EX-10.5 TAX SHARING AGREEMENT



 





Exhibit 10.5




TAX SHARING AGREEMENT




     This TAX SHARING AGREEMENT (this “Agreement”), dated as of November 30, 2007, by and
among Synovus Financial Corp., a Georgia corporation (“Synovus”), Columbus Bank and Trust
Company, a Georgia bank and trust company (“CB&T”), and Total System Services, Inc., a
Georgia corporation (“TSYS”).



RECITALS




     WHEREAS, as of the date of this Agreement, Synovus is the common parent of an affiliated group
of corporations within the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as
amended (the “Code”), which currently files consolidated federal income tax returns, and
CB&T and TSYS are members of such affiliated group;



     WHEREAS, pursuant to the Agreement and Plan of Distribution dated October 25, 2007, as amended
(the “Distribution Agreement”), by and among Synovus, CB&T and TSYS, (i) TSYS shall declare
and pay a cash dividend to its shareholders including CB&T (the “Cash Dividend”), (ii)
after receiving its share of such Cash Dividend, CB&T shall distribute all of the shares of common
stock, par value $0.10 per share, of TSYS (the “TSYS Common Stock”) that it owns to Synovus
(the “First Distribution”), and (iii) Synovus shall distribute, on a pro rata basis to the
holders of the issued and outstanding shares of its common stock, par value $1.00 per share, all of
the shares of TSYS Common Stock that Synovus received from CB&T (the “Second Distribution”
and, together with the First Distribution, the “Distributions”);



     WHEREAS, as a result of the Distributions, TSYS and its subsidiaries shall cease to be members
of the Synovus affiliated group for all applicable tax purposes;



     WHEREAS, Synovus, CB&T and TSYS intend that the First Distribution and the Second Distribution
will qualify as distributions described in Section 355 of the Code and will not result in the
recognition of any taxable gain or income to Synovus, CB&T, TSYS or any of their respective
stockholders (other than any income or gain required to be taken into account under the
consolidated return regulations under Section 1502 of the Code as a result of TSYS and its
subsidiaries ceasing to be members of the Synovus affiliated group);



     WHEREAS, Synovus, CB&T and TSYS desire, on behalf of themselves, their subsidiaries and their
successors, to set forth their rights and obligations with respect to Taxes due for periods before
and after the Second Distribution and to address certain other Tax matters;



     NOW, THEREFORE, in consideration of the transactions recited above and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:



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ARTICLE I




DEFINITIONS




     Section 1.1 Definitions. The following terms shall have the following meanings. All
section references are to this Agreement unless otherwise stated.



     “Affiliate” means, when used with respect to any specified person, a person that
directly or indirectly controls, is controlled by, or is under common control with such specified
person, in each case after the Distributions. As used herein, “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting securities or other interests, by
contract or otherwise. For the avoidance of doubt, TSYS is not an Affiliate of Synovus nor of CB&T
for purposes of this Agreement.



     “Agreement” shall mean this Agreement.



     “Applicable Rate” shall mean the rate of interest announced from time to time by CB&T
as its prime lending rate.



     “Cash Dividend” has the meaning set forth in the Recitals.



     “CB&T” has the meaning set forth in the preamble to this Agreement.



     “CB&T Active Trade or Business” means the active conduct by CB&T of the banking
business conducted by CB&T as of the date on which the First Distribution is effected (determined
in accordance with Section 355(b) of the Code).



     “CB&T Capital Stock” means (i) all classes or series of capital stock of CB&T and (ii)
all options, warrants and other rights to acquire such capital stock.



     “Code” has the meaning set forth in the Recitals.



     “Dispute” has the meaning set forth in the Distribution Agreement.



     “Distributions” has the meaning set forth in the Recitals.



     “Distribution Date” means the date on which the Second Distribution is effected.



     “Final Determination” means the final resolution of liability for any Tax for any
taxable period by or as a result of (i) a final and unappealable decision, judgment, decree or
other order by any court of competent jurisdiction; (ii) a final settlement with the IRS, a closing
agreement or accepted offer in compromise under Section 7121 or 7122 of the Code, or a comparable
arrangement under the laws of another jurisdiction; (iii) any allowance of a refund in respect of
an overpayment of Tax, but only after the expiration of all periods during which such amount may be
recovered by the Taxing Authority imposing the Tax; or (iv) any other final disposition, including
by reason of the expiration of the applicable statute of limitations.



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     “First Distribution” has the meaning set forth in the Recitals.



     “Group” means the Synovus Group or the TSYS Group, or both, as the context requires.



     “Income Taxes” means all federal, state, local and foreign income Taxes or other Taxes
based on income or net worth.



     “Indemnitee” has the meaning set forth in Section 5.1.



     “Indemnifying Party” has the meaning set forth in Section 5.1.



     “Independent Firm” has the meaning set forth in Article VI.



     “IRS” means the U.S. Internal Revenue Service.



     “Joint Return” means any Tax Return that includes both one or more members of the
Synovus Group and one or more members of the TSYS Group.



     “Past Practices” has the meaning set forth in Section 3.3(a).



     “Post-Distribution Tax Period” means any taxable period (or portion thereof) beginning
after the Distribution Date.



     “Pre-Distribution Tax Period” means any taxable period (or portion thereof) ending on
or before the close of the Distribution Date.



     “Reportable Transaction” means a listed transaction or other reportable transaction as
defined in the Treasury Regulations promulgated under Section 6011 of the Code.



     “Restricted Period” means the period beginning on the Distribution Date and ending on,
and including, the last day of the two year period following the Distribution Date.



     “Satisfactory Guidance” means either a ruling from the IRS or a Supplemental Tax
Opinion, at the election of the party requesting the other party’s consent under Section 4.2 of
this Agreement, in either case reasonably satisfactory to the other party in both form and
substance, including with respect to any underlying assumptions or representations. Satisfactory
Guidance shall not include a Supplemental Tax Opinion with respect to which such other party’s
counsel, of recognized national standing, provides an opinion to such other party that the
conclusions in such Supplemental Tax Opinion are not free from doubt. For the avoidance of doubt,
this definition is intended to allow the other party to prevent the requesting party from taking
the action that is the subject of a Supplemental Tax Opinion, if the other party determines in good
faith that it could reasonably be expected to incur a material amount of tax as a result of such
action based upon uncertainty concerning any underlying assumptions or representations in such
opinion.



     “Second Distribution” has the meaning set forth in the Recitals.



     “Separate Return” means (i) in the case of the TSYS Group, a Tax Return of any member
of that Group (including any consolidated, combined, affiliate or unitary Return) that does not



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include, for all or any portion of the relevant taxable period, any member of the Synovus Group and
(ii) in the case of the Synovus Group, a Tax Return of any member of that Group (including any
consolidated, combined, affiliated or unitary Return) that does not include, for all or any portion
of the relevant taxable period, any member of the TSYS Group.




