FIRST AMENDED AND RESTATED MARKETING ALLIANCE AGREEMENT

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GLOBAL PAYMENTS INC | HSBC Merchant Services LLP

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Title: FIRST AMENDED AND RESTATED MARKETING ALLIANCE AGREEMENT
Date: 7/28/2009
Industry: Business Services Sector: Services

Exhibit 10.39

FIRST AMENDED AND RESTATED

MARKETING ALLIANCE AGREEMENT

HSBC BANK PLC

GLOBAL PAYMENTS INC.

AND

HSBC MERCHANT SERVICES LLP

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TABLE OF CONTENTS


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SECTION 1:	DEFINITIONS AND INTERPRETATION	1
1.1	Definitions and Interpretation	1

SECTION 2:	MERCHANT AGREEMENTS; SPECIAL ACCOUNTS	1
2.1	Merchant Agreements	1
2.2	Rights under Merchant Agreements	2
2.3	Modifications to and terminations of Merchant Agreements	4
2.4	Modification of Existing Merchant Agreements	4
2.5	New Merchant Agreements	4
2.6	Authorised Agent	5
2.7	Key Accounts	5
2.8	Bank Affiliate Transactions and “on us” transactions	7

SECTION 3:	SERVICES	8
3.1	Joint Venture Services; Processor Exclusivity	8
3.2	Bank Services	9
3.3	Authorisation and Consents	9
3.4	Fees for Bank Services; Invoices	10
3.5	GPN obligation in relation to Transition Agreement	12

SECTION 4:	DEPOSIT AND SETTLEMENT PROCEDURES	12
4.1	Acceptance, Delivery, and Settlement of Credit Card Transaction, etc	12
4.2	Amendments	13
4.3	Funding Costs for Merchant Settlement	13

SECTION 5:	PAYMENTS AND ACCOUNTS; CLEARING ARRANGEMENTS	14
5.1	General	14
5.2	Withdrawal of Account Fees and Unreimbursed Chargebacks, etc	15
5.3	Ownership of Settlement Accounts	15

SECTION 6:	EXCLUSIVITY AND MARKETING	15
6.1	Referral of Potential Merchants; Covenant Not to Compete; etc	15
6.2	Marketing	22
6.3	Governmental or other Contracts	22
6.4	Benchmarking	22
6.5	Customer Satisfaction Exercises	23
6.6	Contact Strategy	23
6.7	Pan-European Acquiring	23
6.8	Annual Marketing Plans and Global Partnership Meetings	23
6.9	Sales Leads	24

SECTION 7:	CHARGEBACKS, CREDIT LOSSES AND RISK MANAGEMENT	24
7.1	Chargebacks and Credit Losses	24
7.2	Processing Chargebacks and Credit Losses; Pre-Completion Transactions	24

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		Page
7.3	Payment for Unreimbursed Chargebacks and Credit Losses	25
7.4	Reserve Accounts	26

SECTION 8:	MEMBERSHIP IN CARD ASSOCIATIONS AND NETWORK ORG	28
8.1	Card Association and Network Organisation Membership by Bank	28
8.2	Card Association and Network Organisation, etc	28
8.3	Compliance with Association Rules by the Joint Venture	28
8.4	Processing and Clearing Arrangements	29
8.5	Bank Services Fees and Indemnity during Run-Off Period	29

SECTION 9:	PAYMENT OF SCHEME FEES	29
9.1	Payment of Scheme Fees and Interchange Fees	29

SECTION 10:	AMENDMENTS TO SERVICES; PROBLEM NOTIFICATION	30
10.1	Complaints	30
10.2	Changes in Laws, Association Rules and Clearing System Rules	31
10.3	Problem Notification	31
10.4	Root-Cause Analysis and Resolution	31

SECTION 11:	SERVICE LOCATIONS AND SECURITY	32
11.1	Rights of Access	32
11.2	Joint Venture Service Locations	32
11.3	Unauthorised Access or Copying	32
11.4	Data Security for Bank System	32
11.5	Data Security for Joint Venture	33
11.6	Rights of Access to Bank Service Locations	34
11.7	Co-operation with Special Investigations	35

SECTION 12:	REPORTS, DATA AND INTELLECTUAL PROPERTY	35
12.1	Joint Venture Reports and Data Sharing	35
12.2	Bank Reports and Data Sharing	35
12.3	Format and Cost of Reports	35
12.4	Ownership and use of the Bank Data	36
12.5	Access to the Bank Data	36
12.6	Privacy	36
12.7	Ownership and use of the Joint Venture Data	36
12.8	Access to the Joint Venture Data	38

SECTION 13:	BUSINESS RECOVERY PLANS	38
13.1	Business Recovery Plan	38
13.2	Force Majeure	39

SECTION 14:	AUDITS, REGULATORY EXAMINATIONS AND COMPLIANCE	39
14.1	Audits and Inspections	39
14.2	Regulatory Matters	40

SECTION 15:	TERM AND TERMINATION OF AGREEMENT	42
15.1	Term and Agreement	42

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		Page
15.2	Termination Events	42
15.3	Bank Default	42
15.4	Joint Venture Default	44
15.5	Other Termination Events	46
15.6	Run-Off Period and Termination	46
15.7	Consequences of termination where GPUK owns 100% of Membership	48

SECTION 16:	DESIGNATION OF RESPONSIBLE PERSONNEL	49
16.1	Joint Venture Representatives	49

SECTION 17:	EMPLOYEES	49
17.1	Employee recruitment Assistance	49

SECTION 18:	CREDIT POLICY	49
18.1	Approval of Merchant Qualification Criteria	49
18.2	Review of Merchant Qualification Criteria	49
18.3	Provision of updated copies of Merchant Qualification Criteria	49

SECTION 19:	INDEMNIFICATION/LIMITATION OF LIABILITY, ETC	50
19.1	Indemnification	50
19.2	Limitation of Liability	52
19.3	Recovery	54
19.4	Notice of Default	54
19.5	Notice of Litigation	54

SECTION 20:	REMEDIES	54
20.1	Remedies of the Bank	54

SECTION 21:	DISPUTE RESOLUTION	55
21.1	Dispute Resolution	55

SECTION 22:	MISCELLANEOUS	55
22.1	Amendments	55
22.2	Notices	56
22.3	No Waiver; Remedies	57
22.4	Third Party Beneficiaries	57
22.5	Assignment	58
22.6	Governing Law, Jurisdiction	58
22.7	Entire Agreement	59
22.8	Independent Contractor	59
22.9	Severability	59
22.10	Execution in Counterparts	59
22.11	Confidentiality	59
22.12	Joint Announcement	62
22.13	Survival	62
22.14	Further Assurances	63
22.15	Data Protection	63
22.16	Expenses	63

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		Page
22.17	Binding Agreement	63
22.18	Withholding Tax; Applicable Sales Taxes; Transfer Pricing	63
22.19	Countering Bribery	66

SCHEDULE 2.5 : EXISTING FORM OF NEW MERCHANT AGREEMENT

SCHEDULE 2.7 : LIST OF KEY ACCOUNTS

SCHEDULE 3.1(b) : JOINT VENTURE SERVICE LEVELS

SCHEDULE 3.1(e) : PROCESSING AGREEMENT

SCHEDULE 3.2.1 : BANK SERVICES AND FEES

SCHEDULE 3.2.2 : BANK SERVICE LEVELS

SCHEDULE 6.1(f) : REFUND OR REFERRAL FEE PURCHASE AMOUNT

SCHEDULE 7.3 : INDEMNIFIED EXISTING MERCHANT LIST

SCHEDULE 7.4 : EXISTING RESERVE ACCOUNTS

SCHEDULE 18.1 : MERCHANT QUALIFICATION CRITERIA

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FIRST AMENDED AND RESTATED

MARKETING ALLIANCE AGREEMENT

This FIRST AMENDED AND RESTATED MARKETING ALLIANCE AGREEMENT (“Agreement”) is made on June 2009, by and among HSBC Bank PLC, a company incorporated under the laws of England and Wales (registered number 14259) with its registered office at 8 Canada Square, London E14 5HQ, GLOBAL PAYMENTS INC. , a corporation organized under the Laws of the State of Georgia U.S.A with its registered address at 10 Glenlake Parkway, North Tower, Atlanta, Georgia, 30328, and HSBC Merchant Services LLP (No. 0C337146) a limited liability partnership incorporated under the laws of England and Wales whose registered office at 51 De Montfort Street, Leicester, LE1 7BB.

