MERCHANT ASSET PURCHASE AGREEMENT
THIS MERCHANT ASSET PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 30th day of December 1997 by and between MBNA AMERICA
BANK, N.A., a national banking association ("MBNA") and NOVA INFORMATION
SYSTEMS, INC., a Georgia corporation ("NOVA"). For purposes of this Agreement,
capitalized terms used herein, unless otherwise defined herein, shall have the
meaning ascribed to such terms in the Definitional Supplement attached hereto as
Exhibit A (the "Definitional Supplement").
BACKGROUND AND PURPOSE:
A. MBNA is a party to certain Merchant Agreements with various Merchants,
who consist principally of retail and other providers of goods and services, and
is party to certain Affinity Agreements with various Affinity Associations
according to which agreements MBNA has agreed to provide certain services which
constitute MBNA's Merchant Business.
B. MBNA wishes to sell and transfer to NOVA all of its rights under the
Assigned Merchant Agreements , and MBNA wishes to sell and transfer to NOVA
certain other assets utilized in connection with the Merchant Business, and NOVA
is willing to accept such rights and assets and to assume the duties,
responsibilities and liabilities relating to certain rights under the Affinity
Agreements and under the Merchant Agreements with respect to its purchase of
the Merchant Business. MBNA and NOVA are willing and able, additionally, to
undertake and perform certain other obligations pursuant to and in connection
with this Agreement, subject to the terms and conditions hereof.
C. MBNA and NOVA will enter into a Marketing Agreement pursuant to which
NOVA will make quarterly payments to MBNA based upon the volume of business
generated from the Merchant Business. MBNA will also be paid a referral fee
under the Marketing Agreement for each new Merchant directly or indirectly
introduced to NOVA by MBNA. Additionally, as an integral part of the
transactions contemplated hereunder MBNA and NOVA will enter into a Non-
Competition Agreement.
THE AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which hereby are acknowledged, MBNA and NOVA hereby agree, on the terms and
conditions herein set forth, as follows:
ARTICLE I
ASSETS SOLD; ASSUMPTION OF LIABILITIES
1.1 SALE AND PURCHASE. On the terms and subject to the conditions set
forth in this Agreement, and effective as of December 31, 1997 (the "Effective
Date"), MBNA hereby sells, transfers and assigns to NOVA and NOVA hereby
purchases, assumes and accepts from MBNA, all right, title and interest of MBNA
in and to the following tangible and intangible assets and interests
(collectively, the "Assets Sold"):
all rights and interests of MBNA under the Assigned Merchant
Agreements arising on or after the Effective Date, and all books,
records and documents relating solely thereto (as further specified in
Section 1.5 hereof); for greater clarity such list will include,
without limitation, all Merchant Agreements with Affinity Merchants;
to the extent assignable by MBNA and/or as agreed by any Affinity
Association, the rights relating to the provision of and marketing of
Merchant Services under the Affinity Agreements arising on or after the
Effective Date subject to the terms and conditions set forth in the
Affinity Agreements (the "Assigned Affinity Rights", which are set
forth on Schedule 1.1(b)(i) attached hereto), and copies of the
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Affinity Agreements (as further specified in Section 1.5 hereof);
to the extent such Affinity Rights are not assignable, MBNA will use
commercially reasonable best efforts (consistent with maintaining a
positive relationship between MBNA and the Affinity Association) to
make sure that NOVA will have the ability to exercise, through MBNA
or otherwise as may be agreed by the parties, the Affinity Rights
relating to the Affinity Agreements, subject to the conditions and
exceptions outlined in the Affinity Agreements (each Merchant, (x)
that is a party to an Assigned Merchant Agreement as set forth in
Section 1.1(a) above, or (y) that is related to an Affinity
Association whose Assigned Affinity Rights are being transferred to
NOVA as set forth in Section 1.1(b), or (z) that is related to an
Affinity Association and Affinity Agreement as set forth in this
Section 1.1(c), being referred to herein collectively as an
"Assigned Merchant". The Assigned Merchants who have aprocessed
application as of November 30, 1997 are identified on Schedule
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1.1(c)). Schedule 1.1(c) shall be updated during the Transition
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Period to show each Assigned Merchant as of the Effective Date.);
an unlimited, perpetual, non-exclusive (provided that MBNA, its
affiliates or subsidiaries, shall not use for the benefit of
others, or grant to others any right to use the Software, for
Merchant Services), freely transferable and royalty free license to
use the Software. MBNA will provide the ancillary written
materials, to the extent owned by MBNA, necessary for NOVA to
construct an operating system to run the software which are set
forth on Schedule 1.1(d)(i). On the date mutually agreed by the
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parties as part of the conversion process, MBNA will provide a
complete copy of the current source code version of the Software
(and all documentation in the possession of MBNA relating thereto)
in the form or forms reasonably agreed to by the parties, which is
compatible or can be made compatible with the computer system being
used by NOVA and which, when compiled, will produce, along with the
necessary third party licensed materials, the object code version of
the software for use with the Merchant Business (the specifications
of the Software are set forth on Schedule 1.1(d)(ii), "Software
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Specifications"), attached hereto);
the VeriFone Rights, and copies of all books, records and documents
relating solely thereto (as further specified in Section 1.5
hereof); and
the goodwill of the Merchant Business as a going concern, to the
extent any such value may exist.
The parties hereto acknowledge that any assets of MBNA not specifically
mentioned above are excluded from the Assets Sold, including, without
limitation, the following (collectively, the "Excluded Assets"): (i) any rights
or interests in or to the Endorsements or any other rights or interests under
the Affinity Agreements other than the Assigned Affinity Rights; (ii) any right
or interest in MBNA's relationship with any Affinity Association under the
Affinity Agreements; (iii) any intellectual property of MBNA, including, without
limitation, any trademarks, service marks, registrations, patents, trade names,
copyrights or trade secrets, and any intellectual property rights of third
parties, including without limitation any licensed software applications and
products currently used in conjunction with the Software for which NOVA will
have to obtain their own license to use such materials from those third parties;
(iv) any equipment or interest in equipment (except for the VeriFone Rights);
(v) any books and records of MBNA not specifically and solely relating to the
Merchant Business; (vi) any rights or interests in the Excluded Programs; and
(vii) any claims or causes of action against any employee or any MBNA Merchant
arising from events occurring prior to the Effective Date.
1.2 TRANSFER AND ASSUMPTION OF ASSETS SOLD AND ASSUMED LIABILITIES. On
the Effective Date, NOVA shall assume all liability for the Assumed Liabilities
and agrees to pay, satisfy and discharge when due any obligation relating to
such Assumed Liabilities. Assumption of the Assumed Liabilities by NOVA, and
the assignment, transfer and conveyance of the Assets Sold by MBNA, shall be
effected by written instrument in the form of Exhibit 1.2(a) attached hereto
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(the "Assignment and Assumption Agreement"). In addition to the Assignment and
Assumption Agreement, the sale, conveyance, transfer, assignment and delivery of
the Assets Sold by MBNA to NOVA shall be effected by written instrument or
instruments in the form or forms attached hereto as Exhibit 1.2(b) (the
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"Transfer Documents").
1.3 LIABILITIES. Except as expressly assumed by NOVA in the Assignment and
Assumption Agreement, it is understood and agreed that NOVA shall not assume or
become liable for the payment of any debts, liabilities, losses, bank
indebtedness, mortgages, or other obligations of MBNA, any Assigned Merchant, or
any Affinity Association. In addition, NOVA shall not assume or become liable
for Credit Losses, charge backs, accounts payable, Affinity Association
compensation, interchange, or other merchant transaction charges, whether the
same are known or unknown, now existing or hereafter arising, of whatever nature
or character, whether absolute or contingent, liquidated or disputed, to the
extent any liability arises from merchant transactions or other acts or
omissions relating to the Merchant Business prior to the Effective Date;
provided, however, that in no event shall the wording of this Section 1.3 be
deemed to alter or modify in any way the definition of "Assumed Liabilities" or
the liabilities being assumed by NOVA pursuant to such definition.
1.4 CONSENT AND ASSIGNMENT.
(a) MBNA, to the extent necessary and in cooperation with NOVA, from
and after the Effective Date and during the Transition Period, shall use
commercially reasonable efforts to assist NOVA in obtaining, at NOVA's
expense, (i) the agreement of the Assigned Merchants and the Affinity
Associations to the continuation of the Merchant Business with NOVA under
the Assigned Merchant Agreements, the Affinity Agreements and/or the
Assigned Affinity Rights, as contemplated by this Agreement, (ii) the
consent of the Assigned Merchants, and the Affinity Associations, as
appropriate, to NOVA's conversion of the Assigned Merchants to such
clearing bank and merchant accounting system as NOVA may specify, and (iii)
the consent of the Assigned Merchants, and the Affinity Associations, as
appropriate, to NOVA's conversion of the Assigned Merchants to NOVA's
network. Any additional documentation, other than the Transfer Documents,
to be executed by MBNA, which NOVA currently deems to be required to
accomplish the goals set forth in this Section 1.4(a), has been provided by
NOVA as Exhibit 1.4(a).