     “Straddle Period” means, with respect to a given entity, any taxable period beginning
on or before the Distribution Date and ending after the Distribution Date; provided, however, that
the term “Straddle Period” shall not include any federal income taxable period of the Synovus
Group.



     “Supplemental Tax Opinion” means an opinion of a Tax Advisor that permits reliance by
both Synovus and TSYS. The issuance of such opinion shall be conditioned upon the receipt by such
Tax Advisor of customary representation letters from each of TSYS and Synovus, in each case, in
form and substance reasonably satisfactory to such Tax Advisor. The Tax Advisor, in issuing its
opinion, shall be permitted to rely on the validity and correctness, as of the date given, of any
previously issued Tax Opinion, unless such reliance would be unreasonable under the circumstances.



     “Synovus” has the meaning set forth in the preamble to this Agreement.



     “Synovus Active Trade or Business” means the active conduct by Synovus of the
businesses conducted by the members of the Synovus Group as of the Distribution Date (determined in
accordance with Section 355(b) of the Code).



     “Synovus Capital Stock” means (i) all classes or series of capital stock of Synovus
and (ii) all options, warrants and other rights to acquire such capital stock.



     “Synovus Officer’s Certificate” means a letter executed by an officer of Synovus and
provided to King & Spalding LLP as a condition for the completion of the Tax Opinion.



     “Taxes” means all forms of taxation or duties imposed, or required to be collected or
withheld, including charges, together with any related interest, penalties or other additional
amounts. For the avoidance of doubt, the term “Taxes” does not include amounts to be paid to any
governmental authority pursuant to escheat law.



     “Taxing Authority” means any national, municipal, governmental, state, federal,
foreign, or other body, or any quasi-governmental or private body, having jurisdiction over the
assessment, determination, collection or imposition of any Tax.



     “Tax Advisor” means a U.S. tax counsel or other tax advisor of recognized national
standing reasonably acceptable to both parties.



     “Tax Benefit” means the amount of the reduction in the Tax liability of an entity (or
of the consolidated or combined group of which it is a member), whether temporary or permanent, for
any taxable period that arises, or may arise in the future, as a result of any adjustment to, or
addition to or deletion from, a Tax Item in the computation of the Tax liability of the entity (or
the consolidated or combined group of which it is a member).



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     “Tax Contest” means an audit, review, examination or any other administrative or
judicial proceeding with the purpose or effect of determining or redetermining Taxes.



     “Tax Detriment” means the amount of the increase in the Tax liability of an entity (or
of the consolidated or combined group of which it is a member), whether temporary or permanent, for
any taxable period that arises, or may arise in the future, as a result of any adjustment to, or
addition or deletion of, a Tax Item in the computation of the Tax liability of the entity (or the
consolidated or combined group of which it is a member).



     “Tax-Free Status” means the qualification of both of the Distributions as
distributions described in Section 355 of the Code in which the shares of TSYS Common Stock
distributed constitute “qualified property” for purposes of Section 355(c) of the Code. For the
avoidance of doubt, recognition of income or gain that relates to intercompany items shall not
cause the Distributions to fail to achieve Tax-Free Status.



     “Tax Item” means any item of income, gain, loss, deduction, credit, recapture of
credit or any other item (including the basis or adjusted basis of property) which increases or
decreases Income Taxes paid or payable in any taxable period.



     “Tax Opinion” means the opinion of King & Spalding LLP addressed to Synovus, CB&T and
TSYS and upon which each party may rely regarding the Tax-Free Status of the Distributions and any
other opinion issued to allow a party to take actions otherwise restricted by this Agreement.



     “Tax Return” means any return, report, certificate, form or similar statement or
document (including any related or supporting information or schedule attached thereto and any
information return, amended tax return, claim for refund or declaration of estimated Tax) required
or permitted to be supplied to, or filed with, a Taxing Authority in connection with the
determination, assessment or collection of any Tax or the administration of any laws, regulations
or administrative requirements relating to any Tax.



     “Transactions” means the Distributions, any other transactions contemplated by the
Distribution Agreement and any other transfer of assets (whether by contribution, sale or
otherwise) between any member of the Synovus Group and the TSYS Group in connection with the
Distributions.



     “Transaction Taxes” means all (i) Taxes of any member of the Synovus Group or the TSYS
Group resulting from, or arising in connection with, the failure of the Distributions to have
Tax-Free Status, (ii) Taxes of the type described in clause (i) of any third party for which any
member of the Synovus Group or TSYS Group becomes liable, and (iii) reasonable out of pocket legal,
accounting and other advisory and court fees in connection with liability for Taxes described in
clauses (i) or (ii).



     “Transition Services Agreement” has the meaning set forth in the Distribution
Agreement.



     “TSYS” has the meaning set forth in the preamble to this Agreement.



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     “TSYS Active Trade or Business” means the active conduct by TSYS of the businesses
conducted by the members of the TSYS Group as of the Distribution Date (determined in accordance
with Section 355(b) of the Code).



     “TSYS Assets” means the assets that are, or were, used or held for use primarily in
the conduct of the TSYS Business.



     “TSYS Business” has the meaning set forth in the Distribution Agreement.



     “TSYS Capital Stock” means (i) all classes or series of capital stock of TSYS and (ii)
all options, warrants and other rights to acquire such capital stock.



     “TSYS Common Stock” has the meaning set forth in the Recitals.



     “TSYS Group” means TSYS and its Affiliates.



     “TSYS Officer’s Certificate” means a letter executed by an officer of TSYS and
provided to King & Spalding LLP as a condition for the completion of the Tax Opinion.



     “TSYS Separate Tax Liability” means an amount, determined in a manner consistent with
Past Practices to the extent applicable, equal to the Tax liability that TSYS and each TSYS
Affiliate would have incurred if they had filed a consolidated return, combined return or a
separate return, as the case may be, separate from the members of the Synovus Group for all
relevant Tax Periods; provided, however, that (i) if a Tax Item created by TSYS or
a TSYS Affiliate (or otherwise allocated thereto under Section 2.5(d) of this Agreement) is used on
a Joint Return and a portion of the Tax Item so used did not otherwise reduce the amount of Tax
liability that TSYS and each TSYS Affiliate would have incurred on a separate return basis, then
the amount of the TSYS Separate Tax Liability shall be reduced by the amount of any net reduction
of the Synovus Group’s aggregate Tax liability resulting from the use by the Synovus Group of such
portion of such Tax Item and (ii) any Tax Item arising from or otherwise relating to the
intercompany sale by Synovus of the stock of ProCard, Inc. to TSYS on or about November 1, 2002,
shall be treated, solely for purposes of calculating the TSYS Separate Tax Liability under this
Agreement, as a Tax Item attributable to the TSYS Group and not the Synovus Group.



ARTICLE II




TAX SHARING




     Section 2.1 Responsibility and Indemnification for Taxes.