WHEREAS, on 17 June 2008 the Bank and GPUK entered into the Purchase Agreement pursuant to which the Bank agreed to sell and GPUK agreed to purchase a 51% interest in the Joint Venture; and

WHEREAS, the Parties entered into a Marketing Alliance Agreement dated 30 June 2008 (the “ Original Marketing Alliance Agreement ”) which sets out certain activities which the Parties have agreed to undertake or cause to be undertaken with respect to the Merchant Acquiring Business; and

WHEREAS , the Bank has agreed to sell and Global Payments U.K. Limited agreed to purchase the Bank’s 49% interest in the Joint Venture; and

WHEREAS , the Parties have agreed to amend and restate the Original Marketing Alliance Agreement as set forth herein; and

WHEREAS , the execution and delivery of this Agreement by the Bank, GPN and the Joint Venture is one of the deliveries to be made at closing of the Instrument of Transfer; and

NOW, THEREFORE , in consideration of the closing of the transactions contemplated by the Instrument of Transfer, of the foregoing and of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the Bank, GPN and the Joint Venture hereby agree as follows:

SECTION 1. DEFINITIONS AND INTERPRETATION

SECTION 1.1 Definitions and Interpretation. Capitalised terms used but not defined in this Agreement shall bear the same meanings as in part 1 of Schedule 1.1 to the Purchase Agreement (the “ Definition and Interpretation Schedule ”) and the provisions of part 2 of the Definition and Interpretation Schedule shall apply as if they appeared in this Section. Other expressions which are defined in this Agreement shall bear the meanings so assigned to them where used elsewhere in this Agreement.

SECTION 2. MERCHANT AGREEMENTS; SPECIAL ACCOUNTS

SECTION 2.1 Merchant Agreements. Except as expressly provided for in this Agreement, the Bank shall remain a party to all Existing Merchant Agreements and take such other actions as may be necessary in consultation with the Joint Venture in order to comply with the applicable Association Rules as they relate to the Bank Services.

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SECTION 2.2 Rights under Merchant Agreements.

(a)

The rights and obligations of the Joint Venture and the Bank in relation to the Existing Merchant Agreements and New Merchant Agreements entered into between the Effective Time and the New Form Merchant Agreement Issue Date are as set out in the Hive Down Agreement. Except as expressly set out herein the Joint Venture shall, after the Effective Time, be entitled to receive all of the rights under all Existing Merchant Agreements and New Merchant Agreements and shall be responsible for all liabilities arising from or relating to all Existing Merchant Agreements and New Merchant Agreements.

(b)

Save as expressly provided below in Section 2.2(c), the Joint Venture shall not, prior to the later of the Migration Completion Date or the expiry or termination of the HSBC Trade Mark Licence Agreement (“ Relevant Date ”), assign or transfer the benefits or obligations under any Merchant Agreement (other than an assignment of any right of the Joint Venture to revenue) without the prior written Consent of the Bank (not to be unreasonably withheld or delayed). The Bank’s refusal to grant Consent to any such assignment or transfer to a Restricted Entity shall not be considered “unreasonably withheld” by the Bank. For greater certainty, a Change of Control of HMS or of any of HMS’ parent or affiliates shall not constitute an assignment as contemplated by this Section 2.2(b).

(c)

The Joint Venture shall be permitted to assign to any Person:

(i)

at any time after the First Variation Effective Date, its rights to revenue in respect of any Merchant Agreement;

(ii)

at any time after the Relevant Date, any of its rights and obligations in respect of any Merchant Agreements;

(iii)

at any time after the Relevant Date, all of its rights and obligations in respect of any Merchant Agreements where such assignment or delegation is part of a transfer of all of the rights of the Joint Venture under this Agreement to the same Person to whom such Merchant Agreements are assigned;

(iv)

at any time after the Relevant Date, any of its rights and obligations in respect of any Merchant Agreements in relation to any assignment or delegation of any of the Joint Venture’s rights, privileges, duties and obligations hereunder to an Affiliate of the Joint Venture in accordance with, and subject to, Section 22.5 (Assignment);

(v)

at any time after the Relevant Date, in conjunction with a Change of Control, all Merchant Agreements, where all or substantially all of the rights or obligations under such Merchant Agreements are

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assigned or transferred by the Joint Venture to the Person to whom such control is transferred and who is not an Affiliate of the Joint Venture; and/or

(vi)

at any time after the Relevant Date, any of its rights, privileges, duties and obligations hereunder to any Person into or with which the assigning or delegating Party shall merge or consolidate or to which the assigning or delegating Party shall sell all or substantially all its assets in accordance with Section 22.5.

(d)

In relation to any assignment of Merchant Agreements pursuant to Section 2.2(c) above the Joint Venture shall be entitled to request that the Bank assign to the assignee: (i) any remaining rights and obligations it may have by virtue of remaining a party to the Merchant Agreements; and/or (ii) any BIN/ICA’s which relate to the Merchant Agreements that are to be assigned and which the Bank is permitted to assign pursuant to applicable Laws and Association Rules; and, subject to the Bank being indemnified (in a form reasonably acceptable to the Bank) by the Joint Venture and the relevant assignee against any claims and liability in relation to such Merchant Agreements and BIN/ICAs relating to transactions processed after the effective date of the Bank’s assignment referred to in this Section 2.2(d), the Bank shall assign such Merchant Agreements and/or BIN/ICAs in accordance with such request.

(e)

Save in relation to an assignment under Section 2.2(c)(i), (iii), (iv), (v) and (vi) or any assignment under Section 2.2(c)(ii) where the Joint Venture continues notwithstanding such assignment to carry out (and retains all rights and obligations in relation to carrying out) settlement with the relevant Merchant, following any assignment under Section 2.2(c)(ii) of any Merchant Agreement by the Joint Venture, the Bank shall immediately following the perfection of such assignment (by way of migration, conversion and transfer of the Merchant Agreement and BIN/ICAs to the assignee, as the case may be) have no further obligation or liability to the Joint Venture or any assignee under this Agreement (with respect to the assigned Merchant Agreements), under the assigned Merchant Agreement or otherwise in relation to the assigned Merchant; provided that, the Bank’s obligations under any assigned Merchant Agreements, under this Agreement and in relation to the assigned Merchant will continue as to all liabilities which arose or Credit Card Transactions which were handled prior to the perfection of such assignment from the Bank to the applicable assignee.

(f)

The Parties agree that:

(i)

they will work together in good faith and use their commercially reasonable endeavours to cause an orderly transition of any assigned Merchant Agreements to the relevant assignee or transferee within a transition period reasonably requested by the Joint Venture (and the Joint Venture will pay the Bank’s reasonable costs and expenses in relation to any such transition assistance provided by the Bank pursuant to this Section); and

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(ii)

the Joint Venture shall, notwithstanding any assignment of any Merchant Agreement, continue to be liable to the Bank under this Agreement in relation to all obligations and liabilities it has to the Bank in relation to such Merchant Agreement.

SECTION 2.3 Modifications to and terminations of Merchant Agreements.

(a)

The Joint Venture shall not modify any Merchant Agreement in a way which increases the Bank’s liabilities to the Card Associations or under any Merchant Agreement or under this Agreement or any other Operative Document without the Bank’s prior written Consent. Except as set forth in the preceding sentence, Section 2.4 (Modification of Existing Merchant Agreements), Section 2.7 (Key Accounts) and Section 6.1(q) (Exclusivity and Marketing), the Joint Venture shall have the right to modify any Merchant Agreement at any time.

(b)

Subject to the provisions of Section 2.7(c) regarding Key Accounts, the Joint Venture shall have the right to terminate any Merchant Agreement at any time. Unless otherwise expressly provided for in this Agreement, the Bank shall not terminate any Existing Merchant Agreement or New Merchant Agreement without the prior Consent of the Joint Venture such Consent not to be unreasonably withheld.

SECTION 2.4 Modification of Existing Merchant Agreements. Without prejudice to Section 2.3, the Joint Venture shall not effect modifications to Existing Merchant Agreements prior to 1 January 2009 (i) except to the extent it deems reasonably necessary to protect itself against a Loss; or (ii) except in relation to Key Accounts to which Section 2.7 applies, to (on notice to a Merchant in accordance with the terms of the relevant Existing Merchant Agreement), increase the fees charged to that Merchant where:

(a)

such increase is equivalent to a fully absorbed cost increase (including an increase in Interchange Fees) received from a Card Association or Network Organisation;

(b)

the Merchant is priced below Interchange Fees plus Assessments provided that the increase does not result in charges which exceed the Standard Rate; or

(c)

as otherwise agreed with the Bank (including where incorporated in an amended or replaced form of agreement approved by the Bank).

