Exhibit 10.2
SPONSORSHIP AND PROCESSING AGREEMENT
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THIS SPONSORSHIP AND PROCESSING AGREEMENT is made as of December 3rd, 1996
between XX XXXXXXXX SERVICES, INC. ("BAMSI") and BANK OF AMERICA NATIONAL TRUST
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& SAVINGS ASSOCIATION (the "Bank").
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RECITALS
A. The Bank. The Bank is an existing national banking association duly
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organized and in good standing under the laws of the United States with its
principal executive offices located in San Francisco, California and a member in
good standing of Visa U.S.A., Inc. ("Visa") and a member in good standing of
MasterCard International, Incorporated ("MasterCard").
B. BAMSI. BAMSI is an existing corporation formed under the laws of the
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State of Delaware with its principal executive offices located in San Francisco,
California, which provides data processing, settlement and authorization
services for merchants who participate in the Visa and MasterCard and other
bankcard programs (such activities being referred to as "Merchant Bankcard
Business").
C. Corporate Approvals. Each of the parties to this Agreement has
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obtained all necessary corporate approvals for the execution and delivery of
this Agreement.
D. Arm's Length Relationship. The parties to this Agreement intend to
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conduct their relationships hereunder on an arm's length basis.
E. BAC/BAMSI Transactions. The Bank and Bank of America NW, National
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Association ("BANW"), each a subsidiary of BankAmerica Corporation, a Delaware
corporation ("BAC"), currently own 100% of the outstanding common stock of
BAMSI. The Bank and BANW have entered or will enter into certain agreements
with BAMSI (1) transferring the Bank's United States domestic merchant
processing businesses and the BANW merchant processing business to BAMSI and (2)
covering the contemplated transfer of the Philippine and Thailand merchant
processing businesses of the Bank to BAMSI upon the receipt of certain
governmental approvals (collectively, the BAC/BAMSI Transactions"). BAMSI is
currently considering an initial public offering of shares of its Class A common
stock, $.01 par value per share.
F. Related Agreements. BAMSI has entered or will enter into (1) a Non-
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Competition and Corporate Opportunities Allocation Agreement of even date
herewith between BAC and BAMSI (the "Corporate Opportunities Agreement"), (2) a
Marketing Agreement of even date herewith among BAMSI, the Bank and BANW (the
"Marketing Agreement"), (3) Processing Services Agreements of even date herewith
between BAMSI and other subsidiary banking institutions of BAC (the "Affiliate
Bank Processing Agreements"), (4) an Administrative Services Agreement of even
date herewith between the
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Bank and BAMSI (the "Administrative Services Agreement"), (5) a Trademark
License Agreement of even date herewith between BAC and BAMSI (the "License
Agreement"), (6) a Registration Rights Agreement to be entered into among BAMSI,
the Bank and BANW (the "Registration Rights Agreement"), and (7) a Tax
Allocation Agreement of even date herewith between BAC and BAMSI (the "Tax
Agreement"). The Corporate Opportunities Agreement, the Marketing Agreement,
the Affiliate Bank Processing Agreement, the Administrative Services Agreement,
the Trademark Agreement, the Registration Rights Agreement and the Tax Agreement
are herein collectively referred to as the "Related Agreements."
G. Sponsorship and Services. BAMSI and the Bank have concluded that it
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is in their mutual best interests for (1) the Bank to sponsor BAMSI as a member
of Visa and MasterCard, (2) BAMSI to act as an agent of the Bank for purposes of
providing data processing, settlement and authorization services for merchants
with respect to their Visa and MasterCard transactions, and (3) BAMSI to use the
Bank for certain banking relationships.
