Exhibit 10.29
CERTAIN PORTIONS OF THIS EXHIBIT
HAVE BEEN OMITTED AND
FILED
SEPARATELY WITH THE
SECURITIES
AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
THE
SYMBOL
“****” HAS BEEN INSERTED
IN PLACE OF THE PORTIONS SO
OMITTED.
EXECUTION VERSION
Amended and Restated Customer Business Agreement
This agreement (including all
Exhibits and Annexes attached hereto, the “Agreement”)
is made as of the Effective Date (as defined below) by and between
MasterCard International Incorporated, a Delaware corporation
having its principal place of business at 2000 Purchase Street,
Purchase, New York 10577-2509 (together with its Affiliates,
“MasterCard”), and Bank of America, N.A., having its
principal place of business at 100 North Tryon Street, Charlotte,
North Carolina 28255-0001 (together with its Affiliates,
“BAC”).
W HEREAS , BAC
is licensed to issue MasterCard Cards pursuant to the
Rules;
W HEREAS , MasterCard and BAC desire to enter into an
arrangement by which MasterCard will provide Support to help
increase the issuance, usage and activation of BAC’s
MasterCard Cards;
W HEREAS , MasterCard and BAC previously entered into
that certain Customer Business Agreement executed as of May 5,
2006 (the “Prior Agreement”);
W HEREAS , MasterCard and BAC acknowledge and agree that
this Agreement shall supersede the Prior Agreement, and the Prior
Agreement shall have no further force or effect as of the date of
execution of this Agreement; and
N OW , THEREFORE , in
consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Capitalized terms used in this
Agreement shall have the meanings given to them in Exhibit A or
elsewhere in this Agreement.
In consideration for BAC’s
timely performance of its obligations under this Agreement,
MasterCard shall provide BAC with the Support outlined below during
the Term, subject to the conditions and limitations contained
herein.
Subject to Section 3, as of the
Effective Date, MasterCard will provide BAC with ****
MasterCard-branded **** Cards issued by BAC and MasterCard-branded
**** Cards issued by BAC. Adjustments as set forth herein will be
made at the end of each quarter and Year of the Term to effectuate
such incentive (the “****”).
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1.
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Unless
otherwise adjusted as provided herein, the **** for each Year of
the Term will be distributed by calendar quarter, as follows
(“Quarterly ****”):
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1 st quarter
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$ ****
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2 nd quarter
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$ ****
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3 rd quarter
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$ ****
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4 th quarter
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$ ****
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Total ****
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$ ****
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2.
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BAC shall pay
all fees at MasterCard Standard Pricing as applicable under the
Rules and with the same frequency as required in the MCBS
Manual. At the conclusion of each calendar quarter of the Term
for each of the first three calendar quarters of every Year after
the Effective Date, and within thirty (30) days after BAC has
provided the Required Reports for such quarter, MasterCard shall
make the appropriate calculation and **** of BAC’s actual
payments of the **** for such period pursuant to this
Section 2.
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3.
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Unless
otherwise adjusted as provided herein, the appropriate **** and the
corresponding applicable **** and **** for such quarter shall be
determined in Table 2. Notwithstanding the foregoing, the **** to
be applied the **** Year of the **** Term shall be the **** that
was applied to **** in the immediately preceding Year.
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****
($)
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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4.
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In order to
determine the appropriate **** for use in the calculation below,
and as part of the quarterly reconciliation process, MasterCard
will determine and reconcile based on a **** annual tier level for
which BAC will qualify by **** and **** its cumulative quarterly
**** by the following ****:
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1
st
Qtr.
****– by ****,
Year-to-date to end
of 2 nd
Qtr.
– by ****
Year-to-date to end
of 3 rd
Qtr.
– by ****
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5.
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The **** for a
quarter is calculated as:
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****
****. See Annex A for examples of
this calculation.
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B.
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Annual Calculation.
At the end of the
4 th
calendar quarter of
each Year during the Term, and within thirty (30) days after
BAC has provided all Required Reports for such Year, MasterCard
shall make the appropriate calculation and **** as
follows:
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1.