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(b) Without limiting the generality of the foregoing, promptly
following the Closing, NOVA shall deliver to each of the Assigned
Merchants a notice, in a form mutually agreed upon by NOVA and MBNA, of the
assignment by MBNA, as of the Effective Date, of all rights in and to said
Assigned Merchant Agreements and the Assigned Affinity Rights to NOVA. The
notice shall be on the letterhead of MBNA. Such notice may inform each
Assigned Merchant of NOVA's intention to convert the Assigned Merchant to
NOVA's network, as well as to a clearing bank and merchant accounting
system designated by NOVA.
1.5 BOOKS AND RECORDS.
(a) As soon after the Closing Date as is practicable, and in no event
later than the conclusion of the Transition Period, MBNA shall cause to be
delivered to NOVA the "merchant file" for each of the Assigned Merchant
Agreements, which shall contain, at a minimum, (i) the original, executed
application or telemarketed faxed application for such Merchant, (ii) the
credit bureau report relating to such application and (iii) the credit
approval sign-off for such application and may contain other related
materials, including but not limited to the original, true, correct and
complete executed Merchant Agreement. Prior to the Closing Date, MBNA will
cause to be delivered to NOVA (I) either (i) the Affinity Agreement with
respect to any Assigned Affinity Rights or a copy of the Affinity Agreement
or a redacted version of the Affinity Agreement which contains all relevant
clauses relating to the rights and liabilities of the provider of Merchant
Services for the Affinity Merchants (such file will reference the exact
number of pages being delivered in such file, so that NOVA may check as to
completeness); and (II) the materials relating to the Merchant Business
attached hereto as Schedule 6.6(a) and the other schedules attached to this
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Agreement. In each case, however, the books and records relating to the
Assets Sold for the period prior to the Closing Date, wherever located,
that are held by a party hereto or under the control of a party hereto (the
"Inspected Party") shall be open for inspection by the other party, and
such other party's authorized agents and representatives and regulators
may, at such other party's own expense, make such copies of any excerpts
from such books, records and documents as it shall reasonably deem
necessary; provided, however, that any such inspection: (a) shall be
conducted upon at least three business days prior written notice, during
normal business hours from time to time reasonably established by the
Inspected Party, subject to the safety, security and operating procedures
of the Inspected Party, including but not limited to the party conducting
the inspection or any third party agent executing such confidentiality
agreements as the Inspected Party may reasonably request; (b) shall, if the
Inspected Party so requests, be conducted in the presence of an officer or
designated representative of the Inspected Party; and (c) provided that
nothing herein shall be deemed to grant to either the party conducting the
inspection or any other third party the right to inspect or review any
books, records or documents regarding such Inspected Party's general
operations or results or books records or documents which do not
specifically relate to the Merchant Business, and the Inspected Party may
segregate or delete such information and other information deemed by it to
be immaterial or irrelevant from such books, records and documents. If the
Operative Documents are terminated in accordance with Section 8.4 hereof,
any copies or excerpts or work product shall be returned or destroyed at
the request of the Inspected Party.
(b) All books and records relating to the Assets Sold shall be
maintained by NOVA, or MBNA, as the case may be, pursuant to their current
document retention policies and procedures. To the extent that a party
has given notice of the fact that it would require documents to be kept for
a longer period by the other party, to the extent feasible, as specified or
allowed by such party's policies and procedures, such books and records
shall be maintained (or, alternatively, delivered by the Inspected Party to
the other party) until the date, determined reasonably and in good faith,
specified for maintenance of such records in such notice.
ARTICLE II
CONSIDERATION FOR ASSETS SOLD; CLOSING
2.1 PURCHASE PRICE. As consideration for the Assets Sold, at the Closing,
NOVA shall pay to MBNA [*] (the "Purchase Price") by wire transfer (in
accordance with written wire transfer instructions to be provided by MBNA) in
immediately available funds.
2.2 CLOSING. Subject to the satisfaction or waiver of the conditions set
forth herein, the consummation of the purchase and sale of the Assets Sold (the
[*] CONFIDENTIAL TREATMENT REQUESTED.
"Closing") shall take place on December 30, 1997, or on such other date at such
other time and place as the parties shall agree in writing (the "Closing Date"),
to be effective as of the Effective Date, and shall take place through the
execution and exchange, via facsimile transmission, of this Agreement and the
Operative Documents. The parties acknowledge and agree that upon mutual
exchange and receipt of signature pages via facsimile, and upon receipt by MBNA
of the wire transfer hereby contemplated, this Agreement and the Operative
Documents delivered in connection herewith shall be deemed effective, and the
transactions hereby contemplated shall be deemed consummated, notwithstanding
any parties failure or refusal to deliver original (i.e. non-facsimile)
signature pages.
ARTICLE III
TRANSITION PERIOD
3.1 ORDERLY TRANSITION. MBNA and NOVA covenant and agree to cooperate
with each other using their commercially reasonable efforts, to effect an
orderly transition of the Merchant Business during the Transition Period in
respect of the Assets Sold and the Assumed Liabilities, including, but not
limited to, fulfilling their respective obligations under Section 1.4 hereof.
3.2 SERVICES DURING THE TRANSITION PERIOD.
(a) During the Transition Period, MBNA shall perform, on behalf of and
for the account of NOVA, at the same location(s) presently used to conduct
the Merchant Business, all of the services (the "Transition Services", as
are identified on Schedule 3.2 attached hereto). Upon prior notice to MBNA
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and with the prior consent of MBNA, which consent may not be unreasonably
withheld, NOVA may make reasonable adjustments to the Transition Services
which do not increase either MBNA's expenses or liabilities.
Notwithstanding anything to the contrary herein, MBNA shall be under no
obligation to increase the allocation or commitment levels of personnel or
resources used in performing the Transition Services beyond current
staffing and resource levels.
(b) MBNA shall perform the Transition Services substantially in the
same manner and with the same degree of care as performed in connection
with the Merchant Business prior to the Closing Date. Without limiting the
generality of the foregoing, during the Transition Period, MBNA shall
continue to provide credit to Assigned Merchants on the same business day
deposits are made by Assigned Merchants for Draft deposits (provided such
deposits are made prior to 2:00 p.m. closing; Draft deposits made after
2:00 p.m. closing shall be considered to be made on the following business
day) and on the day of receipt of ACH notice for Credit Card transactions
processed electronically. MBNA shall not be entitled to reimbursement for
its cost of funds in providing credit for Draft deposits.
(c) During the Transition Period, in performing services hereunder,
MBNA shall be in material compliance with the rules and regulations of the
Credit Card Associations and the EFT Networks, and MBNA shall not take, or
fail to take, any actions with respect to the Merchant Business which would
constitute a violation of such rules and regulations. The parties hereto
acknowledge that MBNA will not be updating or incurring any costs to modify
its existing electronic financial transaction processing equipment,
software or policies relating to the Merchant Business after the Effective
Date and, accordingly, MBNA will be responsible for, and shall pay, as
assessed by the Credit Card Associations and/or EFT Networks, any related
fines, penalties, adverse differences in interchange rates, or other
liabilities related to or arising from such omissions or other
noncompliance and its performance hereunder, arising prior to the
termination of the Transition Period.
3.3 REVENUE DURING THE TRANSITION PERIOD.
(a) In performing services during the Transition Period (and during any
extensions thereto pursuant to Section 3.6 hereof) on behalf of and for the
account of NOVA, MBNA shall, beginning on the Effective Date and continuing
throughout the Transition Period, collect (and pay in accordance with
Section 3.3(b) below), with respect to original sales transactions
occurring on or after the Effective Date, (i) revenue generated by the
Merchant Business, (ii) minus (A) interchange fees, assessments, Affinity
Association compensation, payments, Credit Losses and rebates, and (B)
MBNA's expenses incurred in connection with providing such services
(provided, however, that in no event shall MBNA charge NOVA such expenses
in excess of [*] per transaction processed) (iii) plus a credit to such
expenses on behalf of NOVA of [*] per month during the Transition Period,
not to exceed an aggregate total credit of [*] (and to the extent
necessary, any amount remaining of the aggregate total of [*] shall be
credited in the last month of the Transition Period) (collections, net of
expenses, as modified by credits, is referred to collectively herein as
"Revenue"). With respect to clause 3.3(a)(ii)(B), to the extent MBNA's
actual expenses during the Transition Period are reduced to a level that
would be less than the [*] per transaction cap as provided therein, MBNA
shall give NOVA the benefit of any corresponding reduction.
(b) In connection with the Transition Period, MBNA shall pay to NOVA
monthly, by the last business day of each such month, the Revenue generated
during the immediately preceding month (each a "Payment Date"). Revenue
shall include all original sales transactions and all other revenue
generated by the Merchant Business occurring on or after the Effective Date
during the Transition Period. MBNA's obligation to make a payment to NOVA
on the Payment Dates shall continue until all Revenue generated during the
Transition Period is paid to NOVA.