NOW, THEREFORE, in consideration of the premises, the representations,
acknowledgments, and mutual agreements set out in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties, BAMSI and the Bank agree as follows:
ARTICLE I
MERCHANT PROCESSING, SETTLEMENT
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AND AUTHORIZATION SERVICES
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1.1 Applicability of Article I. The Bank and BAMSI agree and acknowledge
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that, depending on various factors, including Merchant (as hereinafter defined)
location and the requirements of Visa or MasterCard rules and regulations, to
the extent such rules and regulations are applicable, BAMSI shall act as the
Bank's Member Service Provider (as defined in such rules and regulations) with
respect to certain Merchants in connection with the provision of Merchant
Processing Services (as hereinafter defined) and the provisions of this Article
I shall operate to govern such relationship.
1.2 Appointment as Agent. The Bank appoints BAMSI, and BAMSI agrees to
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serve, to the extent required or necessary under the Visa or MasterCard rules
and regulations or any official interpretations thereof, as the Bank's sole
agent (i) to provide authorization, processing and settlement services with
respect to credit, debit and charge card transactions under the Visa,
MasterCard, Diners Club, AMEX, JCB, Xxxxx Xxxxxxx, Discover, Interlink and other
programs ("Merchant Processing Services") to merchants who desire to receive
Merchant Processing Services from the Bank or BAMSI ("Merchants") and (ii) to
enter into contracts with merchants ("Merchant Contracts") for the provision of
Merchant Processing Services as agent of the Bank. The Bank agrees that BAMSI
may use the Bank's name and
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its BIN, ICA and any other Visa and MasterCard identification numbers to the
extent necessary or appropriate to perform the Merchant Processing Services.
1.3 Performance by BAMSI. BAMSI shall have full responsibility for the
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proper performance of the Merchant Processing Services under each Merchant
Contract except for the obligations and responsibilities which the Bank assumes
hereunder. Without limiting the foregoing, BAMSI shall provide authorization
services to the Merchants, perform data capture services with respect to all
credit, debit and charge card transactions by the Merchants, submit such data to
the applicable Interchange (as hereinafter defined), process retrievals and
chargebacks, and direct the settlement of such transactions. In providing
Merchant Processing Services, BAMSI agrees to comply with (i) all Visa and
MasterCard Bylaws, Manuals, Operating Regulations and other written materials as
they may from time to time be amended which bind or apply to the Bank as a
member of Visa and MasterCard with respect to Merchant Processing Services or to
BAMSI as a third party processor with respect to Merchant Processing Services
("Rules"), (ii) all agreements between Merchants and the Bank with respect to
Merchant Processing Services, and (iii) all applicable laws and regulations,
whether state or federal. BAMSI agrees to enter into any agreements with Visa
and MasterCard necessary to perform this Agreement in accordance with its terms,
subject to the rights of BAMSI to terminate this Agreement pursuant to
Section 6.2. Without in any way limiting the foregoing, BAMSI agrees as follows:
(a) any material containing any of the Visa Card Program Marks used by it in
performing this Agreement will prominently identify the Bank by name and city
adjacent to such marks and, in identifying BAMSI, will specify that BAMSI is
acting as agent or representative of the Bank; (b) any solicitation material
used by BAMSI shall clearly disclose that BAMSI is acting as agent or
representative of the Bank; and (c) BAMSI acknowledges that it does not have
authority to permit the use of Visa Card Program Marks by any of its own agents.
BAMSI and the Bank agree that the foregoing clauses shall be deemed modified
from time to time to reflect any changes in Visa's requirements applicable to
BAMSI's use of Visa Card Program Marks and solicitation material or to the terms
required herein.
1.4 Merchant Contracts. BAMSI, as agent of the Bank, shall be
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responsible for establishing the terms and conditions of the Merchant Contracts,
including all changes thereunder, subject to Section 1.7 below. Without in any
way limiting the authority granted in Section 1.1, the Bank hereby authorizes
BAMSI to use the Bank's name to the extent necessary or appropriate in
accordance with the terms of this Agreement to enter into and to renew Merchant
Contracts, to modify Merchant Contracts to the extent necessary to assign them
to the Bank, to perform the Merchant Contracts and to take other necessary or
appropriate actions with respect to the Merchant Contracts, all in accordance
with requirements of Visa and MasterCard. As between BAMSI and the Bank, BAMSI
shall be responsible for all credit, fraud and other risks associated with each
Merchant Contract.
