EXHIBIT 99.3
SERVICE AND SPONSORSHIP AGREEMENT
This Service and Sponsorship Agreement ("Agreement") is entered into as
of July 12, 2004 to be effective as of the Effective Time (as defined in the
Merger Agreement (as defined herein)) by and between National Processing
Company, LLC, an Ohio limited liability company, and successor to National
Processing Company with its principal office located in Louisville, Kentucky
("NPC"); and National City Bank of Kentucky, a national banking association,
with its principal office located in Louisville, Kentucky ("NCBK").
RECITALS
WHEREAS, NCBK is a member in good standing of MasterCard International,
Incorporated ("MasterCard") and Visa U.S.A., Inc. ("Visa"); and
WHEREAS, NPC is engaged in the business of processing and transmitting
electronic data of a financial, banking or economic nature, including but not
limited to Charge Card Transactions (defined below); and
WHEREAS, NCBK, NPC and United Air Lines, Inc. are parties to a certain
Charge Card Processing Agreement dated November 15, 2000, a copy of which is
attached hereto as Schedule A (the "Charge Card Processing Agreement"), pursuant
to which NPC and NCBK allocate their rights and responsibilities as appropriate
under the Charge Card Processing Agreement and the parties now wish to further
define, modify and allocate their rights and responsibilities under the Charge
Card Processing Agreement; and
WHEREAS, Bank of America Corporation, a Delaware corporation
("Parent"), and National Processing, Inc., an Ohio corporation and the parent of
NPC ("NPI"), have entered into an Agreement and Plan of Merger, dated July 12,
2004 (the "Merger Agreement"), pursuant to which Monarch Acquisition, Inc., an
indirect wholly owned subsidiary of Parent, has merged into NPI and NPI has
become an indirect wholly owned subsidiary of Parent; and
WHEREAS, as an inducement to Parent's entering into the Merger
Agreement, NCBK has agreed to release NPC from all of its obligations to NCBK,
including indemnification obligations, with respect to the Charge Card
Processing Agreement and the Sponsorship Agreement, dated June 30, 1996, between
NPC and NCBK (the "Sponsorship Agreement"); and
WHEREAS, as an inducement for NCBK to release NPC from such
obligations, and in exchange for certain indemnification agreements contained in
that certain Shareholders Agreement dated July 12, 2004 by and between Parent
and NCBK's ultimate parent (the "Shareholders Agreement"), Parent will cause NPC
to pay NCBK a one-time fee of $36 million.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS
The following capitalized terms shall have the meanings as set forth
below:
"AFFILIATE" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first Person, where "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by contract or otherwise.
"AUTHORIZATION" means the issuance of approval, by or on behalf of the
card issuer, to complete a transaction for a Merchant.
"BANK IDENTIFICATION NUMBER" or "BIN" means the unique series of
numbers assigned by Visa to a principal member institution, which identifies the
member or processor.
"BANKING DAY" means any day other than Saturday, Sunday and any day
that is a holiday observed by the Federal Reserve System prior to 7:00 p.m.,
Eastern Time.
"CARDHOLDER" means a person who has been issued or authorized to use a
Charge Card as evidenced by his/her signature on the Charge Card.
"CARDHOLDER ACCOUNT" means an arrangement between a person and an
Issuing Member which provides that the person may use one or more Charge Cards
issued by such Issuing Member.
"CHARGE CARD" means a valid card issued by (i) an Issuing Member of
MasterCard or Visa that contains the MasterCard service xxxx, or the Visa
service xxxx (and such marks may be changed from time to time); (ii) JCB; or
(iii) proprietary (private label) cards that NPC supports; and (iv) debit cards
that NPC supports. A card shall be deemed valid on and after the effective date,
if shown, and through and including the expiration date embossed thereon.
"CHARGE CARD PROCESSING AGREEMENT" has the meaning set forth in the
recitals and is attached hereto as Schedule A.
"CREDIT RECORDS" means, collectively, all documents or the Electronic
Record of such documents used to evidence any refund or price adjustment to be
credited to a Cardholder's account from the sale of Products, the format of
which shall be such as has been either approved by NPC or supplied by NPC for
use under the Charge Card Processing Agreement.