(c) At the time of each payment by MBNA to NOVA pursuant to Section
3.3(b) above, or as soon thereafter as is practicable, MBNA shall furnish
to NOVA an invoice in the form attached as Schedule 3.3(c) identifying all
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expenses that have been withdrawn from Revenue for MBNA's expenses, the
required credits and the amount due to NOVA, and a certificate of an
authorized financial officer of MBNA certifying the withdrawn expenses, the
credits and the amount due to NOVA and showing the calculation thereof.
3.4 EMPLOYEES. MBNA shall use commercially reasonable efforts to provide
adequate and appropriately skilled staffing in connection with the operation of
the Merchant Business during the Transition Period. It is acknowledged by the
parties that as NOVA is scheduled to assume servicing responsibilities for the
Merchant Services during the Transition Period, MBNA shall be entitled to
decrease its staffing commitments (provided that the failure by NOVA to assume
servicing responsibilities as scheduled is not attributable to MBNA). NOVA will
not make any offer of employment to, or actively solicit any employees of MBNA
or its affiliates to take positions at NOVA, until the Transition Period
terminates.
CLEARING BANK ARRANGEMENT.
(a) In order to permit an orderly transition of the processing of
Credit Card transactions during the Transition Period, MBNA shall continue
to act as a clearing bank for NOVA with respect to Credit Card transactions
processed under the Assigned Merchant Agreements, all in material
accordance with the rules and regulations of the Credit Card Associations
and the EFT Networks, such responsibility to terminate on or prior to the
Transition Date.
(b) NOVA shall at its own expense prepare, and after good-faith
consultation with MBNA, MBNA shall execute reasonably drafted documents
which are non recourse with respect to transactions occurring on or after
the assignment of the clearing responsibilities, to evidence the transfer
of the clearing bank responsibilities under the Assigned Merchant
[*] CONFIDENTIAL TREATMENT REQUESTED.
Agreements to the person designated by NOVA to effect such transfer. In
addition, MBNA shall render such other necessary assistance as NOVA may
reasonably request, at NOVA's sole expense. NOVA shall choose a clearing
bank which in NOVA's reasonable judgment is not a competitor of MBNA's and
can perform any required functions (a "Permitted Clearing Bank"), provided,
however, that in any event, each of Bank of America, Firstar Bank, First
Union, KeyCorp and Regions Bank (and their respective affiliates and
subsidiaries) are and shall be deemed by the parties hereto to be Permitted
Clearing Banks. MBNA shall use commercially reasonable efforts to provide
to NOVA all information necessary for such transfer (for example, a
Merchant Master File Dump on disk in ASCII format).
3.6 EXTENSION OF TRANSITION PERIOD. If requested by NOVA in writing at
least fifteen (15) days prior to the Transition Date, MBNA shall continue to
provide any of the services described in this Article III as are requested by
NOVA beyond the Transition Date, on the same terms and conditions set forth
herein, for up to thirty days after the Transition Date, as specified in such
written notice.
3.7 TAXES. NOVA will be liable for any transfer (including sale and use)
taxes associated with the transfer of the Assets Sold. All other Taxes will be
borne by the party to whom the taxing authority imposes ultimate liability.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS OF MBNA
4.1 CONFIDENTIALITY OF INFORMATION. On and after the date hereof, MBNA
and its officers, employees, agents, assigns, affiliates and representatives
shall treat all information, books and records, originals or copies of books or
records which are retained or obtained by it pursuant to Section 1.5, and all
information learned or obtained about the Business or relating to the Merchant
Business, as confidential and will not disclose such information to third
parties except as required by law, as needed in connection with a lawsuit,
claim, litigation or other proceeding or in connection with tax or regulatory
matters and except to the extent that such information is already in the public
domain, or subsequently enters the public domain, other than as a result of the
breach of MBNA's obligations under this Section 4.1. MBNA and its officers,
employees, agents and representatives shall not use the information described in
this Section 4.1 in any manner that might reasonably be anticipated to adversely
affect the Merchant Business or NOVA's relations with the Assigned Merchants or
with other persons or entities (except that if a partial repurchase under
Section 8.4 occurs or if a repurchase and termination of this Agreement under
Section 8.5 occurs, MBNA may use such information and treat it as it would in
the ordinary course of its business, as currently conducted).
4.2 NOTICE OF BREACH OR POTENTIAL BREACH. MBNA shall promptly notify NOVA
of any change, circumstance or event which may prevent MBNA from complying with
any of its obligations hereunder.
4.3 FURTHER ASSURANCES. On and after the Closing Date, MBNA shall (i)
give such further assurances to NOVA and execute, acknowledge and deliver all
such acknowledgments and other instruments and take such further action as NOVA
may reasonably request to effectuate the transactions contemplated by this
Agreement, including the transfer of the Assets Sold and the assumption by NOVA
of the Assumed Liabilities, and (ii) use commercially reasonable efforts to
assist NOVA in the orderly transition referred to in Article III. All expenses
incurred by MBNA in complying with NOVA's requests pursuant to this Section 4.3
shall be reimbursed to MBNA by NOVA.
4.4 SCHEDULE UPDATES. MBNA agrees to update the Schedules identified on
Schedule 4.4 attached hereto within 90 days of the expiration of the Transition
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Period.
4.5 COLLECTIONS. During the first 180 days following the Transition Date,
MBNA shall use commercially reasonable efforts to assist NOVA, at NOVA's
request, in processing amounts in respect of any charge-back or other Credit
Loss received or identified in connection with the Merchant Business and
relating to or arising out of any original sales transaction occurring on or
after the Effective Date. NOVA shall reimburse MBNA and be responsible for all
costs and expenses relating to such collection efforts, including costs and
expenses of collection letters, litigation, arbitration proceedings and similar
actions.
4.6 POST-TRANSITION PROCESSING. MBNA covenants and agrees that:
(a) MBNA shall, for the period beginning upon the expiration of the
Transition Period, and continuing until the effective date of the
expiration or termination of the Marketing Agreement (the "Post-Transition
Period"), and unless otherwise agreed upon in writing by NOVA and MBNA,
accept Drafts from all MBNA Merchants, and only such MBNA Merchants, whose
Merchant Agreements permit Draft deposits, as well as from any Merchants
(whose Merchant Agreements permit Draft deposits) which are referred by
MBNA to NOVA pursuant to the Marketing Agreement. Such Drafts shall be
handled in accordance with NOVA's reasonable instructions, including using
commercially reasonable efforts to ship each day's batches of Drafts at the
end of the business day (or such other periodic delivery as may be agreed
upon by the parties), via overnight courier delivery to the draft capture
vendor designated by NOVA, the expense of such shipment to be paid by NOVA
(collectively, the "Overnight Delivery Obligation"). Both parties
acknowledge that MBNA will not be deemed in breach of this Agreement with
respect to its Overnight Delivery Obligation to the extent that 90% or more
(as measured by total volume over time) of the Drafts are sent to the draft
capture vendor designated by NOVA within three business days of receipt by
MBNA; and
(b) MBNA, throughout the Post-Transition Period, shall use NOVA and a
principal member designated by NOVA as the exclusive processor of Cash
Advance Transactions made by MBNA; and
MBNA shall receive no additional remuneration from NOVA, beyond the
payments due MBNA under the Marketing Agreement, in connection with the
performance of the services set forth in this Section 4.6.
4.7 AFFINITY AGREEMENTS. MBNA covenants and agrees that it shall not
amend any Affinity Agreement in any way that may alter NOVA's rights and
obligations, performance, related or otherwise, under the Affinity Agreements,
or that may increase or alter NOVA's liability or expense, other than upon
NOVA's prior written consent (which consent shall not be unreasonably withheld
or delayed).
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS OF NOVA
5.1 CONFIDENTIALITY OF INFORMATION. On and after the date hereof, NOVA
and its officers, employees, agents, assigns, affiliates and representatives
shall treat all information learned, or obtained prior to the date of this
Agreement or during the Transition Period pursuant to Section 1.5 about MBNA's
businesses, other than the Merchant Business (except that to the extent a
Portfolio Repurchase is consummated pursuant to Section 8.4, information about
the Merchant Business shall be kept confidential by NOVA and its officers,
employees, agents, assigns, affiliates and representatives), as confidential and
will not disclose such information to third parties except as required by law,
as needed in connection with a lawsuit, claim, litigation or other proceeding or
in connection with tax or regulatory matters and except to the extent that such
information is already in the public domain, or subsequently enters the public
domain, other than as a result of the breach of NOVA's obligations under this
Section 5.1. NOVA and its officers, employees, agents, and representatives
shall not use the information described in this Section 5.1 in any manner that
might reasonably be anticipated to materially adversely affect MBNA's financial
condition, business, prospects or agreements or arrangements with any other
person or entity, including, without limitation, any affinity relationship.
5.2 NOTICE OF BREACH OR POTENTIAL BREACH. NOVA shall promptly notify MBNA
of any change, circumstance or event which may prevent NOVA from complying with
any of its obligations hereunder.