1.5 Authorization Services. BAMSI, or its designated third parties,
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shall provide the Merchants with telephonic or electronic authorization for all
Visa and MasterCard transactions exceeding any floor amount specified pursuant
to such Merchant's contract.
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1.6 Processing and Submission to Interchange. BAMSI shall process all
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data received by it reflecting the Visa and MasterCard sales transactions and
any related return credits by the Merchants and shall submit to the applicable
Visa or MasterCard interchange networks ("Interchange") "Settlement Files"
reflecting such transactions and directing the applicable Interchange to pay the
net amount due to an account established by the Bank for the purpose of
receiving all settlement amounts paid by Visa and MasterCard with respect to the
transactions processed by BAMSI pursuant to this Agreement and effecting
appropriate payments to the Merchants and BAMSI in accordance with this
Agreement (the "Bank Account").
1.7 Account Settlement.
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(a) Payment Instructions. BAMSI shall prepare and transmit to the
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Bank, in a mutually acceptable format, instructions specifying the payments
to be made from the Bank Account to the Merchants and to BAMSI pursuant to
this Agreement (the "Payment Instructions"). Payment Instructions shall be
delivered to the Bank in accordance with the schedule and procedures
established from time to time by the parties.
(b) Payment. In accordance with the Payment Instructions, the Bank
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shall pay the Merchants on a timely basis the net settlement amounts due to
them and shall credit BAMSI's account at the Bank for the fees due to BAMSI
hereunder. Such payments to Merchants shall be effected through mutually
acceptable procedures which are consistent with the payment procedures
established pursuant to the Merchant Contracts. BAMSI shall perform on the
Bank's behalf all of the administrative and bookkeeping functions necessary
to effect payment in such manner.
1.8 Due Diligence by the Bank; BAMSI's Standards.
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(a) Due Diligence Prior to Execution of Agreement. Senior management
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officials of BAMSI have met with the Bank and have discussed with the Bank
officials the credit and financial review procedures and standards used by
BAMSI in deciding whether to accept or retain Merchants as customers for
Merchant Processing Services, as well as BAMSI's experience with respect to
any losses resulting from financial failures or fraud by its merchant
customers. Schedule A attached hereto outlines the credit and financial
review procedures and standards currently used by BAMSI.
(b) Continuing Due Diligence: BAMSI's Risk Standards. BAMSI shall
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keep the Bank advised of any material changes in the credit and financial
review procedures and standards and of any material exceptions to such
procedures and standards which may from time to time be made with respect
to particular Merchants. BAMSI shall not make any such changes or
exceptions until its senior management has approved such changes or
exceptions after carefully evaluating the relative advantages and
disadvantages
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expected to result from such changes or exceptions. BAMSI also shall
continue to advise the Bank on a timely basis with respect to any
substantial loss (meaning any loss of $1,000,000 or more in the aggregate
in any twelve month period) incurred by BAMSI as a result of any financial
failures or fraud by its merchant customers. If the Bank reasonably
determines from time to time that any changes are needed in BAMSI's credit
and financial review procedures and standards or in the implementation
thereof in order to avoid any significant increase in BAMSI's losses from
financial failures or fraud by its merchant customers, then the Bank shall
so notify BAMSI in writing, and BAMSI and the Bank shall mutually agree
upon, and BAMSI shall implement appropriate changes.
(c) Due Diligence by the Bank for BAMSI Pricing Standards. Senior
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management officials of BAMSI have met with the Bank and have discussed
with the Bank officials the pricing procedures and standards used for
Merchants as customers for Merchant Processing Services. BAMSI shall keep
the Bank advised of any material changes in its pricing procedures and
standards and of any material exceptions to such procedures and standards
which may from time to time be made with respect to particular Merchants.