SECTION 2.5 New Merchant Agreements. The Bank and the Joint Venture shall cooperate in good faith to agree a new form of Merchant Agreement as soon as practicable following the Completion Date and, in any event, prior to the date 75 days from the Completion Date (the “New Form Merchant Agreement Target Date” ). If the Bank and the Joint Venture have not agreed a new form of Merchant Agreement by the New Form Merchant Agreement Target Date, the Bank and the Joint Venture shall be deemed to have agreed to the

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latest draft form of Merchant Agreement as proposed by the Joint Venture on such date, provided that such draft form of Merchant Agreement shall comply with applicable Laws, Association Rules and Clearing System Rules. The form of Merchant Agreement deemed to be agreed under the preceding sentence or as agreed between the Bank and the Joint Venture prior to the New Form Merchant Agreement Target Date shall be the “New Form Merchant Agreement” . From the Effective Time until the date the New Form Merchant Agreement has been printed and is ready for issue (which shall be no later than the date 60 days following the New Form Merchant Agreement Target Date) (or any later date agreed between the Joint Venture and the Bank) (the “New Form Merchant Agreement Issue Date” ), except as otherwise provided herein, all Merchant Agreements executed by the Joint Venture shall be substantially in the form set out in Schedule 2.5 (Existing Form of New Merchant Agreement). From the New Form Merchant Agreement Issue Date (or any later date agreed between the Joint Venture and the Bank), except as otherwise provided herein, all Merchant Agreements executed by the Joint Venture shall be substantially in the form of the New Form Merchant Agreement, which form may be amended from time to time by the Joint Venture with the prior written Consent of the Bank, (the form in Schedule 2.5 together with the New Form Merchant Agreement and any subsequently agreed amended forms each being an “ Agreed Form New Merchant Agreement ”) . Notwithstanding the foregoing, if the Bank and the Joint Venture provide a joint response to a request for proposal (“ RFP ”) which relates to Merchant Acquiring Services, the Joint Venture shall have the limited authority to sign, on behalf of the Bank, a New Merchant Agreement which is substantially in the form presented in the joint RFP response even if the form materially differs from the Agreed Form Merchant Agreement, provided that the obligations of the Bank in such agreement do not differ materially from the obligations of the Bank under the Agreed Form Merchant Agreement. Except as set forth above, the Bank’s Consent shall be required prior to the execution of any New Merchant Agreement negotiated between the Joint Venture and a Merchant pursuant to any other RFP. Where in this Section 2 the Bank’s Consent is required in relation to a modification to a Merchant Agreement, or to the terms of a New Merchant Agreement, or to the terms of a new Agreed Form New Merchant Agreement, the Bank’s Consent shall not be unreasonably withheld or delayed and shall be assumed to have been given unless the Bank advises the Joint Venture that it does not Consent within 7 days of a written request for Consent being received by the Bank.

SECTION 2.6 Authorised Agent. The Bank hereby grants to the Joint Venture the limited authority to sign any New Merchant Agreements from time to time on behalf of the Bank in accordance with the terms of this Agreement, provided that such New Merchant Agreements do not differ substantially from the Agreed Form New Merchant Agreement.

SECTION 2.7 Key Accounts.

(a)

Attached hereto as Schedule 2.7 (List of Key Accounts) is a list of Merchants that the Parties acknowledge are significant relationship customers of the Bank (the “ Key Accounts ”). Notwithstanding any provision to the contrary in this Agreement, the Bank may add any Merchant or otherwise revise the list of Merchants set out in Schedule 2.7 (List of Key Accounts) at any time and from time to time as the Bank may reasonably consider appropriate by giving at least 30 days notice to the Joint Venture provided that at no time will Schedule 2.7 (List of Key Accounts) contain more than 250 Merchants.

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(b)

Notwithstanding Section 2.7(c), the Joint Venture may, with 7 days prior written notice to the Bank, amend the pricing relating to a Key Account where the Key Account is currently priced below the Standard Rate applicable to Merchants having characteristics in the market place (including volume levels) materially the same as those of the relevant Key Account (“ Relevant Standard Rate ”), provided that the increased price charged shall not be greater than the Relevant Standard Rate.

(c)

Except as permitted in Section 2.7 (b), if the Joint Venture desires to cause a Merchant Agreement that relates to a Key Account to be terminated or modified in respect of any material commercial terms (including discount fees and other fees and expenses payable by the Key Account) or to commence or threaten legal action against a Key Account in connection with the applicable Merchant Agreement, the Joint Venture shall first give notice to the Bank’s Joint Venture Representative of its intention to do so (a “ Key Account Notice ”), which notice shall include a description of the Joint Venture’s proposed course of action and the reasons therefore. A Key Account Notice indicating that the Joint Venture desires either to terminate a Merchant Agreement that relates to a Key Account because it reasonably believes that a continuation of the Merchant Agreement with the Key Account may result in Losses to the Joint Venture (including Losses arising from or in connection with the potential bankruptcy or insolvency of the Key Account or the risk profile of the Key Account or the potential sale, assignment, transfer or disposal of the Key Account), or to seek injunctive or other equitable relief against the Key Account, shall be considered an “ Emergency ”. The Bank must respond to an Emergency within two Business Days after the Key Account Notice is received by the Bank. If the Key Account Notice does not relate to an Emergency, the Bank shall respond within five Business Days after receipt of the Key Account Notice. If the Bank responds to the Joint Venture within the applicable response time that it wishes to become involved in the proposed action involving a Key Account with a view to avoiding or preventing the proposed termination, modification or legal or other proceeding or action or otherwise addressing the issues set forth in the Key Account Notice, the Bank and the Joint Venture shall negotiate in good faith to ensure that a mutually agreeable solution is reached as soon as reasonably possible. In the event that (i) the Bank does not respond to the Key Account Notice within the applicable response time, or (ii) the Bank responds but the Bank and the Joint Venture do not reach a mutually agreeable solution including where the Bank does not agree to subsidise or otherwise contribute or provide rights of indemnity (to the satisfaction of the Joint Venture) with respect to Losses arising from or in connection with such Key Account or the Merchant Agreement relating to such Key Account (A) in the case of an Emergency, at the end of the second Business Day, or (B) in any other case, at the end of the 10th Business Day after the Bank has responded, or failed to respond within the applicable response time, to the Key Account Notice, the Joint Venture shall be permitted to proceed with the course of action proposed in the Key Account Notice without any further notice to or Consent from the Bank.

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(d)

The Bank may, from time to time, request the Joint Venture to offer Merchant Acquiring Services for specified fixed periods to certain Key Accounts on the basis of Interchange Fees and Assessments plus an agreed margin which margin (“ Discounted Margin ”) is lower than the margin element of the Standard Rate applicable to Merchants having characteristics in the market place (including volume levels) materially the same as those of the relevant Key Account (“ Standard Margin ”). The Joint Venture and the Bank shall negotiate in good faith taking into account prevailing market conditions and competitive pricing and agree on a reduction of the Standard Margin for such Key Accounts, failing which the Joint Venture shall honour the Discounted Margin request as long as the Bank agrees to pay to the Joint Venture the difference between the Discounted Margin and the Standard Margin (the “ Reimbursement Amount” ). The Joint Venture shall invoice the Bank monthly for any Reimbursement Amount owed by the Bank under this Agreement and such invoices shall be due and payable within 30 days after receipt by the Bank.

(e)

If the Bank desires to terminate any arrangement described in Section 2.7(d) with respect to a particular Key Account, it shall have the right to do so by providing the Joint Venture with written notice in advance of such termination specifying the effective date of termination; provided, however, that such notice period must be at least as long as the notice period required under the terms of the applicable Merchant Agreement for the Joint Venture to terminate or if appropriate amend, as applicable, the applicable Merchant Agreement plus an additional 30 days.

SECTION 2.8 Bank Affiliate Transactions and “on us” transactions.

(a)

The Bank acknowledges that there are certain Credit Card Transactions (collectively, “ Bank Affiliate Transactions ”) of the Bank and certain of its Affiliates and other Persons in which the Bank has an ownership interest (e.g., insurance and brokerage subsidiaries) (collectively, for the purposes of this Section only, “ Bank Affiliates ”). The Bank agrees that it shall use commercially reasonable endeavours to ensure that all Bank Affiliates who utilise the Merchant Acquiring Services or services similar to the Merchant Acquiring Services (i) process Bank Affiliate Transactions exclusively through the Joint Venture; and (ii) execute a New Merchant Agreement with the Joint Venture in the same form as the Agreed Form Merchant Agreement not later than 6 months after the Effective Time. Where a Bank Affiliate Transaction is processed in the absence of a Merchant Agreement being in place with the relevant Bank Affiliate the Bank shall charge the Bank Affiliate at a rate equivalent to that charged by the Joint Venture in the Ordinary Course for such processing and shall reimburse the Joint Venture all sums received from the Bank Affiliate.

(b)

The Bank acknowledges that certain Credit Card Transactions are processed as “on us” transactions by the Bank rather than being processed through the Credit Card Interchange System, including, but not limited to, Bank Affiliate Transactions referred to above. Between the Effective Time and

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the date that all transactions are processed through the Credit Card Interchange System, the issuing side of the Bank shall receive “on-us” rates for all “on-us” transactions which rates shall not exceed the Interchange Fees that the relevant Bank Affiliate Transaction would have otherwise attracted. The Bank agrees that following the Transition Period, all such transactions shall be processed through the Credit Card Interchange System, unless otherwise agreed or required by Laws or Association Rules.

SECTION 3. SERVICES

SECTION 3.1 Joint Venture Services; Processor Exclusivity.

