EXHIBIT 10.8
FORM OF
TRANSITION SUPPORT AGREEMENT
This TRANSITION SUPPORT AGREEMENT is executed and made effective as of
_____________, 2000, between National Data Corporation, a Delaware corporation
("NDC"), and Global Payments Inc., a Georgia corporation ("Global Payments").
BACKGROUND
A. The Board of Directors of NDC has determined that it is in the best
interests of NDC and its shareholders for NDC to transfer and assign to Global
Payments the capital stock of National Data Payment Systems, Inc., Global
Payment Holding Company, NDC Holdings (UK) Ltd., Merchant Services U.S.A. and
their respective subsidiaries (the "NDC eCommerce Subsidiaries") that hold all
of the assets and liabilities that currently constitute NDC's eCommerce business
and a 0.85% general partnership interest in GPS Holding Limited Partnership as a
contribution to the capital of Global Payments and to receive in exchange
therefor shares of Global Payments common stock, and to thereafter make a
distribution (the "Distribution") to the holders of NDC common stock of all of
the outstanding shares of Global Payments common stock at the rate of _____
share of Global Payments common stock for every _ share of NDC common stock
outstanding pursuant to a Distribution Agreement, dated as of the date hereof,
between NDC and Global Payments (the "Distribution Agreement");
B. The parties intend that the agreements contained herein will be
effective at the Effective Time (as defined in the Distribution Agreement); and
C. The parties hereto deem it to be appropriate and in the best interests
of the parties that they provide certain services to each other on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing promises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
Description of Services.
(a) NDC shall, subject to the terms and provisions of this Agreement:
(i) provide Global Payments with general services of a financial, technical,
commercial, administrative and/or advisory nature as set forth on Exhibits A
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through _____ hereto and (ii) render such other specific services as Global
Payments may from time to time reasonably request, subject to NDC's sole
discretion and its being in a position to supply such additional services at the
time of such request.
(b) Global Payments shall, subject to the terms and provisions of this
Agreement: (i) provide NDC with services as set forth on Exhibit hereto and (ii)
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render such other services as NDC may from time to time reasonably request,
subject to Global Payments' sole discretion and its being in a position to
supply such additional services at the time of the request.
Each of NDC and Global Payments, as the case may be, shall use commercially
reasonable efforts to provide the services described in the exhibits hereto and
to transition from using the services provided by the other under this Agreement
on or prior to the termination of the term for the provision of such services.
Additionally, each of NDC and Global Payments agree that they shall use
commercially reasonable efforts to assist, as necessary, in the development of
the respective transition plans described in the exhibits hereto and shall
provide assistance and training to the other as may be necessary to assure a
smooth and orderly transition.
2. Consideration for Services. Global Payments shall pay NDC for all the
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services described on Exhibits A through ______ and NDC shall pay Global
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Payments for all the services described on Exhibits A through ______ at the
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rates specified in each such exhibit.
3. Terms of Payment. Within fifteen (15) business days after the end of
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each month during the term of this Agreement, each party providing services
pursuant to this Agreement ("Provider") will submit a written invoice to the
party receiving such services ("Recipient") for service fees for the immediately
preceding month together with an accounting of the charges for the immediately
preceding month's services. Recipient agrees to pay Provider all costs allocated
to it in accordance with this Agreement and all other charges that Provider is
entitled to charge pursuant to this Agreement by wire transfer to a bank account
designated by Provider electronically at the time of Recipient's receipt of an
invoice as provided in this Section 3. If any portion of an amount due to
Provider under this Agreement is subject to a dispute between the parties,
Recipient shall nonetheless pay and remit to Provider on the date such amount is
due all amounts not disputed in good faith by Recipient. . Interest shall
accrue at a rate of 8% per annum on any amounts not received by Provider within
one (1) business day after receipt by Receiver of the invoice. The amount of
any monthly service fee shall be prorated to correspond with the portion of a
given month for which services were actually rendered.
4. Method of Payment. All amounts payable by Global Payments and NDC for
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the services rendered by the other pursuant to their Agreement shall be remitted
to NDC or Global Payments, as the case may be, in United States dollars in the
form of a wire transfer.
5. WARRANTIES. THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY STATED
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IN THIS AGREEMENT, THERE ARE NO EXPRESS WARRANTIES OR GUARANTIES, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR
A PARTICULAR PURPOSE.
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6. Liability; Indemnification; Dispute Resolution.
