Accounting Statement. Prior to the execution and delivery of this Settlement Agreement, MasterCard has delivered to TJX the Accounting Statement, a copy of which is attached as Exhibit 2 to this Settlement Agreement. MasterCard hereby represents and warrants to TJX that (i) the Alerted-On Accounts constitute not more than 26.1 million unique MasterCard Accounts; (ii) the Eligible MasterCard Issuers’ Alerted-On Accounts constitute, in the aggregate, not less than 86% of all MasterCard Issuers’ Alerted-On Accounts; (iii) the Claimed-On Accounts that are the subject of the operating expense reimbursement Issuer Claims filed with MasterCard by Eligible MasterCard Issuers and their Affiliated Issuers in connection with the TJX Intrusion constitute, in the aggregate, 13,354,885 MasterCard Accounts and include, in the aggregate, 3,537,530 Reissued Accounts and 9,817,355 Specially Monitored Accounts; (iv) except for the Mistaken Issuer Claims, MasterCard has no reason to believe that any Eligible MasterCard Issuer or any Affiliated Issuer of any Eligible MasterCard Issuer has failed to comply with the “one-claim-per-account” provisions of Section 10.3.4 of the MasterCard Security Rules and Procedures manual in its operating expense reimbursement Issuer Claim relative to its Claimed-On Accounts; and (v) each entity identified in the Accounting Statement as an Eligible MasterCard Issuer is a MasterCard Issuer and no MasterCard Issuer identified in the Accounting Statement as an Eligible MasterCard Issuer is a Sponsored Issuer of any other MasterCard Issuer identified in the Accounting Statement as an Eligible MasterCard Issuer. MasterCard hereby further represents and warrants to TJX that (i) the Accounting Statement correctly sets forth the information required to be set forth therein by the terms of the definition of the term “Accounting Statement”; (ii) except with respect to the Mistaken Issuer Claims (as to which the number of Claimed-On Accounts evidenced by each Mistaken Issuer Claim has been reduced by the number of such Accounts in excess of the Adjusted Worksheet Account Total for such Claim), the calculations and the numbers set forth in the Accounting Statement with respect to the Eligible MasterCard Issuers’ Claimed-On Accounts, Reissued Accounts, and Specially Monitored Accounts accurately reflect the numerical information provided to MasterCard by the Eligible MasterCard Issuers and their Affiliated Issuers in the Issuer Claims; (iii) the numerical information included in any Issuer Claim was included by MasterCard once and only once in the calculations and numbers set forth in the Accounting Statement; and (iv) the Mistaken Issuer Claims were filed by the Eligible MasterCard Issuers (or by Affiliated Issuers of the Eligible MasterCard Issuers) indicated by a check m▇▇▇ on the Accounting Statement, and the aggregate number of Claimed-On Accounts evidenced by all Mistaken Issuer Claims is less than 70,000 and does not exceed the aggregate number of all Adjusted Worksheet Account Totals evidenced by all Mistaken Issuer Claims by more than 1,000. MasterCard shall in no event be deemed to be in breach of the representations and warranties contained in clause (iv) of the second sentence of this Section 2 and clause (iii) of the first sentence of Section 4.3 merely because, in regard to the Issuer Claim in question, MasterCard failed to notify the MasterCard Issuer that filed such Issuer Claim that MasterCard populated Item 4.1 of the Worksheet for such Issuer Claim with a number of MasterCard Accounts that was not fully deduplicated and/or failed to determine whether (i) the number of Claimed-On Accounts in such Issuer Claim before deducting the number of MasterCard Accounts, if any, appearing in Items 5.2-5.4 and 6.2-6.3 of the Worksheet for such Issuer Claim was greater than (ii) the Adjusted Worksheet Account Total for such Issuer Claim minus the number of MasterCard Accounts, if any, appearing in Items 4.2-4.5 of the Worksheet for such Issuer Claim.
