the provisions of this Agreement shall control.  Without expanding the types of functions
included in the scope of the Services, if any services, functions or
responsibilities not specifically described in this Agreement are an inherent
or necessary part of the performance of the Services, they shall be deemed to
be included within the scope of the Services as if they were specifically
described in this Agreement.  This
exhibit shall be subject to revision from time to time upon the mutual written
agreement of CMC and Client.


1. CUSTOMER SERVICES.  Customer Services
means the combination of Primary Services and Operational Services.  All times listed are Central Time.  Primary Services means
receiving and
returning Customer telephone and mail inquiries that can be answered from
available on-line data, providing such answers, and providing reasonable
research on inquiries requesting research.
Operational Services means all other functions offered by CMC to service
Customer Accounts as further defined below.


          1.1.
Primary Services means Cardholder Primary Services
means those services necessary to service Cardholder Accounts, including:  receiving inbound telephone calls and
answering questions from data available through on-line System access; live
services from 7:00 a.m. - 8:00 p.m. (M-F) & 8:00 a.m. - noon (Sat); English
and Spanish services from 7:00 a.m.-8:00 p.m. (M-F) & 8:00 a.m.-noon (Sat);
Cardholder inquiry research and reply; credit balance refunds data processing
(refund checks are disbursed by Client unless arranged otherwise between the
parties); monetary data entry of Cardholders monthly payments from the standard
payment forms generated by the F.C. System which are forwarded in original or
copy form to CMC by Client (Although this function is the responsibility of the
Lock Box Bank as to those payments which are sent to that bank, CMC will
provide reasonable assistance to the Lock Box Bank in identifying the
Cardholder from whom an unidentifiable payment has been sent.); monetary
adjustments resulting from Customer contacts (phone and mail and otherwise),
such as adjustments for annual fees, finance charges, late fees, and over limit
fees; and file maintenance data entry resulting from Customer contacts, such as
address changes, name changes, closing Accounts, adding additional names and
cards to Cardholder Accounts, and Cardholder credit life insurance commencement
and/or cancellation.


          1.2.
Operational Services includes the following services hereinafter referred to as
Cardholder Operational Services :


	
 

	
 


	
 

	
a. Cardholder Charge backs means processing
  potentially invalid transactions 





A-1






	
 

	
 


	
 

	
that posted
  to a Cardholder’s
  Account or disputes of Cardholder transactions according to the CMC Laws, and
  processing of reasonable requests for retrieval of Transaction Card Ticket
  copies.  Such services also include
  the following:  receiving and
  responding to Customer disputes; adjusting interest as appropriate on
  disputed items, if required; processing retrieval requests and charging the
  Account for retrieval request, if applicable; processing charge backs when
  possible, according to procedures contained in CMC Laws.


	
 

	
 


	
 

	
b. Cardholder
  Security/Fraud means the receipt of Cardholders written or telephoned
  information concerning lost or stolen cards or Account information;
  attempting to prevent fraudulent activity by using certain available data
  processing tools and by investigating the sources of fraud that may have
  occurred; and to the extent losses from fraudulent activity are incurred,
  attempting to recover such losses.
  Such services include the following:
  entering a lost or stolen status code into the FDR System for Accounts
  called in lost or stolen - 24 hour X 7 days (after hours [times other than
  CMC s live support hours] calls taken by FDR); live support from 7:00 a.m. -
  8:00 p.m. (M-F) and 8:00 a.m. - noon (Sat); investigating fraudulent activity
  (may include contacting merchants where fraud may have occurred) and
  attempting to charge back transactions not properly authorized; communicating
  and documenting fraud transactions with Cardholders; transferring balances
  and current transactions from lost or stolen Accounts to new Accounts.  Data processing support systems utilized
  are FALCON, First Pursuit, and Fast data databases (brand names of FDR or FDR
  sub-contractors).  Client authorizes
  CMC to use Falcon Services (Falcon Services means the services provided by
  FDR utilizing the Falcon neural-network system licensed to FDR that help
  identify potential fraudulent use of Cardholder Accounts), First Pursuit,
  and/or Fast data (First Pursuit and Fast data are brand names of FDR or FDR
  sub-contractors and these names mean the systems used by or through FDR that
  helps identify and locate information about Cardholders).  Client understands and agrees that the use
  of Falcon Services, First Pursuit, and Fast data will incur fees for such
  usage from FDR, which will pass through to Client either by CMC or by FDR.  If Client should ever withdraw its
  authorization for CMC to use such services, Client agrees that Client shall
  be fully responsible for requesting and monitoring potential fraud exception
  reports generated by the FDR System.
  If Client withdraws its authorization for CMC to use such services,
  Client must so specify to CMC in writing and Service Fees may be increased
  accordingly.





          1.3.
Operational Services includes the following services hereinafter referred to as
General Operational Services:


	
 

	
 


	
 

	
a. Accounting/Settlement means the services
  related to notifying Client of the FDR System-generated amounts of money to
  be sent or received to settle Transaction Card activity with other financial
  institutions or others, and related to making the FDR System-generated
  general ledger entries on the books of the Client.  These services include:
  limited assistance with general ledger account 





A-2






	
 

	
 


	
 

	
clearings
  and reconciliations; communicating daily Visa and/or MasterCard settlement
  requirements to Client; debit Cardholders, and credit Cardholder auto pay
  (automated via System); communicate daily general ledger entries to Client;
  maintaining backup general ledger entries for sixty
  (60) days following the transaction date; communicating daily clearing
  entries to Client for general ledger suspense accounts; assisting Client in
  reconciling of general ledger entries for a reasonable time period following
  the transaction date; and preparing MasterCard and/or Visa quarterly required
  reports and sending to Client for Client s final review and submission.


	
 

	
 


	
 

	
b. Interactive
  Voice Response or IVR means the access provided 24 hours x 7 days for inbound
  telephone calls to a computer hardware and software system that automatically
  answers such calls, prompts the caller to enter data via touch tone
  telephone, and if such data is entered, provides the caller with stored
  computer data relative to the data entered by the caller, and if the caller
  makes the proper selection, can transfer the caller to other Customer
  Services during the applicable live service hours as estimated elsewhere
  herein.





          1.4.
Excess Call Volume means the minutes per month in excess of the standard
allowable volume of 0.40 minutes per Cardholder statement generated each month.


          1.5.
New Account/Application Data Entry means the process of entering the data for a
new Cardholder account or application information into a data processing
system, from a form or in a format approved in writing by CMC, properly
completed and submitted to CMC for entering the data.


2.
COLLECTION
SERVICES. Collection
Services means attempting to collect past due payments and/or Over limit
amounts from Cardholders as described in Exhibit C-2. Collection Services are provided from 7:00 a.m. - 8:00 p.m. (M-F)
& 8:00 a.m. - noon (Sat). 


3.
CLIENT
SERVICES. Client
Services means the services provided to assist Client with communication with
FDR, with utilization of the System, with product development, with researching
and/or resolving technical Cardholder situations, and certain other such
services, including those listed below.
The cost for many Client Services are absorbed by CMC as a part of the
Customer Services Service Fees, while others as requested by Client are priced
separately as described in the Special Requests section of Exhibit B. Whether they are included in the Customer
Services Service Fees or charged separately cannot always be determined by
function, but more often by the size and scope and quantity of the requests,
relative to Client s monthly Cardholder volume with CMC. No projects, research or inquiries for
Client will be undertaken at an additional charge unless the same has been
specifically requested by Client. 


          3.1.
Inquiry Services means receiving and responding to Client s requests for
information, research, or assistance with Cardholder and System issues.  Response times may vary based on the nature
of inquiry.  The CAE assigned to Client
is the person responsible within CMC for communicating inquiries and
responses.  CMC may provide Client with
certain manuals and other documentation that contain information to assist
Client in minimizing excessive 


A-3






inquiries to
CMC. Client s CAE may often refer
Client to such resources to help Client avoid Special Request fees for excess
Inquiry Services volume. In addition,
CMC offers training, either on-site or at CMC as priced in Exhibit B, to Client
s personnel as requested by Client.
Such training can also help avoid such fees. 


          3.2.
System Support means the services provided to Client
relative to the use of the System.
These include:  PC set-up and
maintenance; RMS set-up and maintenance; project planning and implementation;
product development; ongoing PC support for new products and testing of
practical samples of product System parameters before new product roll out;
input of computer letters into System; set-up of statement inserts and
statement messages; acting as liaison between third party vendors (usually FDR,
but can also liaison with plastic vendors, enhancement service vendors, and
others); ongoing review of FDR and Bank Card Association bulletins; and
communication of new FDR System enhancements, if applicable.


          3.3.
FDR Relationship Liaison means acting as liaison between Client and FDR.  These services include: periodic strategic
meetings with FDR management and service teams to represent Client needs;
representing Client in the FDR inquiry process; representing general interests
of all CMC clients by participating in FDR advisory groups, to the extent
available; communication to Client of applicable servicing requirements of FDR;
and investigating and attempting to resolve FDR system issues and billing
disputes, to the extent practical.


          3.4.
Financial Analysis means the process of assisting Client with analyzing data to
determine potential financial results, usually using actual or hypothetical
data.  These services include: periodic
portfolio performance evaluations; specialized and customized data base
reporting (such as use of FDR’s NOAH product, and other ad hoc reporting);
assisting Client s efforts toward achieving portfolio goals; guidance on market
direction; assisting Client in developing financial preforms for new products,
new pricing, and other Client growth efforts.


          3.5.
Marketing means assisting Client with retention, activation, stimulation and/or
growth of their Cardholder portfolios. These services include:  helping Client determine Card start-up
strategies; producing periodic bulletins to create awareness of latest opportunities
occurring in the industry and at CMC; helping create education programs for
Customers and bank staff; implementing customer contact programs to stimulate,
activate, and retain Cardholders; coordinating Visa and MasterCard marketing
research and materials; developing new Cardholder acquisition programs through
direct mail, telemarketing, event marketing, and internal cross-sell incentive
programs; assisting Client in tracking and results measurement of the programs;
assisting Client in building its database information for marketing; helping
Client develop other marketing techniques/product enhancements, such as reward
programs, rebate programs, balance transfer programs, convenience check
mailings, and others.


          3.6.
INFOCAS means the services related to maintaining a database of Account
masterfile information selected by CMC and portions of FDR RMS report data
selected by CMC (“CIF Plus Data”).  Such
services include, upon written request by Client, providing CIF Plus Data in
Microsoft Access format on CD-ROM and producing up to five (5) management
reports each month, the content of which shall be designated by Client subject
to approval by CMC.


A-4






          3.7.
WebCARD or CARD System means providing Client access to the CARD System, a CMC
system for retrieving reports generated by the RMS module of the FDR
System.  The CARD System is accessible
from Client s locations by personal computer and security password, via the CMC
CARD internet site or via a dedicated data line purchased by Client through
CMC.  Client shall select those RMS
reports which it considers to be high priority reports and to  authorize CMC to turn on (or leave turned
on) those reports for redundant access via the FDR  System in the event the CARD System is inaccessible.  RMS reports will be
accessible on the CARD
System for a standard period (which may be changed at CMC s discretion from
time to time, upon thirty (30) days prior written notice to Client) equal to
the remainder of the calendar month during which each report is issued and two
(2) additional calendar months following such issue date.  Any individual reports with regular
accessibility periods different from the foregoing will be provided to Client
on a separate listing.


4.
PROCESSING
SERVICES. Processing
Services means those data processing services to be provided to Client and
described in CMC’s Services Agreement with FDR. Further description of some of these services of FDR are a part
of Exhibit D. FDR requires Client to
execute a substantially similar version of the Participation Agreement with FDR
set forth in Exhibit D before CMC may begin providing Services to Client.  


A-5






EXHIBIT B

TO SERVICES AGREEMENT


PAYMENT

On File with Depositor


 

 

 



 





EXHIBIT C-1

TO SERVICES AGREEMENT


PERFORMANCE
GUIDELINES

FOR NON-COLLECTION SERVICES


1.
The following tolerances define the Performance Guidelines for all Services
except Collection Services. Each Performance Guideline is the item in Section
1.A. preceded by a numeral. The headings and groupings of the Performance
Guidelines are for convenience of reference only and shall not vary or expand
the Performance Guidelines.


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
PERFORMANCE
  GUIDELINES DESCRIPTION

	
MONTHLY
  GUIDELINE


	
 

	


	



	
 

	
 

	
 

	
%

	
 

	
Within X Business Days


	
 

	



	
 

	
A.

	
PERFORMANCE GUIDELINES FOR CUSTOMER SERVICES

	
 

	
 

	
 

	
 


	
 

	
1.

	
Inbound Customer telephone
  calls – speed of answer:

	
 

	
85%

	
 

	
Within
  25 seconds


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
2.

	
Inbound Customer telephone
  calls – percentage of callers not abandoning after 25 seconds:

  (i.e., an “abandonment rate” of 4% or less)

	
 

	
96%

	
 

	
N/A


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
3.

	
Statement copy requests
  from CH or MR – from date requested until placed in mail:

  (Note: CMC will not send statement copies if CMC does not have on-site access
  to a medium from which to generate a copy.)

	
 

	
99%

	
 

	
5








	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
4.

	
Disputes:

	
 

	
Respond to the inquiry
  within time frames in CMC Laws and accurately enter any related data in 98%
  of the events, provided that CMC receives sufficient documentation in a time
  frame such that there is an applicable Chargeback right with at least five
  (5) Business Days prior to expiration of such right.


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
5.

	
New Account Entry

	
 

	
80%

	
 

	
within one Business Day


	
 

	
 

	
 

	
 

	
100%

	
 

	
within two Business Days








	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
B.

	
GENERAL GUIDELINES FOR DATA ENTRY ACCURACY

	
 

	
 

	
 

	
 


	
 

	
 

	
CMC shall perform data
  entry in compliance with the following general guidelines. These general
  guidelines are not Performance Guidelines and shall not be considered in any
  determination of the occurrence of a Non-Performance Event or a Failed Month.


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
i. Data entry accuracy for
  Computer Letters and statement messages B Percentage or quantity inaccurate
  shall not exceed the greater of: (Percentage of quantity refers to the
  percentage or quantity of numeric and alphabetic characters entered
  inaccurately.)

	
 

	
1% or 2 characters

	
 

	
N/A


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
ii. Data entry accuracy
  for PCF settings, RMS settings and other System parameter settings Percentage
  or quantity inaccurate shall not exceed the greater of: (Percentage or
  quantity refers to the percentage or quantity of System fields into which
  data is entered 

	
 

	
0.5% or 2 System fields

	
 

	
N/A





C-1-1






	
 

	
 

	
 

	
 


	
 

	
 

	
on behalf of Client in any
  month, into which such calculation data is entered inaccurately.)


	
 

	
 

	
 


	
 

	
2.

	
The following apply to the
  Performance Guidelines in this exhibit:


	
 

	
 

	
 


	
 

	
 

	
A.

	
The percentages and time
  frames indicated in the MONTHLY GUIDELINE columns shall be calculated on the
  basis of the entire calendar month.


	
 

	
 

	
 

	
 


	
 

	
 

	
B.

	
Solely as to Performance
  Guidelines 1 through 5, inclusive, in the event CMC performs, in any calendar
  month, fewer than 100 of the activities for which a single Performance
  Guideline is stated, the number of performances which may be non-compliant
  shall be equal to 100 minus the performance percentage listed in that
  Performance Guideline. For example, regarding Performance Guideline 1., if
  CMC data enters fewer than 100 applications in any calendar month, 25 may be
  data entered later than the third Business Day after receipt, and all but one
  will be entered by the fifth Business Day.


	
 

	
 

	
 

	
 


	
 

	
 

	
C.

	
Performance Guidelines for
  Customer Services presuppose that statement cycles are evenly spread
  throughout each calendar month.


	
 

	 	
 

	
 


	
 

	 	
D.

	
For purposes of
  determining compliance with any time periods set forth in this exhibit, time
  periods of CMC’s performance exclude the Business Days during which Client is
  involved in the project or action in any manner upon which CMC must depend
  for furthering CMCs own work, including time during which Client is in its
  process of review and approval.





C-1-2






EXHIBIT C-2

TO OPERATING AGREEMENT


COLLECTION PROCEDURES AND

PERFORMANCE GUIDELINES FOR

COLLECTION SERVICES


1. The
following text describes the general collection procedures and the tolerances
define the Performance Guidelines for Collection Services on credit Cardholder
Accounts. Each Performance Guideline is the item preceded by a numeral. The
headings and groupings of the Performance Guidelines are for convenience of
reference only and shall not vary or expand the Performance Guidelines.


	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
PERFORMANCE
  GUIDELINES DESCRIPTION

	
 

	
MONTHLY GUIDELINE


	
 

	


	
 

	



	
 

	
 

	
 

	
 

	
 


	
 

	
A.

	
Inbound
  Cardholder Calls

	
 

	
 


	
 

	
 

	
1.

	
Inbound
  Customer telephone calls — percentage of callers Not abandoning after 25
  seconds:

  (i.e., “abandonment rate” is 4% or less)

	
 

	
96%


	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
B.

	
Outbound Calls

	
 

	
 


	
 

	
 

	
2.