BAMSI shall not make any such changes or exceptions until its management
committee has approved such changes or exceptions after carefully
evaluating the relative advantages and disadvantages expected to result
from such changes or exceptions. If the Bank reasonably determines from
time to time that any changes are needed in BAMSI's pricing procedures and
standards or in the implementation thereof, then the Bank shall so notify
BAMSI in writing, and BAMSI and the Bank shall mutually agree upon, and
BAMSI shall implement appropriate changes.
ARTICLE II
BANKING SERVICES
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2.1 Merchant Processing. As soon as practicable after the Effective Date
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BAMSI shall enter into agreements or make other mutually acceptable arrangements
with the Bank pursuant to which the Bank will provide those banking services
which are necessary for BAMSI to provide the Merchant Processing Services and
which the parties wish the Bank to provide.
2.2 Authority to Establish Bank Accounts. BAMSI shall have authority to
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establish at the Bank or any other mutually acceptable financial institution any
deposit accounts on behalf of the Bank as may be necessary to provide some or
all of the Merchant Processing Services contemplated by this Agreement for such
periods as the Bank and BAMSI agree. No provision of this Agreement authorizes
or shall be construed to authorize BAMSI to incur any debt to the Bank or any
other financial institution, or to create any overdraft, which the Bank is
obligated directly or indirectly to repay.
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2.3 Loans and Overdrafts. Nothing in this Agreement shall be deemed to
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create any obligation on the part of the Bank to loan or advance to BAMSI any
amounts in connection with Merchant Processing Services for any period of time.
ARTICLE III
FEES AND EXPENSES
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3.1 Charges to Merchants. As between BAMSI and the Bank, BAMSI shall
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receive all fees, discounts and other amounts payable by Merchants for Merchant
Processing Services with respect to Merchant Contracts.
3.2 Expenses. BAMSI shall bear all expenses of maintaining facilities
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and connections necessary to provide Merchant Processing Services, except for
the facilities and connection maintained by the Bank for purposes of effecting
payments pursuant to Section 1.6(b). In addition, BAMSI agrees to pay or
reimburse the Bank in full all interchange or issuer reimbursement fees on
outgoing merchant sales volume, as well as all fee assessments or charges
imposed on the Bank by Visa or MasterCard as a result of the Merchant Processing
Services performed by BAMSI. Such fees shall be paid by BAMSI directly when due
or shall be paid by BAMSI to the Bank on the banking day immediately prior to
the day on which the Bank must pay such fees. All such fees, assessments and
charges for which the Bank seeks payment by BAMSI shall upon request be
documented to BAMSI's reasonable satisfaction as being attributable to BAMSI's
Merchant Processing Services.
ARTICLE IV
INDEMNIFICATION
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4.1 Indemnification. BAMSI agrees to indemnify, defend and save the Bank,
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its directors, officers and employees harmless from all losses, claims,
judgments, awards, penalties, expenses and other amounts of any nature arising
out of:
(a) BAMSI's failure to perform this Agreement in accordance with its
terms including but not limited to the failure to pay expenses, charges and
other amounts in accordance with the provisions of this Agreement;
(b) the negligent exercise of or the exceeding by any Joint Officer of
the authority granted pursuant to this Agreement to act an officer of the
Bank; or
(c) the Bank's grant of authority to BAMSI pursuant to this Agreement.
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including, but not limited to, all court costs, investigation expenses and the
reasonable fees and expenses of separate counsel for the Bank selected by the
Bank, provided, however, that the Bank shall not be entitled to indemnification
as to amounts arising from the negligence or willful misconduct of the Bank.