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The **** will
be used with Table 2 to determine the corresponding ****, as well
as **** and the ****, for that Year. Notwithstanding the foregoing,
the **** to be applied the **** Year of the **** Term shall be the
**** that was applied to **** in the immediately preceding
Year.
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2
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2.
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The
“****” is calculated as follows:
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****
Then, the “****” is
calculated as follows:
****
****. See Annex A for examples of
this calculation.
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A.
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Quarterly
Calculation . At the
conclusion of each calendar quarter of the Term for each of the
first three calendar quarters of every Year after the Effective
Date, and within thirty (30) days after BAC has provided the
Required Reports for such quarter, MasterCard shall make the
appropriate calculation to determine the **** earned for such
period pursuant to this Section 2.2 (the “****”).
The quarterly **** during the Term will be determined by **** from
Table 3, below, based upon the **** determined pursuant to
Section 2.1(A)(4) and will be subject to **** as provided
herein. Notwithstanding the foregoing, the **** to be applied the
last Year of the **** Term shall be the **** that was applied to
**** in the immediately preceding Year.
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**** ($
)
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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B.
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Annual Calculation.
At the end of the
4 th
calendar quarter of
each Year during the Term, and within thirty (30) days after
BAC has provided all Required Reports for such Year, MasterCard
shall make the appropriate calculation and **** to determine the
**** as follows:
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1.
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The **** will
be used with Table 3 to determine the corresponding ****, as well
as **** for that Year. Notwithstanding the foregoing, the **** to
be applied the **** Year of the **** Term shall be the **** that
was applied to **** in the immediately preceding Year.
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2.
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The
“****” is calculated as follows:
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****
****. See Annex B for examples of
this calculation.
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2.3
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****. As of the Effective Date and for each Year of
the Term, MasterCard will provide BAC with **** (as set forth in
Exhibit B, Section B) at such ****, which, subject to
Section 3 and the terms hereof, is the **** for which BAC will
be actually responsible in connection with the **** in such Year
(“****”). At the conclusion of each Year of the Term,
MasterCard shall make an annual reconciliation versus actual
payments made in accordance with MasterCard Standard Pricing, based
on the following calculation for each ****:
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****
For the avoidance of doubt, the
calculation referenced above shall apply to **** for the **** Year
of the **** Term.
Notwithstanding the foregoing, if
the **** in any year is ****, the **** will not apply with respect
to MasterCard-branded **** Cards, and BAC will pay MasterCard
Standard Pricing for **** with respect to
3
MasterCard-branded
**** Cards, which includes any pricing adjustments or increases. At
the end of the 4 th
quarter
for each Year during the Term, and within thirty (30) days
after BAC has provided all Required Reports for such Year,
MasterCard shall make such calculations in accordance with the
above and the examples set forth in Annex C to determine if any
**** is owed to BAC. MasterCard will make an annual reconciliation
of the components of its analysis and its calculations as to the
amount of **** and the **** as set forth in Exhibit B.
MasterCard will make **** support
funds available to BAC as provided hereunder (the
“****”):
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A.
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****
Support. For each Year
during the Credit Term, MasterCard shall make available to BAC ****
Support, which amount shall be based upon **** as calculated herein
(“**** Support”). The total amount of **** Support
available to BAC in each Year will be determined in accordance with
the following calculation:
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****
**** Support will be subject to
reduction in any Year if **** for such Year is less than the Annual
Target. If it is determined at the end of any Year that BAC did not
earn the full amount of **** Support, the difference shall be
adjusted as part of the true-up calculation for such year, and if
insufficient, then shall be factored into any subsequent Year until
satisfied. If it is determined at the end of any Year that BAC
earned more **** Support than it was provided in such year, an
adjustment will be made in conjunction with the **** Support
available in the first quarter of the next Year. A portion of the
annual **** Support will be allocated to each **** based on each
****, as calculated based on the prior Year’s actual **** for
such ****, unless otherwise mutually agreed. Notwithstanding the
foregoing, any **** Support payable in **** shall be decreased by
(i) the cost of **** incurred by BAC prior to the execution of
this Agreement and (ii) the cost of **** incurred pursuant to
the terms of any other agreement in effect between the parties at
such time. Deployment of the annual **** Support shall be
determined by the Co-Chairs (as defined below) in their reasonable
discretion.