	
Percentage
  of Accounts without established work dates, Accounts with current work dates,
  and Accounts with work dates set prior to the current work date entering the
  collection queue to which the automated dialer will place a call or to which a
  call will be placed manually or to which other contact will be made or
  attempted during the Business Day on which the Accounts entered the queue or
  during the two Business Days thereafter. Account volume used for this
  calculation excludes Collection Special Handling Accounts (CSHA).

	
 

	
99%





(*This ratio
is calculated by dividing the total Attempts made during a calendar month by
the quantity of the Accounts entering the collection queue during the calendar
month, less those Accounts which, for various reasons, exit the queue within
two Business Days after the Business Day in which they entered the collection
queue, before an Attempt can be made on such Accounts. Examples of Accounts
leaving the queue without having an Attempt made include Accounts that have a
payment post after entrance into the queue and within the two Business Days
thereafter, but before an Attempt can be made, or those Accounts charged off
after entrance into the queue and within the two Business Days thereafter, but
before an Attempt can be made, etc.)


C-2-1






	
 

	
 

	
 

	
 


	
 

	
C.

	
Accounts
  1091 FDR Days Past Due:


	
 

	
 

	
 


	
 

	
 

	
Collection
  Procedure:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
If Client’s
  PCF settings so indicate, reminder notice included on monthly statement. If
  Client’s PCF settings so indicate, a Collection Letter will be automatically
  printed and mailed by System.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Delinquent
  Accounts enter the collection module of the System only if, and at the time,
  indicated in Client’s PCF and based on Behavioral Scoring and Adaptive
  Control strategies. On all Accounts without established work dates, on
  Accounts with current work dates, and on Accounts with work dates set prior
  to the current work date, the automated dialer will place a call or a call
  will be placed manually or other contact will be attempted during the
  Business Day or during the two Business Days thereafter.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
During each
  call, CSR will, as applicable:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(a) attempt
  to collect or establish payment agreement; and/or


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(b) record
  pertinent information (i.e., abbreviation of conversion or action code and next
  work date)


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
On Right
  Party Contact Calls, the Cardholder’s address, home phone and business phone
  will be verified prior to continuing with the collection call. Work dates
  will be set not later than the fourth Business Day after the expected payment
  posting date from the Cardholder’s promise to pay, or no later than the tenth
  Business Day after a contact in which no promise to pay was made.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
On Live
  Contact Calls or calls answered by an answering device, a work date will be
  set not later than the fifth Business Day after the current date. Accounts
  with busy phone lines will be recalled by the dialer once within thirty (30)
  minutes of the original busy signal before being noted as a completed call.
  (The fact that the dialer recalls such Accounts within thirty (30) minutes is
  the result of programming the dialer to do so and cannot be measured or
  reported.) Calls placed with in the last sixty minutes of the Business Day
  which have a busy phone line will not be recalled that day, but a work date
  will be set not later than the fourth Business Day after the current date.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
On
  Non-contact Calls, a work date will be set for no later than the fourth
  Business Day after the Non-contact Call.


	
 

	
 

	
 

	
 


	
 

	
D.

	
Accounts 92+
  FDR Days Past Due


	
 

	
 

	
 

	
 


	
 

	
 

	
Client will
  resume collection activities on Accounts which are 92 or more FDR Days Past
  Due.





C-2-2





2. The
following provisions apply to the collection procedures and Performance
  Guidelines in this exhibit:

	
 

	
 

	
 


	
 

	
A.

	
The
  percentages and time frames indicated in the MONTHLY GUIDELINE columns shall
  be calculated on the basis of the entire calendar month.


	
 

	
 

	
 


	
 

	
B.

	
At each
  month end, the FDC System produces certain RMS reports relative to Delinquent
  and Overlimit Accounts based upon Client’s RMS settings.


	
 

	
 

	
 


	
 

	
C.

	
Collection
  services are conducted from 7:00 a.m. to 8:00 p.m. on Business Days and 8:00
  a.m. to Noon on Saturdays, other than Saturdays on which CMC is closed. All
  times are Central time. The date of each attempt will be logged on the
  Account masterfile record. Contacts with those Cardholders who are difficult
  to reach will be attempted at varied times throughout the above collection
  hours.


	
 

	
 

	
 


	
 

	
D.

	
A Delinquent
  Account will be automatically re-aged when the applicable settings in
  Client’s PCF are met or if one of Client’s authorized representatives so
  authorizes in writing.


	
 

	
 

	
 


	
 

	
E.

	
Unless
  Client specifies otherwise in writing, Overlimit or first-payment-default
  Cardholders suspected by CSR to be potentially fraudulent Accounts may, at
  CSR’s sole discretion, be referred to the security/fraud department for
  handling, as an accommodation to Client. Nothing herein shall obligate CSR to
  make any such referrals. Any Accounts so referred are excluded from the
  number of Accounts from which the compliance percentages are determined under
  the Performance Guidelines.


	
 

	
 

	
 


	
 

	
F.

	
In the event
  CMC performs, in any calendar month, fewer than 100 of the activities for
  which a single Performance Guideline is stated, the number of performances
  which may be non-compliant shall be equal to 100 minus the performance
  percentage listed in that Performance Guideline. For example, regarding
  Performance Guideline 1, if CMC receives fewer than 100 inbound Cardholder
  calls in any calendar month, four (4) may be abandoned after twenty-five (25)
  seconds.


	
 

	
 

	
 


	
 

	
G.

	
If a failure
  by Client to evenly spread statement cycles throughout each calendar month
  causes CMC’s failure to comply with a Performance Guideline, the same shall
  not be considered a breach of this Agreement or the failure by CMC to
  exercise reasonable care.


	
 

	
 

	
 


	
 

	
H.

	
For purposes
  of determining compliance with any time periods set forth in this exhibit,
  time periods of CMC’s performance exclude the Business Days during which a
  Person other than CMC is involved in the project or action in any manner upon
  which CMC must depend for furthering CMC’s own work, including time during
  which Client is in its process of review and approval.





C-2-3






	
 

	
 

	
 


	
 

	
E.

	
Client
  authorizes CMC to use unattended messaging in conjunction with scheduled
  automated dialer campaigns or as deemed appropriate at the sole discretion of
  the CMC Collection Manager.


	
 

	
 

	
 


	
 

	
J.

	
Client
  agrees that the delinquency notices and Computer Letters generated by the
  System were reviewed and approved by Client and constitute all proper notices
  required by FDCPA and any other governing laws for CMC to perform its
  collection responsibilities under this Agreement.


	
 

	
 

	
 


	
 

	
K.

	
Client
  authorizes the use of FDC’s “Fast Data” system by CMC (unless specified
  otherwise in Addendum A) for locating or contacting Delinquent or Overlimit
  customers. Fast Data is a trademark name of FDC that is a data base of names,
  addresses, phone numbers and other information of neighborhood households and
  possible employers; it is primarily used in collection efforts to contact
  neighbors or employers of a Cardholder who has been difficult to contact.


	
 

	
 

	
 


	
 

	
L.

	
The
  following definitions shall apply in this exhibit and throughout this
  Agreement:








	
 

	
 

	
 

	
 


	
 

	
 

	
1.

	
“Attempt” means
  that the automated dialer placed a call regardless of outcome or a manual
  call was placed or received or an automated dialing and unattended messaging
  system placed a call and left or attempted to leave a message regardless of
  outcome.


	
 

	
 

	
 

	
 


	
 

	
 

	
2.

	
“Collection Special Handling Accounts”or “CSHA” means the following
accounts:


	
 

	
 

	
 

	
 


	
 

	
 

	
a.

	
accounts
  without a valid phone number or address (includes Accounts where the phone
  number field on the System is blank or where the phone number field is
  populated but the most recent collection attempt could not be completed as
  dialed);


	
 

	
 

	
 

	
 


	
 

	
 

	
b.

	
accounts
  that reside in a state with restrictions on collection attempts to the place
  of employment;


	
 

	
 

	
 

	
 


	
 

	
 

	
c.

	
accounts on
  which CMC has received the case number of the Cardholder’s bankruptcy or the
  name of the Cardholder’s bankruptcy attorney;


	
 

	
 

	
 

	
 


	
 

	
 

	
d.

	
Accounts in
  a payment plan with third party non-profit agencies, such as CCCS;


	
 

	
 

	
 

	
 


	
 

	
 

	
e.

	
Accounts on
  which the Cardholder had instructed CMC to cease collection activities; and


	
 

	
 

	
 

	
 


	
 

	
 

	
f.

	
Accounts
  with deceased Cardholders with death certificate pending.


	
 

	
 

	
 

	
 


	
 

	
 

	
3.

	
“Live Contact Call”
  means a collection call, other than a Right Party Contact Call, which is
  answered by a person.


	
 

	
 

	
 

	
 


	
 

	
 

	
4.

	
“Non-Contact Call”
  means a collection call which is not answered by an answering device or a
  person.





C-2-4






	
 

	
 

	
 

	
 


	
 

	
 

	
5.

	
“Right Party Contact Call”
  means a collection call during which a CSR speaks with the Cardholder.





3. Attachment 1 to Exhibit C-2,
Collection Routines and Payment Arrangements is attached and shall be
incorporated herein by reference.


C-2-5







Attachment 1

to Exhibit C-2

To Services Agreement


Collection Routines
and Payment Arrangements:


When
collecting on a Delinquent Account, CSR will always attempt to collect the
entire amount due, including late fees, to immediately bring the Account to a
current status. There are times when the CH is not able to remit the full
amount required to bring the Account current. The CSR will be authorized to
proceed through the following Payment Arrangement (“Payment Arrangement” means
allowing the CH to make incremental payments that are individually less than
the current total amount due under the Account agreement, but that in the
aggregate will bring the Account current in 90 days or less) routines in an
effort to assist the CH to bring the Account to a current status over a
reasonable period of time. No reaging of an Account is authorized and partial
payments do not advance the Due Date. When collecting on Accounts and
communicating with CH regarding payment dates, CSR will speak in terms of
calendar days and dates that coincide with the parameters defined below in
terms of FDR Days Past Due. Collection and Payment Arrangement routines will
proceed as follows according to the delinquency status of the Account, based on
the number of days delinquent as reflected on the FDR processing system (“FDR
Days”):


• 30 to 53 FDR Days Past Due: When
the CH is past due for one payment and is due for one more on Day 53, CSR will
attempt to collect on the Account as follows in progression:


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 2 full payments plus late fee; else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect one full payment plus late fee, reminding CH of the required minimum
  payment obligations under the terms of the Account agreement and that due
  date of next full payment is FDR Day 53; else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect partial payment equaling a minimum of 70% of one full payment or
  $100, whichever is greater, immediately, with the balance due, including late
  fees, before FDR Day 53, reminding CH of the required minimum payment
  obligations under the terms of the Account agreement and that due date of
  next full payment is FDR Day 53; or else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect a partial payment equaling a minimum of 70% of one full payment or
  $100, whichever is greater, immediately, to be followed with another
  conversation no later than 10 calendar days later to make further
  arrangements for payment on the Account and reassess/discuss the future
  payment capability of CH and again reminding CH of the required minimum
  payment obligations on the regular due dates under the terms of the Account
  agreement.





• 54 to 83 FDR Days Past Due: When
the CH is past due for two payments and is due for one more on Day 83 (NOI
Letter has been sent), CSR will attempt to collect on the Account as follows in
progression:


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 3 full payments (or balance of 3 full payments if partial was paid)
  plus late fees; else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 2 full payments (or balance of 2 full payments if partial was paid)
  plus late fees, reminding CH of the required minimum payment obligations
  under





C-2-6









	
 

	
 

	
 


	
 

	
 

	
the terms of
  the Account agreement and that the due date of next full payment is FDR Day
  83; else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 1 1/2 payments (or balance of 1 1/2 payments if partial was paid)
  plus late fee immediately, with another 1 1/2 payments plus late fees as soon
  as possible, but not more than 30 calendar days or past FDR Day 98
  (expiration of Grace period on third payment), whichever is sooner. CSR will
  remind CH of the required minimum payment obligations under the terms of the
  Account agreement and stress the importance of adhering to those terms in the
  future; or else


	
 

	
 

	
 


	
 

	
•

	
Try to get a
  commitment from the borrower for a reasonable series of payments on or before
  specific dates where at least 2 full payments (or balance of 2 full payments
  if partial was paid) are collected prior to FDR Day 83 and the third full
  payment is collected prior to FDR Day 98 (the expiration of Grace period on
  the third payment.) In any event, any partial payments must be equal to a
  minimum of 70% of one full payment or $100, whichever is greater. CSR will
  again remind CH of the required minimum payment obligations on the regular
  due dates under the terms of the Account agreement and stress the importance
  of adhering to those terms in the future.





• 84 to 92 FDR
Days Past Due: When the CH is past due for three
payments (NOI Letter has been sent), CSR should stress to CH that failure to
make satisfactory arrangements to bring the Account current will result in
adverse action on the Account and will attempt to collect on the Account as
follows in progression:


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 4 full payments (or balance of 4 full payments if partial was paid)
  plus late fees; else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 3 full payments (or balance of 3 full payments if partial was paid)
  plus late fees, reminding CH of the required minimum payment obligations
  under the terms of the Account agreement and that due date of next full
  payment is FDR Day 113; or else,


	
 

	
 

	
 


	
 

	
•

	
Try to
  collect 2 full payments (or balance of 2 full payments if partial was paid)
  plus late fees immediately with another full payment plus late fee prior to
  FDR Day 98 (expiration of Grace Period on third payment.) CSR will again
  remind CH of the required minimum payment obligations under the terms of the
  Account agreement and that due date of next full payment after this
  arrangement is FDR Day 113.





C-2-7






EXHIBIT D

to

CMC SERVICES AGREEMENT


EXHIBIT B

to

SERVICES AGREEMENT BETWEEN FDR AND CMC


PARTICIPATION AGREEMENT


          Effective
as of December 1, 2000 (“Effective Date”), the undersigned, as CMC’s Client
(“Client”) of Card Management Corporation, an Indiana Corporation (“CMC”),
hereby agrees to be a party as a Client to the Service Agreement dated 1-22-96,
as amended, between CMC and First Data Resources Inc., 7302 Pacific Street, Omaha,
Nebraska

68114 (“FDR”) (the “Service Agreement”) and as may thereafter be amended from
time to time. In becoming a party to the Service Agreement, Client agrees as
follows:


	
 

	
 

	
 

	
 


	
1.

	
(a)

	
Client
  acknowledges receipt of a copy of the Service Agreement, including all
  Exhibits and attachments, with the exception of Exhibit “E” (unless Client
  will be directly billed by FDR for services provided by FDR on behalf of
  Client), in which case Client shall receive a copy of Exhibit “E” also.
  Client agrees to be bound by all of the terms and conditions of the Service
  Agreement, including any terms and conditions in any amendment to the Service
  Agreement which may hereafter be agreed to by CMC; provided, however, that
  CMC shall give prompt notice to Client of any amendment to the Service
  Agreement pursuant to Section 14 below. This Agreement shall remain in effect
  until the earlier of: (a) expiration or termination of the Service Agreement,
  or (b) the termination, for whatever reason, of Client’s relationship with CMC.


	
 

	
 

	
 


	
 

	
(b)

	
FDR’s
  cumulative liability to Client for any loss or damage, direct or indirect,
  for any cause whatsoever (including, but not limited to those arising out of
  or related to the Service Agreement or this Participation Agreement) with
  respect to claims relating to events in any one (1) Processing Year shall
  not, under any circumstances, exceed (i) in the case of the first Processing
  Year during which Client receives processing services from CMC, the product
  of twelve and the amount of Processing Fees paid to FDR pursuant to the
  Service Agreement or this Participation Agreement for services performed with
  respect to the Cardholder Accounts and Merchant Accounts of Client in the
  immediately preceding calendar month and (ii) in the case of any Processing
  Year thereafter, the amount of Processing Fees paid to FDR pursuant to the
  Service Agreement or this Participation Agreement for services performed with
  respect to the Cardholder Accounts and Merchant Accounts of Client in the
  immediately preceding Processing Year.





D-1









	
 

	
 

	
 

	
 


	
2.

	
(a)

	
Client
  specifically agrees to comply with all related federal, state and local laws
  and regulations, and with the applicable rules, procedures, manuals and
  instructions of MasterCard, VISA, FDR and CMC as in effect from time to time.