(a)

During the Term, the Joint Venture shall provide the Joint Venture Services in respect of all Merchant Agreements in accordance with this Agreement (either through itself or through the Transition Agreement or the Processing Agreement). For the avoidance of doubt, if any of the Bank’s benefits or obligations under any Merchant Agreements which are intended to be transferred or assigned to the Joint Venture are not effectively transferred or assigned for any reason, the Joint Venture shall perform the Joint Venture Services (including such obligations) in respect of such Existing Merchant Agreements in accordance with this Agreement notwithstanding that the Bank may remain bound by such Merchant Agreements in respect of such obligations and the Joint Venture shall be entitled to all of the benefits thereunder.

(b)

Without prejudice to the generality of this Section 3.1, the Joint Venture shall ensure that the Joint Venture Services shall not give rise to any material deterioration in terms of the types, quality or standard of the services, products and functionalities provided or supported by the Bank under the Merchant Acquiring Business as a whole immediately prior to the Completion Date. The Joint Venture shall provide the Joint Venture Services in accordance with the service levels described in Schedule 3.1(b) (Joint Venture Service Levels). Notwithstanding the foregoing, during the period from the Completion Date to a date 30 days after the Back End Migration Completion Date or the Front End Migration Completion Date (as applicable) if and to the extent that the Required Information delivered by the Bank under the Transition Agreement does not include the information described in Part 1 (in relation to Back End Migration) or Part 2 (in relation to Front End Migration) of Schedule 6 of the Transition Agreement or such information is inaccurate then the Joint Venture shall not be in breach of its obligations under this Agreement to meet a Joint Venture Service Level if the breach is caused by such omission or inaccuracy of information and provided always that the Joint Venture shall use commercially reasonable endeavours to achieve the relevant Joint Venture Service Levels and to cure any failure to do so. Notwithstanding anything in this Agreement to the contrary, except for a breach of the Joint Venture Critical Service Levels which are set forth in Section 15.4 (c) below, no breach of a Joint Venture Service Level shall constitute a Joint Venture Default.

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(c)

As the Joint Venture’s and the GPN Processor’s technological infrastructure becomes operational and, in no event later than the end of the Transition Period, the Joint Venture Services shall include products and services that, considered as a whole from the vantage point of customers, are reasonably competitive in comparison to leading acquirers in the United Kingdom. For greater certainty, the Joint Venture shall not be required to offer every product or service offered by leading acquirers in the United Kingdom and shall not be required to be the lowest cost acquirer.

(d)

The Joint Venture Services shall also include merchant reporting tools and other back-end product features which are necessary for the growth of the Merchant Acquiring Business.

(e)

The Joint Venture has appointed GPN as the GPN Processor with effect from the Effective Time under the terms of the Processing Agreement attached at Schedule 3.1 (e) (Processing Agreement). Whilst the Bank is represented on the Board, the Joint Venture shall not agree to any amendment to the Processing Agreement which could reasonably be expected to have a material adverse effect on the Joint Venture or the Bank or to terminate the Processing Agreement without the Board’s Consent. If the Bank is not represented on the Board, the Joint Venture shall (i) not make any material amendment to the terms of the following provisions within the Processing Agreement: Sections 7 (Joint Venture Data, Bank Data), 8 (Data Processing), 9 (Audits, Regulatory Examinations and Compliance) and 10.13 (Confidentiality); and (ii) procure that the GPN Processor complies with Section 2.4(c) of the Processing Agreement (Use of Subcontractors); and (iii) not enter into any replacement Processing Agreement that does not include provisions offering substantially the same protections to the Bank as those contained in the Sections described above, in each case, without the Bank’s Consent. In the event that the Joint Venture receives a notice of termination of the Processing Agreement from the GPN Processor, at any time, the Joint Venture shall promptly notify the Bank.

SECTION 3.2 Bank Services. During the Term the Bank shall provide the Bank Services as set out in Schedule 3.2.1 (Bank Services and Fees) unless otherwise agreed with the Joint Venture or provided for in this Agreement. The Bank shall ensure that the Bank Services shall not (i) give rise to any material deterioration in the services and functionalities provided or supported by the Bank prior to the Effective Time which are equivalent to the Bank Services; and (ii) cause any breach of the Merchant Agreements. The Bank shall provide the Bank Services in accordance with the standards applied before the Completion Date and in accordance with the service levels described in Schedule 3.2.2 (Bank Service Levels). Except for a breach of a Bank Critical Service Level which is set forth in Section 15.3 (c), no breach of a Bank Service Level hereunder shall constitute a Bank Default.

SECTION 3.3 Authorisations and Consents. The Joint Venture shall be solely and fully responsible for ensuring compliance by the Joint Venture with all applicable Laws, Association Rules and Clearing System Rules, including any service levels established thereunder, and obtaining and complying with the terms and conditions of all Authorisations and Consents required by applicable Laws, Association Rules and Clearing System Rules, in each case, with

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respect to the Joint Venture Services to be performed by the Joint Venture or by other Persons (other than the Bank) on its behalf, and shall pay all related Merchant acquiring fees, costs and expenses and assume all other obligations associated therewith. The Joint Venture shall be solely and fully responsible for and shall pay all fines and penalties arising from or in connection with any non-compliance by the Joint Venture or any Person (other than the Bank) on its behalf with any Merchant Agreement, applicable Laws, Association Rules or Clearing System Rules or other applicable requirements in respect of its delivery of the Joint Venture Services. As between the Bank and the Joint Venture, the Joint Venture shall collect from and be responsible for any fines and penalties arising from the non-compliance by a Merchant with any Association Rules or Clearing System Rules. Other than the Merchant acquiring fees, costs and expenses described above the Joint Venture shall not be responsible for any Authorisations, Consents, memberships or sponsorships required to be obtained and/or maintained by the Bank or any Person on its behalf or for any related fees, costs and expenses required or incurred in connection with the performance by the Bank or any Person on its behalf of the Bank Services. The Bank shall be solely and fully responsible for ensuring compliance with all applicable Laws, Association Rules and Clearing System Rules, including any service levels established thereunder, and obtaining and complying with the terms and conditions of all Authorisations and Consents required by applicable Laws, Association Rules and Clearing System Rules, in each case, with respect to the Bank Services to be performed by it or by other Persons on its behalf and, subject to the Bank’s right to reimbursement as set out in this Agreement, shall pay related fees, costs and expenses and assume all other obligations associated therewith. For the avoidance of doubt, the Bank shall pay all membership fees, costs and expenses of the applicable Card Associations and Network Organisations which arise solely and directly from the Bank’s status as an issuer of Cards (and no right of reimbursement shall apply to such fees, costs and expenses). The Bank shall be responsible for and shall pay all fines and penalties arising from or in connection with non-compliance by the Bank or any Person on its behalf with any applicable Laws, Association Rules or Clearing System Rules or other applicable requirements, in respect of its delivery of the Bank Services (and no right of reimbursement shall apply to such fees, costs and expenses and, for the avoidance of doubt, Section 19.2(d) is not intended to limit or exclude the Bank’s liability to the Card Associations in respect of such fines and penalties). Notwithstanding anything to the contrary contained in this Agreement, the Bank shall not be responsible for any Authorisations and Consents required to be obtained and/or maintained by the Joint Venture or any Person on its behalf or for any related fees, costs and expenses required or incurred in connection with the performance by the Joint Venture or any Person on its behalf of the Joint Venture Services. In the event that the Bank receives a notice of a violation by the Joint Venture of a Merchant Agreement or an applicable Law, Association Rule or Clearing System Rule, the Bank shall as soon as reasonably practicable notify (but in no event more than two Business Days following receipt of such notice) the Joint Venture of the occurrence and details of such event.

SECTION 3.4 Fees for Bank Services; Invoices.

(a)

Except as provided for in Section 8.5, the Bank shall charge the Joint Venture in providing the Bank Services the fees described in Schedule 3.2.1 (Bank Services and Fees) and: (i) for any Bank Service that is provided during the period from the Effective Time to the First Variation Effective Date which continues to be provided following the First Variation Effective Date and which is not covered by Schedule 3.2.1, an amount equal to the Direct Costs incurred by the Bank or any of its Affiliates in the provision of

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the Bank Services not covered by Schedule 3.2.1; and (ii) for any New Bank Service, such fees, charges and/or costs as may be agreed between the Bank and the Joint Venture (and the Bank shall not be required to provide any New Bank Service, and the Joint Venture will not be obligated to purchase any New Bank Service from the Bank, unless and until such fees, charges and/or costs have been agreed), in each case subject to any adjustment pursuant to Section 22.18(k) (Withholding Tax; Applicable Sales Taxes; Transfer Pricing) (provided that, for the avoidance of doubt, the Bank may not charge for the same services under both this Agreement and the Transition Agreement). The Bank shall invoice the Joint Venture by the 15th day of each month for the Bank Services provided during the immediately preceding month. The Joint Venture shall pay any undisputed amounts set forth in the Bank invoices within 30 days after receipt. All payments shall be made in pounds sterling. Except as otherwise specifically set out in this Agreement, the charges set forth in Schedule 3.2.1 are the sole and exclusive charges for the Bank Services. For greater certainty, any Bank Service covered by Section 9.1(b) (Payment of Scheme Fees and Interchange Fees) shall be reimbursed in accordance with that Section 9.1(b) and not this Section.