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(a) In no event shall either NDC or Global Payments have any liability,
whether based on contract, tort (including, without limitation, negligence),
warranty or any other legal or equitable grounds, for any punitive,
consequential, special, indirect or incidental loss or damage suffered by the
other arising from or related to this Agreement, including without limitation,
loss of data, profits, interest or revenue, or interruption of business, even if
the party providing the services hereunder is advised of the possibility of such
losses or damages.
(b) The limitations set forth in Section 6(a) above shall not apply to
liabilities which may arise as the result of willful misconduct or gross
negligence of the party providing the services hereunder.
(c) Effective as of the date of this Agreement, Global Payments shall
indemnify, defend and hold harmless NDC and its affiliates and their respective
directors, officers, employees and agents (the "NDC Indemnitees") from and
against any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys' fees
and expenses in connection with any and all actions or threatened actions)
("Indemnifiable Losses") incurred or suffered by any of the NDC Indemnitees
arising from, related to or associated with (i) NDC's furnishing or failure to
furnish the services provided for in this Agreement, other than liabilities
arising out of the willful misconduct or gross negligence of the NDC Indemnitees
and (ii) the gross negligence or willful misconduct of Global Payments in
furnishing or failing to furnish the services to be provided by Global Payments
in this Agreement, provided however, in no event shall Global Payments be
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obligated to indemnify the NDC Indemnitees (taken together) under this Section
6(c) for Indemnifiable Losses arising out of Global Payments' gross negligence
in an amount in excess of three times the service fee charged for the category
of service related to the Indemnifiable Loss in the month in which the act or
failure to act by Global Payments that gave rise to such Indemnifiable Loss
occurs.
(d) Effective as of the date of this Agreement, NDC shall indemnify,
defend and hold harmless Global Payments and its affiliates and their respective
directors, officers, employees and agents (the "Global Payments Indemnitees")
from and against any and all Indemnifiable Losses incurred or suffered by any of
the Global Payments Indemnitees arising from, related to or associated with (i)
Global Payments' furnishing or failure to furnish the services provided for in
this Agreement, other than liabilities arising out of the willful misconduct or
gross negligence of the Global Payments Indemnitees, and (ii) the gross
negligence or willful misconduct of NDC in furnishing or failing to furnish the
services to be provided by NDC to Global Payments in this Agreement, provided
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however, in no event shall NDC be obligated to indemnify the Global Payments
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Indemnitees (taken together) under this Section 6(d) for Indemnifiable Losses
arising out of NDC's gross negligence in an amount in excess of three times the
service fee charged for the category of service related to the Indemnifiable
Loss in the month in which the act or failure to act by NDC that gave rise to
such Indemnifiable Loss occurs.
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(e) Any disputes arising under this Agreement shall be resolved in
accordance with Section 15.02 of the Distribution Agreement.
7. Termination.
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(a) Each category of service provided under this Agreement shall
terminate at the end of the period set forth on the Exhibit describing such
service.
(b) Notwithstanding Section 7(a) above, except as otherwise set forth
on a particular exhibit hereto, either NDC or Global Payments may, at its
option, upon no less than sixty (60) days prior written notice to the other (or
such other period as the parties may mutually agree in writing or provide with
respect to any services in any Exhibit hereto), direct the other to no longer
provide a particular category of service.
(c) Notwithstanding Sections 7(a) and 7(b) above, except as otherwise
set forth on a particular exhibit, this Agreement may be terminated in its
entirety in accordance with the following:
(i) Upon written agreement of the parties;
(ii) By either Global Payments or NDC for material breach by the
other of any of the terms hereof if the breach is not cured within thirty
(30) calendar days after written notice of breach is delivered to the
breaching party;
(iii) By either Global Payments or NDC, upon written notice to
the other if the other shall become insolvent or shall make an assignment
of substantially all of its assets for the benefit of creditors, or shall
be placed in receivership, reorganization, liquidation or bankruptcy;
(iv) By NDC, upon written notice to Global Payments, if, for any
reason, the ownership or control of Global Payments or any of Global
Payments' operations, becomes vested in, or is made subject to the control
or direction of, any direct competitor of NDC, but such termination shall
be applicable only with respect to services provided by NDC to the portion
of Global Payments' businesses that has been affected by the change in
control.