5.3 FURTHER ASSURANCES. On and after the Closing Date, NOVA shall (i)
give such further assurances to MBNA and execute, acknowledge and deliver all
such acknowledgments and other instruments and take such further action as MBNA
may reasonably request to effectuate the transactions contemplated by this
Agreement, including the transfer of the Assets Sold and assumption of the
Assumed Liabilities and (ii) use commercially reasonable efforts to assist MBNA
in the orderly transition referred to in Article III. All expenses incurred by
NOVA in complying with MBNA's requests pursuant to this Section 5.3 shall be
reimbursed to NOVA by MBNA.
5.4 COLLECTIONS. During the first 180 days following the Transition Date,
NOVA shall use commercially reasonable efforts to assist MBNA, at MBNA's
request, in processing amounts in respect of any charge-back or other Credit
Loss received or identified in connection with the Merchant Business and
relating to or arising out of any original sales transaction occurring prior to
the Effective Date. MBNA shall reimburse NOVA and be responsible for all costs
and expenses relating to such collection efforts, including costs and expenses
of collection letters, litigation, arbitration proceedings and similar actions.
5.5 PRICING; NOTIFICATION. With respect to the activities set forth on
Schedule 5.6, NOVA agrees that until April1, 1999, it will not assess any
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additional fees or charges for such services (other than "pass-through" fees
imposed or increased by any Payment Network) and will provide them to customers
of the Merchant Business free of charge. NOVA further agrees that it will
comply with all required notifications of pricing changes as required pursuant
to the Affinity Agreements.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF MBNA
MBNA hereby makes the following representations and warranties to NOVA as
of the date hereof and as of the Effective Date:
6.1 ORGANIZATION. MBNA is a national banking association duly chartered
under the laws of the United States of America and is authorized to conduct the
Merchant Business as presently conducted under applicable law.
6.2 AUTHORITY. MBNA has the right, power, capacity and authority to enter
into and deliver the Operative Documents, to perform its obligations under the
Operative Documents, and to effect the transactions contemplated by the
Operative Documents, and no other person or entity has any interest in the
Merchant Business, the Assigned Merchant Agreements (other than the Assigned
Merchants pursuant to the Assigned Merchant Agreements), the VeriFone Agreements
(other than VeriFone pursuant to the VeriFone Agreements), or the Affinity
Agreements (other than the Affinity Associations (or their members) pursuant to
the Affinity Agreements). The execution, delivery and performance of the
Operative Documents have been approved by all requisite corporate action on the
part of MBNA, and when executed and delivered pursuant hereto, the Operative
Documents will constitute valid and binding obligations of MBNA subject as to
enforceability to bankruptcy, insolvency, conservatorship, receivership and
other laws of general applicability relating to or affecting creditor's rights,
principles of good faith and fair dealing, and to general equity principles.
6.3 GOVERNMENT NOTICES. MBNA has not received notice from any federal,
state or other governmental agency or regulatory body indicating that such
agency or regulatory body would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions contemplated by the
Operative Documents.
6.4 NO VIOLATIONS.
(a) The execution and delivery by MBNA of the Operative Documents, and
its performance thereunder, will not (i) violate, conflict with, result in
a breach of or constitute (with or without notice or lapse of time or both)
a default under any material agreement, indenture, mortgage or lease to
which MBNA is a party or by which MBNA or its properties, or the Merchant
Business, are bound; (ii) constitute a violation by MBNA of any law or
government regulation applicable to MBNA or the Merchant Business; (iii)
violate any provision of the Charter or Bylaws (or similar governing
documents) of MBNA; or (iv) to MBNA's knowledge, violate any order,
judgment, injunction or decree of any court, arbitrator or governmental
body against or binding upon MBNA or the Merchant Business.
(b) With respect to its Merchant Business, MBNA is not, has not been
and to MBNA's knowledge will not be (by virtue of any past or present
action, omission to act, contract to which they are a party or any
occurrence or state of facts whatsoever) in violation of any applicable
local, state or federal law, ordinance, regulation, order, injunction or
decree, or any other requirement of any governmental body, agency or
authority or court binding on it, or relating to its property or business
(including any antitrust laws and regulations).
6.5 ASSETS SOLD. MBNA is the owner of all rights, title and interest in
and to the Assets Sold, free and clear of all title defects, objections,
assignments, liens, encumbrances of any nature whatsoever, restrictions,
security interests, rights of third parties, or other liabilities, and has good
and valid title to the Assets Sold.
6.6 DUE DILIGENCE INFORMATION; DISCLOSURE.
(a) The financial and other information concerning the Merchant
Business (including the federal employer identification number of MBNA)
attached hereto as Schedule 6.6(a) (collectively, the "Due Diligence
---------------
Information") is true, accurate, and complete in all material respects as
of and for the periods indicated, and fairly presents the financial
condition of MBNA's Merchant Business in respect of the Assets Sold;
provided, however, and without limiting the foregoing, with respect to the
agreements included in the Due Diligence Information (including but not
limited to the VeriFone Agreements), all such copies are true, accurate and
complete. Since September 30, 1997, there has been no material adverse
change in the Merchant Business.
(b) No employee or representative of MBNA, or any of its agents
intentionally misled or intentionally made an untrue assertion in any
statement or description provided by such persons, contained in any
documents delivered to NOVA by MBNA prior to the Effective Date, in
connection with the series of transactions contemplated hereby.
6.7 AGREEMENTS RELATING TO THE MERCHANT BUSINESS.
(a) MBNA is in compliance with (and would not be in default upon
notice, lapse of time or both) (i) the provisions of the Assigned Merchant
Agreements, a complete list of which is set forth on Schedule 1.1(b)(ii),
-------------------
and (ii) the Affinity Agreements delivered in accordance with Section 1.5.
Schedule 6.7(a)(ii) sets forth a listing of the Affinity Agreements,
-------------------
including the Affinity Association address, city, state, the expiration
date of the Affinity Agreements, the compensation owed to groups by NOVA
with respect to processing of merchant transactions, price-change
notification requirements, and the minimum discount with respect to which
NOVA must comply. True, correct and complete copies of each of the
Affinity Agreements have been delivered by MBNA to NOVA pursuant to Section
1.5. MBNA does not have knowledge, and has not received any notice of,
fraud by, or bankruptcy or contemplated bankruptcy of, any party to any of
the Assigned Merchant Agreements or Affinity Agreements and has not
received any notice of default or adverse comment from any regulatory
authority in respect of any of the Assigned Merchant Agreements or Affinity
Agreements. Except as set forth on Schedule 6.7(a)(iii), MBNA has not
--------------------
given or received notice of election to terminate any of the Assigned
Merchant Agreements or Affinity Agreements. Except as set forth on
Schedule 6.7(a)(iv), all Assigned Merchants which are parties to the
-------------------
Assigned Merchant Agreements currently process Credit Card transactions
pursuant to the Assigned Merchant Agreements.
(b) All agreements between MBNA and the Assigned Merchants are in the
form of one of the Standard Merchant Contracts (with attached buck slip
amendment, if applicable), attached hereto as Exhibit 6.7(b), and are
--------------
freely assignable by MBNA without the consent of the applicable Assigned
Merchant or any other party.
(c) Except as set forth on Schedule 6.7(a)(ii), which sets forth each
-------------------
Affinity Agreement, MBNA has no agreements, written or oral, with any agent
bank, other association, institution, independent sales organization, or
any other third party which provides for any one or more of the following:
(i) the deposit of Credit Card transaction records; (ii) the settlement of
Credit Card transactions; (iii) the processing of Credit Card transactions;
or (iv) the referral of merchants to MBNA by such groups.
(d) Except for disputes that have arisen in the ordinary course of
business and as disclosed on Schedule 6.7(d), MBNA is not engaged in any
---------------
dispute with any Assigned Merchant or Affinity Association. MBNA does not
have any reason to believe, and has not received any notice, written or
oral, that the consummation of the transactions contemplated hereunder will
have any adverse effect on the business relationship of MBNA with any
Assigned Merchant or Affinity Association, except as disclosed on Schedule
--------
6.7(d).
------
(f) MBNA is a member in good standing of the Credit Card Associations.
MBNA (and the Merchant Business as conducted by MBNA) are in material
compliance with all applicable rules and regulations and certification
requirements of the Credit Card Associations, including but not limited to
applicable "Year 2000" certification requirements.
6.8 ASSIGNED MERCHANTS' CREDIT. The Assigned Merchants listed on Schedule
--------
6.8 are the one hundred twenty five (125) Assigned Merchants with the highest
---
dollar value of Credit Card transactions processed during the eleven (11) month
period ending November 30, 1997.
6.9 OTHER CONSENTS AND APPROVALS.
(a) Except for approval under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act and as set forth on Schedule 6.9, no action of, or filing
------------
with, any governmental or public body is required by MBNA to authorize, or
is otherwise required in connection with, the execution and delivery by
MBNA of this Agreement or the other Operative Documents or, if required,
the requisite filing has been accomplished and all necessary approvals
obtained.