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"ELECTRONIC RECORD" means data that is transcribed in a form suitable
for electronic processing.
"ICA NUMBER" means the four-digit number assigned by MasterCard to a
financial institution, third party processor or other member of MasterCard to
identify said member.
"INTERCHANGE FEE" means the fee which is paid or refunded by NPC or
NCBK to MasterCard, Visa or other Charge Card plans for entering Sales Records
and Credit Records into MasterCard or Visa or other Charge Card settlement
networks. The basis used in calculating the Interchange Fee is established by
MasterCard's, Visa's, or other Charge Card organizations' respective Boards of
Directors and is subject to change upon written notice from the applicable
Charge Card plan.
"ISO" means an independent sales organization as that term is defined
in the Visa Rules.
"ISSUING MEMBER" means a licensee or member of MasterCard, Visa, or
another Charge Card plan that is authorized by MasterCard, Visa or such other
Charge Card plan to issue Charge Cards.
"JCB" means JCB International Co., Ltd.
"MSP" means a member service provider as that term is defined in the
MasterCard Rules.
"MERCHANT" means United Air Lines, Inc., a Delaware corporation with
its principal office located in Elk Grove Township, Illinois, together with its
Affiliates.
"MERCHANT ACCOUNT" means that certain account maintained by NCBK into
which shall be deposited by NPC or NCBK the net amounts due to Merchant after
settlement of each day's Sales Records and Credit Records.
"MERCHANT CHARGEBACK" means an item that has been denied or returned by
an Issuing Member for cause, after it was entered into the appropriate
settlement network for payment in accordance with the Rules or in accordance
with the provisions of the Charge Card Processing Agreement.
"MERCHANT LOSSES" means all charges and/or losses incurred by NPC or
NCBK for any reason attributable to Merchant, including, but not limited to,
losses due to Merchant's business failure and fraudulent practices of Merchant
and any loss that relates to a Transaction or item processed pursuant to the
Charge Card Processing Agreement.
"MERCHANT PROGRAM" means the package of services offered by NPC and
NCBK to Merchant which enables Merchant to make Charge Card sales to Cardholders
and which permits the Merchant to present Credit Records and Sales Records to
NPC for payment and processing.
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"MERCHANT PROCESSING FEE" means the fee charged by NPC to Merchant for
authorizing, processing and settling Sales Records and Credit Records as set
forth in the Charge Card Processing Agreement.
"ORIGINAL PAPER" means the Merchant copy of a Sales Record or Credit
Record transcribed in writing on a paper form, which has either been reasonably
approved by NPC or supplied by NPC for use under this Agreement or the Charge
Card Processing Agreement.
"OTHER FEES AND COSTS" means any fees due NPC under this Agreement
other than the Merchant Processing Fees and all other costs and expenses
incurred by NPC in the performance of this Agreement.
"PERSON" means any individual, corporation, partnership, or any other
legal entity and includes a "person" within the meaning of Section 3(a)(9) or
13(d)(3) of the Securities Exchange Act of 1934, as now in effect or hereafter
amended.
"PROCESSING FEES" means the fees paid by Merchant to NPC pursuant to
the Charge Card Processing Agreement.
"PRODUCTS" means goods and services that are sold or rendered by
Merchant to its customers in connection with its usual business as it may evolve
from time to time.
"RETRIEVAL" means the production of the original or an acceptable
facsimile of a Sales Record, credit voucher or other supporting documentation by
the Merchant at the request of NPC or an Issuing Member.
"RETRIEVAL REQUEST" means a written or electronic request by NPC to
Merchant in the manner permitted by MasterCard, Visa or another Charge Card
plan, as the case may be, for the Retrieval of a Sales Record or Credit Record,
either in the form of microfilm, Original Paper, or facsimile, previously
delivered in Electronic Record form to NPC by Merchant.
"RULES" means the various Charge Card rules, operating regulations and
systems manuals regarding, among other things, Chargebacks and relating to the
processing, authorization and settlement of Charge Cards that may be established
by a Charge Card plan, as the same may be amended from time to time.