	
 

	
 

	
 


	
 

	
(b)

	
Prior to the
  date on which Client commences to receive services from FDR hereunder, Client
  will review the parameter settings and options within the FDR System, as
  described in the User Manuals set forth in Exhibit “A”, Section I, and determine
  that FDR’s System provides such features and options, which will, if having
  already been selected, or with respect to any changes made by Client to such
  parameter settings in the future, such changes being properly selected by or
  on behalf of Client, allow Client to comply with all applicable federal and
  state laws and contractual agreements of Client. To the extent that Client
  notifies FDR of any change in federal and state law, subject to the
  limitations set forth below, FDR agrees to develop reasonable enhancements to
  the FDR System responsive to the identified change in federal and state law
  as specifically requested by Client. The obligation of FDR set forth in the
  previous sentence is subject to the following limitations:


	
 

	
 

	
 

	
 


	
 

	
 

	
(i)

	
the change
  in federal and state law is generally applicable to a significant portion of
  FDR’s client base and does not relate solely to a requirement or preference
  of Client;


	
 

	
 

	
 

	
 


	
 

	
 

	
(ii)

	
the
  responsive enhancement requested by Client is consistent with the response
  requested by the majority of the affected client base (Client acknowledges
  that in many instances, responsive enhancements will be mediated by the
  Client Advisory Group maintained by FDR (“CAG”) and agrees that development
  of an enhancement approved by the CAG as responsive to the change in law
  shall satisfy FDR’s obligations under this subsection (b));


	
 

	
 

	
 

	
 


	
 

	
 

	
(iii)

	
FDR shall
  have a reasonable time from the date Client notifies FDR of the change in law
  and specifies the requested enhancement in which to design, code, test and
  implement the enhancement (in the determination of reasonableness, the extent
  and impact of the change in law on the FDR client base, the relative
  importance of other enhancements, the complexity of the enhancement, and
  related issues of impact and resource allocation shall be considered and the
  effective date of the change in law shall not be determinative); and


	
 

	
 

	
 

	
 


	
 

	
 

	
(iv)

	
the
  responsive enhancement requested by Client does not impose a burden on FDR
  (or the FDR System) to determine the facts not available on the FDR System,
  to make legal interpretations or conclusions, or to in any way shift Client’s
  compliance responsibility to FDR.





D-2









	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Client
  acknowledges and agrees that it is solely responsible for monitoring legal
  developments applicable to the operation of its business and Transaction Card
  operations, interpreting applicable state and federal laws, determining the
  requirements for compliance with all applicable state and federal laws, and
  maintaining an ongoing compliance program. Client acknowledges that FDR
  provides Transaction Card processing services to financial institutions
  chartered and regulated by various state and federal agencies and
  nonfinancial institutions subject to different regulatory oversight such that
  FDR cannot reasonably be expected to monitor or interpret the laws applicable
  to its diverse customer base, or provide compliance services to customers
  with respect to such laws. Consequently, Client agrees that FDR has no
  responsibility to monitor or interpret laws applicable to Client’s business,
  to monitor or review the terms and conditions of Client’s Transaction Card
  programs or Client’s selection of system options and programming, or to
  assure that Client’s selection of any system option or programming (either
  alone or acting in conjunction with other system options and programming
  selected by Client) is consistent with laws applicable to Client or the terms
  and conditions of Client’s credit agreements with, or disclosure to, its
  Cardholders.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
FDR shall be
  entitled to rely upon and use, without verification, any and all information,
  data and instructions any time submitted to FDR by Client having to do with
  Client or Client’s Accounts, and FDR shall have no responsibility or
  liability whatsoever for (i) the accuracy or inaccuracy thereof, (ii) the
  wording or text authored or submitted by Client to FDR, for materials to be
  prepared or for other purposes, (iii) the wording or text appearing on any
  forms, Transaction Cards or other materials furnished by Client to FDR, or
  (iv) any noncompliance of such information, data, instruction, wording or
  text with applicable laws, rules or regulations.





          3.
CMC shall have full authority to represent Client and to act fully on Client’s
behalf in connection with the Service Agreement and/or this Participation
Agreement, including the negotiating with FDR of any amendments, extensions of
the term or revisions of the Service Agreement and/or this Participation
Agreement, the asserting, negotiating and resolving of any controversy, dispute
or claim under the Service Agreement and/or this Participation Agreement and
the execution or delivery of any documents.


          4.
Client agrees that if CMC shall fail, for more than thirty (30) days following
the applicable payment period, to pay any amounts (including but not limited to
fees, taxes or other financial obligations directly attributable to Client) due
FDR by CMC under the Service Agreement for the services performed by FDR
hereunder on behalf of Client, then Client shall pay FDR, upon demand, that
portion of the total amount due from CMC to FDR which is applicable to those
services performed by FDR for or on behalf of Client, as determined by FDR;
provided, however, that in no event shall Client be responsible for any amounts
due FDR by CMC for those services for which Client has already made payment to
CMC. The provisions of this Section 4 shall not, unless expressly provided for
in the Service Agreement, apply with


D-3






respect to any
CMC’s Client which is directly billed by FDR for the services set forth in the
Service Agreement.


          5.
While this Participation Agreement is in effect, Client will not obtain any of
the services covered under the Service Agreement from any other supplier of
data processing services (including itself and its corporate affiliates) in
connection with its MasterCard and/or VISA card programs, except those services
being received by the Client prior to the execution of this Participation
Agreement that it has indicated, in a written notice to CMC and FDR on or prior
to the date of this Participation Agreement (a copy of which notice is attached
hereto), it does not wish to receive from FDR, either (a) because such
service(s) is not needed due to the limited nature of Client’s program, or (b)
because Client was already providing for such service(s) itself or receiving it
from a third party other than FDR on the date of the execution of this
Participation Agreement.


          6.
That this Participation Agreement is being executed for the benefit of FDR and
that FDR has relied upon the existence of this Participation Agreement and the
terms and conditions contained in it in electing to provide services to Client
through CMC and that FDR would not have elected to provide such services to
Client through CMC in the absence of the existence of this Participation
Agreement.


          7.
If the Client effects settlement for its MasterCard and/or VISA card programs
through the settlement accounts of another Client of CMC, Client agrees to
indemnify and hold harmless the depository bank where such settlement accounts
are maintained against any and all claims, losses, demands or causes of action,
including reasonable attorneys’ fees, arising out of or related to the
settlement accounts, including without limitation losses arising by reasons of
overdrafts or extensions of credit; provided, however, that (a) before seeking
indemnity, the depository bank will make a reasonable effort to rectify any
overdraft; (b) this indemnity shall not apply to any loss resulting from the
wrongdoing of an officer or employee of the depository bank; and (c) each
Client’s liability under this indemnity shall be limited to its pro rata share
of the claim or loss for which indemnity is sought, which pro rata share shall
be determined by multiplying the amount of the claim or loss times a fraction
the numerator of which is the total dollar amount of incoming MasterCard and
VISA transactions for the undersigned Client’s Cardholders’ activities with the
owner of the settlement account during the one month immediately preceding the
event giving rise to the demand for indemnity, and the denominator of which is
the total dollar amount of incoming MasterCard and VISA transactions during the
same time period from all Clients utilizing the settlement accounts of the
owner of the settlement account


          8.
In all circumstances in which Client expressly incurs payment obligations under
the Service Agreement (including those provided for in Section 4 of this
Exhibit “B”, if applicable), Client agrees that separate action or actions may
be brought against Client, whether action is brought separately against or
through CMC or whether CMC and FDR join in any such action or actions. Client
waives any right to require FDR to proceed against CMC, and Client waives any
defense arising by reason of any disability or other defense of CMC or by
reason of the cessation from any cause whatsoever of the liability of CMC.


D-4






          9.
Upon any termination of this Participation Agreement, Client agrees to open or
to leave open for 12 months following such termination an account through which
CMC and/or FDR can draw drafts or ACH for reimbursement of lingering charges
incurred on behalf of Client


          10.
Client hereby grants a security interest to FDR in, and a right of setoff
against Client’s right, title and interest, if any, in, any settlement accounts
or other funds held by FDR in order to secure Client’s obligations to FDR under
the Service Agreement, this Participation Agreement or otherwise.


          11.
This Participation Agreement, and all rights and obligations of the parties
with respect to matters in connection herewith, arising hereunder or related
hereto, shall be governed by and construed in accordance with the laws of the
State of Nebraska, and any claim, suit or proceeding shall be subject to the
provisions of Section 13.4 of the Service Agreement.


          12.
Client and FDR acknowledge and agree that it may not transfer or assign its
rights or delegate its obligations, under this Participation Agreement without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.


          13.
Each capitalized term used in this Participation Agreement and not defined
herein shall have the definition provided for such term in the Service
Agreement.


          14.
Any notice to Client shall be given by FDR to CMC, and by CMC to Client as
provided for in Section 13.5 of the Service Agreement, and shall be given to
the following address:


	
 

	
 

	
 

	
 


	
 

	
Client:

	
IndyMac
  Bank, F.S.B.

	
 


	
 

	
Address:

	
3465 East
  Foothill Boulevard

	
 


	
 

	
 

	
Pasadena, CA
  91107

	
 


	
 

	
Attention:

	
Jim Jerwers

	
 


	
 

	
Telecopy
  Number:

	
_________________________________

	
 





Any notice to
FDR shall be given as provided in Section 13.5 of the Service Agreement. A
party may change its address or addresses set forth above by giving the other
party notice of the change in accordance with the provision of this section. At
the time of the execution of this Agreement, Client’s Tax Identification Number
is 95-1186705 and, if Client has a sales tax exemption, Client’s Sales
Tax Exemption Number is n/a.


          15.
This Participation Agreement, along with the Service Agreement, as such may be
amended from time to time, and the CMC Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements or understandings among the parties with
respect to the subject matter hereof. This Participation Agreement may not be
amended except in a writing signed by an authorized officer or representative
of each of the parties hereto. This Participation Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument


D-5






          16.
Despite anything to the contrary in the Service Agreement, or this
Participation Agreement, FDR, at its option, may terminate this Participation
Agreement under the following circumstances:


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
If Client
  fails to establish the account required by Section I - b(i) of Exhibit “E”
  (only if applicable to Client pursuant to the provisions of such Section)
  within two (2) business days after written notice to Client of its failure to
  establish the account or two (2) business days following delivery of written notice
  by FDR to Client if Client thereafter fails to maintain the account during
  the Term of this Agreement.


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
If FDR does
  not receive full payment from Client pursuant to Section I - b(i) of Exhibit
  “E” (only if applicable to Client pursuant to the provisions of such Section)
  and Client, within thirty (30) days after written notice to Client of such
  fact, fails to make full payment to FDR or immediately without notice if FDR
  has the right more than three times in any twelve month period to give notice
  under this section, and so provides such notice upon at least one of the
  three occasions;


	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
Immediately,
  without notice, upon the termination of Client’s membership in VISA and
  MasterCard or both of their successors in interest, if after such
  termination, Client does not maintain a status that permits FDR to continue
  to perform its services on behalf of Client;


	
 

	
 

	
 

	
 


	
 

	
 

	
(d)

	
If Client
  fails to pay any Daily Amount when required under Section 17 of this
  Participation Agreement and does not cure the failure within one (1) day
  after written notice to Client of the failure or immediately without notice
  if FDR has the right more than three times in any twelve month period to give
  notice under this Section 16(d), and so provides such notice upon at least
  one of the three occasions;


	
 

	
 

	
 

	
 


	
 

	
 

	
(e)

	
Upon
  twenty-four (24) hours notice by FDR if FDR has terminated Interchange
  Settlement of transactions on behalf of Client pursuant to Section 17 of this
  Participation Agreement for more than ten (10) consecutive days or for more
  than twenty (20) days in any Processing Year;


	
 

	
 

	
 

	
 


	
 

	
 

	
(f)

	
If any
  Insolvency Event occurs with respect to Client


	
 

	
 

	
 

	
 


	
 

	
17.

	
(a)

	
In order for
  FDR to provide its settlement services to Client pursuant to this Agreement,
  it is necessary for FDR to handle and settle Interchange Settlement for
  Client through the international Interchange networks of MasterCard and VISA.
  It shall be the responsibility of Client to provide ICA and BIN numbers from
  MasterCard and VISA, respectively, for use by FDR in the settlement of
  transactions for Client. Client understands that FDR handles the Interchange
  Settlement with MasterCard and VISA for its clients including Client on a net
  settlement basis (the “Settlement System”). To facilitate the Settlement
  System, FDR has established, will establish or





D-6









	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
will direct
  Client to establish and may in the future establish or direct Client to
  establish one or more interchange settlement Central Clearing Accounts
  (collectively the “Settlement Account”) at one or more banks.


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
FDR shall
  calculate and FDR or CMC shall inform Client on each business day of the
  amount of funds to be transferred (the “Daily Amount”) as the result of (i)
  current transaction processing, and (ii) funding required for incoming
  transactions of Client If the Daily Amount is negative, Client must transfer
  to the Settlement Account immediately available funds in an amount equal to
  the Daily Amount or have available in the Settlement Account, prior to the
  close of business of the Federal Reserve System in New York on such business
  day, funds in an amount equal to the Daily Amount If the Daily Amount is
  positive, FDR will transfer to Client, or will cause MasterCard or VISA to
  transfer to Client, immediately available funds equal to the Daily Amount
  prior to the close of business of the Federal Reserve System in New York on
  such date.


	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
The Daily
  Amount shall equal:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(i)

	
The Net
  Settlement Amount for Client, plus


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(ii)

	
The amount
  necessary to fund incoming Interchange transactions not yet processed,
  determined in accordance with the FDR Settlement Rules, minus


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(iii)

	
The amount
  previously advanced by Client with respect to prior incoming Interchange
  transactions for which processing is complete.


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(d)

	
In the event
  of the failure of Client on any business day when required by the terms of
  this Agreement or the FDR Settlement Rules, to transfer the Daily Amount to
  the Settlement Account, or to make available the Daily Amount in the
  Settlement Account for FDR to draw upon, as applicable, FDR may refuse,
  without incurring any liability to Client, to act as Client’s agent in
  discharging any VISA or MasterCard Interchange obligations of Client and
  shall have the right to immediately notify MasterCard and VISA that it will
  no longer cause the MasterCard or VISA Interchange obligations of Client to
  be discharged. In addition to the foregoing, FDR may take such actions with
  respect to Client’s obligations under the Settlement System as FDR deems
  reasonable to protect FDR or its customers from any loss arising from
  Client’s non-payment of the Daily Amount.


	
 

	
 

	
 

	
 


	
 

	
 

	
(e)

	
In addition
  to any other provisions in this Agreement, in the event of Client’s failure
  to transfer or make available the Daily Amount for any business day, Client
  shall pay to FDR a late payment fee (the “Settlement Late Payment Fee”) which
  shall be equal to the amount Client would have





D-7









	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
been
  required to pay as a late payment fee under MasterCard and VISA rules. The
  amount shall be calculated in accordance with the rules and shall continue to
  accrue until FDR shall have received the Daily Amount from Client. Settlement
  Late Payment Fees shall be paid to FDR based upon the rules even though FDR
  may have elected to make settlement with MasterCard or VISA in a timely
  manner on behalf of Client. If FDR has received funds from VISA and/or
  MasterCard as a result of Interchange Settlement on behalf of Client and
  fails to make available the Daily Amount to Client, FDR shall pay to Client a
  late payment fee based on the Daily Amount calculated in the same manner as
  the Settlement Late Payment Fee.


	
 

	
 

	
 

	
 


	
 

	
 

	
(f)

	
The
  obligation of FDR to discharge any VISA or MasterCard Interchange obligations
  of Client shall be solely as an agent of Client in accordance with the terms
  and provisions of this Agreement and the FDR Settlement Rules. FDR shall have
  no independent obligation with respect to the discharge of the Interchange
  obligations of Client.


	
 

	
 

	
 

	
 


	
 

	
 

	
(g)

	
In the event
  that MasterCard or VISA shall notify FDR of any violation of the rules and
  regulations of MasterCard or VISA, relating to Client or transactions
  processed for Client, FDR shall have the right, without liability to Client,
  to terminate Interchange Settlement of transactions on behalf of Client under
  this Agreement until the time as FDR shall have been notified by MasterCard
  or VISA that the violation has been corrected.


	
 

	
 

	
 

	
 


	
 

	
 

	
(h)

	
Client
  acknowledges that performance of Interchange Settlement involves the
  settlement of certain of Client’s transactions jointly and on a combined net
  basis with the settlement of transactions of other customers of FDR.
  Accordingly, the payment or receipt by FDR of settlement monies on behalf of
  Client may be dependent on equivalent payments or receipts being received or
  made by or for other customers of FDR and in respect of transactions
  involving Transaction Cards issued by such other customers. FDR and Client
  will cooperate and use all reasonable resources to identify the reason for
  any settlement failure and shall attempt to work to its resolution.


	
 

	
 

	
 

	
 


	
 

	
 

	
(i)

	
FDR shall be
  entitled without further inquiry to execute or otherwise act upon (i)
  instructions or information or purported instructions or information received
  through the MasterCard and VISA payment systems and instructions or
  information, or (ii) purported instructions or information received in
  accordance with the MasterCard and VISA rules or settlement manuals otherwise
  than through the payment systems or in accordance with the FDR Settlement Rules
  notwithstanding that it may afterwards be discovered that the instructions or
  information were not genuine or were not initiated by Client. Such execution
  or action shall constitute a good discharge to FDR, and neither FDR nor CMC
  shall be liable for any liability, damage, expense, claim or loss (including
  loss of business, loss of





D-8









	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
profit or
  exemplary, punitive, special, indirect or consequential damages of any kind)
  whatsoever arising in whatever manner, directly or indirectly, from or as a
  result of the execution or action.