     (a) From and after the Distribution Date, without duplication, each of Synovus and TSYS shall
be responsible for, and shall pay its respective share of, the liability for Taxes of Synovus, TSYS
and their respective Affiliates, as provided in this Agreement. Synovus shall indemnify and hold
harmless TSYS and its Affiliates from any Taxes for which Synovus is responsible under this
Agreement. TSYS shall indemnify and hold harmless Synovus and its Affiliates from any Taxes for
which TSYS is responsible pursuant to this Agreement.



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     (b) Payments to Taxing Authorities and between the parties, as the case may be, shall be made
in accordance with the provisions of this Agreement.



     Section 2.2 TSYS’s Liability for Taxes. TSYS shall be liable for the following Taxes,
and shall be entitled to receive and retain all refunds of Taxes previously incurred by TSYS or the
TSYS Business with respect to such Taxes:



     (a) all Taxes incurred with respect to all Joint Returns to the extent such Taxes are related
to (i) a TSYS Separate Tax Liability or (ii) the TSYS Assets or the TSYS Business for any taxable
period;



     (b) any Transaction Taxes that are solely attributable to:




     (i) any inaccurate statement or representation of fact or intent (or omission
to state a material fact) in Section 4.1 that relates to the TSYS Group;




     (ii) any inaccurate statement or representation of fact or intent (or omission
to state a material fact) in the TSYS Officer’s Certificate;




     (iii) any action or omission by any member of the TSYS Group after the date of
this Agreement inconsistent with the covenants set forth in this Agreement; or




     (iv) any other action or omission by any member of the TSYS Group (including
without limitation the application of Section 355(e) or (f) of the Code to either of
the Distributions resulting from one or more acquisitions of the stock or assets of
TSYS);



     (c) fifty percent (50%) of any Transaction Taxes that are not solely attributable to any event
or circumstance described in Section 2.2(b) and are not solely attributable to any event or
circumstance described in Section 2.3(b);



     (d) except as otherwise agreed in writing by Synovus or CB&T, on the one hand, and TSYS, on
the other hand, fifty percent (50%) of any stamp, sales, use, gross receipts, value-added, real
estate transfer or other transfer Taxes imposed in connection with the Transactions;



     (e) all Taxes related to TSYS Separate Returns;



     (f) all Taxes of the Synovus Group that are attributable to the disallowance or recapture of
any Georgia income tax credit that was assigned to the Synovus Group by a member of the TSYS Group
in accordance with Section 48-7-42 of the Official Code of Georgia Annotated; and



     (g) all Taxes incurred with respect to the members of the TSYS Group for any Post-Distribution
Tax Period.



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     Section 2.3 Synovus’s Liability for Taxes. Synovus shall be liable for the following
Taxes, and shall be entitled to receive and retain all refunds of Taxes previously incurred by
Synovus with respect to such Taxes:



     (a) except as provided for in Section 2.2(a), (b), (c), (d) or (f), all Taxes incurred with
respect to all Joint Returns;



     (b) any Transaction Taxes that are solely attributable to:




     (i) any inaccurate statement or representation of fact or intent (or omission
to state a material fact) in Section 4.1 that relates to the Synovus Group;




     (ii) any inaccurate statement or representation of fact or intent (or omission
to state a material fact) in the Synovus Officer’s Certificate;




     (iii) any action or omission by any member of the Synovus Group after the date
of this Agreement inconsistent with the covenants set forth in this Agreement; or




     (iv) any other action or omission by any member of the Synovus Group (including
without limitation the application of Section 355(e) or (f) of the Code to either of
the Distributions resulting from one or more acquisitions of the stock or assets of
Synovus or CB&T).



     (c) fifty percent (50%) of any Transaction Taxes that are not solely attributable to any event
or circumstance described in Section 2.2(b) and are not solely attributable to any event or
circumstance described in Section 2.3(b);



     (d) except as otherwise agreed in writing by Synovus or CB&T, on the one hand, and TSYS, on
the other hand, fifty percent (50%) of any stamp, sales, use, gross receipts, value-added, real
estate transfer or other transfer Taxes imposed in connection with the Transactions; and



     (e) except as provided for in Section 2.2(f), all Taxes incurred with respect to the members
of the Synovus Group for any Post-Distribution Tax Period.



     Section 2.4 Payment of Allocable Taxes.



     (a) With respect to each payment of Tax that is due after the Distribution Date in connection
with the filing of any Joint Return, including estimated tax installments and payments made in
connection with extension requests, Synovus shall notify TSYS in writing of the amount of the tax
sharing payment due from TSYS, calculated under the principles of this Agreement, and TSYS shall
make its tax sharing payment to Synovus (to the extent not previously paid by TSYS) not later than
five (5) days after receipt of such notice from Synovus; provided, however, that
TSYS shall not be required to make a tax sharing payment to Synovus hereunder more than ten (10)
days before the applicable Tax payment is due to the applicable Taxing Authority. Tax sharing
payments made by the TSYS Group under this Section 2.4(a), as well as tax sharing



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payments made by TSYS Group prior to the Distribution Date, shall be trued up when each
applicable Joint Return is finalized and filed.




     (b) If any Tax Return for a Pre-Distribution Tax Period is examined by a Taxing Authority and
such examination results in additional TSYS Separate Tax Liability, TSYS (or a TSYS Affiliate, if
appropriate) shall pay (or cause the TSYS Affiliate to pay) to Synovus or, if applicable, the
appropriate Taxing Authority, an amount equal to the increase in TSYS Separate Tax Liability,
within thirty (30) days after a Final Determination.



     (c) If any Tax Return for a Pre-Distribution Tax Period is examined by a Taxing Authority and
such examination results in a lower TSYS Separate Tax Liability, Synovus shall pay to TSYS an
amount equal to the decrease in the TSYS Separate Tax Liability, within thirty (30) days after a
Final Determination.



     Section 2.5 Allocation of Certain Income Taxes and Income Tax Items.



     (a) If Synovus, TSYS or any of their respective Affiliates is permitted but not required under
applicable Tax laws to treat the Distribution Date as the last day of a taxable period, then the
parties shall treat such day as the last day of a taxable period under such applicable Tax law and
shall file any elections necessary or appropriate to such treatment, provided that this Section
2.5(a) shall not be construed to require Synovus to change its taxable year.



     (b) Transactions occurring, or actions taken, on the Distribution Date but after the Second
Distribution outside the ordinary course of business by, or with respect to, TSYS or any of its
Affiliates shall be deemed subject to the “next day rule” of Treasury Regulation Section
1.1502-76(b)(1)(ii)(B) (and under any comparable or similar provision under state, local or foreign
laws or regulations, provided that if there is no comparable or similar provision under state,
local or foreign laws or regulations, then the transaction will be deemed subject to the “next day
rule” and as such shall for purposes of this Agreement be treated (and consistently reported by the
parties) as occurring in a Post-Distribution Tax Period of TSYS or a TSYS Affiliate, as
appropriate).