"SALES RECORD" means, collectively, all documents, or the Electronic
Record of such documents, used to evidence the sale of Products through the use
of Charge Cards, the format of which shall be such as has been either approved
by NPC or supplied by NPC for use under the Charge Card Processing Agreement.
"SETTLEMENT ACCOUNT" means a demand deposit account maintained for the
benefit of NPC and NCBK for the purpose of debiting and crediting amounts
detailed in this Agreement.
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"TRANSACTION" means the consummation of a sale of Products or the
initiation of a Credit Record, to a Cardholder Account by Merchant by means of a
Sales Record.
2. RELEASE OF CLAIMS
2.1 RELEASE. Subject to the satisfaction of NPC's obligation under
Section 2.2, NCBK hereby unconditionally fully, finally and forever releases,
discharges and covenants not to xxx and otherwise agrees not to enforce any
claim, cause of action, right, title or interest against, NPC and each
shareholder, agent, representative, director, officer and employee of NPC, past
or present, and each Affiliate of each of the foregoing Persons, and their
respective heirs, successors and permitted assigns (collectively, the "NPC
Released Persons"), of, from and with respect to any and all claims, suits,
judgments, debts, covenants, agreements, obligations, liabilities, actions or
demands or controversies of any kind or character, that now exist or may arise
in the future based upon any fact or circumstance, whether known or unknown,
suspected or unsuspected, which presently exists or has ever existed in the
past, that NCBK has or may have in any manner whatsoever, either singly or
jointly with others, against any of the NPC Released Persons, under the Charge
Card Processing Agreement or the Sponsorship Agreement solely as it relates to
the Charge Card Processing Agreement (the "Release").
2.2 PAYMENT. In consideration for the Release, at the Effective Time,
NPC will pay to NCBK $36 million by wire transfer of immediately available funds
to the account designated to NPC by NCBK. NCBK shall provide NPC with wire
instructions for such wire transfer at least two Banking Days before the
Effective Time.
3. RESPONSIBILITIES
3.1 RESPONSIBILITIES OF NPC.
(a) NPC shall provide all Transaction processing services
required to be performed by either or both NPC and NCBK in the Charge Card
Processing Agreement, except as is otherwise specifically provided in this
Agreement. NPC shall perform such processing in accordance with the standards
and practices of the parties as previously provided under the Charge Card
Processing Agreement.
(b) NPC shall provide the following risk management reporting
under the Merchant Program to NCBK: daily unused travel reporting (each Banking
Day); unused travel aging report (quarterly or more frequently but no more than
monthly except in exigent circumstances), reserve account reporting upon
request.
(c) NPC will credit or debit the Settlement Account in
accordance with this Agreement and the Charge Card Processing Agreement.
(d) NPC shall provide NCBK with continuous access, via an
electronic interface, to processing and settlement data and information
regarding Chargebacks and Retrieval Request related to Merchant.
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(e) NPC will advise NCBK each Banking Day, by telephone or
other mutually agreed means, of the amount of net settlement to be made
available.
(f) NPC shall promptly, upon demand, reimburse NCBK for any
and all fines, penalties, assessments or other costs incurred by NCBK due to the
failure by NPC to adhere to the Rules.
(g) To the extent NPC's performance relies on the receipt of
information or input from Merchant or action by Merchant, NPC shall have no
responsibility in the event (i) Merchant does not provide any and all such
information or input, (ii) Merchant provides inaccurate information or input, or
(iii) Merchant's action or inaction prevents NPC's performance or results in a
reduction in the quality of NPC's performance.
3.2 MERCHANT LOSSES. All Merchant Losses or any losses incurred by NPC
for any reason (including any Claims (as defined in the Shareholders Agreement)
incurred by NPC pursuant to the actions taken by NCBK (other than the negligent
misconduct of NPC and other than to the extent paid to NPC by a third party or
to NPC or an Affiliate of NPC pursuant to the Shareholder Agreement) will be
paid by NCBK.
3.3 RESPONSIBILITIES OF NCBK.
(a) NCBK will settle directly with Merchant for all of
Merchant's Charge Card Transactions as provided in the Charge Card Processing
Agreement, subject to receipt of applicable funds from the applicable Charge
Card plan.