	
 

	
 

	
 

	
 


	
 

	
 

	
(j)

	
Client
  agrees to discharge their Interchange Settlement obligations to FDR under
  this Section 17 in full and on first written demand waiving any defense,
  setoff or right of counterclaim (without prejudice to the ability of Client
  to pursue these independently) and notwithstanding any act or omission or
  alleged act or omission or any insufficiency or deficiency that there is or
  has been or that may be alleged in the performance by FDR of its obligations
  under this Agreement or otherwise. FDR agrees, however, that it shall not
  setoff against any payment to be made by it to Client or on their behalf
  pursuant to this Section 17 any amount due and payable by Client to FDR
  (without prejudice to the ability of FDR to pursue these independently) other
  than amounts due and payable by Client or on their behalf to FDR pursuant to
  this Section 17.


	
 

	
 

	
 

	
 


	
 

	
 

	
(k)

	
If Client
  terminates this Agreement or if Client ceases to obtain processing services
  from FDR under this Agreement in a manner which results in fees or charges
  relating to Client’s Accounts continuing to be included as a part of FDR’s
  net settlement with MasterCard or VISA, FDR may obtain daily payment from the
  Settlement Account established under Section 17(a) or Client will provide FDR
  immediately upon notice with access to an account of Client’s funds, not
  requiring signature, which FDR may draw upon in order to receive payment for
  such fees and charges. FDR will provide Client with documentation for all
  fees and charges paid on behalf of Client.





          18.
If FDR elects to terminate the Service Agreement as provided for in Section 9.1
of the Service Agreement, then FDR, with reasonable approval of wording by CMC,
may, at its option, deliver a copy of such notice to CMC’s Clients.


          19.
Upon the expiration or termination of this Participation Agreement, Client
shall pay FDR, at FDR’s then current rates, for each activity completed by FDR
in order to accomplish Client’s Deconversion and for all costs, including
postage or shipping, of complying with Section 10.1 of the Service Agreement.
FDR shall, upon notice of Client’s impending Deconversion, provide Client with
a list of the Deconversion related expenses which are expected to be incurred
by FDR in connection with Client’s Deconversion (the “Estimated Deconversion
Fee”), and Client shall pay directly to FDR, prior to Deconversion, an amount
equal to the Estimated Deconversion Fee in lieu of actual Deconversion expenses
which shall be calculated following the Deconversion. Any additional amounts
owed to FDR by Client or any refunds due Client by FDR following such
calculation of the actual Deconversion expenses shall be paid directly to FDR
by Client or directly to Client by FDR upon delivery of such final calculation
of such expenses to Client by FDR. In no event shall CMC be liable for any
expenses incurred by FDR in connection with Client’s Deconversion. Anything in
this paragraph to the contrary notwithstanding, in the event that CMC
terminates the Service Agreement pursuant to the provisions of Section 9.2 of
the Service Agreement, Client shall not be responsible for any expenses
incurred by FDR in


D-9






connection
with any normal Deconversion related services performed by FDR in connection
with such Deconversion.


D-10






          IN
WITNESS WHEREOF, the parties to this Agreement have caused it to be executed by
their duly authorized signature as of the day and year first written above.


	
 

	
 

	
 

	
 

	
 


	
IndyMac
  Bank, F.S.B.

	
 

	
 

	
 


	
Name of
  Client

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
By:

	
/s/ Richard
  Wohl

	
 

	
 

	
 


	
 

	


	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
Name: Richard
Wohl  

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
Title: President
and COO  

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
Date: 9/26/01  

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
ACCEPTED AND
  AGREED TO:

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
FIRST DATA
  RESOURCES INC.

	
 

	
CARD
  MANAGEMENT CORPORATION


	
 

	
 

	
 

	
 

	
 


	
By:

	
/s/ Donal J.
  Gogarty

	
 

	
By:

	
/s/ James C.
  Bailey Jr.


	
 

	


	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
Name: Donal
J. Gogarty  

	
 

	
Name: James
C. Bailey Jr.  


	
 

	
 

	
 


	
Title: V.P.  

	
 

	
Title: C.O.O.  


	
 

	
 

	
 


	
Date: 10/5/01  

	
 

	
Date: 9/19/01  





D-11






EXHIBIT E-1

TO SERVICES AGREEMENT


EMPOWERMENT POLICY

(Customer Services)


          Client
hereby authorizes CMC to take the actions below in the situations described
below. If the required conditions for a specific action are not met, or if a
Person calling or writing CMC does not meet the definition of a CH or MR, CMC
will not take such action.


CARDHOLDER SERVICING


General CH inquiries:
CSR will process any CH request for answers to questions, research, disputes,
chargebacks, and similar items if CH sends a written request or calls.


Address Change: CSR
will process an address change if CH sends a written request or calls.


Annual Fee Waiver:
CSR will process an annual fee waiver or refund if:


	
 

	
 

	
 


	
 

	
•

	
The Account
  is closed within thirty days after the CH received statement showing that the
  Account was charged; or


	
 

	
 

	
 


	
 

	
•

	
CH indicates
  the annual fee is the only reason for CH closing Account and the Account is
  in good standing, in the reasonable discretion of the CSR. Although such
  waiver or refund will be effective only for the year in which the request is
  made, no limit applies to the number of times the action may be taken for any
  one Account; or


	
 

	
 

	
 


	
 

	
•

	
It is the
  only amount on a closed Account.


	
 

	
 

	
 


	
Finance Charge Reversal:
  CSR will process a finance charge reversal if:


	
 


	
 

	
•

	
It is the
  only amount on a closed Account; or


	
 

	
 

	
 


	
 

	
•

	
A payment
  was posted late due to an error, the determination of error being in the
  reasonable discretion of the CSR; or


	
 

	
 

	
 


	
 

	
•

	
CH
  accidentally paid the incorrect amount. CH’s word shall be acceptable.


	
 

	
 

	
 


	
Late Fee Reversal:
  CSR will process a late fee reversal if:


	
 

	
 

	
 


	
 

	
•

	
On a
  customer relations basis one-time only, which is determined by a memo
  retained on Account masterfile record; or


	
 

	
 

	
 


	
 

	
•

	
Fee incurred
  due to a processing error outside of CH’s control, the determination of error
  being in the reasonable discretion of the CSR; or


	
 

	
 

	
 


	
 

	
•

	
It is the
  only amount on a closed Account.


	
 

	
 

	
 


	
Overlimit Fee Reversal:
  CSR will process an Overlimit fee reversal if:


	
 

	
 

	
 


	
 

	
•

	
On a
  customer relations basis one-time only, which is determined by memo retained
  on Account masterfile record; or





E-1-1









	
 

	
 

	
 


	
 

	
•

	
Fee incurred
  due to a processing error outside of CH’s control, the determination of error
  being in the reasonable discretion of the CSR; or


	
 

	
 

	
 


	
 

	
•

	
CH is not
  aware of an outstanding authorization, which takes away available credit.
  CH’s word shall be acceptable; or


	
 

	
 

	
 


	
 

	
•

	
It is the
  only amount on a closed Account.


	
 

	
 

	
 


	
Returned Check Charge Reversal:
  CSR will process a returned check charge reversal if:


	
 

	
 

	
 


	
 

	
•

	
Fee incurred
  due to a processing error outside of CH’s or their bank’s control, the
  determination of error being in the reasonable discretion of the CSR; or


	
 

	
 

	
 


	
 

	
•

	
It is the
  only amount on a closed Account.


	
 

	
 

	
 


	
Equity Check Less than Minimum Advance Fee
  Reversal: CSR will process an Equity check less than
  minimum advance fee reversal if:


	
 

	
 

	
 


	
 

	
•

	
On a customer
  relations basis, one-time only as determined by a memo retained on Account
  masterfile record; or


	
 

	
 

	
 


	
 

	
•

	
It is the
  only amount on a closed Account.


	
 

	
 

	
 


	
Premature Account Closure Fee Reversal:
  CSR will process a premature Account closure fee reversal if: 


	
 

	
 

	
 


	
 

	
•

	
Only amount
  on a closed Account.


	
 

	
 

	
 


	
Name Change: CSR
  will process a name change if:


	
 

	
 

	
 


	
 

	
•

	
CMC receives
  a copy of a verifying legal document from CH, such as a marriage license, or
  driver’s license, etc; or


	
 

	
 

	
 


	
 

	
•

	
CSR
  determines, in CSR’s sole discretion, that any such field in the Account
  masterfile record is inaccurate.


	
 

	
 

	
 


	
Freezing An Account:
  “Freezing” means to block usage of an Account by entering an FDR System
  status code of “F” CSR will process the Freezing of an Account if:


	
 

	
 

	
 


	
 

	
•

	
CSR
  believes, in CSR’s sole judgment, there may be suspicious activity on the
  Account; or


	
 

	
 

	
 


	
 

	
•

	
If CH
  requests to temporarily suspend charging ability.


	
 

	
 

	
 


	
Unfreezing An Account:
  CSR may unfreeze an Account if:


	
 

	
 

	
 


	
 

	
•

	
CH so
  requests and can clarify suspicious activity to CSR’s satisfaction; and


	
 

	
 

	
 


	
 

	
•

	
An Account
  automatically frozen through PCF settings becomes current and within the
  credit limit; and


	
 

	
 

	
 


	
 

	
•

	
CH requests
  to remove temporarily suspension of charging ability.


	
 

	
 

	
 


	
Closing An Account:
  CSR will process an Account closing if CH sends a written request or calls.
  If cancel request received within three (3) years of open date, CSR will
  advise CH and post a Premature Account Closure Fee of $350.00 to the Account:


	
 

	
 

	
 


	
Authorization Override:
  CSR may override or perform a manual authorization when there is sufficient
  available credit for the transaction and the expiration date is valid.





E-1-2









	
 

	
 

	
 


	
Deleting an Authorization:
  CSR may delete an authorization when:


	
 


	
 

	
•

	
Merchant
  requests authorization be removed and verifies transaction information; or


	
 

	
 

	
 


	
 

	
•

	
Charge and
  authorization are both appearing on Account (CH’s word is acceptable).


	
 

	
 

	
 


	
Retrieval Request Fee:
  CSR will process the posting of a retrieval request fee to an Account if:


	
 

	
 

	
 


	
 

	
•

	
CH ‘requests
  a copy of a particular Transaction Card Ticket and the transaction appears,
  in the reasonable discretion of CSR, to be a legitimate charge of CH; and


	
 

	
 

	
 


	
 

	
•

	
The Merchant
  name on the ticket is similar to that on that transaction on CH’s monthly
  statement.


	
 

	
 

	
 


	
CSR will not
  process the posting of such fee if CSR feels, in the CSR’s reasonable
  discretion, that circumstances indicate that to do so would not be in the
  best interest of the relationship with the CH. The retrieval request fee is a
  debit to the Account of $5.00 unless Client has indicated a different amount
  to CMC in writing. Client warrants to CMC that the assessment of a retrieval
  request fee has been properly disclosed to CH’s. Client is usually charged
  for all retrievals of transaction copies through Card Associations as
  specified in Rules.


	
 

	
 

	
 


	
Chargeback Minimum:
  The Rules do not allow processing of chargebacks on certain types of
  transactions if they are below a minimum stated in the Rules, which minimum
  is currently $25.00. However, if CH disputes any type of transaction that is
  below $25.00 (or whatever such amount may be changed to in the Rules), CSR
  will credit CH’s Account at Client’s expense, without actually processing a
  chargeback. The foregoing notwithstanding, recurring mail/telephone
  transactions (for example, monthly fees for America On-Line, Prodigy, etc.)
  will not be credited without processing a chargeback, regardless of amount,
  but will be charged back in the normal manner. A memo of the credit will be
  recorded on the Account masterfile record.


	
 


	
Non-Reissue / Special Fees:
  If, in the sole discretion of CMC, the calls, requests or demands of any
  particular CH are consistently excessive in number or duration or are
  consistently unreasonable, or if CH is consistently abusive to CSR’s, CMC
  will contact Client for action to be taken on the Account. Client agrees that
  in the event Client elects to retain any such Account, each such Account may
  be subject to Special Fees from CMC to Client.


	
 

	
 

	
 


	
Card Activation:
  CSR will activate the Account at the request of the CH upon verification of
  their name, address, home or work telephone number and social security
  number.


	
 


	
Warning Bulletin:
  The Card Associations’ warning bulletins, whether electronic or paper, are
  designed to warn Persons having access to warning bulletin listings not to
  accept the listed Accounts for payment. Listing of Accounts onto the warning
  bulletins may result in Processing Fees charged to Client and other fees
  charged directly from the Card Associations. CSR will process the listing of
  an Account onto the warning bulletins if:


	
 

	
 

	
 


	
 

	
•

	
If the
  Account if 90 Days Delinquent and CSR is statusing the Account revoked (E);
  or


	
 

	
 

	
 


	
 

	
•

	
If the
  Account is statused Lost (L) or Stolen (U); or


	
 

	
 

	
 


	
 

	
•

	
If the
  Account has an external status and charges or attempts to charge are made on
  the Account.





E-1-3









	
 

	
 

	
 


	
Accounts may
  be placed on the warning bulletin for whatever length of time CSR determines
  in CSR’s sole discretion, provided however, that nothing shall obligate CSR
  to place such Account on the warning bulletin. If an Account is already
  listed on the warning bulletin for any reason, and CSR, in CSR’s sole
  discretion, determines that the time the Account is on the warning bulletin
  should be extended, then CSR will process an extension of such listing for
  whatever length of time CSR determines in CSR’s sole discretion, provided
  however, that nothing shall obligate CSR to monitor and extend the listing of
  Accounts whose listing on a warning bulletin is expiring.


	
 


	
Temporary Prohibitions of Authorizations on
  Account: If there is information needed on an
  Account, CSR may, in CSR’s sole discretion, process the entry of an “A”
  status onto such Account by entering an FDR System status code of “A.” An
  Account with an “A” status means a code has been entered into the Account
  masterfile record, which will cause the FDR System to block authorization of
  transactions on such Account with a message to contact the Card Issuer. CSR
  will remove such status if CH contacts CSR and provides the needed
  information.


	
 

	
 

	
 


	
Account Transfers:
  CSR may, in CSR’s sole discretion, process the transfer of information from
  an Account that is statused lost (“L”) or stolen (“U”) to a new Account.


	
 


	
Providing CH Information to agents of
  Client: CSR will provide Account information to
  branch personnel who contact a CSR if the Person provides their name and
  branch location. The purpose is usually to allow employees of Client access
  to information. CSR may also verify the availability of funds for an Equity
  check.


	
 


	
Cycle Code Requests:
  CSR will process a change in the cycle code, which determines the time of
  month that CH’s statement is produced, if CH requests such a change. CSR must
  explain the process as it relates to finance charges and the minimum payment.


	
 


	
Pin Number Request:
  CSR will process production of a PIN mailer if CH sends a written request or
  calls. Equity
  Check Request: CSR will process an equity check reorder if CH
  sends a written request or calls.


	
 


	
Adding or Correcting CH’s Mother’s Maiden
  Name, Date of Birth, Social Security Number or Federal Tax Identification
  Number: CSR will process the addition or correction
  of CH’s mother’s maiden name, date of birth, social security number or
  federal tax identification number if


	
 


	
 

	
•

	
CH calls; or


	
 

	
 

	
 


	
 

	
•

	
CSR
  determines, in CSR’s sole discretion, that any such field in the Account
  masterfile record is missing or inaccurate; or


	
 

	
 

	
 


	
 

	
•

	
CH sends a
  written request; CSR may, but shall not be required to, request proof of
  information acceptable in CSR’s sole discretion, such as, for example, a copy
  of CH’s driver’s license.


	
 

	
 

	
 


	
Credit Balance Refunds:
  CSR may process an adjustment to refund a credit balance on an Account if CH
  calls and/or writes requesting a refund of a credit balance.





E-1-4









	
 

	
 

	
 


	
Adding or Correcting CH’s Phone Numbers:
  CSR will process the addition or correction of CH’s home and/or work phone
  numbers if:


	
 


	
 

	
•

	
CH sends a
  written request; or


	
 

	
 

	
 


	
 

	
•

	
CH calls; or


	
 

	
 

	
 


	
 

	
•

	
CSR
  determines, in CSR’s reasonable discretion, that any such field in the
  Account masterfile record is missing or inaccurate.


	
 

	
 

	
 


	
Statement Copy Fee:
  CSR will process the posting of a statement copy fee to an Account if:


	
 


	
 

	
•

	
CH requests
  that a copy of the Account statement be made and sent; and


	
 

	
 

	
 


	
 

	
•

	
This is not
  the first request, which is determined by a memo retained on Account
  masterfile record; and


	
 

	
 

	
 


	
 

	
•

	
The request
  was not due to CH’s never having received statement due to wrong address or
  other cause beyond CH’s control.


	
 

	
 

	
 


	
 

	
CSR will not
  process the posting of such fee if CSR feels, in the CSR’s reasonable
  discretion, that circumstances indicate that to do so would not be in the
  best interest of the relationship with the CH. The statement copy fee is a
  debit to the Account of $4.00 unless Client has indicated a different amount
  to CMC in writing. Client warrants that the assessment of such statement copy
  fee has been properly disclosed to CH’s.