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B.
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****
Support. For each Year during the **** Term, MasterCard
shall make available to BAC **** Support, which amount shall be
based upon **** and as set forth in this Section 2.4B
(“Support”). The total amount of **** Support available
to BAC in each Year of the **** Term will be determined in
accordance with the following calculation:
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****
****. In addition, BAC shall be
eligible for incremental **** Support (“Incremental ****
Support”) for the period ending on **** (the “****
Year,” or “Year”), for a total of up to **** in
**** Support and Incremental **** Support for such period, subject
to **** pursuant to Annex L. If it is determined at the end of any
Year based upon the actual **** for such Year that BAC did not earn
the full amount of **** Support or Incremental **** support for
such Year, the difference shall be adjusted as part of the true-up
calculation for such Year, and if insufficient, then shall be
factored into any subsequent Year until satisfied. If it is
determined at the end of any Year that BAC earned more **** Support
than it was provided in such Year, an adjustment will be made in
conjunction with the **** Support available in the first quarter of
the next Year. Deployment of the annual **** Support shall be
determined by the Co-Chairs (as defined below) in their reasonable
discretion. Until BAC provides the forecast required by ****, the
**** for any Year shall be ****.
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C.
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****
Committee. For each ****, a **** committee will be
established that will be co-chaired by MasterCard’s **** or
**** designee, and a designated BAC executive (the
“Co-Chairs”). The Co-Chairs will oversee and approve
all initiatives to be funded by the **** Support. Deployment of all
**** Support will be based on a disciplined business case and
prioritization process, as may be determined by the Co-Chairs, in
their reasonable discretion, from time to time.
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4
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D.
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****
Committee. For ****, a **** committee will be established
that will be co-chaired by MasterCard’s **** or ****
designee, and a designated BAC **** executive (the
“Co-Chairs”). The Co-Chairs will oversee and approve
all initiatives to be funded by the **** Support. Deployment of all
**** Support will be based on a disciplined business case and
prioritization process, as may be determined by the Co-Chairs, in
their reasonable discretion, from time to time.
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E.
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Use
of **** Support.
**** Support available in any Year shall be used in such Year to
support the growth of MasterCard Cards only, and the deployment of
**** Support in any Year shall be determined by **** of such Year.
Examples of potential deployment of the annual **** Support or ****
Support budgets include, but are not limited to, those set forth in
Annex D. In the event **** Support is used to reimburse BAC, then
BAC shall provide to MasterCard appropriate detailed invoices
supporting such reimbursement.
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F.
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No Carry
Over. To the extent that
the entire value of any **** Support available in any Year of the
Term is not used in such Year, any such unused **** Support will be
forfeited, and MasterCard will have no obligation to make any
rebate or other consideration to BAC for the unused amount of ****
Support, provided, however, that in the event a reasonable person
would determine in good faith that MasterCard has failed to act
reasonably expeditiously in assisting BAC to utilize such budget(s)
during any Year, then the unused portion of such budgets for that
Year shall roll into and be added to the budgets for the following
Year.
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A.
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****
Support. MasterCard will
provide annual support of up to **** for **** services for ****
(“**** Support”).
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B.
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****
Support. MasterCard will
provide annual support of up to **** during the **** Year and up to
**** for **** Year **** for **** services for **** (“****
Support”). In the event that BAC’s actual **** for any
Year is **** of the **** for such Year, then MasterCard may, in its
sole discretion, **** the **** for the **** Year.
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C.