(v) By Global Payments, upon written notice to NDC, if for any
reason, the ownership or control of NDC or any of NDC's operations becomes
vested in, or is made subject to the control or direction of, any direct
competitor of Global Payments, but such termination shall be applicable
only with respect to services provided by Global Payments to the portion of
NDC's business that has been affected by the change in control.
(d) Upon any termination pursuant to Sections 7(b) and 7(c) above, NDC
and Global Payments shall be compensated for all services performed to the date
of termination in
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accordance with the provisions of this Agreement, and NDC and Global Payments,
as the case may be, will consider hiring certain employees of the other
identified by the other prior to the termination to the extent that NDC or
Global Payments, as the case may be, does not contract with third parties to
provide the services rendered by NDC or Global Payments pursuant to this
Agreement.
8. Amendment. This Agreement may be modified or amended only by the
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agreement of the parties hereto in writing, duly executed by the authorized
representatives of each party.
9. Force Majeure. Any delays in or failure of performance by NDC or
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Global Payments shall not constitute a default hereunder if and to the extent
such delay or failure of performance is caused by occurrences beyond the
reasonable control of NDC or Global Payments, as the case may be, including, but
not limited to: acts of God or the public enemy; compliance with any order or
request of any governmental authority; acts of war; riots or strikes or other
concerted acts of personnel; or any other causes beyond the reasonable control
of NDC or Global Payments, whether or not of the same class or kind as those
specifically named above.
10. Assignment. This Agreement shall not be assignable by either party
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hereto without the prior written consent of the other party hereto; provided,
however, that either party may assign its rights, but not its obligations, under
this Agreement in connection with the transfer of all or substantially all of
the assets of the business of such party to which this Agreement relates. When
duly assigned in accordance with the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the assignee.
11. Confidentiality. Each party (as "Receiving Party")shall hold and
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cause its directors, officers, employees, agents, consultants and advisors to
hold, in strict confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its counsel, by other requirements
of law, all information concerning the other party (as "Disclosing Party")
(except to the extent that such information can be shown to have been (a) in the
public domain through no fault of the Receiving Party (b) later lawfully
acquired after the Effective Time on a non-confidential basis from other sources
by the Receiving Party, or (c) was independently developed by the Receiving
Party, as shown by the written business records of the Receiving Party, without
use of any other information subject to the terms of this Agreement), and
neither party shall release or disclose such information to any other person,
except its auditors, attorneys, financial advisors, bankers and other
consultants and advisors who shall be advised of the provisions of this Section
11 and be bound by them.
12. Notices. All notices and communications under this Agreement shall be
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deemed to have been given (a) when received, if such notice or communication is
delivered by hand delivery or overnight courier, and (b) three (3) business days
after mailing or upon receipt, if earlier, if such notice or communication is
sent by United States registered or certified mail, return receipt requested,
first class postage prepaid. All notices and communications, to be effective,
must be properly addressed to the party to whom the same is directed at its
address as follows:
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If to NDC, to:
National Data Corporation
National Data Plaza
Atlanta, Georgia 30329-2010
Attention: General Counsel
If to Global Payments, to:
Global Payments Inc.
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▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Either party may, by written notice delivered to the other party in accordance
with this Section 12, change the address to which delivery of any notice shall
thereafter be made.
13. Waiver. The failure of either party at any time or times to enforce
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or require performance of any provision hereof shall in no way operate as a
waiver or affect the right of such party at a later time to enforce the same.
14. Severability. The provisions of this Agreement are severable and
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should any provision hereof be void or unenforceable under any applicable law,
such provision shall not affect or invalidate any other provision of this
Agreement, which shall continue to govern the relative rights and duties of the
parties as though such void or unenforceable provision were not a part hereof.
15. Third Party Agreements. NDC and Global Payments recognize that
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certain technology support services described in the exhibits hereto are
provided by third party contractors under specific third party agreements
("Third Party Agreements"). NDC and Global Payments further recognize that the
Third Party Agreements may have been entered into by either NDC or Global
Payments and that the other receives technology support services as a result of
the Third Party Agreements. NDC and Global Payments shall use their respective
commercially reasonable efforts to cause the third party providers to continue
to provide the technology support to the other under the terms of the Third
Party Agreements as in effect as at the Effective Time.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
17. Counterparts. This Agreement may be executed in separate
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counterparts, each of which, when so executed, shall be deemed to be an original
and all of which, when taken together, shall constitute but one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NATIONAL DATA CORPORATION
By:____________________________
Name:
Title:
GLOBAL PAYMENTS INC.