(b) Except for approval under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act and as set forth on Schedule 6.9, no filing, consent or
------------
approval is required by virtue of the execution hereof or any other
Operative Document by MBNA or the consummation of any of the transactions
contemplated herein by MBNA to avoid the violation or breach of, or the
default under, or the creation of a lien on any of the Assets Sold pursuant
to the terms of, any law, regulation, order, decree or award of any court
or governmental agency or any lease, agreement, contract, mortgage, note,
license, or any other instrument to which MBNA is a party or to which it or
any of the Assets Sold is subject.
6.10 INTELLECTUAL PROPERTY. Except with respect to the Software (and as
set forth in Section 6.18 hereof) there are no trademarks, service xxxx
registrations, patents, trade names, copyrights, trade secrets or other
intellectual property belonging to MBNA which will be transferred with the
Merchant Business.
6.11 LITIGATION AND CLAIMS. Schedule 6.11 attached hereto: (i) sets
-------------
forth all material litigation, claims, suits, actions, investigations,
indictments, proceedings or arbitrations, grievances or other procedures
(including grand jury investigations, actions or proceedings, and product
liability and workers' compensation suits, actions or proceedings, and
investigations conducted by any Credit Card Association) that are pending, or to
the knowledge of MBNA, threatened, in or before any court, commission,
arbitration tribunal, or judicial, governmental or administrative department,
body, agency, administrator or official, grand jury, Card Association, or any
other entity or forum for the resolution of grievances, against MBNA and
relating in any way to the Merchant Business (collectively "Claims"), and (ii)
indicates which of such Claims are being defended by an insurance carrier, and
which of such Claims being so defended are being defended under a reservation of
rights. MBNA has made available to NOVA true, correct and complete copies of
all pleadings, briefs and other documents filed in each pending litigation,
claim, suit, action, investigation, indictment or information, proceeding,
arbitration, grievance or other procedure listed in Schedule 6.11, and the
-------------
judgments, orders, writs, injunctions, decrees, indictments and information,
grand jury subpoenas and civil investigative demands, plea agreements,
stipulations and awards listed in Schedule 6.11.
-------------
6.12 EFT NETWORKS. MBNA is a member in good standing of the electronic
funds transfer networks identified on Schedule 6.12 attached hereto (the "EFT
-------------
Networks").
6.13 REQUIRED LICENSES AND PERMITS. Except as set forth on Schedule 6.13,
-------------
no material licenses, permits or other authorizations of governmental
authorities are necessary for the conduct of the Merchant Business by MBNA.
6.14 AGREEMENTS, CONTRACTS AND COMMITMENTS. Except for the agreements
included in the Due Diligence Information or specifically identified in Sections
6.7 and 6.16 (or the corresponding Schedules):
(a) MBNA does not have any agreement, contract, commitment or
relationship, whether written or oral, related to the Merchant Business;
(b) MBNA does not have any material outstanding contract related to the
Merchant Business, written or oral, with any officer, employee, agent,
consultant, advisor, salesman, manufacturer's representative, distributor,
dealer, subcontractor, or broker that is not cancelable by MBNA, on notice
of not longer than thirty (30) days and without material liability, penalty
or premium of any kind, except liabilities which arise as a matter of law
upon termination of employment, or any agreement or arrangement related to
the Merchant Business providing for the payment of any bonus or commission
based on sales or earnings;
(c) Except for the Non-Competition Agreement to be executed
contemporaneously with this Agreement, MBNA is not subject to any contract
or agreement related to the Merchant Business containing covenants limiting
the freedom of MBNA to compete in any line of business in the United States
of America; and
(d) With respect to the Merchant Business, there is no contract,
agreement or other arrangement entitling any person or other entity to any
profits, revenues or cash flows of MBNA or requiring any payments or other
distributions based on such profits, revenues or cash flows.
6.15 AGREEMENTS IN FULL FORCE AND EFFECT. Except as expressly set forth
in Schedule 6.15, all contracts and agreements referred to, or required to be
-------------
referred to, herein or in any Schedule delivered hereunder are valid and
binding, and are in full force and effect and are enforceable in accordance with
their terms, except as enforcement may be limited by (i) bankruptcy, insolvency,
moratorium or other laws or regulations, in effect now or in the future, that
affect enforcement of creditors rights generally, (ii) an implied covenant of
good faith and fair dealing, and (iii) principles of equity. MBNA has not
received notice of any pending or threatened bankruptcy, insolvency or similar
proceeding with respect to any party to such agreements, and no event has
occurred which (whether with or without notice, lapse of time or the happening
or occurrence of any other event) would constitute a default thereunder by MBNA,
or to the knowledge of MBNA, any other party thereto.
6.16 VENDORS AND SUPPLIERS. Schedule 6.16 sets forth a complete and
-------------
accurate list of each supplier to MBNA of goods and services directly related
to the Merchant Business that charged, billed or invoiced MBNA in excess of
$25,000 during the 1997 calendar year to date. MBNA has provided to NOVA true
and correct copies of all agreements and contracts between MBNA and any of the
persons and entities listed on Schedule 6.16.
-------------
6.17 ABSENCE OF CERTAIN CHANGES AND EVENTS. Except as set forth in
Schedule 6.17, since September 30, 1997, MBNA has not altered or modified its
-------------
policies and procedures as used in the Merchant Business in a manner which would
likely result in an adverse effect to the Merchant Business, taken as a whole,
and has otherwise conducted its Merchant Business only in the ordinary course.
6.18 MERCHANT ACCOUNT SYSTEM SOFTWARE LICENSE. Except as set forth on
Schedule 6.18, MBNA owns all copyrights and all other necessary proprietary
-----------
rights in the Software and has the right to grant the License to NOVA set forth
in Section 1.1(d). MBNA has not received any notice that the Software conflicts
with any rights of any third party and has no knowledge of any basis for such
conflict. The software conforms in all material respects to the performance and
other specifications set forth on Schedule 1.1(d). Except as set forth in
----------------
Schedule 6.18, the Software nor any of its elements or the license granted to
-------------
NOVA does not or will not violate or infringe upon any patent copyright or other
proprietary right of any other person or entity.
6.19 FINDER'S FEES. MBNA represents and warrants that it has not made
any commitment or done any act that would create any liability to any person
other than itself for any brokerage, finder's or similar fee or commission in
connection with this Agreement or the transactions contemplated hereby.
6.20 NEGATIVE REPRESENTATIONS. MBNA's Merchant Business does not involve
or include (i) the acceptance of "debit card" transaction records, (ii)
guaranties from principals or third parties of or related to any Assigned
Merchant, or (iii) the maintenance by any Assigned Merchant with MBNA, or on
MBNA's behalf, of reserve accounts.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF NOVA
NOVA makes the following representations and warranties to MBNA as of the
date hereof and as of the Effective Date:
7.1 ORGANIZATION. NOVA is a corporation duly organized and validly
existing under the laws of the State of Georgia and is authorized to conduct its
business under applicable laws.
7.2 AUTHORITY. NOVA has the right, power, capacity and authority to enter
into and deliver the Operative Documents, to perform its obligations under the
Operative Documents, and to effect the transactions contemplated by the
Operative Documents. The execution, delivery and performance of the Operative
Documents have been approved by all requisite corporate action on the part of
NOVA, and when executed and delivered pursuant hereto, the Operative Documents
will constitute valid and binding obligations of NOVA subject as to
enforceability to bankruptcy, insolvency, conservatorship, receivership and
other laws of general applicability relating to or affecting creditor's rights,
principles of good faith and fair dealing, and to general equity principles.
7.3 GOVERNMENTAL NOTICES. NOVA has not received notice from any federal,
state or other governmental agency or regulatory body indicating that such
agency or regulatory body would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions contemplated by the
Operative Documents.
7.4 NO VIOLATIONS.
(a) The execution and delivery by NOVA of the Operative Documents and
its performance thereunder will not: (i) violate, conflict with, result in
a breach of or constitute (with or without notice or lapse of time or both)
a default under, any material agreement, indenture, mortgage or lease to
which NOVA is a party or by which it or its properties are bound; (ii)
constitute a violation by NOVA of any law or governmental regulation
applicable to NOVA; (iii) violate any provision of the Articles of
Incorporation or Bylaws of NOVA; or (iv) to NOVA's knowledge, violate any
order, judgment, injunction or decree of any court, arbitrator or
governmental body against or binding upon NOVA.
(b) With respect to its Business, NOVA is not, has not been and to
NOVA's knowledge will not be (by virtue of any past or present action,
omission to act, contract to which they are a party or any occurrence or
state of facts whatsoever) in violation of any applicable local, state or
federal law, ordinance, regulation, order, injunction or decree, or any
other requirement of any governmental body, agency or authority or court
binding on it, or relating to its property or business (including any
antitrust laws and regulations).
7.5 OTHER CONSENTS AND APPROVALS.
(a) Except for approval under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act and as set forth on Schedule 7.5, no action of, or filing
------------
with, any governmental or public body is required by NOVA to authorize, or
is otherwise required in connection with, the execution and delivery by
NOVA of this Agreement or the other Operative Documents or, if required,
the requisite filing has been accomplished and all necessary approvals
obtained.