     (c) Any Taxes for a Straddle Period shall, for purposes of this Agreement, be apportioned
between the portion of the period ending on and including the Distribution Date and the portion of
the period beginning after the Distribution Date, and each such portion of such period shall be
deemed to be a taxable period (whether or not it is in fact a taxable period). Any allocation of
income or deductions required to determine any Income Taxes for a Straddle Period shall be made by
means of a closing of the books and records of TSYS and its Affiliates as of the close of business
on the Distribution Date, provided that (i) Synovus may elect to allocate Tax Items (other than any
extraordinary Tax Items) ratably in the month in which the Second Distribution occurs (and if
Synovus so elects, TSYS shall so elect) as described in Treasury Regulations Section
1.1502-76(b)(2)(iii) and corresponding provisions of state, local, and foreign Tax laws; and (ii)
subject to clause (i), exemptions, allowances or deductions that are calculated on an annual basis,
and not on a closing of the books method (including, but not limited to, depreciation and
amortization deductions) shall be allocated between the period ending on and including the
Distribution Date and the period beginning after the Distribution Date based on the



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number of days for the portion of the Straddle Period ending on and including the Distribution
Date, on the one hand, and the number of days for the portion of the Straddle Period beginning
after the Distribution Date, on the other hand.




     (d) Tax attributes determined on a consolidated or combined basis for taxable periods ending
before or including the Distribution Date shall be allocated to Synovus and its Affiliates, and
TSYS and its Affiliates, in accordance with the Code and the Treasury Regulations (and any
applicable state, local, or foreign law or regulation). Synovus shall reasonably determine the
amounts and proper allocation of such attributes. Synovus and TSYS agree to compute their Tax
liabilities for taxable periods after the Distribution Date consistent with that determination and
allocation, and treat the Tax Items as reflected on any federal (or applicable state, local or
foreign) Income Tax Return filed by the parties as presumptively correct.



     Section 2.6 Tax Refunds. Except as provided in Section 2.7:



     (a) Synovus shall be entitled to all refunds (including refunds paid by means of a credit
against other or future Tax liabilities) and credits with respect to any Tax for which Synovus is
responsible under this Agreement, including by means of indemnification pursuant to the terms of
this Agreement. TSYS shall be entitled to all refunds (including refunds paid by means of a credit
against other or future Tax liabilities) and credits with respect to any Tax for which TSYS is
responsible under this Agreement, including by means of indemnification pursuant to the terms of
this Agreement.



     (b) Synovus and TSYS shall each forward to the other party, or reimburse such other party for,
any refunds received by the first party and due to such other party pursuant to this Section within
ten (10) days of the receipt of any such refund. Where a refund is received in the form of a
credit against other or future Tax liabilities, reimbursement with respect to such refund shall be
due in each case on the due date for payment of the Tax against which such refund has been
credited. All payments made pursuant to this Section 2.6 shall describe in reasonable detail the
basis for the calculation of the amount being paid.



     (c) If one party so requests, the other party (at the first party’s expense) may file for and
pursue any refund to which the first party is entitled under this Section, provided that the other
party shall not be required to file amended Tax Returns or otherwise pursue any refund on behalf of
the first party if such other party determines, in its sole and absolute discretion, not to do so.



     (d) If the other party pays any amount to the first party under this Section 2.6 and, as a
result of a subsequent Final Determination, the first party is not entitled to some or all of such
amount, the other party shall notify the first party of the amount to be repaid to the other party,
and the first party shall then repay such amount to the other party, together with any interest,
fines, additions to Tax, penalties or any other additional amounts imposed by a Taxing Authority
relating thereto.



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     Section 2.7 Carrybacks.



     (a) Notwithstanding anything in this Agreement, TSYS shall file (or cause to be filed) on a
timely basis any available election to waive the carryback of net operating losses, Tax credits or
other Tax Items by TSYS or any Affiliate from a Post-Distribution Tax Period to a Straddle Period
or Pre-Distribution Tax Period.



     (b) If, notwithstanding the provisions of Section 2.7(a), TSYS is required to carry back
losses or credits, TSYS shall be entitled to any refund of any Tax obtained by Synovus or a Synovus
Affiliate as a result of the carryback of losses or credits of TSYS or a TSYS Affiliate from any
Post-Distribution Tax Period to any Pre-Distribution Tax Period or Straddle Period. Such refund is
limited to the lesser of (i) the reduction in the TSYS Separate Tax Liability for all tax periods
resulting from the carryback or (ii) the net amount received by Synovus or a Synovus Affiliate (by
refund, offset against other Taxes, or otherwise), net of any Tax Detriment incurred by Synovus or
such Affiliate resulting from such refund. Upon request by TSYS, Synovus shall advise TSYS of an
estimate of any Tax Detriment Synovus projects will be associated with any carryback of losses or
credits of TSYS and its Affiliates provided in this Section 2.7(b).



     (c) If TSYS has a Tax Item that must be carried back to any Pre-Distribution Tax Period, TSYS
shall notify in writing Synovus that such Tax Item must be carried back. Such notification shall
include a description in reasonable detail of the grounds for the refund and the amount thereof,
and a certification by an appropriate officer of TSYS setting forth TSYS’s belief (together with
supporting analysis) that the Tax treatment of such Tax Item is more likely than not correct, and
is not a Tax Item arising from a Reportable Transaction.



     (d) If Synovus pays any amount to TSYS under Section 2.7(b) and, as a result of a subsequent
Final Determination, TSYS is not entitled to some or all of such amount, Synovus shall notify TSYS
of the amount to be repaid to Synovus, and TSYS shall then repay such amount to Synovus, together
with any interest, fines, additions to Tax, penalties or any other additional amounts imposed by a
Taxing Authority relating thereto.



     Section 2.8 Georgia Income Tax Credits.



     (a) If a member of the Synovus Group uses a Georgia income tax credit (including a carryover
of an unused credit) that originally was earned by a member of the TSYS Group in a taxable year of
such TSYS Group member ending on or before the Distribution Date, which tax credit subsequently was
assigned to a member of the Synovus Group pursuant to with Section 48-7-42 of the Official Code of
Georgia Annotated, Synovus shall make a payment to TSYS equal to the amount by which the net
aggregate federal and state Income Tax liability of the Synovus Group actually was reduced as a
result of the use of such assigned credit or carryover of such assigned credit.



     (b) The terms and conditions under which Georgia income tax credits earned by the TSYS Group
in taxable periods beginning after the Distribution Date shall be assigned to members of the
Synovus Group pursuant to Section 48-7-42 of the Official Code of Georgia Annotated are set forth
on Exhibit A hereto.



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ARTICLE III




PREPARATION AND FILING OF TAX RETURNS




     Section 3.1 Synovus Responsibility.



     (a) Subject to Section 3.1(b), Synovus shall make all determinations with respect to, have
ultimate control over the preparation of, and file all (i) Joint Returns and (ii) Synovus Separate
Returns, in each case as it determines to be mandatory or advisable and for all taxable periods.