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Accounting Statement. Prior to the execution and delivery of this Settlement Agreement, MasterCard has delivered to TJX the Accounting Statement, a copy of which is attached as Exhibit 2 to this Settlement Agreement. MasterCard hereby represents and warrants to TJX that (i) the Alerted-On Accounts constitute not more than 26.1 million unique MasterCard Accounts; (ii) the Eligible MasterCard Issuers’ Alerted-On Accounts constitute, in the aggregate, not less than 86% of all MasterCard Issuers’ Alerted-On Accounts; (iii) the Claimed-On Accounts that are the subject of the operating expense reimbursement Issuer Claims filed with MasterCard by Eligible MasterCard Issuers and their Affiliated Issuers in connection with the TJX Intrusion constitute, in the aggregate, 13,354,885 MasterCard Accounts and include, in the aggregate, 3,537,530 Reissued Accounts and 9,817,355 Specially Monitored Accounts; (iv) except for the Mistaken Issuer Claims, MasterCard has no reason to believe that any Eligible MasterCard Issuer or any Affiliated Issuer of any Eligible MasterCard Issuer has failed to comply with the “one-claim-per-account” provisions of Section 10.3.4 of the MasterCard Security Rules and Procedures manual in its operating expense reimbursement Issuer Claim relative to its Claimed-On Accounts; and (v) each entity identified in the Accounting Statement as an Eligible MasterCard Issuer is a MasterCard Issuer and no MasterCard Issuer identified in the Accounting Statement as an Eligible MasterCard Issuer is a Sponsored Issuer of any other MasterCard Issuer identified in the Accounting Statement as an Eligible MasterCard Issuer. MasterCard hereby further represents and warrants to TJX that (i) the Accounting Statement correctly sets forth the information required to be set forth therein by the terms of the definition of the term “Accounting Statement”; (ii) except with respect to the Mistaken Issuer Claims (as to which the number of Claimed-On Accounts evidenced by each Mistaken Issuer Claim has been reduced by the number of such Accounts in excess of the Adjusted Worksheet Account Total for such Claim), the calculations and the numbers set forth in the Accounting Statement with respect to the Eligible MasterCard Issuers’ Claimed-On Accounts, Reissued Accounts, and Specially Monitored Accounts accurately reflect the numerical information provided to MasterCard by the Eligible MasterCard Issuers and their Affiliated Issuers in the Issuer Claims; (iii) the numerical information included in any Issuer Claim was included by MasterCard once and only once in the calculations and numbers set forth in the Accounting Statement; and (iv) the Mistaken Issuer Claims were filed by the Eligible MasterCard Issuers (or by Affiliated Issuers of the Eligible MasterCard Issuers) indicated by a check m▇▇▇▇ on the Accounting Statement, and the aggregate number of Claimed-On Accounts evidenced by all Mistaken Issuer Claims is less than 70,000 and does not exceed the aggregate number of all Adjusted Worksheet Account Totals evidenced by all Mistaken Issuer Claims by more than 1,000. MasterCard shall in no event be deemed to be in breach of the representations and warranties contained in clause (iv) of the second sentence of this Section 2 and clause (iii) of the first sentence of Section 4.3 merely because, in regard to the Issuer Claim in question, MasterCard failed to notify the MasterCard Issuer that filed such Issuer Claim that MasterCard populated Item 4.1 of the Worksheet for such Issuer Claim with a number of MasterCard Accounts that was not fully deduplicated and/or failed to determine whether (i) the number of Claimed-On Accounts in such Issuer Claim before deducting the number of MasterCard Accounts, if any, appearing in Items 5.2-5.4 and 6.2-6.3 of the Worksheet for such Issuer Claim was greater than (ii) the Adjusted Worksheet Account Total for such Issuer Claim minus the number of MasterCard Accounts, if any, appearing in Items 4.2-4.5 of the Worksheet for such Issuer Claim.