(b) Except for approval under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act and as set forth on Schedule 7.5, no filing, consent or
------------
approval is required by virtue of the execution hereof or any other
Operative Document by NOVA or the consummation of any of the transactions
contemplated herein by NOVA to avoid the violation or breach of under any
law, regulation, order, decree or award of any court or governmental
agency, or any lease, agreement, contract, mortgage, note, license, or any
other instrument to which NOVA is a party or is subject.
7.6 LITIGATION AND CLAIMS. Schedule 7.6 attached hereto: (i) sets forth
------------
all material litigation, claims, suits, actions, investigations, indictments,
proceedings or arbitrations, grievances or other procedures (including grand
jury investigations, actions or proceedings, and product liability and workers'
compensation suits, actions or proceedings, and investigations conducted by any
Credit Card Association) that are pending, or to the knowledge of NOVA,
threatened, in or before any court, commission, arbitration tribunal, or
judicial, governmental or administrative department, body, agency, administrator
or official, grand jury, Card Association, or any other entity or forum for the
resolution of grievances, against NOVA and relating in any way to the Business
(collectively "Claims"), and (ii) indicates which of such Claims are being
defended by an insurance carrier, and which of such Claims being so defended are
being defended under a reservation of rights. NOVA has made available to MBNA
true, correct and complete copies of all pleadings, briefs and other documents
filed in each pending litigation, claim, suit, action, investigation, indictment
or information, proceeding, arbitration, grievance or other procedure listed in
Schedule 7.6, and the judgments, orders, writs, injunctions, decrees,
------------
indictments and information, grand jury subpoenas and civil investigative
demands, plea agreements, stipulations and awards listed in Schedule 7.6.
------------
7.7 EFT NETWORKS. NOVA is a member in good standing of the electronic
funds transfer networks identified on Schedule 7.7 attached hereto (the "EFT
------------
Networks").
7.8 REQUIRED LICENSES AND PERMITS. Except as set forth on Schedule 7.8
------------
attached, hereto, no material licenses, permits or other authorizations of
governmental authorities are necessary for the conduct of the Business by NOVA.
7.9 DISCLOSURE. No employee or representative of NOVA, or any of its
agents intentionally misled or intentionally made an untrue assertion in any
statement or description provided by such persons, contained in any documents
delivered by NOVA to MBNA prior to the Effective Date in connection with the
series of transactions contemplated hereby.
7.10 FINDER'S FEES. NOVA represents and warrants that it has not made any
commitment or done any act that would create any liability to any person other
than itself for any brokerage, finder's or similar fee or commission in
connection with this Agreement or the transactions contemplated hereby.
ARTICLE VIII
COVENANTS OF THE PARTIES
MBNA and NOVA hereby covenant and agree as follows:
8.1 CREDIT CARD ASSOCIATION FILINGS. NOVA shall file with the Credit Card
Associations and the EFT Networks any document or information that each such
Credit Card Association or EFT Network deems to be required or desirable to be
filed in order for the acquisition contemplated by this Agreement to be
completed, and MBNA shall cooperate with NOVA in that regard, at NOVA's sole
expense.
8.2 EMPLOYEE BENEFITS PLANS. To the extent that NOVA is in compliance
with Section 3.4 hereof, NOVA shall not adopt, assume or otherwise become
responsible for, either primarily or as a successor employer or otherwise, and
shall have no liability whatsoever with respect to, any "Controlled Group
Employee Benefit Plan" (i.e., any employee benefit plan (within the meaning of
ERISA (S)3(3)) or any other plan, policy, agreement or arrangement contributed
to or sponsored or maintained by, an MBNA Entity or any affiliate of an MBNA
Entity (an "MBNA Entity Affiliate"), or any such plan, policy, agreement or
arrangement for which an MBNA Entity or any MBNA Entity Affiliate could incur
liability. The preceding sentence applies to any liability with respect to a
Controlled Group Employee Benefit plan, regardless of whether such liability
involves Merchant Business Employees, and regardless of when or how such
liability arose. To the extent that NOVA, any successors or assigns thereto, and
any employees, officers, directors, agents, independent contractors and other
persons affiliated with the NOVA (the "Indemnitees") incur any liability
whatsoever with respect to any Controlled Group Employee Benefit Plan (whether
such liability be liability imposed under ERISA, the Code, or otherwise), the
MBNA Entities shall indemnify each such Indemnitee for all such liabilities
which result, and shall take any action reasonably requested by NOVA to prevent
the imposition of such liability. Notwithstanding any provision of this
Agreement to the contrary, the indemnification of the preceding sentence shall
survive the Closing and shall remain effective concurrent with the legal
limitations period applicable to such liability. Additionally, the MBNA Entities
agree not to assert that NOVA is a successor employer of any MBNA Entity or any
MBNA Entity Affiliate. In particular, NOVA shall not assume liability for any
group health continuation coverage or coverage rights under Section 4980B of the
Code or Part 6 of Title I of ERISA applicable to or arising with respect to any
group health plan sponsored and/or maintained by an MBNA Entity or any MBNA
Entity Affiliate at any time prior to or after the Closing Date. This provision
shall apply to any continuation coverage or coverage rights which arise due to
qualifying events which occur before, concurrently with or after Closing under
an MBNA Entity's group health plan or plans, and any continuation coverage or
coverage rights which result from an MBNA Entity's dissolution and/or trmination
of its group health plan or plans.
8.3 APPLICATIONS; ANTITRUST NOTIFICATIONS. MBNA and NOVA have filed with
the United States Federal Trade Commission ("FTC") and the United States
Department of Justice the notification and report form required for the
transactions contemplated hereby and any supplemental or additional information
which may reasonably be requested in connection therewith pursuant to the HSR
Act. The filing fee incurred in connection with the HSR Act was paid fifty
percent (50%) by MBNA and fifty percent (50%) by NOVA, with NOVA paying the
$45,000 HSR Act filing fee (the "HSR Fee") on behalf of NOVA and MBNA, and MBNA
having reimbursed NOVA in the amount of $22,500.
8.4 PORTFOLIO REPURCHASE. During the term of the Non-Competition
Agreement or during the five year period following the Closing Date, whichever
is longer, in the event that (a) there occurs a Voluntary Bankruptcy Proceeding
or Involuntary Bankruptcy Proceeding with respect to NOVA (which is not
dismissed and continues unstayed or is in effect for a period of 60 consecutive
days), or (b) NOVA has merged with, or consolidated with (in circumstances where
NOVA is not the surviving entity, or NOVA's shareholders immediately prior to
such transaction hold less than 50% of the voting stock of the surviving entity
upon consummation of such transaction), or transferred all or substantially all
of its assets to an entity which at the time of consummation of such transaction
is both (i) among the top ten issuers of credit cards in the United States of
America, as measured by managed credit card assets (or subsidiaries or
affiliates of such entities, or successors or assigns of such entities to the
extent such successors or assigns of such entities would as a result of such
succession or assignment, be among the top ten issuers of credit cards in the
United States of America, using as a benchmark for inclusion the managed credit
card assets for the tenth largest such entity, determined as set forth below),
as determined in the most current issue of The Xxxxxx Report which sets forth
such information, or to the extent such report is no longer published, any other
similar publication, as reasonably agreed between the parties hereto; and (ii)
reasonably believed by MBNA to be national competitors in the affinity business,
MBNA shall have the option, exercisable at any time prior to the expiration of
thirty (30) days following receipt by MBNA of notice from NOVA of such event, of
terminating the Marketing Agreement and the Non-Competition Agreement and
repurchasing from NOVA all of the then existing Assets Sold, MBNA Merchants and
the rights and interests relating thereto (a "Portfolio Repurchase", with the
portfolio being repurchased referred to herein as the "Repurchased Portfolio").
The purchase price in connection with such Portfolio Repurchase shall be
determined by aggregating the Net Revenue attributable to the Assets Sold and
the MBNA Merchants for the twelve month period preceding the Portfolio
Repurchase, and multiplying such amount by [*], if such option is exercised
prior to December 31, 1998 and thereafter for the fair market value of the
assets to be repurchased. The Portfolio Repurchase shall be consummated
pursuant to a purchase agreement, and such other transfer, assignment,
conveyance, documents, as well as pursuant to a reasonable and appropriate
transition and conversion plan, as the parties may mutually agree upon and as
are customary for transactions similar to the Portfolio Repurchase. To
determine fair market value of the assets to be repurchased (with respect to
options exercised after December 31, 1998), MBNA and NOVA shall for a period of
fifteen days, negotiate in good faith in an effort to mutually agree on the fair
market value of the Repurchased Portfolio. If such efforts fail to produce
agreement on a determination of the fair market value of the Repurchased
Portfolio, then the fair market value shall be determined by two appraisers, one
chosen by MBNA and one chosen by NOVA, both of whom must have reasonable
expertise in valuing merchant credit card portfolios. If the two appraisal
values (each an "Appraisal") differ by ten per cent or less (such percentage
difference to be computed by subtracting the lesser of the Appraisal values from
the greater of the Appraisal values and dividing the difference by the greater
of the Appraisal values), the fair market value shall be equal to the average
of the two Appraisal values. In the event that the two Appraisal Values vary by
more than ten percent, a third appraiser, who must have reasonable expertise in
valuing merchant credit card portfolios, shall be mutually agreed upon by the
first two appraisers, to conduct an independent appraisal and on the basis of
that independent appraisal, the third appraiser shall, in the exercise of his or
her professional judgment, determine which of the two Appraisals is the most
commercially reasonable, and that Appraisal shall be the fair market value of
the Repurchased Portfolio.