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Value and
Use of Support. Deployment of the **** Support and the ****
Support (collectively, the “**** Support”) in any Year
shall be determined by **** of such Year, and shall be managed and
delivered by MasterCard. The value of **** shall be determined in
accordance with **** standard pricing in effect at the time such
**** Support is delivered. MasterCard’s obligation to provide
this support is subject to BAC’s execution and delivery to
MasterCard of reasonable and appropriate protective documentation.
Examples of potential utilization of the **** Support include, but
are not limited to those set forth in Annex E.
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D.
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No Carry
Over. To the extent that
the entire value of any **** Support available in any Year of the
Term is not used in such Year, any such unused **** Support will be
forfeited, and MasterCard will have no obligation to make any
rebate or other consideration to BAC for the unused amount of ****
Support, provided, however, that in the event a reasonable person
would determine in good faith that MasterCard has failed to act
reasonably expeditiously in assisting BAC to utilize such budget(s)
during any Year, then the unused portion of such budgets for that
Year shall roll into and be added to the budgets for the following
Year.
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A.
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Initiatives.
MasterCard will provide additional
support to BAC to be used in the **** Year of the **** Term for the
**** initiatives as set forth in Annex F (the “Additional
Support”). To the extent that any services relating to any
initiative set forth in Annex F are to be provided by ****,
MasterCard’s obligation to provide Additional Support for
such initiative is subject to BAC’s execution and delivery to
MasterCard of appropriate documentation with **** before work
begins. MasterCard and BAC will
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5
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work together in good faith to
expedite the initiatives in Annex F so that the Additional Support
can be used in ****.
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B.
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No Carry
Over. Use of Additional
Support shall be determined by **** of the **** Year. To the extent
that any of the Additional Support set forth in Annex F is not
spent in the **** Year, any such unused Additional Support will be
forfeited, and MasterCard will have no obligation to make any
rebate or other consideration to BAC for the unused amount of
Additional Support, provided, however, that in the event a
reasonable person would determine in good faith that MasterCard has
failed to act reasonably expeditiously in assisting BAC to utilize
such budget(s) during such Year, then the unused portion of such
budgets for that Year shall roll into the following Year.
Notwithstanding the above, in the event BAC is unable to utilize
the Additional Support in ****, MasterCard will make a good faith
effort, where appropriate, to preserve such Additional Support for
BAC use in ****, the preservation of Additional Support to be
determined by MasterCard in its sole discretion.
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A.
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MasterCard will
provide BAC with an annual incentive for ****, pursuant to the
table below, for each Year of the **** Term in which certain ****
thresholds, as set out below, are met for ****. The **** shall be
calculated in accordance with the formulas in Annex G.
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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For the purpose of calculating this
incentive for any Year, a ****. All must have achieved an
aggregate, annualized, minimum **** of **** annually
(“****”) to fully earn the incentive. See Annex G for a
sample calculation.
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B.
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In the event
that at least a **** is achieved in any Year, but there is ****
shortfall, the **** will be reduced by a percentage equivalent to
the **** shortfall ****.
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C.
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Once the ****
required to allow BAC to **** has been completed by BAC during the
Term and such completion date has been reported to MasterCard,
MasterCard will provide the following additional support to BAC,
based upon the annual **** commitment made by BAC, during the
twelve month period following such **** completion date:
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****
Provision of such additional support
shall be subject to execution by BAC of reasonable and appropriate
protective documentation. In the event that BAC does not attain the
**** commitment **** for such first Year, then it shall ensure that
such **** commitment is attained in the subsequent Year.
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2.8
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****
Bonus. MasterCard will also provide a **** bonus to BAC in
each Year in which the Annual Target (as defined in
Section 3.1 below) for such Year is achieved, pursuant to the
calculations and subject to the limitations herein
(“****”). The amount of **** paid to BAC shall be ****
that BAC achieves **** the Annual Target, such that only the ****
that is **** the Annual Target shall be eligible for such support.