Reissue Card:
CSR will process the reissue of a Card and/or mailing of plastics if all of the
following criteria are met


	
 

	
 

	
 

	
 


	
 

	
•

	
No current
  derogatory internal or external status codes exist; and


	
 

	
 

	
 


	
 

	
•

	
Account is
  within credit limit; and


	
 

	
 

	
 


	
 

	
•

	
CH states to
  the CSR that CH is requesting reissue of Card for one of the following
  reasons, as to which CH’s word shall be acceptable:


	
 

	
 

	
 


	
 

	
 

	
•

	
Magnetic
  strip or chip is damaged; or


	
 

	
 

	
 

	
 


	
 

	
 

	
•

	
Card has
  been accidentally cut up or damaged beyond use; or


	
 

	
 

	
 

	
 


	
 

	
 

	
•

	
Card was
  taken by an ATM; or


	
 

	
 

	
 

	
 


	
 

	
 

	
•

	
Card has a
  misspelling of the CH name.





Auto Pay:
At CHs request, CSR will make arrangements to have the FDR System generate
automatic payments from a DDA designated by the CH after receiving the
appropriate signed documentation and voided check from CH.


Accelerated Payment
Service Payments: CSR will process the generation of
Accelerated Payment Service (“APS”) payments either at CH’s request or if the
CSR suggests to CH making payments via APS and CH agrees. Client agrees that
APS fees, including fees for the notification letter, will be passed to the
Client. CSR will process a fee of $3.00 to the CH Account.


Changing Post
Date/Effective Date of Payment: CSR will process the
changing of a payment posting date and/or effective date if:


	
 

	
 

	
 


	
 

	
•

	
CH made two
  payments in one statement cycle and states to the CSR that one of the payments
  was intended for a different statement cycle; or





E-1-5









	
 

	
 

	
 


	
 

	
•

	
The
  effective date is due to an error outside of the CH’s control, as determined
  in the reasonable discretion of the CSR.





Non-sufficient Funds
Checks: CSR will process the posting of a payment
reversal to an Account if the Lock-Box Bank provides the CSR notification of a
check returned due to non sufficient funds (“NSF Check”), either in the form of
a copy of the check or a form that clearly describes the details concerning the
NSF Check. The originals of such forms are normally provided to Client by the
Lock-Box Bank. Client hereby authorizes the Lock-Box Bank, if any, to provide
CMC with a copy of such form so that CSR can process the payment reversal as
timely as possible.


Equity Check Stop
Payment: CSR will initiate a stop payment order to an
equity check at the request of the CH. CSR will post a stop payment fee of
$10.00 to the Account.


Exception Item Review
– Stop Suspects: CSR will process a pay/no pay
decision for each item identified as a “Stop Suspect” by the FDR Transaction
Processing System (TPS) as follows:


	
 

	
 

	
 


	
 

	
•

	
A “no pay”
  decision will be entered through the Advanced Customer Support (ACS) system
  if the payee on the TPS system matches the payee on the FDR system.


	
 

	
 

	
 


	
 

	
•

	
A “pay”
  decision will be entered through the ACS system if the payee on the TPS
  system and the payee on the FDR system do not match.





COLLECTING DELINQUENT
AND/OR OVERLIMIT ACCOUNTS


Skip Tracing:
If CH is delinquent, CMC collector will utilize Directory Assistance, Fast Data
and/or First Pursuit to locate CH. Client agrees that CMC will pass through
Fast Data and FirstPursuit fees for the program from FDR to Client.


Bankrupt Accounts:
If Client indicates to CMC in writing a contact person at Client for handling
of CH bankruptcies (“Bankruptcy Contact”), then for each bankruptcy notice
forwarded to CSR along with the Bankruptcy Contacts written instructions to do
so, CSR will either:


	
 

	
 

	
 


	
 

	
•

	
File proof
  of claim with applicable bankruptcy court in the Chapter 13 bankruptcies; or


	
 

	
 

	
 


	
 

	
•

	
Send
  reaffirmations to debtors’ attorneys in Chapter 7 bankruptcies, upon such
  attorneys’ requests.





Consumer Credit
Counseling Service: If Client indicates in writing to
CMC a contact person at Client for handling CH Consumer Credit Counseling
Service (“CCCS”) issues (“Counseling Contact”), then Client may forward all
CCCS proposals to CSR along with Counseling Contact’s complete written
instructions, and CMC will process them accordingly, if reasonable.


Deceased Queue:
If the CSR is informed that the customer is deceased, a CSR will attempt to
confirm the date of death either by the death certificate or through the Social
Security Administration. Once the date of death is confirmed, the account will
then be removed from CMC’s workflow and client agrees to process any further
inquiries.


E-1-6






Adding Revoked
Status: CSR will process the entry of a revoked (“E”)
status code onto an Account masterfile record if:


	
 

	
 

	
 


	
 

	
•

	
Account is 2
  or more statement cycles delinquent; and


	
 

	
 

	
 


	
 

	
•

	
CH has
  either: bounced a check, or lost employment, or refuses to make Payment
  Arrangements.


	
 

	
 

	
 


	
 

	
An Account
  with “E” status means a code has been entered into an Account masterfile
  record, which will cause the FDR System to decline authorization of transactions
  on such Account and to request that the merchant entering the authorization
  withhold the Card from a Person attempting to use the Card.





Removing Revoked
Status: CSR will process the removal of a revoked
(“E”) status code from an Account masterfile record if the Account is current
and within the credit limit and three consecutive payments have been made.


Collection Routines
and Payment Arrangements: When collecting on a
Delinquent Account, CSR will always attempt to collect the entire amount due,
including late fees, to immediately bring the Account to a current status.
There are times when the CH is not able to remit the full amount required to
bring the Account current. The CSR will be authorized to proceed through the
Payment Arrangement (“Payment Arrangement” means allowing the CH to make
incremental payments that are individually less than the current total amount
due under the Account agreement, but that in the aggregate will bring the
Account current in 90 days or less) procedure identified in Exhibit C-2,
Collection Procedures and Performance Guidelines for Collection Services,
routines in an effort to assist the CH to bring the Account to a current status
over a reasonable period of time. No reaging of an Account is authorized and
Partial Payments do not advance the Due Date. When collecting on Accounts and
communicating with CH regarding payment dates, CSR will speak in terms of
calendar days and dates that coincide with the parameters defined below in
terms of FDR Days. Collection and Payment Arrangement routines will proceed
according to the delinquency status of the Account, based on the number of days
delinquent as reflected on the FDR processing system (“FDR Days”):


	
 

	
 

	
 


	
 

	
•

	
Western Union Payments:
  CSR will process the generation of Western Union payments if Account is
  Delinquent, and the CSR suggests to CH making payments via Western Union, and
  CH agrees.


	
 

	
 

	
 


	
 

	
•

	
Express Mail Payments:
  CSR will process the generation of Express Mail payments if CH is delinquent,
  and the CSR suggests to CH making payments via Express Mail, and CH agrees.
  Express Mail address is CMC’s physical address.


	
 

	
 

	
 


	
GENERAL PROVISIONS


	
 


	
 

	
•

	
Even if all
  listed conditions are met for a certain action, Client hereby authorizes CSR
  to refuse to perform that action if CSR believes, in CSR’s sole discretion,
  that undertaking such action might result in a loss to Client; provided,
  however, that the foregoing shall not require or obligate a CSR to refuse to
  perform an action under such circumstances.





E-1-7









	
 

	
 

	
 


	
 

	
•

	
If a CSR
  believes that taking a particular action which is not authorized in this Exhibit
  E-1 would benefit the CH or MR or promote CH or MR goodwill, CMC will
  contact Client and will only take such action if so instructed by Client;
  provided, however, that the foregoing shall not require or obligate CMC to
  contact Client or to perform an action under such circumstances.


	
 

	
 

	
 


	
 

	
•

	
All written
  requests for empowered actions must be signed. If a signature is entirely
  illegible or does not appear to be, in CSR’s sole discretion, the signature
  of CH or MR, or if a written communication is unsigned, CSR will attempt to
  call the Cardholder or Merchant, respectively. The writer of such
  communication shall not be considered a CH or MR until the CSR receives a
  signature, which appears to be, in CSR’s sole discretion, that of a Person
  defined as a CH or MR, as applicable. Under no circumstances shall CMC be
  obligated to authenticate a signature, such as by comparison to a specimen
  known to be authentic. All determinations of a CSR as to signature
  authenticity shall be conclusive. If a Person meets the definition of CH or
  MR, CMC shall be entitled to respond to the requests from and follow the
  instructions of such Person, without further inquiry as to his or her
  identity.


	
 

	
 

	
 


	
 

	
•

	
Written
  communications transmitted by facsimile shall be as acceptable in all
  situations as an original document. Client authorizes CMC, in performing the
  empowered actions under this Exhibit E-1, to send and receive
  information to and from Client by electronic mail via the Internet.


	
 

	
 

	
 


	
 

	
•

	
All memos
  not referred to herein as being retained for a stated duration will drop from
  Account masterfile record after the number of months specified in PCF. All
  memos incur storage fees as Processing Fees.





E-1-8






EXHIBIT F

TO SERVICES AGREEMENT


CLIENT RESPONSIBILITIES


          Client’s
responsibilities under this Agreement shall be performed in compliance with CMC
Laws and include the following:


1. Client
shall be the creditor on all Accounts established under the Card program and
the issuer of all Cards and shall supply all funds required for operation of
the Card program, including those borrowed by Cardholders. All Accounts and all
right, title and interest therein shall be the property of Client. Client shall
determine the credit standards for Accounts and shall make all credit decisions
on applications and Accounts. Client shall determine all features, terms and
conditions applicable to the Card Accounts, even though CMC may have assisted
Client with the planning for and/or analysis of such items. Client assumes all
risks of ownership of the Accounts, including all credit, fraud and counterfeit
losses, and all fines and costs of compliance or non-compliance with all Rules
and Requirements of Law (except to the extent the same are incurred due to
CMC’s failure of compliance with any CMC Laws).


2. Client
shall effect daily Interchange Settlement directly with FDR in accordance with
the terms of Client’s Participation Agreement with FDR, which, upon execution,
shall be incorporated as Exhibit D hereof. From the daily settlement and
accounting information sent to Client from either CMC or FDR, Client shall be
responsible for the daily maintenance and reconciliation of all of Client’s
accounting and related general ledger entries.


3. Client
shall provide CMC with each of Client’s credit bureau subscriber codes that
Client desires CMC to use in connection with reporting to credit bureaus and
authorizes CMC and FDR to provide credit information to credit bureaus and to
obtain credit bureau reports from credit bureaus on its behalf using such
subscriber codes. Client agrees to bear and pay the charges for any such credit
bureau services and any associated additional Processing Services fees incurred
therefrom.


4. All PCF and
RMS parameters in the FDR System that CMC builds for Client contain default
settings which Client may choose to adjust. CMC shall provide Client with
documentation showing all of Client’s PCF and RMS settings in the FDR System,
including settings selected by Client and any unchanged default settings.
Client shall review and approve such settings displayed in such documentation
prior to initial implementation of Client’s Card program. After initial
implementation, Client shall review documentation provided by CMC and/or FDR to
Client which will display Client’s. Client shall notify CMC, in writing, of any
errors in such PCF or RMS settings within thirty (30) days after the date of
such documentation. Notwithstanding anything to the contrary in Section 6.3 or
elsewhere in this Agreement, if such notice is not provided within such time
limits, any errors in those PCF or RMS settings which are discoverable by
review of the documentation provided to Client shall not be indemnifiable
hereunder or be considered a breach of this Agreement. The foregoing
notwithstanding, if Client converts an existing FDR System for CMC to service
hereunder, this paragraph does not apply, because all PCF and RMS settings were
previously established by Client.


F-1






5. Client
needs FDR’s PCF and RMS manuals to interpret and review the reports containing
Client’s PCF and RMS settings. CMC shall make available to Client a copy of
FDR’s PCF and RMS manuals (for which Client agrees to pay FDR’s then-current
charges). Client shall provide CMC with written notice, as far in advance as
practicable, of any request for changes to the System, to any PCF or RMS
settings, or to any functions or procedures relative to any Services (Change
Request). In order to minimize errors in the operation of the System or of
functions and procedures following implementation of such changes, CMC and/or
FDR perform reasonable analysis, due diligence review, tests, and other
internal procedures relative to each Change Request (these procedures, whether
written or unwritten, are called Change Control Processes). Client shall review
and approve such changes prior to implementation of the Change Request. After
implementation thereof, Client shall review documentation provided periodically
by CMC and/or FDR to Client, including documentation displaying Client’s PCF
and RMS settings. Client shall notify CMC, in writing, of any errors
discernable by review of such documentation within thirty (30) days after the
date of such documentation.


          Client
and CMC understand and agree that Client will sometime submit Change Requests
for which, due to time or costs restraints imposed by Client, CMC and/or FDR
cannot implement the customary Change Control Processes, or for which Client
may instruct CMC to bypass or forego customary Change Control Processes. In
such cases, CMC will notify Client, as soon as practicable, if it will not be
feasible for CMC or FDR to perform the Change Control Processes for any
particular Change Request. If, in such event, Client nevertheless chooses to instruct
CMC or FDR to implement such a Change Request by executing a written waiver so
directing CMC or FDR to implement, Client shall pay CMC and/or FDR for any
unusual implementation, operation, compliance, recovery or other associated
costs. Client hereby agrees that any undesirable processing results due to a
Change Request being implemented pursuant to Client’s written waiver without
performing Change Control Processes, shall not be considered a breach by CMC
under this Agreement. Subject to the limitation of liability set forth in
Article 7 of this Agreement, Client shall indemnify and hold harmless CMC Group
Members from and against any Losses arising out of any claims or demands by any
party resulting from a Change Request being implemented pursuant to Client’s
written waiver without CMC or FDR following the Change Control Processes.


6. Client
shall be responsible for, and shall periodically (but no less often than
semi-annually) review and approve, the compliance with Rules and Requirements
of Law and with the requirements of CMC and FDR of the form, content and
triggering parameters of all its written materials used in its Card program
(including marketing materials, Computer Letters, forms, Cardholder Account
statements and other written materials provided to Cardholders) and the
establishment of the formulas for calculation of data and the placement of data
contained in Cardholder Account statements.


          CMC
may, from time to time, provide samples of Computer Letters, forms, procedures,
data processing system features and other information to assist Client in
determining some internal procedures or to assist Client in designing some
forms or documentation. Client acknowledges that such example forms, documents
and procedures are provided as a courtesy to Client, and Client shall not rely
on the same as complying with Rules and Requirements of Law.


F-2






7. Client
shall review and monitor all reports (in paper or microfiche form, or available
on-line or through other electronic media) provided to Client by CMC.


8. Client will
be the repository of the originals of all Cardholder applications and
Cardholder file maintenance written documentation which is not maintained on
the System, for whatever record retention period Requirements of Law may specify.
Client will furnish photocopies or facsimile copies of original documents for
CMC to utilize in making data entries on behalf of Client. CMC will not retain
photocopies or facsimile copies of such data entry documents in any form for
more than six months following the data entry date and will destroy any such
photocopies or facsimile copies in a reasonably secure manner. If Client
provides to CMC original documents for data entry, CMC will retain such
original documents for a period of six months after which time such original
documents will, at CMC’s option or at Client’s written request, be shipped to
Client who shall thereafter be responsible for maintaining such originals as
required by Rules or Requirements of Law. Original payment stubs shall be retained
by the Lock Box Bank. FDR stores System generated reports and monthly Account
statements on microfiche or other storage media.


9. Client
shall be responsible for the accuracy and completeness and the compliance with
Rules and Requirements of Law of all information, data, wording or text, or
instructions submitted to CMC or FDR by Client for any purpose under this
Agreement. CMC shall be entitled to rely upon and use the foregoing without
verification.


10. Client
shall provide adequate and proper training for those of Client’s personnel who
will have on-line System access as to the use of all System features, reports,
equipment and functions. If Client utilizes on-line System access features or
on-line functions offered by CMC, Client shall be responsible for delegating
and controlling personnel access to such System and functions and the data
contained therein, including the proper segregation of duties, use of passwords
and other security access to such System, functions, processes and data. Client
shall make available daily to CMC a representative(s) for periodic decisions,
who shall be designated to CMC in writing by an officer of Client.


11. Client
shall notify CMC in writing as far in advance as reasonably practicable of any
marketing, promotions, or other projects (such as the acquisition of an
existing portfolio of Accounts) intended to materially change the number of
Accounts serviced hereunder. Notice shall include the number of Accounts
expected to be added or deleted as a result of such activity, foreseeable
factors that may cause a material change in the volume of Customer Service, and
expected timing of the foregoing.


          CMC
shall use reasonable efforts to meet Client’s time frames for any such changes.
As soon as practicable after receipt of such notice, CMC will notify Client of
CMC’s time estimate for CMC to support such changes in Client’s program. If
Client chooses to implement such changes without providing CMC reasonably
sufficient time to support such changes: (i) any breach of this Agreement by
CMC which is the direct result of Client’s decision to proceed shall not be
considered a breach; and (ii) Client shall pay CMC for any incremental,
reasonable out of pocket expenses incurred by CMC as a direct result of
implementing such changes without reasonable lead time. Subject to the
limitations of liability set forth in Article 6 of this Agreement, Client shall
indemnify and hold harmless CMC Group Members from and against any and all


F-3






Losses arising
out of any claims or demands by any party directly resulting from CMC
implementing such changes without sufficient lead time, at the instruction of
Client. Client shall provide CMC copies of any marketing or promotional
materials as far in advance as reasonably practicable prior to implementing
such projects. Put original language back per agreement


F-4






EXHIBIT G

TO SERVICES AGREEMENT


Glossary


	
 

	
 


	
1.