ARTICLE V
COMPLIANCE MODIFICATIONS
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5.1 Compliance Modifications. In the event that:
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(a) the laws, rules and/or regulations or any official
interpretations thereof applicable to the Bank as a national bank or the
Visa or MasterCard rules and/or regulations or any official interpretations
thereof applicable to the Bank and the matters covered by this Agreement
are modified such that:
(i) Any modification in the relationship or transactions
contemplated hereby between the Bank and BAMSI or in the provisions of this
Agreement are needed to comply with any such laws, rules, regulations or
official interpretations thereof; or
(ii) some or all of the activities contemplated by this Agreement are
prohibited; or
(b) Visa or MasterCard requires, as a condition to performance of
this Agreement, that BAMSI enter into an agreement with Visa or MasterCard
that BAMSI considers unacceptable;
then at BAMSI's request, the parties will cooperate in making any modifications
to this Agreement and to the parties' relationship hereunder to the extent any
such modifications will permit BAMSI to continue processing, settling and
authorizing bankcard transactions (or continue performing some of such
functions) in compliance with the laws, rules, regulations or any official
interpretations thereof applicable to the Bank as a National Bank and the Visa
and MasterCard rules, regulations, and interpretations thereof and any
contractual terms required by Visa or Mastercard and acceptable to BAMSI (any
such modifications being referred to as "Compliance Modifications"), provided
that such Compliance Modifications are reasonable and are not unduly burdensome
to the Bank, and BAMSI reimburses the Bank for any additional costs reasonably
incurred by the Bank in connection with such Compliance Modifications.
5.2 Failure to Make Compliance Modification. If BAMSI does not request
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any Compliance Modifications or the parties cannot agree upon the terms of any
Compliance Modifications, then either party may terminate this Agreement upon
prior written notice to the other party effective at the later of: (a) the
deadline imposed by Visa or MasterCard for complying with any such rule,
regulation, official interpretation or contract requirement or
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(b) 120 days after actual notice to BAMSI of such rule, regulation,
interpretation or contract requirement.
ARTICLE VI
TERM AND TERMINATION
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6.1 Term. The term of this Agreement shall be five years commencing on
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the Effective Date and ending at the close of business on the fifth anniversary
of the Effective Date. This Agreement shall automatically renew for successive
one-year terms unless one party gives the other party written notice of non-
renewal at least six months prior to automatic renewal.
6.2 Termination. Either party may terminate this Agreement without
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penalty and without prejudice to any claims arising prior to termination as
follows:
(a) Upon the written agreement of both parties.
(b) Upon the other party's breach of this Agreement provided the
terminating party has given written notice of the breach to the other party
specifying the breach, the action necessary to cure the breach and the
breaching party has not cured the breach within 30 days after notice is
given of any failure by BAMSI to provide any funds required hereunder to be
provided by BAMSI to pay Merchants or within thirty business days after
notice is given of any other breach.
(c) By the Bank immediately upon BAMSI's voluntary filing of any
petition or complaint seeking relief under any federal or state bankruptcy
or other debt relief statute or upon any involuntary petition in bankruptcy
being filed against BAMSI if such petition is not dismissed within 90 days
after it is filed.
(d) By BAMSI immediately in the event that any agreements between the
Bank and Visa and/or MasterCard or the Bank's membership in either such
bankcard association shall be terminated or materially limited which
termination or material limitation would impair the ability of BAMSI to
authorize, process or settle merchant bankcard transactions.
(e) By the Bank in the event BAC and its affiliates (other than
BAMSI) beneficially own less than a majority of the voting power of the
outstanding common stock of BAMSI.
6.3 Survival. The provisions of Sections 2.3, 3.2, 4.1, 7.1 and 9.6 of
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this Agreement shall survive any termination. No termination shall prejudice
any claim or rights of any party which accrued prior to termination.
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ARTICLE VII
CONFIDENTIALITY
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7.1 Confidentiality. In performing this Agreement, each party will have
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access to confidential information of the other. Each party agrees to hold in
confidence and to instruct its employees and agents to hold in confidence all
information and materials, in whatever form, reasonably designated as
confidential by the party requesting confidentiality. BAMSI agrees to comply
with all laws and regulations relating to confidentiality of customer lists and
other information which are applicable to the Bank and its agents or to BAMSI.