(b) NCBK will sponsor NPC as an ISO for Visa, as an MSP for
MasterCard, and as similarly required for JCB, solely for processing
transactions under this Agreement.
(c) NCBK agrees to sponsor a BIN and an ICA Number for the
exclusive use of NPC to be used solely for processing transactions under the
Charge Card Processing Agreement. NCBK further agrees to sponsor NPC into JCB's
Charge Card network for the benefit of NCBK, if applicable.
(d) NCBK will be solely responsible for the transfer of funds
between the Settlement Account and the Merchant Account, the transfer of funds
from the Merchant Account to Merchant's designated bank and the payment of all
settlement funds due to Merchant.
(e) NCBK will be responsible for monitoring the Merchant's
financial performance and the Merchant's bankruptcy, insolvency or other such
judicial proceeding and all other applicable legal proceedings.
(f) NCBK shall pay all fees and expenses associated with
NCBK's sponsorship of NPC and Merchant, including but not limited to all Other
Fees and Costs and all registration and other fees, assessments and other
charges to NCBK associated therewith.
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(g) NCBK shall promptly, upon demand, reimburse NPC for any
and all fines, penalties, assessments or other costs incurred by NPC due to the
failure by NCBK to adhere to the Rules.
3.4 RESPONSIBILITIES OF NPC AND NCBK. NPC and NCBK will cooperate with
each other in the performance of their respective duties under this Agreement
and agree to communicate at least daily on Banking Days regarding Merchant
processing and services.
4. SETTLEMENT ACCOUNT AND FEES
4.1 SETTLEMENT ACCOUNT.
(a) NCBK shall establish the Settlement Account at NCBK.
(b) NCBK shall timely and properly fund the Settlement Account
as provided for in this Agreement and in accordance with the terms of the Charge
Card Processing Agreement. In the event that the Settlement Account does not
contain sufficient funds to cover any Merchant Loss or any other amounts due
under the Charge Card Processing Agreement, NCBK will remit the deficiency to
the Settlement Account within the daily settlement cycle.
(c) NPC may debit or credit the Settlement Account for amounts
as they become due under this Agreement.
4.2 FEES.
(a) NCBK'S PORTION OF PROCESSING FEES. Except as provided in
subsections 4.2(b), 4.2(c) and 4.2(d) below, NCBK shall be entitled to receive
and retain, when due and paid to NPC by Merchant, all Processing Fees.
(b) NPC'S PORTION OF PROCESSING FEES. NPC shall be entitled to
receive and retain, when and as due, those Processing Fees payable by Merchant
pursuant to the Charge Card Processing Agreement which are identified and
described in Exhibit B thereto in item II.K (Technical Assistance) thereof and
in item III.D. (Reports To Be Furnished To Airline) thereof as charges for
customized reporting.
(c) NPC FEES. NPC shall be entitled to receive and retain
Processing Fees equal to the actual costs to NPC associated with providing
services hereunder and under the Charge Card Processing Agreement.
(d) AFTER NOVEMBER 15, 2005. Notwithstanding anything to the
contrary contained in this Section 4.2, if the term of this Agreement as set
forth in Section 7.1 hereof, is (i) extended or renewed by the parties or
otherwise, or (ii) NPC continues providing services under the Charge Card
Processing Agreement and this Agreement for any reason, including without
limitation as a result of litigation or pursuant to any court order or
bankruptcy proceeding involving the Merchant, NPC shall be entitled to receive
and retain Processing Fees to equal (i) the actual costs to NPC associated with
providing
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services hereunder and under the Charge Card Processing Agreement, plus (ii) 15%
of such actual costs.