	
“Account” means a
  Cardholder or Merchant account, as applicable, to be serviced hereunder.


	
 

	
 


	
2.

	
“ACH” has the
  meaning specified in Exhibit B.


	
 

	
 


	
3.

	
“Acquirer” means a
  Person, including Client, if applicable, which has a contractual arrangement
  with a merchant to obtain Transaction Card Tickets from the merchant and
  present the Transaction Card Tickets through an Interchange to a Card Issuer.
  “Acquire”
  means the act of obtaining and presenting such Transaction Card
  Tickets.


	
 

	
 


	
4.

	
“Affiliate” means,
  when used with reference to a specific Person, any Person that, directly or
  indirectly, or through one or more intermediaries, owns or controls, is owned
  or controlled by, or is under common ownership or common control with such
  specified Person. As used herein, “control” means the power to direct the
  management or affairs of a Person and “ownership” means the beneficial
  ownership of 50% or more of the equity securities of the Person.


	
 

	
 


	
5.

	
“Agent Bank” means
  any financial institution for which Client is a sponsor into membership with
  a Card Association for the purpose of issuing Cards or Acquiring Transaction
  Card Tickets on behalf of such financial institution.


	
 

	
 


	
6.

	
“Agent Bank Employee”
  means an employee of an Agent Bank.


	
 

	
 


	
7.

	
“Agreement” means
  this Services Agreement as supplemented and amended in writing from time to
  time, including the exhibits attached the Services Agreement.


	
 

	
 


	
8.

	
“Annual Period”
  means any calendar year during the term of this Agreement, except that the
  first Annual Period shall mean the period beginning on the Effective Date and
  ending on the following December 31.


	
 

	
 


	
9.

	
“App System” has
  the meaning specified in Exhibit E-3.


	
 

	
 


	
10.

	
“Approve” as used
  in Exhibits E-2 and E-3, has the different meanings specified
  therein.


	
 

	
 


	
11.

	
“APS” has the
  meaning specified in Exhibit E-1.


	
 

	
 


	
12.

	
“Associated Names”
  means, as to a particular Cardholder, any Person whose name is listed in such
  Cardholder’s Account masterfile record as an associated name.


	
 

	
 


	
13.

	
“Authorized Representative”
  means, as to Client (i) an officer of the Client with a title of Vice
  President or higher; or (ii) a Person whose name, title and specimen signature
  has been certified to CMC as authorized by Client’s board of directors to
  bind Client hereunder; or (iii) a Person who has been designated in writing
  by a Person described in 





G-1









	
 

	
 


	
 

	
(ii) as
  authorized to bind Client hereunder. The term means, as to CMC, either the
  President, Executive Vice-President or the Chief Financial Officer.


	
 

	
 


	
14.

	
“Authorized User”
  means a Cardholder who is authorized to use an Account but who is not
  financially obligated under such Account.


	
 

	
 


	
15.

	
“Average Monthly Service Fees”
  has the meaning specified in Section 7.1(a).


	
 

	
 


	
16.

	
“Bank Card Association”
  means MasterCard or Visa.


	
 

	
 


	
17.

	
“Bank Card” means
  a credit card account, charge card accounts, debit card account, or similar
  instrument (whether or not a physical card is provided to a Person) that is
  issued to a Person by a licensee of a Bank Card Association.


	
 

	
 


	
18.

	
“Bankruptcy Contact”
  has the meaning specified in Exhibit E-l.


	
 

	
 


	
19.

	
“Billing Dispute”
  has the meaning specified in Exhibit B.


	
 

	
 


	
20.

	
“Business Day” means
  Monday through Friday, excluding federal bank holidays.


	
 

	
 


	
21.

	
“CAE” has the
  meaning specified in Section 2.1.


	
 

	
 


	
22.

	
“Card” means Bank
  Cards and all Other Cards.


	
 

	
 


	
23.

	
“Card Association”
  means (i) Bank Card Associations and (ii) Other Card companies (e.g., Diner’s
  Club, Discover, JCB, American Express, debit card networks, links, or other
  brand name card companies).


	
 

	
 


	
24.

	
“Cardholder” means
  any Person (or, collectively, Persons) to whom a credit or debit Card account
  is issued (or who has applied for such) by Client (whether or not a physical
  card is provided), or by any Agent Bank of Client or Affiliate of Client,
  which account was or is or is to be serviced in some manner by CMC pursuant
  to this Agreement.


	
 

	
 


	
25.

	
“CCCS” has the
  meaning specified in Exhibit E-1.


	
 

	
 


	
26.

	
“CH” means any
  Person who calls CMC and states he or she is (i) the Cardholder or an
  Associated Name, and can provide information that is essentially the same as
  that which is on the FDR System’s on-line screens for any three of the
  Security Check Fields; (ii) an Authorized Representative of Client; or (iii)
  an Agent Bank Employee. The term “CH” shall also include any Person who
  communicates with CMC and is the name of (i) the Cardholder or an Associated
  Name; (ii) an Authorized Representative of Client; or (iii) an Agent Bank
  Employee.


	
 

	
 


	
27.

	
“Change Control Processes”
  has the meaning specified in Exhibit F.


	
 

	
 


	
28.

	
“Chargeoff” means
  removal of the Account balance from the total outstanding ledger balances on
  the FDR System, and categorizing such Account as a charged off Account on
  such System.





G-2









	
 

	
 


	
29.

	
“Client” has the
  meaning specified in the introductory paragraph of this Agreement.


	
 

	
 


	
30.

	
“Client Data”
  means all data or other information provided by Client, its Customers or any
  consumers of Client, or obtained or created by CMC, in connection with the
  performance of Services.


	
 

	
 


	
31.

	
“Client Group Members”
  has the meaning specified in Section 6.1.


	
 

	
 


	
32.

	
“Client Services”
  includes Inquiry Services, System Support, FDR Relationship Liaison, Financial
  Analysis, Marketing and Customer Information File Plus, as all of the
  foregoing capitalized terms are defined in Exhibit A.


	
 

	
 


	
33.

	
“CMC” has the
  meaning specified in the introductory paragraph of this Agreement.


	
 

	
 


	
34.

	
“CMC Group Members”
  has the meaning specified in Section 6.2.


	
 

	
 


	
35.

	
“CMC Laws” has the
  meaning specified in Section 2.2.


	
 

	
 


	
36.

	
“CMC System” means
  one or more of the data processing systems of CMC (including those
  subcontracted by CMC or used by CMC under licensing agreements with other
  vendors), including all related masterfiles, transaction records, history
  records, archived data, and similar data and information. It is acknowledged
  and agreed that the masterfiles, transaction records, history records,
  archived data, and similar data and information relative to Client’s Card
  program are the property of Client.


	
 

	
 


	
37.

	
“Code” has the
  meaning specified in Section 2.2.


	
 

	
 


	
38.

	
“Collection Letter(s)”
  means Computer Letters that inform the Cardholder of his/her Delinquent or
  Overlimit status, and that may identify the action required of the Cardholder
  and/or the action that must be taken by Client. The Collection Letters are
  only prepared and sent if they have been previously reviewed, approved, and
  set up on the System and/or PCF either by Client or as a result of Client’s
  written authorization, indicating its review and approval of such content and
  PCF settings.


	
 

	
 


	
39.

	
“Collection Services”
  has the meaning specified in Exhibit A, as further detailed in Exhibit
  C-2.


	
 

	
 


	
40.

	
“Computer Letter”
  means letters residing in the System to be generated by the System and
  triggered either by Client’s PCF settings or by data entry of a transaction
  code.


	
 

	
 


	
41.

	
“Counseling Contact”
  has the meaning specified in Exhibit E-1.


	
 

	
 


	
42.

	
“CPI-U” has the
  meaning specified in Exhibit B.


	
 

	
 


	
43.

	
“Credit Services”
  has the meaning specified in Exhibit A and includes Credit Limit
  Change Request Processing also referred to as CLCR Processing (as defined in Exhibit
  E-2) and Application Processing also referred to as App Processing (as
  defined in Exhibit E-3).





G-3









	
 

	
 


	
44.

	
“Critical Fields”
  means the Account number, credit limit and the Cardholder’s name, address,
  social security number, numeric date of birth and numeric income.


	
 

	
 


	
45.

	
“CSR” means a CMC
  customer service representative, a CMC employee whose primary responsibility
  is to work with Customers, and includes those CMC employees who perform
  Collection Services.


	
 

	
 


	
46.

	
“Customer” means
  either a Cardholder or a Merchant of Client.


	
 

	
 


	
47.

	
“Customer Services”
  includes Primary Services (which includes Cardholder Primary Services and
  Merchant Primary Services) and Operational Services (which includes
  Cardholder Operational Services [including Cardholder Chargebacks and
  Cardholder Security/Fraud], Merchant Operational Services [including Merchant
  Help Center and Merchant Chargebacks], General Operational Services
  [including Accounting/Settlement and Interactive Voice Response]), Excess
  Call Volume and New Account/Application Data Entry, as all of the foregoing
  capitalized terms are defined in Exhibit A.


	
 

	
 


	
48.

	
“Day(s)” or “Days Past Due”
  means the number of days that have passed since the first billing cycle
  closing date in which an Account became Delinquent. Thirty (30) days must be
  subtracted from the number of days displayed by the FDR System to reflect
  true Days Past Due. For example, the FDR System data and reports that show 90
  Days are actually 60 Days past the actual cycle date due. “X Days Delinquent”
  or “X Day Accounts” or “FDR Days Past Due” means those Accounts on which the
  FDR System indicates that the minimum payment requirement established in PCF
  or in Account masterfile settings has not been paid for X or more calendar
  days past the billing cycle closing date by which payment was due, where “X”
  represents a specified number of days which is thirty (30) days more than the
  true Days Past Due. “X - Y Days Delinquent” or “X - Y Day Accounts” or “X to
  Y FDR Days Past Due” means those Accounts on which the FDR System indicates
  that the minimum payment requirement established in PCF or in Account
  masterfile settings has not been paid for somewhere between X - Y calendar
  days past the billing cycle closing date by which payment was due, where “X”
  and “Y” represent specified numbers of days, which numbers are thirty (30)
  days more than the true Days Past Due.


	
 

	
 


	
49.

	
“DDA” has the
  meaning specified in Exhibit B.


	
 

	
 


	
50.

	
“Deconversion”
  means the process of programming or changing PCF or performing other similar
  functions related to transferring or removing all or any portion of
  Customers’ Accounts or Account data (i) from or within the System; or (ii)
  from or within CMC’s association with or access to the System; or (iii) to
  another financial institution; or (iv) to another Client of CMC.


	
 

	
 


	
51.

	
“Deconversion Date”
  shall mean any date on which Deconversion of all or any portion of Client’s
  Accounts occurs.


	
 

	
 


	
52.

	
“Deconversion Fees”
  has the meaning specified in Exhibit B.





G-4









	
 

	
 


	
53.

	
“Delinquent” or “Delinquent Account”
  means the Account of a Cardholder who the FDR System indicates has failed to
  meet the minimum payment requirements established in PCF or in Account
  masterfile settings, and appears on the System with a Delinquent status code
  (“D” or “X”), where “X” means the Account is both Delinquent and Overlimit.


	
 

	
 


	
54.

	
“Dispute” has the
  meaning specified in Section 11.1.


	
 

	
 


	
55.

	
“Effective Date”
  has the meaning specified in the introductory paragraph of this Agreement.


	
 

	
 


	
56.

	
“Expiration Date”
  has the meaning specified in Section 10.1(a).


	
 

	
 


	
57.

	
“Failed Month”
  means (a) a Non-Performance Event has occurred during any calendar month
  under three (3) different Performance Guidelines in Exhibit C-1 and Exhibit
  C-2 and (b) Client has notified CMC in writing of such failure within
  thirty (30) days after the end of such calendar month, which notice must
  document the Non-Performance Event with respect to each pertinent Performance
  Guideline.


	
 

	
 


	
58.

	
“Failure of Performance Guidelines”
  means the occurrence of three (3) or more consecutive or non-consecutive
  Failed Months during a rolling nine (9)-month period.


	
 

	
 


	
59.

	
“FDR” means First
  Data Resources, Inc., a Delaware corporation, and/or any of its Affiliates,
  including First Data Corporation, any of its other subsidiaries, and First
  Data Merchant Services, Inc.


	
 

	
 


	
60.

	
“FDR System” means
  one or more of the data processing systems of FDR (including those subcontracted
  by FDR or used by FDR under licensing agreements with other vendors),
  including all related masterfiles, transaction records, history records,
  archived data, and similar data and information. It is acknowledged and
  agreed that the masterfiles, transaction records, history records, archived
  data, and similar data and information relative to Client’s Card program are
  the property of Client.


	
 

	
 


	
61.

	
“FDCPA” has the
  meaning specified in Section 2.2.


	
 

	
 


	
62.

	
“FICO” has the
  meaning specified in Exhibit E-3.


	
 

	
 


	
63.

	
“Force Majeure Event”
  has the meaning specified in Section 13.6.


	
 

	
 


	
64.

	
“Freezing” has the
  meaning specified in Exhibit E-1.


	
 

	
 


	
65.

	
“Hourly Rates” has
  the meaning specified in Exhibit B.


	
 

	
 


	
66.

	
“Inbound Calls”
  means those collection calls received from a Cardholder.


	
 

	
 


	
67.

	
“Indemnification Claim”
  has the meaning specified in Section 6.3.


	
 

	
 


	
68.

	
“Indemnified Party”
  has the meaning specified in Section 6.3.


	
 

	
 


	
69.

	
“Indemnifying Party”
  has the meaning specified in Section 6.3.





G-5









	
 

	
 


	
70.

	
“Insurance Policies”
  has the meaning specified in Section 6.8.


	
 

	
 


	
70.

	
“Initial Term” has
  the meaning specified in Article 9.


	
 

	
 


	
71.

	
“Interchange”
  means the contracts, agreements, rules, regulations and procedures governing
  the relationships between, or the actions in accordance with the contracts,
  agreements, rules, regulations and procedures by, any two or more Persons in
  connection with the Interchange Settlement.


	
 

	
 


	
72.

	
“Interchange Settlement”
  means the process by which FDR, on behalf of Client, (a) initiates payment
  for MasterCard and Visa Transaction Card Tickets presented by Acquirers to
  Client; (b) receives payment for MasterCard and Visa Transactions Card
  Tickets presented by Client to Card Issuers; and (c) remits and receives
  payments for chargebacks and other Interchange fees and expenses of or
  payable by Client.


	
 

	
 


	
73.

	
“Issuer” means a
  person that issues Cards, including clients


	
 

	
 


	
74.

	
“Lock-Box Bank”
  means Client or, if Client contracts directly with a financial institution
  for lock box services, means such other financial institution.


	
 

	
 


	
75.

	
“Losses” has the
  meaning specified in Section 6.1.


	
 

	
 


	
76.

	
“MasterCard” means
  MasterCard International Incorporated or its successors or assigns.


	
 

	
 


	
77.

	
“Merchant” means a
  Person that has the right to acquire (or who has applied to Client to
  acquire) or otherwise acquires a Transaction Card Ticket as payment for
  goods, services, or otherwise, whereby Client is the Acquirer, and which was
  or is or is to be serviced in some manner by CMC pursuant to this Agreement.


	
 

	
 


	
78.

	
“Model” has the
  meaning specified in Exhibit E-3.


	
 

	
 


	
79.

	
“MR” means any
  Person who calls CMC and states that he or she is: (i) a representative of a
  Merchant, by naming that Merchant or providing a name essentially the same as
  that Merchant, if such information is available on the FDR System’s on-line screens;
  (ii) an Authorized Representative of Client; or (iii) an Agent Bank Employee.
  The term “MR” shall also include any Person who communicates with CMC by a
  signed writing and writes that he or she is: (i) a representative of a
  Merchant, by naming that Merchant or providing a name essentially the same as
  that Merchant, if such information is available on the FDR System’s on-line
  screens; (ii) an Authorized Representative of Client; or (iii) an Agent Bank
  Employee.


	
 

	
 


	
80.

	
“Non-Collection Services”
  means all Services other than Collection Services.


	
 

	
 


	
81.

	
“Non-Performance Event”
  means the failure of CMC to meet any Performance Guideline in Exhibit C-1
  or C-2. A failure to meet a Performance Guideline shall not constitute
  a Non-Performance Event if the same is caused by: (i) a program change for
  which Client has not provided advance written notification to CMC in
  accordance with 





G-6









	
 

	
 


	
 

	
paragraph 10
  of Exhibit F; or (ii) monthly volumes of Accounts or Client Services
  inquiries and requests exceeding either Client’s written notification
  provided to CMC under paragraph 10 of Exhibit F or the average of the prior
  six (6) months by more than ten percent (10%); or (iii) Client’s breach of
  this Agreement; or (iv) submission of a request, an inquiry, data or other
  documentation by either Client, a Customer or FDR that is either incomplete
  or improperly completed or on forms not previously approved by CMC and/or
  FDR, if such omission was material and the non-performance was a direct
  result.