**** Notwithstanding anything to the contrary, for the purposes of
performing the calculations required by this Section ****, shall
not include ****. Notwithstanding anything to the contrary, for the
purposes of performing the calculations required by this Section
****, shall include ****.
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In the event that MasterCard ****
such Cards **** and BAC **** unless the **** by MasterCard ****.
MasterCard will determine the amount of the applicable ****, and to
the extent it is **** than the **** paid by MasterCard, MasterCard
will pay to BAC the ****, as determined by MasterCard in its sole
discretion.
6
In any case, MasterCard will use
reasonable efforts to ensure the **** will be used to support card
issuance programs.
The parties hereto acknowledge that
nothing in this Section 2.8 will be interpreted as MasterCard
requiring or not requiring ****.
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A.
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BAC shall
promptly notify MasterCard of any Acquired Portfolio transaction as
soon as reasonably practicable after such transaction is finalized.
In the event that BAC acquires any MasterCard payment card
portfolio or any entity that offers, or intends to offer, payment
card programs similar to the programs that are the subject matter
of the Agreement, then the **** associated with such acquired
portfolios or programs will be eligible for the **** and incentives
and such portfolios or programs will be subject to all other
provisions of the Agreement at such time **** and subject to
****.
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B.
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In the event
that BAC acquires a portfolio of MasterCard-branded Cards
generating an average aggregate annual **** of **** or ****, the
**** (together with the Quarterly ****) and Annual Targets will
each be automatically adjusted (such revised ****, the
“Revised ****”; such revised Annual Targets, the
“Revised Annual Targets”) by MasterCard to reflect ****
of the prior **** of **** generated on such Acquired Portfolio (the
“****”). With respect to ****, such acquired portfolio
volumes will be eligible for **** as outlined herein upon inclusion
of such volumes in BAC’s reporting and upon adjustments as
provided above. See Annex H for an example of this
calculation.
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C.
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Notwithstanding
anything in this Agreement to the contrary, in the event that BAC
acquires a portfolio of MasterCard-branded **** Cards, the ****
generated by such Cards **** BAC’s **** Requirement or ****
Requirement set forth in Section 3.1B and 3.1C,
respectively.
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2.10 ****
Incentive.
A. ****
Incentive. In consideration of BAC’s commitment **** of the
****, MasterCard will pay BAC **** after **** and ****. This
section is subject to the provisions of
Section 3.1B.
B. ****
Incentive. In consideration of BAC’s commitment **** of the
****, MasterCard will pay BAC **** within forty-five days of the
**** occurring on a MasterCard-branded **** Card issued by BAC.
This section is subject to the provisions of
Section 3.1C.
2.11 **** Bonus. In
the event that in any Year during the **** Term the actual ****
exceeds the minimum **** threshold, set forth in the table below
(the “Minimum **** Threshold”) for such Year,
MasterCard shall pay to BAC for such Year an amount equal to ****
the incremental ****, determined in accordance with the following
calculation:
****
****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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2.12 ****
Support. MasterCard will
provide BAC with **** supporting **** Cards with a value of **** in
**** Year of the **** Term for **** approved in advance by ****
(“**** Support”). MasterCard will work jointly with BAC
to **** will receive ****. In the event that BAC’s actual
**** for any Year **** of the **** for such Year, then MasterCard
may, in its sole discretion, reduce the **** Support for the ****
Year.
7
In consideration for the Support to
be provided to BAC by MasterCard as described above and to the
other terms and conditions set forth in the Agreement, BAC agrees
and acknowledges that:
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3.1
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Annual
Volume Targets.
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A.
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“Annual
Targets,” when used in this Agreement, shall have the
following meanings with respect to **** in each Year of the ****
Term:
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Annual
Target:
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****
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****
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****
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****
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****
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****
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****
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****
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****
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B.