(b)

The Joint Venture shall notify the Bank of any disputed amounts contained in any invoice submitted under this Section in the manner specified in, and the dispute shall be resolved in accordance with, Section 3.4(e).

(c)

GPN and the Joint Venture shall have the right to audit the Books and Records of the Bank applicable only to the Bank’s billing for the provision of the Bank Services hereunder; provided that such inspection shall be conducted not more often than at reasonable intervals, shall be at mutually agreeable times upon prior appointment and subject to the Bank’s Security and Privacy Policies and Procedures.

(d)

[Intentionally blank]

(e)

Any dispute arising from any invoice issued pursuant to this Section 3.4 shall be resolved in the following manner:

(i)

within 180 days after receiving the invoice, the Joint Venture shall serve written notice on the Bank stating the nature and amount of its dispute;

(ii)

the Joint Venture and the Bank shall each appoint an appropriate officer with authority to resolve the dispute on its behalf within 10 days after the Bank has received the notice of dispute from the Joint Venture;

(iii)

the officers respectively appointed by the Joint Venture and the Bank shall act in good faith and use all reasonable endeavours to resolve the dispute;

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(iv)

if the dispute is not resolved within 30 days after the Bank receives the notice of dispute from the Joint Venture, the dispute shall be handled in accordance with Section 21 (Dispute Resolution);

(v)

the Bank shall not be entitled to serve notice under Section 15.4(a) in respect of any disputed amount for as long as such dispute is continuing;

(vi)

the Joint Venture shall pay the Bank all undisputed amounts of any invoice on or before the due date whilst the dispute is being resolved in accordance with the provisions of this Agreement. If it is later agreed by the Joint Venture and the Bank or it is ordered by an arbitrator or court that the whole or any part of the disputed amount of the invoice should be paid by the Joint Venture, the Joint Venture shall pay to the Bank the disputed amount together with interest on that amount at the rate of 10% per annum for the period from the due date on the applicable invoice until the date on which payment is actually received by the Bank.

(f)

The Joint Venture shall not be obligated to pay any fees or expenses to the Bank under this Agreement unless the Bank delivers an invoice to the Joint Venture for such fees or expenses within six months after the last day of the month in which such fees or expenses are incurred. All invoices issued to the Joint Venture shall be in a form which complies with any applicable Laws.

SECTION 3.5 GPN obligation in relation to Transition Agreement. GPN shall pay to the Bank the sums described in Sections 5.5(b) (Delayed Back-End Migration Completion) and 5.7(b) (Delayed Front-End Migration Completion) of the Transition Agreement on behalf of the GPN Processor.

SECTION 4. DEPOSIT AND SETTLEMENT PROCEDURES

SECTION 4.1 Acceptance, Delivery, and Settlement of Credit Card Transaction Records and Debit Card Transaction Records.

(a)

On and after the Effective Time, the Joint Venture shall accept Credit Card Transaction Records and Debit Card Transaction Records from Merchants in documentary or electronic (including telephonic) form and shall transmit such information as is reasonably required by the Bank to settle with Merchants in the Ordinary Course of the Joint Venture’s business in accordance with the provisions of this Agreement and the applicable Merchant Agreement.

(b)

The Bank or its Affiliates (as applicable) shall, on the instructions of the Joint Venture and subject to the receipt of the information described in Section 4.1(a), transfer funds from the applicable Settlement Account to the Merchant Depository Accounts (whether maintained by Merchants with it or with financial institutions other than the Bank or any of its Affiliates) in

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the Ordinary Course of the Bank’s business for settling transactions effected by the Merchants. In the case of Merchants that are settled on a net basis, such settlement amounts shall be net of certain Account Fees depending on the Joint Venture’s arrangement with the Merchant.

(c)

The Bank or its Affiliates, as applicable, shall debit funds from the applicable Settlement Account to effect transfers in accordance with Section 4.1(b). In the event that the Daily Aggregate Balance of the Settlement Accounts is negative at the end of a day, the Joint Venture shall pay the Bank a service fee in accordance with Section 4.3. Unless otherwise agreed by the Joint Venture and the Bank, the Bank and its Affiliates shall be prohibited from backdating any settlement deposits into a Merchant Depository Account (e.g., giving a Merchant credit for funds availability in its Merchant Depository Account before the funds are actually deposited). The Joint Venture shall also be prohibited from requesting the transfer of funds to either a Merchant Depository Account or a Joint Venture Bank Account prior to the requests for settlement being sent to the respective Card Association or Network Association.

(d)

The Parties agree that any over-the-counter cash advances shall be processed (authorized and settled) through the Credit Card Interchange System from the Effective Time. The Joint Venture shall be entitled to all processing revenues (including but not limited to the reverse interchange) arising from over-the-counter cash advances whether or not Bank Affiliates have entered into a Merchant Agreement pursuant to Section 2.8 (a) (Bank Affiliate Transactions and “on us” transactions). The Bank shall be liable for any valid Chargeback arising from such transactions.

SECTION 4.2 Amendments. The Parties acknowledge and agree that the procedures set forth in this Section 4 may be amended by agreement between the Joint Venture and the Bank from time to time provided that such amended procedures are in accordance with applicable Laws, Association Rules, Clearing System Rules and provided further that there is no material adverse impact on the Bank.

SECTION 4.3 Funding Costs for Merchant Settlement.

(a)

In the event the Daily Aggregate Balance of all of the Settlement Accounts at midnight (local time in the UK) on any day is negative, the Joint Venture shall owe the Bank a service fee equal to the negative amount of such Daily Aggregate Balance multiplied by the Bank’s then applicable daily lending rate which shall be equal to the best rate then available from the Bank for a similar secured lending facility. The Bank shall provide the Joint Venture with a reconciliation of the debit balances and credit balances in all of the Settlement Accounts which have been used to calculate each Daily Aggregate Balance within thirty days after the end of the applicable month and the Joint Venture shall pay any service fee owing to the Bank within 30 days after the Joint Venture’s receipt of the applicable invoice from the Bank. The reconciliation provided by the Bank shall include a description of the daily debit or credit balance in each Settlement Account, together with the applicable lending rate.

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(b)

Upon receiving cleared funds from the applicable Card Association or other settlement system for settlement of Credit Card Transactions, the Bank shall apply such funds towards satisfaction of any debit balance in the relevant Settlement Account on a same day basis.

(c)

The Daily Aggregate Balance shall not include any debit balance in any Settlement Account to the extent that the applicable amount of debit balance is satisfied in full through the receipt of cleared funds from the applicable Card Association or other settlement system on or before midnight (local time in the UK) on the same day that such amount of debit balance was incurred.

(d)

Notwithstanding anything to the contrary contained in this Agreement, the Bank shall not charge the Joint Venture any service fee described in Section 4.3(a) on any Card Transactions involving Cards issued by the Bank which are “on us” transactions.

SECTION 5. PAYMENTS AND ACCOUNTS; CLEARING ARRANGEMENTS

SECTION 5.1 General.

(a)

The Bank shall maintain one or more internal , segregated settlement accounts (the “ Settlement Accounts ” ) , the sole purpose of which shall be for the Bank to receive funds from the Card Associations and Network Organizations, as the case may be, in connection with the Merchant Acquiring Business.

(b)

The Bank shall provide the Joint Venture electronically with details of settlement activities (in the manner, format and content agreed to by the Joint Venture and the Bank) on a daily and monthly basis. The Bank’s obligation under this Section is satisfied by providing the Joint Venture with unlimited electronic view access to the Settlement Accounts.

(c)

The Bank shall provide the Joint Venture the ability to instruct the Bank to make transfers from the Settlement Account to Merchant Depository Accounts or from the Settlement Accounts or from the Merchant Depository Accounts to the Joint Venture bank accounts consistent with funding rights provided for in the Merchant Agreements and in accordance with Association Rules. These transfers will reflect settlement activities and shall include, but not be limited to, Account Fees, merchant fees, establishment of Reserve Accounts, Chargeback and Credit Losses, merchant funding exceptions (i.e., returns and miscellaneous Merchant fund transfers), Card Association fees and exceptions (i.e., rejects).

(d)

In any event where the Merchant Acquiring Business receives settlement proceeds from the Credit Card Associations in one currency and pays a Merchant in another currency, the Bank agrees to make any such currency conversion requested by the Joint Venture. The Bank shall charge the Joint Venture for such foreign exchange activities as provided for in Schedule 3.2.1 (Bank Services and Fees).