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By:
Name:__________________________
Title:
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EXHIBIT A
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TAX SERVICES
1. Services. NDC will provide tax services as described on Schedule A-1
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attached to this Exhibit A.
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2. Cost. Global Payments shall pay NDC for the above services at the
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rates set forth on Schedule A-1, on a monthly basis; provided however, that if
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any employee(s) of NDC performing any service(s) listed on Schedule A-1 attached
to this Exhibit A is hired by Global Payments to perform such service(s) for
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Global Payments after the Effective Date, the rate for such service(s) shown on
Schedule A-1 attached to this Exhibit A shall be reduced by the corresponding
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decrease in costs to NDC (including salaries, benefits and target bonuses for
such employee(s)) resulting from Global Payments' employment of such
employee(s).
APPROVED:
NATIONAL DATA CORPORATION
By:______________________
GLOBAL PAYMENTS INC.
By:______________________
SCHEDULE A-1
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Tax Department Services
Beginning on the Distribution Date and continuing through March 31, 2001,
unless Global Payments shall sooner request that they be terminated, NDC shall
continue to provide for Global Payments those tax department services that NDC's
tax department has historically performed for NDC as a whole, including its
eCommerce business. Such services shall include, but not be limited to, the
following:
Tax compliance and tax planning services related to the preparation of the
May 31, 2000 federal, state, and foreign income tax returns.
Tax compliance services related to the preparation of any real and personal
property tax returns as needed.
Assistance with the preparation of any sales tax returns if needed.
(eCommerce sales tax returns are currently prepared directly by eCommerce staff)
Assistance related to any federal and state income tax, sales tax or
property tax audits.
Assistance with tax planning related to acquisitions or divestitures.
NDC shall cause its employees and contractors performing the tax services
described on this Schedule A-1 to maintain reasonably accurate records as to the
portion of their time spent on tax matters for Global Payments. Each month
Global Payments shall pay NDC for such services an amount equal to NDC's Fully
Loaded Cost, as such term is defined below, for a fraction of such employee or
contractor, which fraction shall equal the fraction of such employee's or
contractor's time devoted to matters for Global Payments during the month, plus
reimbursement of all out of pocket costs paid to third parties in connection
with the performance of such services.
Fully Loaded Cost means the allocable portion of the wages, employee
benefits, incentives and other payments to NDC employees and contractors,
including occupancy costs related to such employees and contractors and the
allocable portions of any direct variable cost and fixed operating cost incurred
by NDC in supplying the services all determined in a manner consistent with
NDC's historical cost accounting practices.
Global Payments may terminate this Agreement with respect to any or all
services being performed by NDC's tax department for Global Payments pursuant to
this Schedule A-1 upon not less than sixty (60) days advance notice given as
provided in this Agreement. Following the effective date of Global Payments'
election to terminate all or
any portion of the services to be provided pursuant to this Schedule A-1, NDC
shall have no further obligation to Global Payments to provide any of the
services so terminated.
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EXHIBIT B
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SUPPORT SERVICES
1. Services. NDC will provide those support services of the types set
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forth in the Service Level Agreement attached hereto as Schedule B-1 to this
Exhibit B.
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2. Cooperation. Global Payments and NDC shall cooperate in the temporary
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use of space by the other at their respective headquarters sites as described in
Schedule B-1 to this Exhibit B.
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APPROVED:
NATIONAL DATA CORPORATION
By:______________________
GLOBAL PAYMENTS INC.
By:______________________
SCHEDULE B-1
Stock Option Support
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Beginning on the Distribution Date and continuing for a period of six (6)
months, NDC shall provide the services of ▇▇. ▇.▇. ▇▇▇▇▇▇▇, or any successor to
▇▇. ▇.▇. ▇▇▇▇▇▇▇ at NDC for the purpose of handling recordkeeping regarding
stock options granted or to be granted by Global Payments to its employees,
officers, directors or consultants. Such services shall include, but not be
limited to, the following:
NDC shall cause the employee or contractor performing such stock option
support services to maintain reasonably accurate records as to the portion of
such person's time devoted to handling matters for Global Payments. As
compensation for such services, Global Payments shall reimburse NDC for a
portion of NDC's Fully Loaded Cost, as such term is defined below, for such
individual or individuals equal to the fraction of such person or person's time
devoted to handling such matters for Global Payments, plus reimbursement for all
out of pocket costs paid to third parties in connection with the performance of
such services by Global Payments.