     (b) Synovus and TSYS shall cooperate with each other and with any third parties engaged to
provide tax preparation services or advice, in accordance with Past Practices to the extent
applicable, in connection with the preparation and filing of Joint Returns for Pre-Distribution Tax
Periods that are due after the Distribution Date (giving effect to filing extensions).



     Section 3.2 TSYS Responsibility. TSYS shall make all determinations with respect to,
have ultimate control over the preparation of, and file all Tax Returns (other than those described
in Section 3.1) for the TSYS Group as it determines to be mandatory or advisable and for all tax
periods; provided, however, that TSYS may engage Synovus to prepare Tax Returns
pursuant to the terms and conditions of the Transition Services Agreement.



     Section 3.3 Tax Accounting Practices.



     (a) Except as provided in Section 3.3(b), any Tax Return for any Pre-Distribution Tax Period,
to the extent it relates to members of the TSYS Group, shall be prepared in accordance with
practices, accounting methods, elections, conventions and Tax positions used with respect to the
Tax Return in question for periods prior to the Distribution (“Past Practices”), and, in
the case of any item the treatment of which is not addressed by Past Practices, in accordance with
generally acceptable Tax accounting practices. Notwithstanding the foregoing, for any Tax Return
described in the preceding sentence, (i) a party will not be required to follow Past Practices if,
and to the extent that, it obtains either (A) the written consent of the other party (not to be
unreasonably withheld) or (B) a “should” level opinion from a Tax Advisor that the proposed method
of reporting is correct and (ii) Synovus shall have the right to determine which entities will be
included in any Joint Return that it is responsible for filing.



     (b) The parties shall report the Transaction for all Tax purposes in a manner consistent with
the Tax Opinion, unless, and only to the extent, an alternative position is required pursuant to a
Final Determination. Synovus shall determine the Tax treatment to be reported on any Tax Return of
any Tax issue relating to the Transaction that is not covered by the Tax Opinion.



     Section 3.4 Right to Review Tax Returns. Upon request, each party shall make
available to the other party the portion of any Pre-Distribution Tax Period Tax Returns that
relates to the TSYS Group.



12









 





ARTICLE IV




TAX-FREE STATUS OF THE DISTRIBUTIONS




     Section 4.1 Representations.



     (a) Each of Synovus and CB&T represents that (i) it knows of no fact that may cause the
Distributions to fail to have Tax-Free Status, (ii) it has no plan or intention to take any action
inconsistent with the Synovus Officer’s Certificate or the covenants set forth in this Agreement,
and (iii) to the knowledge and belief of Synovus and CB&T, no officer or director of Synovus or
CB&T (nor any person acting with the permission of any such officer or director) has participated
in any “agreement, understanding, arrangement or substantial negotiations” (as those terms are used
in Treasury Regulations section 1.355-7(h)) with respect to any transaction involving the issuance
or other acquisition of Synovus Capital Stock or of CB&T Capital Stock (excluding for this purpose
(w) issuances of Synovus Capital Stock meeting the requirements of Safe Harbor VIII of Treasury
Regulation Section 1.355-7(d) (relating to certain compensatory transfers of stock), (x) transfers
on an established market of Synovus Capital Stock described in Safe Harbor VII of Treasury
Regulation Section 1.355-7(d), (y) issuances of Synovus Capital Stock described in Safe Harbor IX
(relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section
1.355-7(d), or (z) issuances of Synovus Capital Stock in one or more bank acquisitions that may
have been the subject of “substantial negotiations” during the two-year period prior to the
Distributions where the aggregate amount of Synovus Capital Stock to be issued in such acquisitions
does not exceed five percent (by vote and by value) of the total outstanding Synovus Capital
Stock), or any merger or acquisition involving all or substantially all of the assets of Synovus or
CB&T.



     (b) TSYS represents that (i) it knows of no fact that may cause the Distributions to fail to
have Tax-Free Status, (ii) it has no plan or intention to take any action inconsistent with the
TSYS Officer’s Certificate or the covenants set forth in this Agreement, and (iii) to the knowledge
and belief of TSYS, no officer or director of TSYS (nor any person acting with the permission of
any such officer or director) has participated in any “agreement, understanding, arrangement or
substantial negotiations” (as those terms are used in Treasury Regulations section 1.355-7(h)) with
respect to any transaction involving the issuance or other acquisition of TSYS Capital Stock
(excluding for this purpose (x) issuances of TSYS Capital Stock meeting the requirements of Safe
Harbor VIII of Treasury Regulation Section 1.355-7(d) (relating to certain compensatory transfers
of stock), (y) transfers on an established market of TSYS Capital Stock described in Safe Harbor
VII of Treasury Regulation Section 1.355-7(d) or (z) issuances of TSYS Capital Stock described in
Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury
Regulation Section 1.355-7(d)), or any merger or acquisition involving all or substantially all of
the assets of TSYS.



     Section 4.2 Covenants.



     (a) Each of Synovus, CB&T and TSYS will not take or fail to take, or permit its Affiliates to
take or fail to take, any action where that action or omission would (i) violate, be inconsistent
with or cause to be untrue any covenant, representation or statement in, as



13









 




applicable, the Synovus Officer’s Certificate or the TSYS Officer’s Certificate, or (ii)
prevent, or be reasonably likely to prevent, the Tax-Free Status.




     (b) During the Restricted Period, except as provided in Section 4.2(c), TSYS shall not, and
shall not permit its Affiliates to, in a single transaction or in a series of transactions:




     (i) liquidate or partially liquidate, including by way of merger or
consolidation, any member of the TSYS Group other than TSYS;




     (ii) liquidate or partially liquidate TSYS;




     (iii) cause or permit TSYS to cease to engage in the TSYS Active Trade or
Business; or




     (iv) sell or transfer assets, other than inventory sold or transferred in the
ordinary course of business, constituting (A) 50% or more of the gross assets that
are held by any member of the TSYS Group and are used in the TSYS Active Trade or
Business and are relied upon to satisfy the requirements of Section 355(b) of the
Code, (B) 50% or more of the consolidated gross assets of the TSYS Group that are
used in the TSYS Active Trade or Business or (C) any lesser amount if that sale or
transfer could reasonably be expected to result in a significant and material change
to, or termination of, the TSYS Active Trade or Business after the Distribution
Date.



     (c) Notwithstanding Section 4.2(b):




     (i) clauses (i) through (iv) of Section 4.2(b) shall not apply upon the prior
written consent of Synovus, which consent may not be withheld if Synovus determines
in good faith that TSYS has provided it with Satisfactory Guidance that the proposed
actions will not result in Transaction Taxes; and




     (ii) clauses (i) and (iv) of Section 4.2(b) shall not apply after the date that
is six months after the Distribution Date.