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“****
Requirement,” when used in this Agreement, shall have the
following meanings with respect to **** generated by
MasterCard-branded **** Cards in each Year of the ****
Term:
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****
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$ ****
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****
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$ ****
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****
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$ ****
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****
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$ ****
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****
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$ ****
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In the event that by **** or in any
**** Year during the **** Term the **** than the **** Requirement
for such period (the “**** Year”), then BAC’s
**** for such shortfall, except as provided in Section ****, shall
be to pay to MasterCard an amount calculated using the following
formula:
****
****. If in the Year immediately
following **** Year BAC **** the shortfall from such **** Year by
generating **** in excess of the **** Requirement for such Year by
an amount at least equal to **** Year, then **** pursuant to ****
Section **** for such **** Year.
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C.
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“****
Requirement,” when used in this Agreement, shall have the
following meanings with respect to **** generated in each Year of
the **** Term:
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****
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****
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****
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****
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****
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****
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****
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****
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****
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In the event that by **** or in any
**** Year during the **** Term the **** of **** generated **** than
the **** Requirement for such period (the “**** Year”),
then BAC’s **** for such shortfall, except as provided in
Section ****, shall be to shall pay to MasterCard an amount
calculated using the following formula:
****
****. If in the Year immediately
following a **** Year BAC **** the shortfall from such **** Year by
generating **** in excess of the **** Requirement for such Year by
an amount at least equal to **** Year, then **** pursuant to ****
Section **** for such **** Year.
8
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1.
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“****
Requirement,” when used in this Agreement, shall mean, for
each Year of the **** Term, ****.
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2.
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In the event
that in any given Year of the **** Term the **** equals or exceeds
the **** Requirement but does not equal or exceed the relevant
Annual Target described in Section 3.1A above, then prior to
performing the calculations with respect to MasterCard-branded ****
Cards pursuant to Section 2, the relevant **** and other
incentives in respect of such Year **** will be adjusted according
to the following:
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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****
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Please see Annex I for a clarifying
example.
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3.
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In the event
that in any given Year of the **** Term the **** for such Year
falls within the **** in the table above, and: (i) in such
Year the rate of **** over the prior Year’s **** and
(ii) in such Year the **** rate for all ****, then BAC’s
relevant **** for such Year for **** Cards will be adjusted as if
BAC’s, **** pursuant to the terms of Annex J, attached
hereto.
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1.
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“****
Requirement,” for each Year of the **** Term, means ****
satisfying the following **** requirements ****:
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****
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****
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****
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****
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$ ****
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****
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****
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****
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2.
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(a) In the
event that in any given year of the **** Term the actual ****, does
not satisfy the **** Requirement, ****, BAC **** Card pricing will
remain at standard pricing ****, and BAC shall not receive any
****, nor **** Support, for MasterCard-branded **** Cards in ****
that year. The prior sentence shall not apply to a **** if, with
respect to such ****, i) **** makes it, in the opinion of a
reasonable person, **** to satisfy such requirement or ii) BAC
notifies MasterCard in writing within 180 days prior to such ****
Year’s end of BAC’s decision to ****, provided BAC also
****.
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(b)
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In addition, in the event a BAC
**** falls below the respective **** Requirement, BAC will have
thirty (30) days to negotiate with MasterCard in good faith to
implement a plan to cure the shortfall within a mutually agreed,
reasonable period of time, during which the **** will continue to
be eligible for ****. If no such plan is agreed to within thirty
(30) days, or if BAC does not cure the shortfall within the
agreed-upon timeframe, the **** will revert to standard ****
pricing. In either of the foregoing events, BAC will pay to
MasterCard the difference between the **** paid
|
9
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pursuant to this Agreement and the
MasterCard Standard Pricing for ****, if any, for such **** from
the date of such default.
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3.
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However, with
respect to the ****, the **** is included in total **** for the
purpose of calculating ****, which shall only apply to the ****. In
the event that (i) BAC **** the **** Requirement, **** , and
(ii) any of BAC’s **** have **** their respective ****
Requirements ****, then BAC’s **** pricing for all **** for
such Year shall be at MasterCard Standard Pricing and no other ****
incentives shall be paid or payable to BAC for such Year.
****
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4.
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Notwithstanding
the foregoing, in the event that a **** but MasterCard experiences
**** in such **** during such **** Ye
|