(e) DISPUTE RESOLUTION. If the parties are unable to resolve
any dispute with respect to fees payable under this Section 4.2 after good faith
negotiations, the parties shall submit the issues remaining in dispute to an
independent public accounting firm mutually agreed upon by the parties (the
"Independent Accountants") for resolution. If issues are submitted to the
Independent Accountants for resolution, (i) NCBK and NPC shall furnish or cause
to be furnished to the Independent Accountants such work papers and other
documents and information relating to the disputed issues as the Independent
Accountants may request and are available to that party or its agents and shall
be afforded the opportunity to present to the Independent Accountants any
material relating to the disputed issues and to discuss the issues with the
Independent Accountants; (ii) the determination by the Independent Accountants,
as set forth in a notice to be delivered to both NCBK and NPC within sixty (60)
days of the submission to the Independent Accountants of the issues remaining in
dispute, shall be final, binding and conclusive on the parties; and (iii) NCBK
and NPC will each bear fifty percent (50%) of the fees and costs of the
Independent Accountants for such determination.
5. THIRD-PARTY REQUIREMENTS
5.1 VISA/MASTERCARD REQUIREMENTS. NCBK agrees to maintain an active,
appropriate membership with Visa and MasterCard during the term of this
Agreement. NCBK agrees to pay all registration and membership costs associated
therewith. NCBK also agrees to enter into similar arrangements as required by
the Charge Card Processing Agreement and other Charge Card organizations, when
applicable.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF NPC. NPC represents
and warrants to NCBK that:
(a) GOOD STANDING. NPC is a limited liability company, validly
existing and in good standing under the laws of the State of Ohio, and has its
principal office in Louisville, Kentucky.
(b) AUTHORITY. NPC has full authority and power to enter into
and perform its obligations under this Agreement.
(c) STANDARD OF PERFORMANCE. NPC shall perform all services
hereunder consistent with past practices and standards and the Charge Card
Processing Agreement.
(d) ENFORCEABILITY. This Agreement represents a valid
obligation of NPC and is fully enforceable according to its terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting the rights of
creditors and subject to general equity principles.
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(e) COMPLIANCE WITH LAW. NPC will comply with the terms of
this Agreement, the Rules, and with all applicable state and federal laws and
regulations as such relate to the performance of NPC of its obligations under
this Agreement.
6.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF NCBK. NCBK represents
and warrants to NPC that:
(a) GOOD STANDING. NCBK is a national banking association
organized, validly existing and in good standing under the laws of the United
States, and has its principal office in Louisville, Kentucky.
(b) AUTHORITY. NCBK has full authority and power to enter into
and perform its obligations under this Agreement.
(c) STANDARD OF PERFORMANCE. NCBK shall perform all services
hereunder consistent with past practices and standards and the Charge Card
Processing Agreement.
(d) ENFORCEABILITY. This Agreement represents a valid
obligation of NCBK and is fully enforceable according to its terms, except as
the enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting the rights of
creditors and subject to general equity principles.
(e) COMPLIANCE WITH LAW. NCBK will comply with the terms of
this Agreement, the Rules, and with all applicable state and federal laws and
regulations or as such relate to the performance of NCBK of its obligations
under this Agreement.
6.3 NO OTHER WARRANTIES. THE WARRANTIES SET FORTH HEREIN CONSTITUTE THE
ONLY WARRANTIES OF THE PARTIES WITH RESPECT HERETO AND ARE IN LIEU OF ANY OTHER
WARRANTIES WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
7. TERM, TERMINATION, DEFAULT, INDEMNIFICATION
7.1 TERM. This Agreement will become effective on the Effective Date,
and will terminate the earlier of (i) at midnight on November 15, 2005, or (ii)
the date of termination of the Charge Card Processing Agreement.
7.2 OBLIGATIONS UPON TERMINATION. After any termination of this
Agreement, NCBK shall continue to bear total responsibility for any and all
Merchant Losses paid by NPC resulting from Transactions processed pursuant to
this Agreement as well as all other monetary responsibilities, including, but
not limited to, fees, including fines and assessments by Visa, MasterCard or
JCB.
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7.3 INDEMNIFICATION.
(a) NPC INDEMNIFICATION. NPC will indemnify, defend and hold
NCBK and its directors, shareholders, officers agents, employees,
representatives, successors and assigns harmless from and against any and all
liabilities, losses, damages, charges, costs, fees, increased taxes or expenses,
including without limitation, court costs, reasonable attorneys' fees which NCBK
may incur or which may be claimed against NCBK by any person as a result of: (i)
the negligence of NPC, its officers, employees, subcontractors or agents with
respect to the performance of its obligations under this Agreement and the
Charge Card Processing Agreement at or after the Effective Time, and/or (ii) the
breach of NPC's obligations, representations and warranties under this
Agreement.