Fully Loaded Cost means the allocable portion of the wages, employee
benefits, incentives and other payments to NDC employees and contractors,
including occupancy costs related to such employees and contractors and the
allocable portions of any direct variable cost and fixed operating cost incurred
by NDC in supplying the services all determined in a manner consistent with
NDC's historical cost accounting practices.
Office Sharing Moves
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On a temporary basis, following the Distribution Date and for so long as
reasonably necessary to accommodate moves of employees and equipment located at
the NDC headquarters site, from space to be occupied by the other party under
the lease of space by Global Payments, at NDC's headquarters site (the
"Headquarters Lease"), certain employees and equipment of NDC may be required to
remain in portions of the premises leased by Global Payments pursuant to the
Headquarters Lease and certain of the employees and equipment of Global Payments
may be required to remain in portions of NDC's premises not leased by Global
Payments.
NDC shall reasonably cooperate with the occupancy by Global Payments'
employees and equipment of portions of the site not leased to Global Payments
and shall provide reasonable cooperation in connection with the removal of such
employees and equipment to portions of the site leased by Global Payments.
Global Payments shall reasonably cooperate with the occupancy by NDC employees
and equipment of portions of the premises leased by Global Payments pursuant to
the Headquarters Lease and shall provide reasonable cooperation with the removal
of such employees and equipment from
such portions of the site in coordination with moves of Global Payments
employees and equipment from portions of the site not leased by Global Payments.
Each of NDC and Global Payments shall be responsible for its employees and
equipment occupying portions of the headquarters site to be primarily occupied
by the other under the terms of the Headquarters Lease.
Neither NDC nor Global Payments shall be obligated to pay any rent or other
charge with respect to the occupancy of its employees or equipment under the
terms of this Schedule B-1; provided however, that each of NDC and Global
Payments shall be responsible for any damages to the other or the other's
property caused by its employees and equipment or the removal of its employees
and equipment from space occupied on a temporary basis under the terms of this
Schedule B-1.
EXHIBIT C
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LEASING AND LEASE ADMINISTRATION SERVICES
1. Services. NDC will provide leasing and lease administration services
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as described on Schedule C-1 attached to this Exhibit C.
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2. Cost. Global Payments shall pay NDC for the above services at the
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rates set forth on Schedule C-1.
APPROVED:
NATIONAL DATA CORPORATION
By:
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GLOBAL PAYMENTS INC.
By:
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SCHEDULE C-1
Leasing Services
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Beginning on the Distribution Date and continuing for a period of twelve
(12) months, NDC will assist Global Payments in connection with the negotiation
of leases, lease modifications, lease renewals, lease amendments and such other
similar leasing matters as may be reasonably requested by Global Payments from
time to time.
The foregoing twelve (12) month term shall be automatically renewed for
successive twelve (12) month periods beginning on each anniversary of the
Distribution Date, provided that Global Payments shall have the right to cancel
these services effective upon the expiration of any twelve (12) month term then
in effect by written notice given, if at all, no less than ninety (90) days
prior to the expiration of such (12) month term.
The annual fee for these services shall be $119,000.00, paid in monthly
installments of $9,916.67. Global Payments shall also reimburse NDC for
reasonable and actual travel expenses incurred by NDC in providing these
services.
Lease Administration Services
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Beginning on the Distribution Date and continuing for a period of twelve
(12) months, NDC will assist Global Payments in the administration of Global
Payments' facility leases and subleases (other than the Headquarters Lease).
Such services shall include preparing rent schedules, maintaining a database of
Global Payments' leases and subleases, performing operating costs
reconciliations and performing such other similar services as may be reasonably
requested by Global Payments from time to time.
The foregoing twelve (12) month term shall be automatically renewed for
successive twelve (12) month periods beginning on each anniversary of the
Distribution Date, provided that Global Payments shall have the right to cancel
these services effective upon the expiration of any twelve (12) month term then
in effect by written notice given, if at all, no less than ninety (90) days
prior to the expiration of such (12) month term.
The annual fee for these services shall be $60,000, and will be billed
within thirty (30) days after the end of the applicable twelve (12) month
period; provided, however, that such fee shall be reduced (not below zero) on a
dollar for dollar basis for each dollar of commission rebates received by NDC
from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ in connection with any of the leases, lease
modifications, lease renewals, lease amendments or other leasing matters
referred to above in the "Leasing Services" section of this Schedule C-1.