	
 

	
 


	
82.

	
“Non-Performance Termination”
  has the meaning specified in Section 10.1(d).


	
 

	
 


	
83.

	
“NSF Check” has
  the meaning specified in Exhibit E-1.


	
 

	
 


	
84.

	
“Other Cards”
  means a credit card account, charge card account, debit card account or
  similar instrument (whether or not a physical card is provided to a Person)
  that is issued to a Person under an agreement with any Person, debit card
  network or any other Card Associations (or licensee thereof) that is not a
  Bank Card Association; examples include American Express, Carte Blanche,
  Diners Club, Discover, Honor, JCB, MAC, Star, and Private Label Card
  companies.


	
 

	
 


	
85.

	
“Other System”
  means one or more of the data processing systems of Third-Party Service
  Providers other than FDR (including those subcontracted by such Third-Party
  Service Provider or used by such Third-Party Service Provider under licensing
  agreements with other vendors), including all related masterfiles,
  transaction records, history records, archived data, and similar data and
  information. It is acknowledged and agreed that the masterfiles, transaction
  records, history records, archived data, and similar data and information
  relative to Client’s Card program are the property of Client.


	
 

	
 


	
86.

	
“Overlimit” or “$ Overlimit” or “%
  Overlimit” means an Account with a balance in excess
  of its established credit limit and the dollar amount or percentage by which
  a Cardholder’s Account balance exceeds its established credit limit. An
  Overlimit Account has a status code of “O” or “X.” “X” means the Account is
  both Delinquent and Overlimit.


	
 

	
 


	
87.

	
“PCF” means the
  Client-controllable parameters established in the FDR System that as of the
  Effective Date FDR refers to as the Product Control File.


	
 

	
 


	
88.

	
“Participation Agreement”
  has the meaning specified in Exhibit A.


	
 

	
 


	
89.

	
“Pass Through Fees”
  has the meaning specified in Exhibit B.


	
 

	
 


	
90.

	
“Payment Arrangement”
  has the meaning specified in Exhibit E-l.


	
 

	
 


	
91.

	
“Performance Guidelines”
  means the standards, levels and procedures set forth in Exhibits C-1 and
  C-2.


	
 

	
 


	
92.

	
“Permitted Parties”
  has the meaning specified in Section 5.2(a).





G-7









	
 

	
 


	
93.

	
“Person” means any
  joint venture, trust, business trust, governmental agency, cooperative
  association, individual, corporation or other legal entity, and the heirs,
  executors, administrators, legal representatives, successors and assigns of
  the same, as the context requires.


	
 

	
 


	
94.

	
“Private Label Card”
  means Cards that operate similar to Visa or MasterCard, except that Accounts
  are valid only in conjunction with a specific Merchant or group of Merchants
  usually under a brand name or proprietary name associated only with such
  Merchant(s). Examples are Card Accounts issued on behalf of a department
  store or oil company, and generally valid for use only at that department
  store or oil company, such as a Neiman Marcus card or a Shell Oil card.


	
 

	
 


	
95.

	
“Processing Services”
  has the meaning specified in Exhibit A.


	
 

	
 


	
96.

	
“Proprietary Information”
  means any materials or information regarding the nature and the conduct of a
  party’s business and includes, without limitation: any of “FDR’s Proprietary
  Information” (as that term is defined in the Services Agreement between CMC
  and FDR); the terms of this Agreement; reasons for termination of this
  Agreement; information learned or obtained from on-site visits or in meetings
  which is indicated by Client or CMC as Proprietary Information; names and
  addresses of Client’s Customers, CMC’s other clients, or Customers of CMC’s
  other clients; any documents, data or information that is a trade secret or
  competitively sensitive material; user manuals; screen displays and formats;
  computer software and documentation; software performance results; flow
  charts; marketing strategies; financial plans, information or statements;
  business or operational plans; sales estimates; data; and data formats,
  whether or not any of the foregoing is electronically stored.


	
 

	
 


	
97.

	
“Purchased Portfolio”
  means accounts that become Accounts of Client as a result of purchasing such
  accounts from an Acquirer or Card Issuer.


	
 

	
 


	
98.

	
“Re-age” or “Account Re-aging”
  means the removal of the Delinquent status of an Account so that no part of
  the outstanding balance is currently Delinquent, and the Account is then
  considered current by the System.


	
 

	
 


	
99.

	
“Recommendation For Charge Off”
  means the communication to Client from CSR or collection manager stating that
  in their opinion further Collection Services work on a particular Account
  would not be worth the continued effort or cannot be done under Requirements
  of Law and therefore suggests that Client consider charging off the remaining
  balance.


	
 

	
 


	
100.

	
“Refer” has the
  meaning specified in Exhibit E-2.


	
 

	
 


	
101.

	
“Reject” and “Reject Letter”
  have the meanings specified in Exhibit E-3.


	
 

	
 


	
102.

	
“Renewal Term” has
  the meaning specified in Article 9.


	
 

	
 


	
103.

	
“Request” has the
  meaning specified in Exhibit E-2.





G-8









	
 

	
 


	
104.

	
“Requirements of Law”
  means any foreign, federal, state and local statutes, regulations, codes or
  ordinances, as amended or supplemented as of the time of determination.


	
 

	
 


	
105.

	
“Review Process”
  has the meaning specified in Exhibit E-2.


	
 

	
 


	
106.

	
“RMS” means the
  Client-controllable parameters established in the FDR System that as of the
  Effective Date FDR refers to as the Reports Management System.


	
 

	
 


	
107.

	
“Rules” means the
  applicable bylaws, rules, regulations, documentation and manuals promulgated
  or adopted by MasterCard, Visa or other Card Associations, as such rules,
  manuals and other items may be amended or supplemented from time to time.


	
 

	
 


	
108.

	
“Secured Card” or “Secured Accounts”
  means credit card Accounts for which Client has established some form of
  reserve dollars directly allocated to each such Account which dollars are
  intended to be used by Client to offset losses incurred by Client on each
  such Account and which Accounts are grouped into a specified agent number or
  principal number (as “agent” and “principal” are defined by FDR) on the
  System, which group is of sufficient size to warrant special identification
  for processing, servicing, and/or pricing. Such reserve dollars include but
  are not limited to security deposits and/or special fees paid by Cardholder.


	
 

	
 


	
109.

	
“Security Check Fields”
  means the fields in an Account’s FDR System masterfile record containing an
  Account’s address, social security number or federal tax identification
  number, home phone number, work phone number, mother’s maiden name, birth
  date, last payment amount, checking account number, or a security memo
  created by Client. A field shall be considered a Security Check Field only if
  the field is available on-line at the time of a call and is not blank at the
  time the call begins.


	
 

	
 


	
110.

	
“Service Fees” has
  the meaning specified in Exhibit B.


	
 

	
 


	
111.

	
“Services” has the
  meaning specified in Section 2.1.


	
 

	
 


	
112.

	
“Special Fees” has
  the meaning specified in Exhibit B.


	
 

	
 


	
113.

	
“Special Requests”
  has the meaning specified in Exhibit B.


	
 

	
 


	
114.

	
“System” means all
  or any one of the CMC System, FDR System and/or Other System.


	
 

	
 


	
115.

	
“Termination Date”
  means the effective date of termination stated in Section 10.1 of this
  Agreement which is applicable to the ground under which this Agreement is
  terminated.


	
 

	
 


	
116.

	
“Termination Fee”
  has the meaning specified in Section 10.2.


	
 

	
 


	
117.

	
“Third-Party Claim”
  has the meaning specified in Section 6.3.


	
 

	
 


	
118.

	
“Third-Party Service Provider”
  means a third-party with whom CMC has a written contract to perform any of
  the Services hereunder, including FDR.





G-9









	
 

	
 


	
119.

	
“TR” has the
  meaning specified in Exhibit B.


	
 

	
 


	
120.

	
“Transaction Card”
  means a Card issued or Account opened (with or without a physical card being
  provided) pursuant to a license or contract from MasterCard, Visa or any
  Other Card entity, or a Private Label Card entity.


	
 

	
 


	
121.

	
“Transaction Card Ticket”
  means a record (whether paper, magnetic, electronic or otherwise) which is
  created to evidence the use of a Transaction Card as payment for goods,
  services, cash advances or otherwise, or for a credit or refund or otherwise.


	
 

	
 


	
122.

	
“UCC” means the
  Uniform Commercial Code, as enacted in the State of Indiana, as the same may
  be amended from time to time.


	
 

	
 


	
123.

	
“Visa” means
  individually or collectively, as appropriate, Visa, U.S.A. Inc. or Visa International
  or either of their successors or assigns.





G-10







FIRST AMENDMENT TO SERVICES AGREEMENT 

(CMCLYNX SERVICES)


          THIS
FIRST AMENDMENT TO SERVICES AGREEMENT (“Amendment”) is
made and entered into this 19th day of September, 2001 (“Amendment Effective
Date”) by and between IndyMac Bank F.S.B., a(n) of 155 N. Lake Avenue,
Pasadena, California 91101 (“Client”) and Card Management Corporation, an
Indiana corporation (“CMC”).


          WHEREAS,
Client and CMC heretofore entered into that certain Services Agreement with an
effective date of September 18, 2001 (collectively, with any prior addenda or
amendments thereto, the “Agreement”); and


          WHEREAS,
Client and CMC now desire to amend the Agreement as more particularly set forth
herein;


          NOW
THEREFORE, in consideration of the mutual promises
contained herein and in the Agreement, Client and CMC hereby agree as follows:


	
 

	
 

	
 


	
1.

	
The
  following terms shall have the meanings set forth below, in this Amendment
  and in the Agreement:


	
 

	
 


	
 

	
a.

	
“CMCLynx
  System” means CMC’s hardware, software, and applications used to
  deliver the CMCLynx Services to Client’s Customers.


	
 

	
 

	
 


	
 

	
b.

	
“CMCLynx
  Services” means the services provided by CMC to Client’s Customers
  through the availability of access to and activity generated in the CMCLynx
  System by Client’s Customers. Such services include, but are not limited to,
  delivery of Customer statement information to CMC’s website, acceptance and
  processing of payment requests, and receipt and processing of Customer’s file
  maintenance and other requests.


	
 

	
 

	
 


	
 

	
c.

	
“Inquiry”
  means a service request submitted by a Customer in the Customer Service
  section of the CMCLynx System and received by CMC. Inquiries not currently
  listed as Automated Inquires in this amendment will be reclassified to
  Automated Inquiries only if: (i) Client submits a Change Control Process
  (“CCP”) to implement the requested change in CMC’s procedure relative to
  processing such Inquiry; (ii) the CCP is mutually acceptable to Client and
  CMC; (iii) the change in CMC’s procedure relative to processing such Inquiry
  has been successfully implemented.


	
 

	
 

	
 


	
 

	
d.

	
“ACH”
  means the Automated Clearing House system through which payments may be
  initiated.


	
 

	
 

	
 


	
 

	
e.

	
“Total
  Cardholder Accounts” means the number of Cardholder Accounts in
  the CMCLynx System on the last day of the calendar month for which services
  are being billed.











	
 

	
 

	
 


	
 

	
f.

	
“User
  Identification” means an identifier used to access a Customer’s
  Account information and services within the CMCLynx System.


	
 

	
 

	
 


	
 

	
g.

	
“Automated
  Inquiry” means those Inquiries which CMC will be empowered under Exhibit
  E-1 to the Agreement to automatically process and transmit to FDR with no
  manual review by CMC of the request, including but not limited to, address
  changes.


	
 

	
 

	
 


	
2.

	
CMC shall
  provide to Client, and Client shall purchase from CMC, CMCLynx Services which
  include Client’s Customers’ access to the CMCLynx System.


	
 

	
 


	
3.

	
Notwithstanding
  anything to the contrary herein, CMC shall have no liability to Client
  hereunder or under the Agreement due to inaccessibility of the CMCLynx System
  caused by circumstances beyond CMC’s control, including but not limited to
  data processing system downtime, communication device failures, production
  delays or backlogs, acts of God and other similar events, and any such events
  affecting the FDR System, nor shall any of the foregoing events be considered
  a breach hereunder or under the Agreement. Only in the event of
  inaccessibility which continues for more than five (5) consecutive Business
  Days shall the fees due for CMCLynx Services be discounted, in which case
  such fees shall be reduced by an amount equal to the average daily fee for
  CMCLynx Services incurred during the calendar month prior to the
  inaccessibility times the number of days of inaccessibility.


	
 

	
 


	
4.

	
In the event
  CMC should cease providing CMCLynx Services, the Client will be notified in
  writing no less than one hundred eighty (180) days prior to the cessation
  date.


	
 

	
 


	
5.

	
Exhibit B to
  the Agreement, titled Payment / Service Fees, shall be amended by adding the
  following:


	
 

	
 


	
 

	
a.

	
Setup fees:


	
 

	
 

	
$20,000
  startup fee, plus basic site customization fees (typically about $5,000 for
  existing functionality), an estimate thereof provided by request. Such set-up
  fees are payable upon the execution of this Addendum.


	
 

	
 

	
 


	
 

	
b.

	
Service
  Fees:


	
 

	
 

	
Per Inquiry
  - $1.62 (service request submitted by cardholder through the customer service
  section of the system)

  Per returned ACH item - $2.00

  Per payment processed - $.05


	
 

	
 

	
 


	
 

	
c.

	
Monthly
  Access Fees:


	
 

	
 

	
Minimum -
  $750

  Per total cardholder account on file - $. 15

  Per user identification - $. 10





          If
product specification or functionality modifications requested by Client result
in increased processing costs to CMC, the above fees may be increased as deemed
necessary by CMC, in it sole discretion, to compensate CMC for such increased
cost. Client agrees to 


2






compensate CMC
for any data access fees, programming fees or other fees charged by third
parties in connection with the CMCLynx Services charges incurred, in accordance
with Section 3. of Exhibit B to the Agreement, and to contract directly
with third parties referred by CMC that may be required for product
functionality. All fees charged to CMC by FDR in connection with CMCLynx
Services are pass-through fees as described in Section 1.l.c. of Exhibit B
to the Agreement, and are subject to the terms thereof.


          The
foregoing fees shall be charged to Client effective as of the earliest of: (i)
the date that CMC notifies Client that the CMCLynx System is ready for Client
to access; (ii) the date that Client or a Customer of Client accesses the
CMCLynx System; or (iii) the date FDR begins charging CMC for services provided
by FDR related to the CMCLynx Services.


	
 

	
 

	
 


	
6.

	
The standard
  CMCLynx Service utilizes data available from the FDR System based on the
  previous night’s cycle. CMC will make this refreshed data available within
  four (4) hours of its availability to CMC and CMC’s completion of
  verification of such data. The System will retain Customer transaction data
  for a period of at least thirteen (13) months commencing thirteen (13) months
  from the first full month of data transmissions. There are no additional or
  pass-through fees associated with the basic data; however, should CMC make
  available and Client choose to offer real-time data, additional fees and/or
  pass through fees may be assessed to Client.


	
 

	
 


	
7.

	
Client shall
  be responsible for compliance of all data and disclosures required of and
  available on the CMCLynx System with all Rules and Requirements of Law.


	
 

	
 


	
8.

	
Exhibit C-l
  to the Agreement, titled Performance Guidelines for Non-Collection
  Services, shall be supplemented by adding the following Performance
  Guideline:


	
 

	
 


	
 

	
 

	
Inquiry
  response: CMC will respond to 95% of all Customer Inquiries received through
  the CMCLynx System that require a response within one (1) Business Day after
  the date of receipt and 99% within two (2) Business Days after the date of
  receipt.


	
 

	
 

	
 


	
The
  provisions of Section 2.B. of Exhibit C-l to the Agreement shall apply
  to the above Performance Guideline.


	
 


	
9.

	
Either
  party’s liability to the other from any cause whatsoever arising out of this
  Amendment, under any theory of recovery, will not, in any event, exceed the
  aggregate of the CMCLynx Services Fees set forth in paragraph 5.B. and 5.C.
  above paid by Client, solely for that portion of the CMCLynx Services giving
  rise to the claim, during the three (3) calendar months immediately prior to
  the month in which the event giving rise to the claim occurs. Each party’s
  liability to the other under this paragraph shall be included in, and shall
  not be in addition to, each party’s limit of aggregate liability during each
  Annual Period, as set forth in Section 8.1(a) of the Agreement.


	
 

	
 


	
10.

	
The term of
  this Amendment will commence as of the above Amendment Effective Date and
  will be concurrent with the Initial Term and any Renewal Terms of the
  Agreement. All of the terms and conditions of the Agreement shall apply to
  the provisions hereof, and 





3







	
 

	
 


	
 

	
capitalized
  terms not defined herein shall have the meanings given them in the Agreement.


	
 

	
 


	
11.