8.5 SPECIFIED AFFINITY MERCHANT REPURCHASE. To the extent that an
Affinity Association notifies MBNA or NOVA in writing (or otherwise, where both
parties have been notified by the Affinity Association in an unequivocal manner)
during the Transition Period that such Affinity Association will oppose the
orderly transition of the Merchant Business conducted by its Affinity Merchants
to NOVA and/or will attempt to hinder future marketing initiatives to its
members by NOVA (a "Dissenting Affinity Association") then no later than thirty
(30) days following the termination of the Transition Period, NOVA has the
option of terminating the Operative Documents with respect to such Affinity
Associations and Affinity Merchants and requiring MBNA to repurchase such
Affinity Merchants and all of NOVA's right, title and interest in any related
Affinity Rights (a "Partial Portfolio Repurchase"). The purchase price to be
paid by MBNA to NOVA in connection with such Partial Portfolio Repurchase shall
be determined by aggregating the Net Revenue for the twelve months immediately
preceding the Closing Date attributable to all such Affinity Merchants as
identified in the notification, and multiplying such amount by [*]. The
Partial Portfolio Repurchase shall be consummated pursuant to a purchase
agreement, and such other transfer, assignment, conveyance, documents, as well
as pursuant to a reasonable and appropriate transition and conversion plan, as
the parties may mutually agree upon and as are customary for transactions
similar to the Partial Portfolio Repurchase. The provisions of this Section 8.5
will not apply to any Dissenting Affinity Association as to which NOVA has
implemented an adverse price change with respect to its Affinity Merchants
during the Transition Period
[*] CONFIDENTIAL TREATMENT REQUESTED.
(other than "pass through" fees imposed or increased by any Payment Network).
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION BY MBNA. MBNA shall indemnify NOVA and hold NOVA
harmless from any liability, loss, diminution in value, cost, claim, or expense,
including reasonable attorney's and accountant's fees and expenses
(collectively, "NOVA Loss"), incurred by NOVA, its successors or assigns, and
their respective officers, employees, consultants and agents (collectively,
"NOVA Protected Parties"), that result from or arise out of (i) any material
breach or inaccuracy of any representation or warranty of MBNA set forth in this
Agreement, whether such breach or inaccuracy exists or is made as of the Closing
Date or Effective Date which has not been cured within thirty days of receipt of
written notice from NOVA; (ii) the material breach by MBNA of any of its
covenants or agreements contained in this Agreement which has not been cured
within thirty days of receipt of written notice from NOVA; (iii) any liability
or obligation, contingent or otherwise, of MBNA, other than the Assumed
Liabilities; and (iv) violations of law or governmental rules or regulations or
wrongdoing or negligence by MBNA in performing obligations under this Agreement.
A NOVA Protected Party should use commercially reasonable efforts to mitigate
any NOVA Loss hereunder.
9.2 INDEMNIFICATION BY NOVA. NOVA shall indemnify MBNA and hold MBNA
harmless from any liability, loss, diminution in value, cost, claim, or expense,
including reasonable attorney's and accountant's fees and expenses
(collectively, "MBNA Loss"), incurred by MBNA, its successors or assigns, and
their respective officers, employees, consultants and agents (collectively,
"MBNA Protected Parties"), that results from or arises out of (i) any material
breach or inaccuracy of any representation or warranty of NOVA set forth in this
Agreement, whether such breach or inaccuracy exists or is made as of the Closing
Date or Effective Date which has not been cured within thirty days of receipt of
written notice from MBNA; (ii) the material breach by NOVA of any of its
covenants or agreements contained in this Agreement which has not been cured
within thirty days of receipt of written notice from MBNA; (iii) any Assumed
Liability; or (iv) material violations of law or governmental rules or
regulations or wrongdoing or negligence by NOVA in performing obligations under
this Agreement. An MBNA Protected Party should use commercially reasonable
efforts to mitigate any MBNA Loss hereunder.
9.3 LOSS OR ASSERTED LIABILITY. Promptly, but in no event later than
thirty (30) days after (a) becoming aware of circumstances that have resulted in
a NOVA Loss or MBNA Loss or potential NOVA Loss or MBNA Loss, whichever is
applicable ("Loss" or "Losses"), for which any party hereto (the "Indemnitee")
intends to seek indemnification under Section 9.1 or Section 9.2, or (b) receipt
by the Indemnitee of written notice of any demand, claim or circumstances which,
with or without the lapse of time, the giving of notice or both, would give rise
to a claim or the commencement (or threatened commencement) of any action,
proceeding or investigation (an "Asserted Liability") that may result in a Loss,
the Indemnitee shall give written notice thereof (the "Claims Notice") to the
other party obligated to provide indemnification pursuant to Section 9.1 or 9.2
(the "Indemnifying Party"). The Claims Notice shall describe the Loss or the
Asserted Liability in reasonable detail and shall indicate the amount
(estimated, if necessary) of the Loss that has been or may be suffered by the
Indemnitee. The Claims Notice may be amended on one or more occasions with
respect to the amount of the Asserted Liability or the Loss at any time prior to
final resolution of the obligation relating to the Asserted Liability or the
Loss. Failure of the Indemnitee to give notice pursuant to this Section 9.3
shall not relieve the Indemnifying Party of its obligations to indemnify under
this Article IX.
9.4 LIMITATIONS.
(a) With respect to any particular Loss for which an Indemnifying Party
indemnifies an Indemnitee hereunder, the liability of the Indemnifying
Party shall be reduced by the amount of any insurance proceeds actually
received by the Indemnitee as a result of such Loss; provided, however,
that in no event shall this Section 9.4(a) be construed to require any
Indemnitee to seek or maintain insurance of any kind.
(b) Notwithstanding the terms of Section 9.3 hereof, the liability of
the Indemnifying Party shall be reduced by the incremental amount of the
Loss, if any, which was caused by the failure of the Indemnitee to give
notice in the manner set forth in Section 9.3 above.
(c) No party will be required to indemnify any other party for any Loss
hereunder attributable to breaches of representations and warranties unless
the aggregate amount of such Losses with respect to which such party is
obligated to indemnify exceeds Two Hundred and Fifty Thousand Dollars
($250,000) (the "Threshold Amount"). Once the aggregate amount of Losses
exceeds the Threshold Amount, the party shall be obligated to indemnify for
all Losses in excess of the Threshold Amount, provided, however, that
neither party hereto shall not be required to indemnify the other party,
pursuant to Sections 9.1 or 9.2, as applicable, for amounts in excess of
[*].
9.5 OPPORTUNITY TO CONTEST. The Indemnifying Party may elect to
compromise or contest, at its own expense and by its own counsel, any Asserted
Liability. If the Indemnifying Party elects to compromise or contest such
Asserted Liability, it shall within thirty (30) days (or sooner, if the nature
of the Asserted Liability so requires) of the date of the Indemnifying Party's
receipt of the Claims Notice notify the Indemnitee or Indemnitees of its intent
to do so by giving written notice thereof to the Indemnitee (the "Contest
Notice"), and the Indemnitee shall cooperate, at the expense of the Indemnifying
Party, in the compromise or contest of such Asserted Liability. If the
Indemnifying Party elects not to compromise or contest the Asserted Liability
and fails to notify the Indemnitee of its election as herein provided or
contests its obligation to indemnify under this Agreement, the Indemnitee (upon
further notice to the Indemnifying Party) shall have the right to pay,
compromise or contest such Asserted Liability on behalf of and for the account
and risk of the Indemnifying Party, subject to the right of the Indemnifying
Party to assume the compromise or contest of such Asserted Liability at any time
before final settlement or determination thereof. Anything in this Article IX
to the contrary notwithstanding, (i) the Indemnitee shall have the right, at its
own cost and expense and for its own account, to compromise or contest any
Asserted Liability, and (ii) the Indemnifying Party shall not, without the
Indemnitees' written consent, settle or compromise any Asserted Liability or
consent to entry of any judgment which does not include an unconditional release
of the Indemnitee from all liability in respect of such Asserted Liability. In
any event, the Indemnitee and the Indemnifying Party may participate, at their
own expense, in the contest of such Asserted Liability. If the Indemnifying
Party chooses to contest any Asserted Liability, the Indemnitee shall make
available to the Indemnifying Party any books, records or other documents within
its control that are necessary or appropriate for, shall make its officers and
employees available, on a basis reasonably consistent with their other duties,
in connection with, and shall otherwise cooperate with, such defense.
9.6 INDEMNITY CLAIMS.
(a) The representations, warranties, covenants and agreements contained
herein shall not be extinguished by the Closing but shall survive the
Closing, subject to the limitations set forth in Section 9.6(b) hereof with
respect to the time periods within which claims for indemnity must be
asserted.