     (d) During the Restricted Period, except as provided in Section 4.2(e), Synovus shall not, and
shall not permit its Affiliates to, in a single transaction or in a series of transactions:




     (i) liquidate or partially liquidate, including by way of merger or
consolidation, any member of the Synovus Group other than Synovus or CB&T;




     (ii) liquidate or partially liquidate Synovus or CB&T;




     (iii) cause or permit Synovus to cease to engage in the Synovus Active Trade or
Business;




     (iv) dispose of the CB&T Capital Stock or cause or permit CB&T to cease to
engage in the CB&T Active Trade or Business; or



14









 






     (v) sell or transfer assets, other than inventory sold or transferred in the
ordinary course of business, constituting (A) 50% or more of the gross assets that
are held by any member of the Synovus Group and are used in the Synovus Active Trade
or Business and are relied upon to satisfy the requirements of Section 355(b) of the
Code, (B) 50% or more of the gross assets that are held by CB&T and are used in the
CB&T Active Trade or Business and are relied upon to satisfy the requirements of
Section 355(b) of the Code, (C) 50% or more of the consolidated gross assets of the
Synovus Group that are used in the Synovus Active Trade or Business or (D) any
lesser amount if that sale or transfer could reasonably be expected to result in a
significant and material change to, or termination of, the Synovus Active Trade or
Business or the CB&T Active Trade or Business after the Distribution Date.



     (e) Notwithstanding Section 4.2(d):




     (i) clauses (i) through (v) of Section 4.2(d) shall not apply upon the prior
written consent of TSYS, which consent may not be withheld if TSYS determines in
good faith that Synovus has provided it with Satisfactory Guidance that the proposed
actions will not result in Transaction Taxes; and




     (ii) clauses (i) and (v) of Section 4.2(d) shall not apply after the date that
is six months after the Distribution Date.



     Section 4.3 Procedures Regarding Opinions and Rulings.



     (a) If TSYS may take certain actions conditioned upon the receipt by Synovus of Satisfactory
Guidance, Synovus, at the request of TSYS, shall use commercially reasonable efforts to obtain
expeditiously, or to assist TSYS in obtaining, such Satisfactory Guidance. Synovus shall not be
required to take any action pursuant to this Section 4.3(a) if TSYS fails to certify, upon request,
that all information and representations relating to any member of the TSYS Group in the relevant
documents are true, correct and complete. TSYS shall reimburse Synovus for all reasonable
out-of-pocket costs and expenses incurred by Synovus in obtaining Satisfactory Guidance.



     (b) If Synovus or CB&T may take certain actions conditioned upon the receipt by TSYS of
Satisfactory Guidance, TSYS, at the request of Synovus or CB&T, shall use commercially reasonable
efforts to obtain expeditiously, or to assist Synovus or CB&T in obtaining, such Satisfactory
Guidance. TSYS shall not be required to take any action pursuant to this Section 4.3(b) if Synovus
or CB&T fails to certify, upon request, that all information and representations relating to any
member of the Synovus Group in the relevant documents are true, correct and complete. Synovus
shall reimburse TSYS for all reasonable out-of-pocket costs and expenses incurred by TSYS in
obtaining Satisfactory Guidance.



     (c) Synovus shall have the right to obtain a ruling from the IRS (or any other Taxing
Authority) or a Supplemental Tax Opinion at any time in its sole discretion. Synovus shall
reimburse TSYS for all reasonable out-of-pocket costs and expenses incurred by the TSYS Group in
obtaining such a ruling or Supplemental Tax Opinion.



15









 





     (d) TSYS shall have the right to obtain a ruling from the IRS (or any other Taxing Authority)
or a Supplemental Tax Opinion at any time in its sole discretion. TSYS shall reimburse Synovus for
all reasonable out-of-pocket costs and expenses incurred by the Synovus Group in obtaining such a
ruling or Supplemental Tax Opinion.



ARTICLE V




TAX CONTESTS; INDEMNIFICATION; COOPERATION




     Section 5.1 Notices.



     (a) Within 15 days after a party (the “Indemnitee”) becomes aware of the existence of
a Tax Contest that may give rise to an indemnification claim under this Agreement by it against the
other party (the “Indemnifying Party”), the Indemnitee shall promptly notify the
Indemnifying Party of the Tax Contest, and thereafter shall promptly forward or make available to
the Indemnifying Party copies of notices and communications with a Taxing Authority relating to
such Tax Contest.



     (b) The Indemnifying Party shall not be responsible for any increase in amounts to which the
Indemnitee is otherwise entitled to the extent that such increase results solely from the failure
of the Indemnitee to provide timely notice as required pursuant to Section 5.1(a).



     Section 5.2 Control of Tax Contests.



     (a) Except as otherwise provided in Section 5.2(b), Synovus shall control, and shall have sole
discretion in handling, settling or contesting, any Tax Contest relating to any Joint Returns, any
Synovus Separate Returns or the Tax treatment of the Transactions, provided that (i) Synovus shall
act in reasonable good faith in connection with its control of any such Tax Contests, (ii) TSYS
shall have the right to participate in and advise on (including, without limitation, the
opportunity to review and comment upon Synovus’s communications with the Taxing Authority, which
comments shall be incorporated upon the consent of Synovus, not to be unreasonably withheld) such
items for which TSYS could be liable under Article II as a result of such Tax Contest, and (iii)
Synovus shall not settle or compromise items for which TSYS could be liable under Article II as a
result of such Tax Contest without the prior written consent of TSYS, which shall not unreasonably
be withheld.



     (b) Synovus and TSYS shall jointly control Tax Contests relating to Tax liability arising from
the failure of the Transactions to qualify for tax-free treatment under Section 355 of the Code, if
TSYS potentially would be liable to Synovus under Article II as a result of such Tax Contest.
Neither party shall have the right to settle any such Tax Contest without the consent of the other
party.



     (c) TSYS shall have sole control over any Tax Contest relating to the TSYS Separate Returns;
provided, however, that if Synovus is responsible under this Agreement for any Taxes relating to
such Tax Contest, then TSYS shall control, and shall have sole discretion in handling, settling or
contesting such Tax Contest, provided that (i) TSYS shall act in reasonable good faith in
connection with its control of any such Tax Contest, (ii) Synovus shall have the right to



16









 




participate in and advise on (including, without limitation, the opportunity to review and
comment upon TSYS’s communications with the Taxing Authority, which comments shall be incorporated
upon the consent of TSYS, not to be unreasonably withheld) such items for which Synovus could be
liable under Article II as a result of such Tax Contest, and (iii) TSYS shall not settle or
compromise items for which Synovus could be liable under Article II as a result of such Tax Contest
without the prior written consent of Synovus, which shall not unreasonably be withheld.




     (d) Any out-of-pocket expenses incurred in handling, settling or contesting any Tax Contest
shall be borne ratably by the parties based on their ultimate liability under this Agreement for
the Taxes to which the Tax Contest relates.



     Section 5.3 Indemnification Payments.