	
Except as
  expressly set forth herein, all other terms and conditions of the Agreement
  shall remain in full force and effect. This Amendment is to be construed as
  an amendment to the Agreement and not as an agreement independent of the
  Agreement.


	
 

	
 


	
12.

	
The
  undersigned persons executing and delivering this Agreement have been fully
  empowered by proper resolution to execute and deliver this Agreement.





          IN
WITNESS WHEREOF, the parties hereto have executed this
Amendment to the Agreement by their duly authorized representatives as of the
Amendment Effective Date.


	
 

	
 

	
 

	
 


	
CLIENT:

	
CMC:


	
 

	
 


	
INDYMAC BANK, F.S.B.

	
CARD
  MANAGEMENT CORPORATION


	
 

	
 


	
By: /s/

	
Richard Wohl

	
By: /s/

	
James C.
  Bailey Jr.


	


	



	
 

	
 

	
 

	
 


	
Name: Richard Wohl

	
Name: James C.
  Bailey Jr.


	


	



	
        (Please Print Name)

	
        (Please Print Name)


	
 

	
 

	
 

	
 


	
Title: President
  and COO

	
Title: C.O.O.


	


	



	
         (Please
  Print Title)

	
          (Please Print Title)





4







SECOND AMENDMENT TO SERVICES AGREEMENT


THIS SECOND AMENDMENT
TO SERVICES AGREEMENT (“Amendment”) is made and
entered on October 9, 2003, by and between IndyMac Bank F.S.B. (“Client”)
and Card Management Corporation, an Indiana corporation (“CMC”).


          WHEREAS,
Client and CMC heretofore entered into a Services Agreement dated
September 18, 2001 (collectively, with any prior addenda or amendments
thereto, the “Agreement”) pursuant to which CMC provides card-related services
to Client; and


          WHEREAS,
Client and CMC now desire to amend the Agreement as more particularly set forth
herein;


          NOW
THEREFORE, in consideration of the mutual promises
contained herein and in the Agreement, Client and CMC hereby agree as follows:


1. Exhibit
E-1 to the Agreement, titled Empowerment Policy (Customer Services),
shall be deleted in its entirety and restated in Attachment 1 to the Second
Amendment to Services Agreement, which is incorporated herein by reference. 


2. Any
capitalized terms not defined herein shall have the meanings given them in the
Agreement.


3. Except as
expressly amended herein, the parties hereby ratify and confirm all terms and
conditions of the Agreement, which shall remain in full force and effect.


IN WITNESS WHEREOF,
the parties hereto have executed this Amendment to the Agreement by their duly
Authorized Representatives as of the day and year first written above.


	
 

	
 

	
 

	
 

	
 


	
CLIENT:

	
 

	
CMC:


	
 

	
 

	
 


	
IndyMac
  Bank, F.S.B.

	
 

	
Card
  Management Corporation


	
 

	
 

	
 


	
By: 

	
/s/ James R.
  Jerwers

	
 

	
By: 

	
/s/ James C.
  Bailey Jr.


	
 

	
(Signature of Authorized
  Representative)

	
 

	
 

	
(Signature of Authorized
  Representative)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
James R.
  Jerwers EVP HELOC

	
 

	
 

	
James C.
  Bailey Jr. EVP & CEO


	
 

	
(Please Print Name and
  Title)

	
 

	
 

	
(Please Print Name and
  Title)










THIRD AMENDMENT TO SERVICES AGREEMENT


This Third
Amendment To Services Agreement (“Amendment”), effective May 1, 2005, is made a
part of Services Agreement with an effective date of December 1, 2000 (the
“Agreement”) between Card Management Corporation (“CMC”), and IndyMac Bank,
F.S.B. (“Client”).


          WHEREAS,
the parties desire to amend the Agreement to add and modify various terms of
the Agreement,


          NOW
THEREFORE, the parties agree as follows:


          1.
Section 4.1 of the Agreement is hereby modified to add the following:


	
 

	
 


	
 

	
“The
  provisions of this Section 4.1 shall not apply to Collections Services;
  provided, however, that Client will notify CMC at least ninety (90) days
  prior to moving all or any of the Collections Services to itself or any other
  provider.”





          2.
Article Section 4.2 of the Agreement is hereby deleted in its entirety and
replaced with the following:


	
 

	
 


	
 

	
“4.2 Option
  To Transfer Accounts. Client agrees that it shall notify CMC
  in writing of the terms under which it decides to transfer any portion of its
  Accounts processed under this Agreement, as soon as such terms are
  established. No termination fee shall apply in connection with such a
  transfer. Client may transfer any portion of the Accounts to its Affiliate
  and continue to have CMC perform the Services for such portion, provided that
  such Affiliate agrees to enter a written joinder agreement with CMC, agreeing
  to all terms of this Agreement; however Client shall not be released from its
  obligations hereunder by virtue of such transfer.”





          3.
Article 9 of the Agreement is hereby modified to replace “... and shall
automatically renew for successive renewal terms of thirty (30) months each
(Renewal Term)” with “... and shall automatically renew for successive renewal
terms of twelve (12) months each (Renewal Term)”


          4.
Section 10.2 of the Agreement is hereby modified to delete the first sentence
of the last paragraph in its entirety.


          5.
Section 10.3 of the Agreement is hereby modified to replace “...performed after
the Expiration Date” with “performed after ninety (90) days after the
Expiration Date”


          6.
Section 1.1 a. of Exhibit B is hereby deleted in its entirety and
replaced with the following:


a. Customer
Services, Collection Services and Client Services.
Customer Services, Collection Services and Client Services means those services
so defined in Exhibit A. Fees for those Services are itemized in the
following table. As further described in Exhibit A, fees for Client
Services may, in CMC’s sole discretion, be included in the prices below or may
be priced


1






separately as
described in the Special Requests section below, depending upon the size and
scope and quantity of Client’s requests for such services. Fees for Services
other than these listed on the table below will be quoted on request from
Client.


	
 

	
 

	
 

	
 

	
 

	
 


	
Service Category 

	
 

	
Credit Card Cardholders 

	
 

	
Unit of Measure 


	



	
1.

	
Primary and Operational 

  Services1:

	
 

	
 

	
 

	
(see each category )




	
 

	
 

	
 

	
 

	
 

	
 


	
Single Product Pricing <.40 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.

	
 

	
$2.00/statement


$1.74/statement
$1.36/statement
$1.30/statement
$1.25/statement
$1.19/statement
$1.13/statement

	
 

	
Daily and month-to-date
  Cardholder statements and other Cardholder quantities are reported daily on
  the System’s CD-121 reports2

  

  Monthly Cardholder quantities
  are reported on the System’s CM-051 reports


	
 

	
 

	
 

	
 

	
 


	
Single Product Pricing .41-.60 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.

	
 

	
$2.36/statement


$2.10/statement
$1.46/statement
$1.40/statement
$1.35/statement
$1.29/statement
$1.23/statement

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
Single Product Pricing .61-.80 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.



	
 

	

$2.66/statement


$2.40/statement
$1.68/statement
$1.62/statement
$1.57/statement
$1.51/statement
$1.45/statement

	
 

	
 


	
Single Product Pricing .81-1.00 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.

	
 

	
$2.86/statement


$2.60/statement
$1.90/statement
$1.84/statement
$1.79/statement
$1.73/statement
$1.67/statement

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Single Product Pricing 1.01-1.20 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.

	
 

	
$3.06/statement


$2.80/statement
$2.12/statement
$2.06/statement
$2.01/statement
$1.95/statement
$1.89/statement

	
 

	
 





2






	
 

	
 

	
 

	
 

	
 

	
 


	
Service Category 

	
 

	
Credit Card Cardholders 

	
 

	
Unit of Measure 


	



	
Single Product Pricing 1.21-1.40 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.

	
 

	
$3.27/statement


$3.01/statement
$2.32/statement
$2.26/statement
$2.21/statement
$2.15/statement
$2.09/statement

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Single Product Pricing >1.40 Minutes/stmt10
Up to 10,000
units/mo.
10,001 - 25,000 units/mo.
25,001 - 50,000 units/mo.
50,001 - 100,000 units/mo.
100,001 -
200,000 units/mo.
200,001 - 350,000 units/mo.
>350,001 units/mo.

	
 

	
$3.44/statement


$3.18/statement
$2.52/statement
$2.46/statement
$2.41/statement
$2.35/statement
$2.29/statement

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Total Accounts on
  file/month

	
 

	
N/A

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Inactive Accounts on
  file/mo

	
 

	
$0.07/Account

	
 

	
N/A


	
 

	
 

	
 

	
 

	
 

	
 


	
Minimum monthly volume4

	
 

	
30,000 statements

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
2.

	
If Operational Services are
  

  only Customer Service provided

	
 

	
N/A

	
 

	
N/A


	
 

	
 

	
 

	
 

	
 

	
 


	
3.

	
After Hours Services

  Hours:

  Monday – Friday: 8:00 p.m. – 7:00 a.m.

  Saturday 7:00 a.m. – 8:00 a.m.

  Saturday 12:00 p.m. – 7:00 a.m.

  Sunday 7:00 a.m. – 7:00 a.m.

	
 

	
$ 1.21 /Minute




	
 

	
Per Minute

  

  Minutes are reported daily on
  the 
CMC phone system reports


	
Minimum Monthly Fee4

	
 

	
$1,500

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
4.

	
New Account/Application
  Data Entry1 

	
 

	
 

	
 

	
Per new Account or per
  Application


	
 

	
 

	
 

	
 

	
 

	
 


	
Personal Accounts
Manual (by CMC)
Manual (by Client)
Data Transmission

	
 

	


  $1.13/Account
$0.15/Account
$0.35/Account

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Business Accounts
Manual (by CMC)
Manual (by Client)
Data Transmission

	
 

	


  $2.97/Account
$0.15/Account
$0.35/Account

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Mail Applications
Up to 5,000 apps/month
5,001 - 10,000 apps/month
10,001 -
15,000 apps/month
15,001 - 20,000 apps/month
over 20,001 apps/month

	
 

	


  $4.34 / Application
$3.10 / Application
$2.66 / Application
$2.56 / Application
$2.50 /
Application

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
5.

	
Data Transmission

	
 

	
$0.05/item

	
 

	
Per monetary and
  non-monetary item


	
 

	
 

	
 

	
 

	
 

	
 


	
6.

	
Accounting/Settlement1

	
 

	
Included

	
 

	
N/A


	
 

	
 

	
 

	
 

	
 

	
 


	
7.

	
Processing of transaction
  photocopy requests from Cardholder transaction item

	
 

	
$3.00

	
 

	
Per Cardholder transaction
  item if item was actually transacted by Cardholder (no charge if item was not
  transacted by Cardholder.)





3






	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
Service Category 

	
 

	
Credit Card Cardholders 

	
 

	
Unit of Measure 


	



	
8.

	
Plastic rushed through
  special handling



	
 

	
$15.00/plastic

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
9.

	
Cardholder Chargebacks1

	
 

	
At No Additional Cost

	
 

	
At No Additional Cost


	
 

	
 

	
 

	
 

	
 

	
 


	
10.

	
Cardholder Security / Fraud1

	
 

	
At No Additional Cost

	
 

	
At No Additional Cost


	
 

	
 

	
 

	
 

	
 


	
11.

	
Collection Services1

  All Delinquent Accounts

	
 

	
 

	
 

	
 


	
• Outbound Support

	
 

	
$8.00 / delinquent Account

	
 

	
• Per Account residing in 

  FDR’s collection system that
  are
Delinquent as reported on the System’s
CD-121 reports.


	
 

	
 

	
 

	
 

	
 


	
• Inbound Calls

	
 

	
$4.25/ per inbound call

	
 

	
• Per Inbound call answered
  as reported on Harris Phone System.


	
Minimum Monthly Fee4
  for Outbound Support and Inbound Calls, collectively

	
 

	
$11,250

	
 

	
 


	
• Welcome Calls7

	
 

	
$0.87 / per call

  $1.26 / per letter

	
 

	
• Per Call

  • Per Letter


	
• Notice of Intent Letter8

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
12.

	
Client Services1



	
 

	
At no additional cost,
  except as stated in Exhibit A.



	
 

	
Hours; applies to
  exceptions as described in Exhibit A. 

  Hourly Rates described in the
  Special Requests section below.


	
 

	
 

	
 

	
 

	
 

	
 


	
13.

	
Infocas1

	
 

	
Greater of $250/month or as
  calculated below:

	
 

	
Cardholder Accounts on file
  during the month


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 1 - 50,000

   50,001 - 100,000
 over 100,000

	
 

	
 

	
$0.0200/month

  $0.0150/month
$0.0100/month

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
14.

	
WebCARD System1,6

	
 

	
Minimum fee is $125.00 per
  month.

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
1
  - 49,999 pages

  50,000 - 99,999 pages
over 100,000 pages

	
 

	
 

	
$0.0125 per page

  $0.010 per page
$0.008 per page

	
 

	
Number of pages received
  from FDR and stored for Client in each month


	
 

	
 

	
 

	
 

	
 

	
 


	
15.

	
Frame Relay

	
 

	
$750 installation

  $1,750 per month

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
16.

	
Stop Suspect Exception Item
  Review

	
 

	
$0.67 per item

	
 

	
 





Notes:


	
 

	
 

	
 


	
 

	
1-

	
Means those
  services so defined in Exhibit A.


	
 

	
 

	
 


	
 

	
2-

	
The System’s
  CD-121 reports can be used to determine the number of statements that will be
  billed daily or monthly. The System’s CM-051 reports can be used to determine
  the number of statements that will be billed monthly. From the CD-121, the
  number of statements billed are calculated by adding the total number of
  statements, subtracting the corresponding number of statements with a
  charged-off status (“Z” statements), and adding back the corresponding number
  of current month’s charged-off Accounts.





4






	
 

	
 

	
 


	
 

	
4-

	
Low-volume
  Fees will be charged for the Primary and Operational Services in Service
  Category 1, in the above table, in addition to the fees incurred under other
  Service Categories in the above table. Low-volume fees are as follows:
  $1.72/month for each credit Card statement short of thirty thousand (30,000)
  credit Card statements per month. Minimum Monthly Fees for After Hours
  Services in Service Category 3 and for Outbound Support and Inbound Calls in
  Service Category 11 will be charged in the amounts set forth in such Services
  Categories. Any other Service Fees incurred in a month shall not apply in
  reduction of the Low-volume Fees or the Minimum Monthly Fees, which shall be
  due for each month through the end of any Renewal Term exercised by Client,
  regardless of earlier termination of this Agreement.


	
 

	
 

	
 


	
 

	
6-

	
In addition
  to the monthly charges indicated in the table, Client will be charged: (i)
  $750 for initial security access code set-up (for one user), if Client will
  access the CARD system via the internet, or $2,000 for such work if Client
  will access the CARD system via a dedicated data line; and (ii) $750.00 per
  each additional security access code assigned after the first, which fee
  covers third-party software licensing costs. Fees for the CARD System shall
  commence as of the earliest of: (i) the date that CMC notifies Client that
  the CARD system is ready for Client to access; (ii) the date that Client
  accesses the CARD system; or (iii) the date FDR begins charging CMC for
  related report transmissions. Only in the event of CARD System
  inaccessibility which continues for more than five (5) consecutive Business
  Days shall the fees due for CARD services be discounted, in which case such
  fees shall be reduced by an amount equal to the average daily fee for CARD
  services incurred during the calendar month prior to the inaccessibility
  times the number of days of inaccessibility.


	
 

	
 

	
 


	
 

	
7-

	
In addition
  to the monthly charges indicated in the table, Client will be charged a
  start-up fee of $3,000.00.


	
 

	
 

	
 


	
 

	
8-

	
In addition
  to the monthly charges indicated in the table, Client will be charged a
  start-up fee of $4,500.00.


	
 

	
 

	
 


	
 

	
9-

	
The frame
  relay system is provided by AT&T pursuant to a contract between CMC and
  AT&T. Notwithstanding anything to the contrary in this Agreement, CMC
  shall have no liability to client under any theory due to inaccessibility or
  unavailability of the frame relay system caused by circumstances other than
  CMC’s default under its contract with AT&T, nor shall any such
  inaccessibility or unavailability of the frame relay system caused by
  circumstances other than CMC’s default under its contract with AT&T, nor
  shall any such inaccessibility or unavailability be considered the negligence
  of CMC or a breach of this Agreement.


	
 

	
 

	
 


	
 

	
10-

	
Primary
  Services monthly call minutes, excluding After Hours Servicing and IVR minutes.





          7.
Section 1.4 of Exhibit A is hereby deleted in its entirety.


          8.
This Amendment shall become effective as of the date first set forth above.


          9.
Unless otherwise expressly set forth herein, all other terms and conditions set
forth in the Agreement shall remain in full force and effect.


          IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as of the last date signed below.


	
 

	
 

	
 

	
 

	
 


	
Card
  Management Corporation

	
INDYMAC
  BANK, E.S.B.


	
 

	
 


	
By: /s/ 

	
 

	
 

	
By: /s/ 

	
 


	
 

	


	
 

	
 

	



	
 

	
 


	
Title: CFO 

	
Title: Executive
Vice President 


	 

	
Date: 5-27-05 

	
Date: 5-27-05 





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