(b) All claims for indemnification pursuant to this Agreement shall be
asserted no later than eighteen months after the Transition Date.
[*] CONFIDENTIAL TREATMENT REQUESTED.
9.7 SUBROGATION. The Indemnifying Party shall be subrogated to any claims
or rights of the Indemnitee as against other persons with respect to amounts
paid by the Indemnifying Party under this Article IX. The Indemnitee shall
cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in
the Indemnifying Party's assertion of such claims.
ARTICLE X
MEDIATION AND ARBITRATION OF DISPUTES
10.1 DISPUTE RESOLUTION.
(a) In the event of any dispute, claim, question or disagreement
arising out of or relating to this Agreement or a matter for which a
dispute resolution mechanism is specifically provided in this Agreement the
parties shall use reasonable efforts to settle such dispute, claim,
question or disagreement. To this effect, they shall consult and negotiate
with each other, in good faith, and, recognizing their mutual interests,
and attempt to reach a just and equitable solution satisfactory to both
parties.
(b) If the parties do not reach such a solution within a period of
thirty (30) days, then the parties agree first to endeavor in good faith to
amicably settle their dispute by mediation in accordance with the CPR Model
Procedure for Mediation of Business Disputes, promulgated by the Center for
Public Resources, New York City.
(c) If mediation is unsuccessful within a reasonable time after
commencement of proceedings as set forth above, but not less than thirty
(30) days thereafter, the mediator shall so certify and the dispute shall
be submitted to binding arbitration conducted in accordance with the CPR
Rules for Non-Administered Arbitration of Business Disputes. Any
controversy or dispute shall be arbitrated by a single arbitrator either
mutually agreed upon by the parties or, absent agreement, appointed in
accordance with the aforesaid CPR rules. No mediator under subsection (b),
above, may serve as an arbitrator. The arbitration shall be governed by
the United States Arbitration Act, 9 USC 1-16, and judgment upon the award
may be entered by any court having jurisdiction thereof. The arbitrator
shall have case management authority and shall resolve the controversy in a
final award within 180 days from commencement of the arbitration action.
All questions of arbitrability shall be resolved by the arbitrator
appointed pursuant to this clause. The prevailing party shall be entitled
to receive an award of attorney's fees incurred in connection with the
arbitration and judicial proceedings related thereto. There shall be no
appeal from the arbitral award, except for fraud committed by the
arbitrator(s) in carrying out his duties under the aforesaid rules;
otherwise the parties irrevocably waive their rights to judicial review of
any claim or controversy arising out of or related to this Agreement.
Unless otherwise agreed by MBNA and NOVA, the situs for dispute
resolution shall be Washington, D.C.
(e) In the event that the Center for Public Resources no longer
promulgates rules as set forth above, then the mediation or binding
arbitration shall be administered under the rules of the American
Arbitration Association or such other recognized rules for resolution of
disputes as MBNA and NOVA may mutually agree.
ARTICLE XI
RULES OF INTERPRETATION
11.1 RULES OF INTERPRETATION.
(a) All terms defined herein shall have the defined meanings when used
in any Operative Document, certificate or other document made or delivered
pursuant hereto unless otherwise defined therein. Singular terms shall
include the plural, and vice versa, unless the context otherwise requires.
(b) Exhibits and Schedules referenced in this Agreement are deemed to
be incorporated herein by reference. The term "including" shall mean
"including, without limitation."
ARTICLE XII
MISCELLANEOUS
12.1 EXPENSES. Except as otherwise specifically provided in this
Agreement, each party shall pay its own costs and expenses in connection with
this Agreement and the transactions contemplated hereby, including all
attorneys' fees, accounting fees and other expenses.
12.2 NOTICES AND PAYMENTS. All notices, demands and other communications
hereunder shall be in writing and shall be delivered (i) in person, (ii) by
United States mail, certified or registered, with return receipt requested, or
(iii) by national overnight courier (e.g., FedEx) as follows:
If to MBNA: MBNA America Bank, N.A.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to: MBNA America Bank, N.A.
(which shall not 0000 Xxxxx Xxxx Xxxxxx
constitute notice) Wilmington, Delaware 19884-0124
Attention: Xxxxxxx Xxxxxxxx
If to NOVA: NOVA Information Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
with copies to: NOVA Information Systems, Inc.
(which shall not One Concourse Parkway, Suite 300
constitute notice) Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Counsel
and
Long Xxxxxxxx & Xxxxxx LLP
SunTrust Plaza, One Peachtree Center
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 12.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 12.2 shall be deemed to have been given on the
earlier of the date actually delivered or five (5) days following the date
deposited in the United States mail, properly addressed, postage prepaid, as the
case may be.
12.3 THIRD-PARTY BENEFICIARIES. No party to this Agreement intends this
Agreement to benefit or create any right or cause of action in or on behalf of
any person other than MBNA and NOVA.
12.4 INDEPENDENT CONTRACTORS. Nothing contained in this Agreement or any
other Operative Document shall be construed as creating or constituting a
partnership, joint venture or agency among the parties to this Agreement.
Rather, the parties shall be deemed independent contractors with respect to each
other for all purposes.
12.5 SUCCESSORS AND ASSIGNS. All terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement and the
rights, privileges, duties and obligations of the parties hereto may not be
assigned or delegated by any party without the prior written consent of the
other party; provided, however, that such consent shall not be required (a) for
the assignment by any party of its rights and privileges hereunder to a person
or entity controlling, controlled by or under common control with such party (it
being understood that no such assignment shall relieve the assigning party of
its duties or obligations hereunder and provided that the rights under the
Operative Documents shall not be held by more than one such entity), or (b) for
the assignment and delegation by any party of its rights, privileges, duties and
obligations hereunder to any person into or with which the assigning party shall
merge or consolidate or to which the assigning party shall sell all or
substantially all of its assets, provided that the assignee formally agrees in
writing to assume all the rights and obligations of the assigning party created
hereby and in the other Operative Documents.
12.6 AMENDMENTS AND WAIVERS. This Agreement, any of the instruments
referred to herein and any of the provisions hereof or thereof shall not be
amended, modified or waived in any fashion except by an instrument in writing
signed by the parties hereto. The waiver by a party of any breach of this
Agreement by the other party shall not be effective unless in writing, and no
such waiver shall operate or be construed as the waiver of the same or another
breach on a subsequent occasion.
12.7 SEVERABILITY OF PROVISIONS. If any provision of this Agreement, or
the application of any such provision to any person or circumstance, is invalid
or unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected by such invalidity or unenforceability.
12.8 COUNTERPARTS: DELIVERY. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one instrument.
The parties acknowledge that delivery of executed counterparts of this Agreement
may be effected by a facsimile transmission or other comparable means, with an
original document to be delivered promptly thereafter via overnight courier.
12.9 GOVERNING LAW. This Agreement is made and entered into under the
laws of the State of Delaware, and the laws of that State (without giving effect
to the principles of conflicts of laws thereof) shall govern the validity and
interpretation hereof and the performance by the parties hereto of their
respective duties and obligations hereunder.
12.10 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
12.11 ENTIRE AGREEMENT. The making, execution and delivery of this
Agreement by the parties hereto have been induced by no representations,
statements, warranties or agreements other than those herein expressed. The
Operative Documents embody the entire understanding of the parties and supersede
in their entirety all prior communication, correspondence, and instruments,
including without limitation, the terms of that certain letter dated October 29,
1997 from Xxxxxx Xxxxxxxxxxx to Xxxxx Xxxxx, and there are no further or other
agreements or understandings, written or oral, in effect between the parties
relating to the subject matter hereof.
12.12 PUBLICITY. The timing and content of any and all public statements,
announcements or other publicity concerning the transactions contemplated herein
shall be mutually agreed upon by MBNA and NOVA, which agreement shall not be
unreasonably withheld by either party hereto.
12.13 SURVIVAL. The provisions of Sections 1.1(c), 1.2, 1.3, 1.5 4.1, 5.1,
and 5.6 and Articles III, VIII, IX, X and XII shall survive the termination of
this Agreement.
12.14 SPECIFIC PERFORMANCE. Notwithstanding the provisions of Article IX
hereof, the parties hereto acknowledge and agree that a remedy at law for
certain breaches of this Agreement would be inadequate and, therefore, agree
that the affected party shall be entitled to injunctive relief in addition to
any other rights and remedies available to in case of any breach or threatened
breach of Section 1.5, 4.1 or 5.1 of this Agreement, provided, however, that
nothing contained herein shall be construed as prohibiting any party from
pursuing any other rights and remedies available to it for any such breach or
threatened breach.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Merchant Asset Purchase Agreement as of the date written above.
"MBNA:"
MBNA AMERICA BANK, N.A.
Attest:
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ ------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxx
---------------------------- ---------------------------
Title: Secretary Title: Vice Chairman
--------------------------- ---------------------------
[SEAL]
"NOVA:"
Attest: NOVA INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
---------------------------- ---------------------------
Title: Vice President & Title: Vice Chairman & CEO
--------------------------- ---------------------------
Corporate Counsel
---------------------------
[SEAL]