The Bank agrees to comply with all contractual obligations of BAMSI actually
known to the Bank and all laws and regulations applicable to the Bank or BAMSI
relating to confidentiality of customer lists and other information.
ARTICLE VIII
NOTICES
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8.1 Notices. All notices which are required or permitted by this
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Agreement shall be in writing and shall be (i) delivered personally to the
designated addressee, (ii) sent by the United States Mail addressed to the
designated person by certified mail, return receipt requested, all postage
prepaid, or (iii) sent by overnight delivery service addressed to the designated
person, all charges prepaid, or (iv) by other means such as facsimile machine if
the designated addressee acknowledges receipt in writing. Notices shall be
addressed as follows:
If to BAMSI: XX Xxxxxxxx Services, Inc.
Xxx Xxxxx Xxx Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel #3710
If to the Bank: Bank of America NT & SA
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Corporate Secretary #3018
With a copy to: BankAmerica Corporation
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel #3017
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Notices personally delivered are given when received. Notices sent by United
States Mail, certified mail, return receipt requested, are given five business
days after delivery to the United States Postal Service unless prior actual
receipt by the addressee is proven. Notice sent by overnight delivery service
is deemed given one business day after delivery to and acceptance by overnight
delivery service for next day delivery. Notices sent by other means and
acknowledged are deemed given when acknowledged in writing.
ARTICLE IX
MISCELLANEOUS
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9.1 Headings. The headings are for information and are not part of this
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Agreement.
9.2 Entire Agreement, Modification. This Agreement and the attachments to
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it represent the entire agreement of the parties with respect to the subject
matter of the Agreement. This Agreement may not be modified except by a written
agreement which expressly refers to the Agreement and is signed by both parties.
9.3 Severability. If any section of this Agreement is deemed void illegal
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or unenforceable, that section shall be severed and the balance shalt remain in
effect.
9.4 Governing Law; Arbitration.
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(a) This Agreement and its interpretation shall be governed by the laws of
the State of California without regard to conflicts of laws rules.
(b) Any dispute, controversy or claim between the Bank and BAMSI arising
out of or relating to this Agreement, the Merchant Processing Services or any
agreements or instruments relating hereto or delivered in connection herewith,
will be resolved by arbitration conducted in San Francisco, California under the
auspices and according to the Commercial Arbitration Rules of the American
Arbitration Association. The arbitration shall be conducted in accordance with
the United States Arbitration Act (Title 9, U.S. Code), notwithstanding any
choice of law provision in this Agreement.
9.5 Binding Agreement, Assignment Prohibited. This Agreement shall bind
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the parties, their successors and permitted assigns. Neither party shall assign
this Agreement or any rights under it except with the prior written consent of
the other.
10.6 Supervision and Regulation. The Bank is an insured institution
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subject to regulation and supervision by the Office of the Comptroller of the
Currency (the "OCC") and various of the services under this Agreement may
constitute bank services under 12 U.S.C. (S)1867(c). To the extent required by
law or regulation, the parties will advise the OCC of the existence of this
Agreement and will cooperate with any examination which the OCC or any other
governmental regulatory agency may conduct in connection with this Agreement or
the services provided thereunder.
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10.7 Relationship. Nothing in this Agreement shall be deemed to create a
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partnership, joint venture or agency relationship between the parties. Both
parties are independent contractors and neither party is to be considered the
agent or legal representative of the other for any purpose whatsoever.
10.8. Third Party Beneficiaries. Except as expressly provided in this
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Agreement, the parties hereto intend that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person other than the
parties hereto.
10.9 Monitoring by the Bank. BAMSI shall admit properly identified and
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authorized the Bank employees and agents onto its premises for purposes of
monitoring BAMSI's compliance with this Agreement. It is understood that such
monitoring will occur during normal business hours, will be preceded by
reasonable notification to BAMSI, and must not interfere with BAMSI's normal
operations.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the Effective Date.
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice Chairman
XX XXXXXXXX SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
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