(b) NCBK INDEMNIFICATION. NCBK will indemnify, defend and hold
NPC and its directors, officers, agents, employees, representatives, successors,
assigns and shareholders and each Affiliate of each of the foregoing persons
harmless from and against any and all Claims (as defined in the Shareholders
Agreement) that NPC may incur or that may be claimed against NPC by any Person
as a result of any of: (i) the negligence of NCBK with respect to the
performance of its obligations under this Agreement and the Charge Card
Processing Agreement, (ii) the breach of NCBK's obligations, representations and
warranties under this Agreement, (iii) any bankruptcy proceedings or similar
proceedings of Merchant or any legal proceedings related thereto, (iv) any
Merchant Losses, and/or (v) any action taken or not taken by NPC at the
direction of NCBK.
8. MISCELLANEOUS
8.1 ASSIGNABILITY; SALE OF THE PARTIES. No party may assign, transfer
this Agreement, by operation of law or otherwise, or otherwise delegate this
Agreement without the prior written consent of the other parties which consent
will not be unreasonably withheld, conditioned or delayed, except that NPC may
assign this Agreement to any Affiliate without NCBK's consent; provided,
however, that any such assignment will not relieve NPC of its obligations under
this Agreement. Any assignment in violation of this Section 8.1 shall be null
and void.
8.2 NOTICES. Except as otherwise provided in this Agreement, any notice
or other communication hereunder must be given in writing and either (a)
delivered in person or by courier service, (b) transmitted by facsimile,
provided, that any notice so given is also sent for delivery as provided in
clause (a), or mailed as provided in clause (c), or (c) mailed by certified or
registered mail, postage prepaid, as follows:
if to NPC : National Processing Company, LLC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Bankcard Contract Management
Phone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Bank of America Corporation
000 Xxxxx Xxxxx Xxxxxx
XXX-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Bank of America
CA5-705-08-01
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxxx, Assistant General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Mulliss & Wicker, PLLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
if to NCBK: National City Bank of Kentucky
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Legal Department, Chief Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
National City Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or to such other person as any party shall have last
designated by such written notice to the other parties. Each such notice or
other communication shall be effective (i) if given by facsimile, when
transmitted to the applicable number so specified in this Section 8.2 and oral
confirmation of its receipt is received, or (ii) if given by any other means,
when actually received at such address.
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8.3 ENTIRE UNDERSTANDING, AMENDMENT. This Agreement, the exhibits
attached hereto, the Charge Card Processing Agreement and the Shareholders
Agreement, set forth the entire understanding of the parties relating to its
subject matter, and all other understandings, written or oral, are superseded.
This Agreement may not be amended except in a writing executed by all parties.
In the event of any conflict between the terms of this Agreement (including the
exhibits attached hereto) and Section 9 of the Shareholders Agreement, the
provision of Section 9 of the Shareholders Agreement shall control.
8.4 SEVERABILITY. If any provision of this Agreement is illegal, the
invalidity of such provision will not affect any of the remaining provisions,
and this Agreement will be construed as if the illegal provision is not
contained in the Agreement.
8.5 NO WAIVER OF RIGHTS. No failure or delay on the part of any party
in exercising any right under this Agreement will operate as a waiver of that
right, nor will any single or partial exercise of any right preclude any further
exercise of that right.
8.6 SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of
and will be binding upon the parties and their respective permitted successors
and assigns.
8.7 APPLICABLE LAW. The Agreement will be deemed to be a contract made
under the laws of the State of Ohio, and will be construed in accordance with
the laws of Ohio without regard to principles of conflicts of law.
8.8 JURISDICTION. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of the federal courts located in the State
of Ohio in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any other court.