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SECTION 5.2 Withdrawal of Account Fees and Unreimbursed Chargebacks from Merchant Depository Accounts. The Bank shall take the actions set forth in this Section 5.2 unless otherwise prohibited by the Merchant Agreement. On a monthly basis, or more frequently if requested by the Joint Venture, for all Merchants which do not have their Account Fees debited from their net settlement amounts on a daily basis, (a) the Joint Venture shall direct the Bank to withdraw the Account Fees from each Merchant Depository Account maintained with the Bank or any of its Affiliates, and (b) for each Merchant whose Merchant Depository Account is maintained with a financial institution other than the Bank, collect such Account Fees from the Merchant in the Ordinary Course of the Bank’s business. Except as otherwise stated in Sections 2.4 (Modification of Existing Merchant Agreements), 2.7 (Key Accounts) and 6.1(q) (Exclusivity and Marketing), the Joint Venture shall have the right to change the manner in which Account Fees are calculated and the Bank shall be obligated to use commercially reasonable endeavours to accommodate such changes, so long as changes are consistent with the applicable Merchant Agreements, Law and/or Association Rules. On each Business Day for any Merchant whose unreimbursed Chargebacks and Credit Losses are not already offset from its daily settlement amounts, the Joint Venture shall direct the Bank to (i) withdraw any unreimbursed Chargebacks and Credit Losses from each Merchant Depository Account maintained with the Bank or any of its Affiliates, and (ii) for each Merchant whose Merchant Depository Account is maintained with a financial institution other than the Bank or any of its Affiliates, collect such Chargebacks and Credit Losses from the Merchant in the Ordinary Course of the Bank’s business. The Bank shall cause the Account Fees and amounts related to unreimbursed Chargebacks, Credit Losses and Merchant settlement adjustments, if any, to be deposited into a Joint Venture Bank Account. For the avoidance of doubt, the Bank is not required to take any collection or enforcement steps or action other than debiting or collecting the relevant amounts in accordance with this Agreement.

SECTION 5.3 Ownership of Settlement Accounts. The Parties agree that the Settlement Accounts shall be held in the name of the Bank or its Affiliates in order to comply with applicable Association Rules concerning the use by the Joint Venture of the Bank’s BIN/ICAs . The Parties agree that the funds which are held in the Settlement Accounts at any given time are held for the benefit of the applicable Merchants and the Joint Venture according to the terms of the relevant Merchant Agreement and this Agreement as their respective rights and interests to those funds are set forth therein and the Bank shall not exercise any right over such funds except as otherwise set forth in this Agreement.

SECTION 6. EXCLUSIVITY AND MARKETING

SECTION 6.1 Referral of Potential Merchants; Covenant Not to Compete; Exclusivity; Indemnification for Indemnified Merchants.

(a)

For the purposes of this Section 6, “ Restriction Period ” means the period of time commencing on the Completion Date and ending on the start of the Run-Off Period.

(b)

Subject to Section 6.1 (c), during the Restriction Period, neither the Bank nor any of its Affiliates shall provide access to a BIN/ICA number owned by the Bank or an Affiliate of the Bank to any Person for the purposes of a Competing Business in the United Kingdom. This Section 6.1 (b) shall not restrict the Bank or any of its Affiliates from providing access to an Affiliate

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of the Bank (whose primary business is outside the United Kingdom) to a BIN/ICA number owned by the Bank or a Bank Affiliate in relation to the provision of services similar to Merchant Acquiring Services that are Pan-European or International Acquiring Services to a merchant of such Affiliate (whose primary business is outside the United Kingdom) in respect of which an expression of interest is received by the Bank or an Affiliate of the Bank from outside the United Kingdom.

(c)

During the Restriction Period, neither the Bank nor any of its Affiliates shall directly or indirectly solicit or accept on its own behalf or on behalf of any Person (other than the Joint Venture) any Merchants or Prospective Merchants in relation to a Competing Business in the United Kingdom.

(i)

The Bank further agrees that where GPUK (or any Affiliate of GPUK) owns 100% of the Membership Units in the Joint Venture neither the Bank nor its Affiliates shall:

(A)

for six months following the Restriction Period solicit or accept Merchants or Prospective Merchants on its own behalf or on behalf of any Person (other than the Joint Venture); or

(B)

for eighteen months following the later of (i) the end of the Restriction Period, and (ii) completion of the Transfer resulting in GPUK (or any Affiliate of GPUK) owning 100% of the Membership Units in the Joint Venture, solicit Merchants on its own behalf or on behalf of any Person (other than the Joint Venture),

in each case in relation to a Competing Business in the United Kingdom.

(ii)

GPN further agrees that where the Bank owns 100% of the Membership Units in the Joint Venture neither GPN nor its Affiliates shall, for eighteen months following the later of (i) the end of the Restriction Period, and (ii) completion of the Transfer resulting in the Bank owning 100% of the Membership Units in the Joint Venture, solicit Merchants on its own behalf or on behalf of any Person (other than the Joint Venture) in relation to a Competing Business in the United Kingdom, except as permitted by Section 6.1(k).

(d)

During the Restriction Period neither the Bank nor any of its Affiliates shall participate, directly or indirectly, in a Competing Business in the United Kingdom (unless such Competing Business is entered into through the Joint Venture).

(e)

Subject to Section 6.1(g), during the Restriction Period, the Bank shall refer only to the Joint Venture any Person (a “ Prospective Merchant ”) who expresses an interest in obtaining any of the following:

(i)

Merchant Acquiring Services in the United Kingdom;

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(ii)

Merchant Acquiring Services that are Pan-European; or

(iii)

International Acquiring Services,

in each case where the relevant referral is made by or through the Bank based in the United Kingdom.

(f)

Notwithstanding anything to the contrary contained in this Agreement, in the event of a Change of Control of the Bank, the foregoing shall continue to apply to the Bank and its successors notwithstanding such Change of Control. In the case of a Change of Control of the Bank involving a Merger Transaction where the Bank is not the Surviving Person immediately following the completion of such Merger Transaction, then the obligations contained in this Section shall apply to (i) all of the branches (and the existing and potential merchants with accounts at such branches) of the Bank in existence on the date immediately prior to the Change of Control even if the name of such branches is changed or the control of such branches is changed as a result of such Change of Control, and (ii) to any other branches which bear the HSBC name (or derivation thereof) provided that there shall be no obligation on the Surviving Person to comply with this Section where to do so would put the Surviving Person in breach of a written obligation of the Surviving Person pre-dating the Merger Transaction. The foregoing exception shall relieve the Bank or the Surviving Person of its obligations hereunder only to the extent prohibited by the express terms of the agreement and for only so long as the written agreement referred to in the foregoing sentence remains in effect and the Bank and/or the Surviving Person shall terminate such obligation at the earliest possible time allowed by such agreement (pursuant to a right to terminate for convenience or at the end of the term) and shall not seek to extend the term of such obligation. If, following a Change of Control of the Bank, there is a material, sustained reduction in the number of referrals being made by the Bank to the Joint Venture and such reduction is not justified by normal market fluctuations or circumstances other than the Change of Control of the Bank, then, at GPN’s option, the Bank’s referral obligations shall cease and the Bank shall pay GPN (on behalf of GPUK) an amount as set forth in Schedule 6.1 (f) (Refund of Referral Fee Purchase Amount) (the “Referral Fee Purchase Amount” ).

(g)

Section 6.1 (e) shall not apply where the Joint Venture determines that Joint Venture Services or functionalities required by any Prospective Merchant are not currently made available by the Joint Venture and cannot be made available by the Joint Venture within a reasonable period of time.

(h)

The Parties acknowledge that, in addition to the Merchant Acquiring Business that is the subject of this transaction, as at the Completion Date the Bank and/or its Affiliates operate businesses similar to the Merchant Acquiring Business in other regions of Europe (each an “ Affiliated Business ”). If, prior to the start of the Run-Off Period, the Bank or its Affiliate desires to transfer an Affiliated Business to another Person (other

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than an Affiliate of the Bank), the Bank must, subject to the grant of any regulatory approvals that may be required and to the remainder of this Section 6.1(h), first provide to the Joint Venture the opportunity to review information relevant to transferring that Affiliated Business and to allow the Joint Venture, within a period of 30 days following receipt of all information reasonably requested by the Joint Venture, to make an offer to acquire such Affiliated Business and to accept such offer provided that it is on terms (including material non-monetary terms) substantially equal to or better than those offered by the relevant other Person (and in the case of a transfer relating to an Affiliated Business operated by HSBC Bank Malta, the terms are deemed by HSBC Bank Malta to be an acceptable offer) and unless the Bank or the relevant Affiliate decides not to proceed with the transfer of the Affiliated Business. If GPN (or one of its Affiliates) has already entered into another merchant acquiring joint venture with another major financial institution in the primary country in which such Affiliated Business operates which is a competitor of the Bank, which relationship the Bank reasonably deems unacceptable, and which cannot be terminated or which cannot be modified to the Bank’s reasonable satisfaction within a reasonable period of time, the Joint Venture shall have no right of first refusal under this Section 6.1(h) as to such Affiliated Business at that time but no other rights hereunder shall be affected.