     (a) An Indemnitee shall be entitled to make a claim for payments pursuant to this Agreement
when the Indemnitee determines that it is entitled to such payment and the amount of such payment
(including, for the avoidance of doubt, the finalization of a Tax Return before filing). The
Indemnitee shall provide to the Indemnifying Party notice of such claim within 10 days of the date
on which it first becomes so entitled to claim such payment, including a description of such claim
and a detailed calculation of the amount of the indemnification payment that is claimed;
provided, however, that no delay on the part of the Indemnitee in notifying the
Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party is actually and materially prejudiced thereby.
Except as provided in Section 5.3(b), the Indemnifying Party shall make the claimed payment to the
Indemnitee within 10 days after receiving such notice, unless (and then only to the extent that)
the Indemnifying Party reasonably disputes its liability for, or the amount of, such payment.



     (b) If the Indemnitee will be obligated to make the payment described in Section 5.3(a) to a
Taxing Authority or other third party (including expenses reimbursable under this Agreement), the
Indemnifying Party shall not be obligated to pay the Indemnitee more than 5 days before the
Indemnitee incurs such expense or makes such payment. If the Indemnitee’s claim for payment arises
from a payment that the Indemnifying Party will receive from a third party, such as a refund, the
Indemnifying Party shall not be obligated to pay the Indemnitee until 5 days after the Indemnifying
Party receives such payment.



     (c) In the case of a claim under Article II where no payment will be made to or received from
a Taxing Authority, Section 5.3(b) shall be applied to the payments that would be made to or from a
Taxing Authority if the TSYS Group were treated as a standalone group for all taxable periods.



     Section 5.4 Interest on Late Payments. Interest shall accrue with respect to any
indemnification payment (including any disputed payment that is ultimately required to be made),
not made within the period for payment, at the Applicable Rate.



     Section 5.5 Treatment of Payments. The amount of all indemnification obligations
under this Agreement shall be decreased to take into account the Tax Benefits to the Indemnitee



17









 




of the deductibility of any indemnified item and shall be increased where necessary so that,
after all the required deductions have been made and Taxes imposed, the Indemnitee receives the net
amount it would have been entitled to receive under this Agreement in the absence of such
deductions and Taxes. Any payments made to one party by another party pursuant to this Agreement
shall be treated by the parties for all Tax purposes as a distribution by, or capital contribution
to, TSYS, as the case may be, made immediately prior to the Distributions, except to the extent
otherwise required by a Final Determination.




     Section 5.6 Expenses. Except as otherwise provided herein, each party and its
Affiliates shall bear their own expenses incurred in connection with the preparation of Tax
Returns, Tax Contests, and all other matters under this Agreement.



     Section 5.7 Cooperation. Each member of the Synovus Group and the TSYS Group shall
cooperate fully with all reasonable requests from the other party in connection with the
preparation and filing of Tax Returns, Tax Contests, and all other matters covered by this
Agreement.



     (a) Such cooperation shall include:




     (i) the retention until the expiration of the applicable statute of
limitations, and the provision upon request, of Tax Returns, books, records
(including information regarding ownership and Tax basis of property), documentation
and other information relating to Tax Returns, including accompanying schedules,
related workpapers, and documents relating to rulings or other determinations by
Taxing Authorities;




     (ii) the execution of any document that may be necessary or reasonably helpful
in connection with any Tax Contest, the filing of a Tax Return by a member of the
Synovus Group or the TSYS Group, obtaining a tax opinion or private letter ruling,
or other matters covered by this Agreement, including certification (provided in
such form as may be required by applicable law or reasonably requested and made to
the best of a party’s knowledge) of the accuracy and completeness of the information
it has supplied;




     (iii) the use of the parties’ reasonable best efforts to obtain any
documentation that may be necessary or reasonably helpful in connection with any of
the foregoing;




     (iv) the use of the parties’ reasonable best efforts to make the applicable
party’s current or former officers, employees, agents and facilities available on a
reasonable and mutually convenient basis in connection with the foregoing matters;
and




     (v) making determinations with respect to actions described in Section
4.2(c)(i) and (e)(i) as promptly as practicable.



18









 





     (b) If a party fails to comply with any of its obligations set forth in this Section 5.7 upon
reasonable request and notice by the other party, and such failure results in the imposition of
additional Taxes, the nonperforming party shall be liable in full for such additional Taxes.



     Section 5.8 Confidentiality. Any information or documents relating to Taxes,
including any such information provided under this Agreement, shall be kept confidential, except as
may otherwise be necessary in connection with the filing of Tax Returns or with any Tax Contest.
In addition, if Synovus, CB&T or TSYS determines that providing such information could be
commercially detrimental, violate any law or agreement or waive any privilege, the parties shall
use reasonable best efforts to permit compliance with the obligations under this Agreement in a
manner that avoids any such harm or consequence.



     Section 5.9 Retention of Tax Records. On or prior to the Distribution Date, Synovus
shall deliver or cause to be delivered to TSYS all materials, agreements, documents, books, records
and files, if any, in the possession of Synovus or a Synovus Affiliate relating to Taxes of the
TSYS Business. TSYS may request from Synovus and retain copies of, and Synovus may request from
TSYS and retain copies of, (i) with respect to any Joint Return, all pro forma federal and state
Tax Returns, supporting schedules and workpapers related to members of the TSYS Group, and (ii) any
Separate Returns with respect to any Pre-Distribution Tax Period for any TSYS Group members,
including supporting schedules and workpapers. Neither Synovus nor TSYS (nor any of their
respective Affiliates) shall dispose of any documentation with respect to any Pre-Distribution Tax
Period, including books, records, Tax Returns and all supporting schedules and information relating
thereto, of any member of the other Group, or in the case of the TSYS Group any member included in
a Joint Return, for a minimum of ten (10) years after the expiration of the applicable
Pre-Distribution Tax Period (or, if later, until the expiration of the applicable statute of
limitations), and each party shall promptly notify the other party in the event that any such
documentation is inadvertently destroyed, damaged or otherwise disposed of. Prior to disposing of
any such documentation, each party shall provide written notice to the other party describing the
documentation proposed to be disposed of at least thirty (30) days prior to taking such action.
The other party may arrange to take delivery of the documentation described in the notice at its
own expense during the succeeding thirty (30) day period.