8.9 DAMAGES. EXCEPT FOR VIOLATIONS OF SECTION 8.13 BELOW, IN NO EVENT
SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY NATURE OR FOR ANY REASON WHATSOEVER, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
8.10 INDEPENDENT CONTRACTORS. NPC and NCBK will be deemed to be
independent contractors and will not be considered to be servant, joint venturer
or partner of the other.
8.11 CONSTRUCTION. The headings used in this Agreement are inserted for
convenience only and will not affect the interpretation of any provision. All
sections mentioned in the Agreement reference section numbers of this Agreement.
The language
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used will be deemed to be the language chosen by the parties to express their
mutual intent, and no rule of strict construction will be applied against any
party.
8.12 FORCE MAJEURE. No party will be liable for its failure to perform
under this Agreement if such failure arises out of causes beyond the control and
without the fault or negligence of that party. Such causes may include but are
not limited to acts of God, fires, wars, riots, acts, omissions or delays by
MasterCard, Visa, any other Charge Card company, or other unaffiliated third
parties, or acts of civil or military authorities.
8.13 EXPENSES. Each party to this Agreement shall perform their
respective responsibilities hereunder at no cost or expense to any other party
to this Agreement, except as expressly provided for herein or as otherwise
agreed to by the parties.
8.14 CONFIDENTIALITY. Except as required by law, the parties to this
Agreement shall keep confidential and shall not disclose, and shall cause their
respective employers, independent contractors and agents to keep confidential
and not to disclose, to any third party all information learned each from the
other party hereto about business practices and manner and means by which such
other party does business that is not generally known to others, including
without limitation any data or information that is a trade secret or
competitively sensitive such as computer software and documentation, flow
charts, data and data formats, customer information and lists, and financial
information, and to use such information only for the purposes of fulfilling
their respective responsibilities under this Agreement. Each party hereto shall,
unless prohibited by law from doing so, promptly inform the party from whom any
such information was learned of any request by a court or governmental agency to
disclose such information to enable such party to waive the provisions of this
Section or to defend the nondisclosure of such information. The parties agree
(i) that disclosure of information in breach of this Section 8.14 could have
serious consequences and that money damages would not be a sufficient remedy for
any such breach and (ii) that, in the event of a breach or threatened breach of
this Section by either party, the other party shall be entitled to equitable
relief, including injunctive relief (without the posting of any bond or
securities) and specific performance, in addition to all other remedies
available to it at law or in equity.
8.15 COMPLIANCE WITH 12 CODE OF FEDERAL REGULATIONS (CFR) PART 40. The
parties hereto agree that they shall not disclose or use any "nonpublic personal
information", as defined by 12 CFR 40.3(n)(1), which any party has provided to
the other, other than to carry out the purposes for which the information is
disclosed, including use under an exception in 12 CFR 40.14 or 40.15 in the
ordinary course of business to carry out those purposes.
8.16 NO OTHER AMENDMENT TO SPONSORSHIP AGREEMENT. Except as set forth
in this Agreement, all provisions of the Sponsorship Agreement shall remain
unchanged and in full force and effect.
8.17 SURVIVAL. Sections 2.1, 3.2, 3.3(f), 8.8, 8.14, 8.15, 8.17,
Article 6 and Article 7, and any other sections that by their operative nature
extend beyond the term of this Agreement shall survive any termination of this
Agreement; provided, however, that
13
in the event that the termination of this Agreement is (i) postponed, deferred,
extended or renewed for any reason, or (ii) NPC continues providing services
under the Charge Card Processing Agreement and this Agreement for any reason,
including without limitation as a result of litigation or pursuant to any court
order or bankruptcy proceeding involving the Merchant, all of the terms and
conditions contained in this Agreement shall survive and continue to be binding
on the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
NCBK: NPC:
NATIONAL CITY BANK OF KENTUCKY NATIONAL PROCESSING
COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
___________________________ ___________________________
Name: Xxxxxxx X. Xxxxx Name: Xxx X. Xxxxxx
Title: President and CEO Title: Chairman and CEO
Date: July 12, 2004 Date: July 12, 2004
SERVICE AND SPONSORSHIP AGREEMENT
Signature Page 1 of 1
SCHEDULE A
CHARGE CARD PROCESSING AGREEMENT
See attached.