(i)

If prior to the start of the Run-Off Period the Bank or any of its Affiliates (each, a “ Controlled Person ”) directly or indirectly acquires a business similar to the Merchant Acquiring Business in the United Kingdom (an “ Acquired Affiliated Business ”), such Controlled Person shall be required, subject to the grant of any regulatory approvals that may be required, to offer such business to the Joint Venture at fair market value (determined in accordance with the procedures set forth in the Partnership Agreement (in effect immediately prior to the First Variation Effective Date)) (other than in relation to an Affiliated Business operated by HSBC Bank Malta in respect of which the value shall be as agreed between the Joint Venture and HSBC Bank Malta) within 180 days of such acquisition in accordance with the provisions of this Section unless such a transfer (A) would result in a breach of any pre-existing obligation of such Acquired Affiliated Business that is assumed by the Bank in connection with the acquisition of such Acquired Affiliated Business or of an obligation of the Bank or any of its Affiliates which exists as at the Completion Date, or (B) is otherwise prohibited by Laws, or (C) would cause the Bank to incur a material termination fee (unless the Joint Venture agrees to fund such termination fee). The foregoing exception shall only relieve the Bank of its obligations hereunder for so long as the obligation, restriction, or cause, as applicable, referred to in the foregoing sentence remains in effect and the Bank shall terminate such obligation at the earliest possible time allowed by such agreement (under a right of termination for convenience or as allowed at the end of the term only) and shall not seek to extend the term of such obligation. Except in relation to a transfer relating to an Affiliated Business operated by HSBC Bank Malta, the Joint Venture has a period of 30 days following receipt of the determination of fair market value from the Appraisers which shall

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constitute the offer from the Bank in which to accept such offer. The parties agree that, if (i) an exception to the Bank’s obligation to offer the Acquired Affiliated Business to the Joint Venture as described in this Section 6.1(i) applies, or (ii) the Joint Venture does not accept the offer to acquire the Acquired Business within this 30 day period, the Bank’s obligations set out in this Section 6.1(i) shall not apply in relation to the Acquired Affiliated Business at that time, but any other rights hereunder shall not be affected. In the event that an offer by the Joint Venture is accepted pursuant to the terms of this Agreement, the Joint Venture and the Bank shall use commercially reasonable endeavours to complete such sale as soon as practicable. In relation to an Acquired Affiliated Business operated by HSBC Bank Malta, should the Controlled Person be required to offer such business to the Joint Venture then the Controlled Person shall provide to the Joint Venture the opportunity to review information relevant to transferring that Acquired Affiliated Business and to allow the Joint Venture, within a period of 30 days following receipt of all information reasonably requested, to make an offer to acquire such Acquired Affiliated Business and to accept such offer provided that it is on terms (including material non-monetary terms) that are deemed by HSBC Bank Malta to be an acceptable offer.

(j)

[Intentionally blank]

(k)

The BIN/ICA numbers owned by the Bank or any of its Affiliates and utilised by the Joint Venture pursuant to this Agreement shall not be used for any business of GPN or the Joint Venture other than the Merchant Acquiring Business and shall not, without the prior express written consent of the Bank, be used for the purposes of providing Merchant Acquiring Services (or any other services) to any Person other than those Merchants who have a Merchant Agreement in effect as at the First Variation Effective Date and any new Merchants who enter into a Merchant Agreement as a consequence of Organic Growth or who become Merchants as a consequence of the acquisition by the Joint Venture of a merchant acquiring portfolio from the Bank or any of its Affiliates.

(l)

During the Restriction Period the Joint Venture shall not form an alliance with any Restricted Entities in the United Kingdom. Notwithstanding the foregoing the Bank acknowledges that a parent of the Joint Venture could be acquired by a bank or by a Restricted Entity and nothing herein shall be construed as attempting to prevent or restrict such acquisition and such acquisition shall not put either the Joint Venture or the acquiring party in breach of this Section as a result of such acquisition.

(m)

The Joint Venture may solicit:

(i)

Merchant Acquiring Services within the United Kingdom;

(ii)

International Acquiring Services anywhere in the world;

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(iii)

Merchant Acquiring Services, both domestic and Pan-European, in regions of Europe where the Bank or any of its Affiliates as of the Completion Date:

(A)

do not operate a business similar to the Merchant Acquiring Business; or

(B)

operate a business similar to the Merchant Acquiring Business but subsequently ceased operating such business,

(“ Non-Operating Region ”).

(n)

Notwithstanding Section 6.1(m) the Joint Venture can provide Merchant Acquiring Services in any region of Europe provided that the referral or request for services is received by the Joint Venture outside a Non-Operating Region.

(o)

Save as permitted by Sections 6.1(m) and 6.1(n), the Joint Venture shall, during the Term, be prohibited from offering or marketing the Joint Venture Services without the Consent of the Board whilst the Bank is represented on the Board and thereafter without the Consent of the Bank.

(p)

The Joint Venture shall pay the Bank a referral fee in connection with referrals of potential merchants to the Joint Venture consistent with the terms set forth in Schedule 3.2.1 (Bank Services and Fees) and the Bank agrees that the Merchant Acquiring Business shall remain a discreet item on the performance statements for the Bank customer referral generating relationship managers, and, for the period between the First Variation Effective Date and the expiry or termination of the HSBC Trade Mark Licence Agreement, the income reporting for all existing Merchants as at the First Variation Effective Date who remain live customers, shall remain at levels that are equivalent to those levels in effect immediately prior to the First Variation Effective Date. Such amount shall be paid for each potential merchant that (a) executes a Merchant Agreement with the Joint Venture, and (b) remains active for no less than 30 days.

(q)

If the Joint Venture does not wish to enter into a New Merchant Agreement with a Prospective Merchant or prospective merchant referred to the Joint Venture by the Bank, the Bank may request that the Joint Venture accept such Prospective Merchant or prospective merchant (each, an “ Indemnified Merchant ”) in exchange for the Bank’s agreement to subsidize or otherwise contribute or provide rights of indemnity as agreed by the Joint Venture and the Bank, as applicable, with respect to Losses under the Merchant Agreement with the Indemnified Merchant. The Joint Venture shall not unreasonably refuse to offer Joint Venture Services to a Prospective Merchant or prospective merchant referred to the Joint Venture by the Bank unless such refusal is consistent with the Merchant Qualification Criteria or unless the Joint Venture is incapable of providing the services requested. If the Joint Venture and the Bank agree upon the terms and conditions of such arrangement, the Joint Venture shall accept such Prospective Merchant or

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prospective merchant subject to such arrangement and shall not modify such arrangements in a manner which would increase the Bank’s liability or cause the Bank’s subsidy obligations to increase without the Bank’s prior Consent and shall in relation to any other modifications to or the termination of any such arrangement provide the Bank with prior notification. The Bank acknowledges and agrees that, except as expressly set out below, the indemnification obligations described in this Section are complete, (subject to Section 6.1(r)) irrevocable, nontransferable, unqualified, unconditional and, subject to the Bank’s right to terminate such obligations under Section 6.1(r), shall survive termination of this Agreement. Notwithstanding anything to the contrary contained herein, the Bank, their Affiliates and their successors and assigns waive any and all claims, demands, and causes of action against the Joint Venture, GPN, and all of GPN’s Affiliates regarding any indemnification amounts paid or owed under this Section unless the Losses under the Merchant Agreement with the Indemnified Merchant were caused by the Joint Venture’s negligence or wilful default.

(r)

Unless otherwise provided hereunder in this Section 6.1(r), Section 7.3(a), or otherwise, if the Bank desires to terminate its subsidy, contribution and/or indemnity obligation with respect to a particular Merchant, it shall have the right to do so by providing the Joint Venture with notice in advance of such termination with a minimum notice period equal to the notice period for termination set forth in the applicable Merchant Agreement plus thirty days. Once the Joint Venture has received such notice, it shall have the right to continue providing services for such Merchant or to terminate the applicable Merchant Agreement. In either event, the subsidy, contribution and/or indemnity obligation of the Bank, as applicable, shall continue to apply with respect to all services provided and all transactions which are handled prior to the effective date of termination of the subsidy, contribution and/or indemnity obligation of the Bank, as applicable, which effective date will occur on the date specified in the Bank’s notice as long as the notice has been given in compliance with the notice requirements set forth above. Notwithstanding the foregoing, the Bank shall not have the right to terminate the Bank’s subsidy, contribution, and/or subsidy contribution if the termination of the Merchant Agreement is prohibited by any bankruptcy stay, court order, or other legal proceeding, in which event such obligation of the Bank shall continue to apply with respect to all services provided and all transactions which are handled prior to the effective date of termination of the Merchant Agreement. The foregoing shall survive the termination of this Agreement.

(s)

In the event that (a) the Bank wishes to respond to a request for proposal issued by a Prospective Merchant or prospective merchant for services to be provided by the Bank or any of its Affiliates and the Bank desires to include in its response the Joint Venture Services of the Joint Venture or (b) if the request for proposal specifically requests or refers to Joint Venture Services, the Bank shall contact the Joint Venture and the Joint Venture shall provide the terms and conditions, including the prices, and supporting marketing materials to be included in such proposal with a view to agreeing to the same

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with the Joint Venture to enable the Bank to submit the response to the Prospective Merchant or prospective merchant within the time reasonably required by the Bank or its Affiliate.