ARTICLE VI




DISPUTE RESOLUTION



Any Dispute arising under this Agreement shall be resolved pursuant to the negotiation and
mediation procedures specified in Section 5.5(a) and (b) of the Distribution Agreement. Any such
Dispute that has not been timely resolved in accordance with such procedures shall be finally
resolved under the procedures set forth in this Article VI, in lieu of the arbitration procedures
specified in Section 5.5(c) of the Distribution Agreement. Within ten (10) days following the
failure of mediation under Section 5.5(c) of the Distribution Agreement, Synovus and TSYS shall
jointly retain a nationally recognized law firm or “big four” accounting firm, which firm is
independent of both parties (the “Independent Firm”), to resolve the Dispute. If the
parties cannot jointly agree on an Independent Firm to resolve the Dispute within the ten (10) day
period, then within a period of an additional ten (10) days, each party shall select a


19









 






nationally recognized law firm or “big four” accounting firm, which firm is independent of both
parties, and those firms shall jointly select an Independent Firm which shall make the
determination under this Article VI. The Independent Firm shall act as an arbitrator to resolve
all points of disagreement, and its decision shall be final and binding upon all parties involved.
The Independent Firm shall determine the appropriate outcome based on this Agreement with respect
to each disputed item. The Independent Firm shall make such determinations within ninety (90) days
from the date on which it is selected, unless the parties mutually agree to an extension of such
period or the Independent Firm, in its discretion, determines that an extension of such period is
warranted by exceptional circumstances. Any determination by the Independent Firm shall be in
writing. Following the decision of the Independent Firm, Synovus and TSYS shall each take or cause
to be taken any action necessary to implement the decision of the Independent Firm. The fees and
expenses relating to the Independent Firm shall be borne by the party that such Independent Firm
determines has lost the dispute. In all other events, the fees and expenses relating to the
Independent Firm shall be shared based on the difference between the position taken by Synovus, on
the one hand, and the position taken by TSYS, on the other hand, initially presented to the
Independent Firm (based on the aggregate of all differences taken as a whole) and the final
resolution as determined by the Independent Firm in proportion to the total difference between the
initial position taken by Synovus and the initial position taken by TSYS. Any controversy
concerning whether a Dispute is an arbitrable Dispute, whether arbitration has been waived, whether
an assignee of this Agreement is bound to arbitrate, or as to the interpretation of enforceability
of this Article VI shall be determined by the Independent Firm. In resolving any Dispute, the
Parties intend that the Independent Firm apply the terms and conditions of this Agreement and the
substantive laws of the State of Georgia, without regard to the choice of law principles thereof
that could mandate the application of the laws of another jurisdiction. The Parties agree to
comply with any award made by the Independent Firm pursuant to this Article VI and agree to
enforcement of or entry of judgment upon such award, by any court of competent jurisdiction. The
Independent Firm shall be entitled, if appropriate, to award any remedy in such proceedings
available under this Agreement and Georgia law, including monetary damages, specific performance
and all other forms of legal and equitable relief; provided, however, the Independent Firm shall
not be entitled to award punitive, exemplary, multiple or any other forms of non-compensatory
damages. Nothing contained herein is intended to or shall be construed to prevent any Party from
applying to any court of competent jurisdiction for interim measures or other provisional relief in
connection with the subject matter of any Dispute. Without prejudice to such provisional remedies
as may be available under the jurisdiction of a court, the Independent Firm shall have full
authority to grant provisional remedies and to direct the parties to request that any court modify
or vacate any temporary or preliminary relief issued by such court, and to award damages for the
failure of any party to respect the Independent Firm’s orders to that effect.




ARTICLE VII




MISCELLANEOUS PROVISIONS




     Section 7.1 Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all prior written and
oral and all contemporaneous oral agreements and understandings with respect to the subject



20









 




matter hereof. All prior tax sharing agreements between the parties and/or their respective Affiliates are hereby terminated and
superseded by this Agreement.




     Section 7.2 Governing Law. This Agreement shall be governed and construed and
enforced in accordance with the laws of the State of Georgia as to all matters regardless of the
laws that might otherwise govern under the principles of conflicts of laws applicable thereto.



     Section 7.3 Consent to Jurisdiction. Without limiting the provisions of Article VI
hereof, each of the parties irrevocably submits to the exclusive jurisdiction of the courts of the
State of Georgia or the federal courts located in the State of Georgia for the purposes of any
suit, action or other proceeding arising out of this Agreement or any transaction contemplated
hereby. Each of the parties agrees to commence any action, suit or proceeding relating hereto
either in the federal district courts located in the State of Georgia or, if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in the state courts
of the State of Georgia. Each of the parties irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the state courts of the State of Georgia or (ii) the
federal district courts located in the State of Georgia, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.



     Section 7.4 Termination. This Agreement may be terminated and the Distributions
abandoned at any time prior to the Distributions by and in the sole discretion of Synovus without
the approval of CB&T, TSYS or the stockholders of Synovus. In the event of termination pursuant to
Section 6.4 of the Distribution Agreement, no party shall have any liability of any kind to any
other party hereunder. After the Distributions, this Agreement may not be terminated except by an
agreement in writing signed by the parties.



     Section 7.5 Notices. Any notice, demand, offer, request, payment or other
communication required or permitted to be given by any party pursuant to the terms of this
Agreement shall be in writing and shall be deemed effectively given the earlier of (i) when
received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by
facsimile (with receipt of appropriate confirmation), (iv) one (1) Business Day after being
deposited with an overnight courier service or (v) four (4) days after being deposited in the U.S.
mail, First Class with postage prepaid, and addressed to the attention of the party’s General
Counsel at the address of its principal executive office or such other address as a party may
request by notifying the other in writing.



     Section 7.6 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which shall constitute one and the same
agreement, and shall become effective when one or more such counterparts have been signed by each
of the parties and delivered to the other parties.



     Section 7.7 Binding Effect; Assignment. Section 6.7 of the Distribution Agreement
shall apply to this Agreement, as if the references therein to “this Agreement” were references to
this Agreement.



21









 





     Section 7.8 Severability. In the event any term or other provision of this Agreement
is determined by a nonappealable decision by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
Upon such determination that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.



     Section 7.9 Failure or Indulgence not Waiver. No failure or delay on the part of any
party in the exercise of any right hereunder shall impair such right or be construed to be a waiver
of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall
any single or partial exercise of any such right preclude other or further exercise thereof or of
any other right.



     Section 7.10 Amendment. No change or amendment will be made to this Agreement except
by an instrument in writing signed on behalf of each of the parties hereto.



     Section 7.11 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.



     Section 7.12 Survival of Agreements. Except as otherwise contemplated by this
Agreement, all covenants and agreements of the parties contained in this Agreement shall survive
the Distribution Date.



     Section 7.13 Effectiveness. This Agreement shall become effective upon the
Distribution Date.



[Signature page follows]





22









 








     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first set forth above.



	 	 	 	 	 
	 	SYNOVUS FINANCIAL CORP.

 	 
	 	By:  	/s/
Thomas J. Prescott
 	 
	 	Name:  	Thomas J. Prescott 	 
	 	Title:  	Executive Vice President and Chief Financial
Officer 	 
	 
	 
	 	COLUMBUS BANK AND TRUST COMPANY

 	 
	 	By:  	/s/
Stephen A. Melton
 	 
	 	Name:  	Stephen A. Melton 	 
	 	Title:  	President and Chief Executive Officer 	 
	 
	 
	 	TOTAL SYSTEM SERVICES, INC.

 	 
	 	By:  	/s/
James B. Lipham
 	 
	 	Name:  	James B. Lipham 	 
	 	Title:  	Senior Executive Vice President and Chief
Financial Officer 	 
	 




[Signature Page to Tax Sharing Agreement]