(t)

In connection with the determination to enter into a New Merchant Agreement with a Prospective Merchant or prospective merchant, the Joint Venture shall follow the Card Association Rules and the Merchant Qualification Criteria agreed to between the Bank and the Joint Venture. The Joint Venture further agrees that if it receives a notice from the Bank that a Merchant does not, in the reasonable opinion of the Bank (having consulted the Joint Venture and having regard of its comments), meet the Merchant Qualification Criteria or that a Merchant Agreement substantially increases the reputation, legal, financial or credit risk of the Bank, then the Joint Venture shall terminate such Merchant Agreement as soon as reasonably practicable taking into account the Joint Venture’s need to reduce financial risk by accumulating a reasonable amount of reserves, and promptly notify the Bank of the effective date of the termination.

(u)

The Parties shall, where expressly applicable and to the extent permitted by Laws, procure that their Affiliates shall comply with the provisions of this Section 6.1.

SECTION 6.2 Marketing. During the Term, the Joint Venture shall permit the Bank and its Affiliates to market its products (other than the Merchant Acquiring Services or services similar to Merchant Acquiring Services) to the Joint Venture’s customers so long as such marketing does not adversely impact the relationship between the Joint Venture and such customers and does not otherwise violate the terms of this Agreement and conforms with all Laws and Association Rules. The Joint Venture and the Bank shall advise the other of any opt outs, suppression requests and/or other notices or requests that it receives from the Merchants or other Persons and shall work together to determine the appropriate actions relating to such notices and/or requests provided that the Party whose marketing activity is the subject of the notice and/or request shall be solely responsible for taking the necessary action in relation to it.

SECTION 6.3 Governmental or other Contracts. If a Governmental Entity or any other Merchant requires a financial institution to be the only other party to any contract, agreement, understanding, commitment or arrangement involving the Merchant Acquiring Business or any part thereof (each, a “ Governmental Contract ”) and the Joint Venture is interested in pursuing such Merchant Agreement or Governmental Contract, the Bank agrees to enter into such Merchant Agreement or Governmental Contract on behalf of the Joint Venture. The economic benefits and burdens of such Governmental Contract or Merchant Agreement shall inure to the Joint Venture like any other New Merchant Agreement hereunder.

SECTION 6.4 Benchmarking. The Bank may require the Joint Venture to carry out a benchmarking exercise to determine if the Joint Venture’s products, services and costs are competitive in the marketplace provided that the Joint Venture shall not be obliged to carry out such an exercise more frequently than once per year. To the extent that such exercise reveals deficiencies, the Joint Venture, in combination with the GPN Processor, shall prepare and present to the Bank an appropriate plan to make the products and services more competitive.

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SECTION 6.5 Customer Satisfaction Exercises. On an annual basis, the Joint Venture, in cooperation with the Bank shall, at its cost, conduct research to gauge customer satisfaction across its products and services. To the extent that such research produces results that are significantly below the standard obtained by the Bank in relation to its customers, the Joint Venture shall prepare and present to the Bank an appropriate plan to improve customer satisfaction in general and with respect to specific deficiencies highlighted by the research results.

SECTION 6.6 Contact Strategy. The Parties shall participate in such joint customer calling programmes and pitching activities in respect of Merchants and potential merchants (including Prospective Merchants) as may be agreed in writing between the Parties from time to time.

SECTION 6.7 Pan-European Acquiring. The Parties acknowledge that GPN confirms its desire to develop Pan-European acquiring capabilities through the acquisition of direct merchant acquiring businesses that meet the strategic and financial criteria of GPN and GPN agrees that it shall use its reasonable commercial endeavours to: (i) keep the Bank reasonably informed about the product capabilities of GPN (and its relevant Affiliates) from time to time to enable the Bank to inform potential merchants (including Prospective Merchants) of the products and services offered by GPN (and its relevant Affiliates), subject to any requirements or restrictions imposed by any applicable Laws; (ii) keep the Bank reasonably informed (and whenever reasonably requested by the Bank, inform the Bank) of GPN’s (and its relevant Affiliates’) current strategy and intentions in relation to future product development and, in particular, the development of Pan-European acquiring capabilities (provided that nothing in this Section 6.7(ii) shall oblige GPN to provide to the Bank any commercially sensitive or strategically confidential information); (iii) take account of and, where requested by the Bank (provided that such request is not made more than once in any 12 month period during the Term of this Agreement), discuss with the Bank the Bank’s requirements in relation to future product development and the development of specific new products and services to meet the needs of Merchants and potential merchants (including Prospective Merchants); and (iv) when Pan-European acquiring capabilities are available, facilitate the provision of any Pan-European acquiring in respect of Merchants or potential merchants (including Prospective Merchants) referred by the Bank to the Joint Venture and serve as the initial point of contact for any referral generating relationship managers of the Bank. If any relevant products and services provided to such Merchants or potential merchants are provided through an Affiliate of GPN, the Bank agrees that any referral fees, that would otherwise have been payable by the Joint Venture to the Bank pursuant to Section 6.1(p), may be paid directly by that Affiliate to the Bank (provided that nothing in this Section 6.7 shall release the Joint Venture from its obligation to pay such referral fees in accordance with this Agreement).

SECTION 6.8 Annual Marketing Plans and Global Partnership Meetings. The Parties shall, during the Bank’s annual operational planning cycle each year (currently July to September (inclusive) each year, but as may be amended from time to time), jointly develop, and use their reasonable commercial endeavours to agree, a joint marketing and sales plan for the immediately following calendar year in respect of the Merchant Acquiring Business, which plan may include, if agreed between the Bank and the Joint Venture, the provision of reasonable training to the Bank’s staff. The Parties shall also ensure that, at a frequency and at times to be agreed between the Parties (acting reasonably), appropriate members of their respective senior personnel (as agreed between the Parties acting reasonably) attend and participate in a senior global partnership meeting to discuss such matters as the Parties determine are appropriate.

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SECTION 6.9 Sales Leads. During the period from the First Variation Effective Date to the later of the Migration Completion Date or the expiry or termination of the HSBC Trade Mark Licence Agreement, the Bank shall be responsible for the generation, management and control of sales leads and referrals in respect of potential merchants (including Prospective Merchants) who have, or may have, an interest in procuring Merchant Acquiring Services or International Acquiring Services (“ Bank Prospects ”). Also during this period, the Bank may, from time to time and by written notification to the Joint Venture, require the Joint Venture not to contact certain Bank Prospects specified or referred to in such written notification in connection with the provision or potential provision of Merchant Acquiring Services to those Bank Prospects, or otherwise carry out any sales or marketing activities directed specifically at such Bank Prospects in connection with the provision or potential provision of Merchant Acquiring Services, and the Joint Venture shall comply with any such requirement. The Bank agrees that the number of actively restricted Bank Prospects will not exceed 50,000 at any one time, or exceed any other number to which the Parties shall reasonably agree in writing. Following this time, the Joint Venture may call on any prospect without restriction.

SECTION 7. CHARGEBACKS, CREDIT LOSSES AND RISK MANAGEMENT

SECTION 7.1 Chargebacks and Credit Losses.

(a)

The Joint Venture shall be responsible for, and reimburse the Bank in respect of, all unreimbursed Chargebacks and Credit Losses with respect to Card Transactions that occur after the Effective Time, subject to the provisions of Section 8.2 (b) and Schedule 8 of the Transition Agreement. The Bank shall be reimbursed for sums due under this Section 7.1(a) by debiting such funds from the applicable Settlement Account.

(b)

The Bank shall follow the Joint Venture’s reasonable instructions, if any, with respect to monitoring Merchants and holding funds relating to the Merchant Acquiring Business at the Joint Venture’s request subject to any applicable Law or Association Rules.

SECTION 7.2 Processing Chargebacks and Credit Losses; Pre-Completion Transactions. Without prejudice to the Bank’s obligations under the Transition Agreement, the Joint Venture shall process Chargebacks and Credit Losses relating to the Merchant Agreements in an expeditious manner in the Ordinary Course of its business after the Effective Time. The Bank shall be responsible for, and reimburse the Joint Venture in respect of all unreimbursed Chargebacks and Credit Losses with respect to Card Transactions which are authorised (or if no authorisation, presented) on or prior to the Effective Time, even if the such Chargebacks and Credit Losses are incurred or received after the Effective Time except to the extent that any such Chargebacks or Credit Losses arise as a result of the Joint Venture’s negligence or wilful default in performing its obligations under this Agreement or any Joint Venture Agreements (provided always that prior to Back-end Migration Completion any such Chargebacks and/or Credit Losses which arise as a result of an IT systems failure shall not be deemed to result from the Joint Venture’s negligence or wilful default in performing its obligations).

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SECTION 7.3 Payment for Unreimbursed Chargebacks and Credit Losses.

(a)

The Bank agrees to pay the Joint Venture for all unreimbursed Chargebacks and Credit Losses applicable to any Merchant referred to in Schedule 7.3 (Indemnified Existing Merchant List) (each, an “ Indemnified Existing Merchant ”) except to the extent that such unreimbursed Chargebacks and Credit Losses arise from the J

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