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Accounting Statement. Prior to the execution and delivery of this Settlement Agreement, MasterCard has delivered to TJX the Accounting Statement, a copy of which is attached as Exhibit 2 to this Settlement Agreement. MasterCard hereby represents and warrants to TJX that (i) the Alerted-On Accounts constitute not more than 26.1 million unique MasterCard Accounts; (ii) the Eligible MasterCard Issuers’ Alerted-On Accounts constitute, in the aggregate, not less than 86% of all MasterCard Issuers’ Alerted-On Accounts; (iii) the Claimed-On Accounts that are the subject of the operating expense reimbursement Issuer Claims filed with MasterCard by Eligible MasterCard Issuers and their Affiliated Issuers in connection with the TJX Intrusion constitute, in the aggregate, 13,354,885 MasterCard Accounts and include, in the aggregate, 3,537,530 Reissued Accounts and 9,817,355 Specially Monitored Accounts; (iv) except for the Mistaken Issuer Claims, MasterCard has no reason to believe that any Eligible MasterCard Issuer or any Affiliated Issuer of any Eligible MasterCard Issuer has failed to comply with the “one-claim-per-account” provisions of Section 10.3.4 of the MasterCard Security Rules and Procedures manual in its operating expense reimbursement Issuer Claim relative to its Claimed-On Accounts; and (v) each entity identified in the Accounting Statement as an Eligible MasterCard Issuer is a MasterCard Issuer and no MasterCard Issuer identified in the Accounting Statement as an Eligible MasterCard Issuer is a Sponsored Issuer of any other MasterCard Issuer identified in the Accounting Statement as an Eligible MasterCard Issuer. MasterCard hereby further represents and warrants to TJX that (ia) the Accounting Statement correctly sets forth the information required to be set forth therein by the terms of the definition of the term “Accounting Statement”; ” in Section 1.1;
(iib) except with respect to each entity identified in the Mistaken Accounting Statement as an Eligible MasterCard Issuer Claims is an Eligible MasterCard Issuer and no entity identified in the Accounting Statement as an Eligible MasterCard Issuer is a Sponsored Issuer of any other entity identified in the Accounting Statement as an Eligible MasterCard Issuer;
(as to which c) the number Alerted-On Accounts constitute 39,361,486 unique MasterCard Accounts;
(d) the Alerted-On Accounts of the Covered MasterCard Issuers constitute, in the aggregate, 36,935,155 of the Alerted-On Accounts;
(e) the Claimed-On Accounts evidenced by constitute, in the aggregate, 26,963,514 of the Alerted-On Accounts and include, in the aggregate, 10,557,117 Reissued Accounts and 16,406,397 Specially Monitored Accounts;
(f) MasterCard has no reason to believe that any Covered MasterCard Issuer has failed to comply with “one-claim-per-account” provisions of Rule 10.3.4 of the MasterCard Security Rules and Procedures in preparing or submitting to MasterCard an Issuer Operating Expense Claim or in having an Issuer Operating Expense Claim prepared or submitted to MasterCard on its behalf;
(g) with respect to each Mistaken of the Issuer Operating Expense Claims, the number MasterCard used to populate Item 4.1 of the MasterCard Online Issuer Claim for Reimbursement Worksheet for such claim is identical to the fully deduplicated number of Alerted-On Accounts of the issuer in question reflected in the Accounting Statement;
(h) upon having applied its preliminary review process, MasterCard has been reduced determined that the maximum aggregate amount that MasterCard would award on the Issuer Operating Expense Claims is $45,742,359.60 (the “Maximum Aggregate Operating Expense Claim Amount”);
(i) except for 19 Eligible MasterCard Issuers that issued 493,355 of the Alerted-On Accounts and that submitted Issuer Compliance Claims representing in the aggregate Maximum Compliance Claim Amounts of not more than $1.7 million, which 19 Eligible MasterCard Issuers are identified as Banks 264-282 on the Accounting Statement, each Eligible MasterCard Issuer submitted an Issuer Operating Expense Claim on behalf of itself and/or one or more of its Sponsored Issuers;
(j) upon having applied its preliminary review process, MasterCard has determined that the amount sought by the number Issuer Compliance Claims that were not duplicative of another Issuer Compliance Claim, were made the subject of a precompliance item within 150 days of the MasterCard Alert relative to the Alerted-On Accounts that are the subject of such Accounts in excess claims, were elevated to compliance no earlier than the later of the Adjusted Worksheet Account Total for denial of such Claimprecompliance item by the relevant HPS Acquirer or the expiration of 30 days from the submission of such precompliance item, and were elevated to compliance within 180 days of such alert, and accordingly the maximum aggregate amount that MasterCard would award on Issuer Compliance Claims, is $53,657,640.40 (the “Maximum Aggregate Compliance Claim Amount” and, together with the Maximum Aggregate Operating Expense Claim Amount, the “Maximum Aggregate Issuer Liability”), ; and
(k) the calculations and the numbers set forth in the Accounting Statement with respect to the Eligible MasterCard Issuers’ Claimed-On Accounts, Reissued Accounts, and Specially Monitored Accounts accurately reflect the numerical information provided to MasterCard by the Eligible MasterCard Issuers and their Affiliated Covered Sponsored Issuers in the Issuer Claims; (iii) Claims they submitted to MasterCard in connection with the numerical information included in any Issuer Claim was included by MasterCard once and only once in the calculations and numbers set forth in the Accounting Statement; and (iv) the Mistaken Issuer Claims were filed by the Eligible MasterCard Issuers (or by Affiliated Issuers of the Eligible MasterCard Issuers) indicated by a check m▇▇▇ on the Accounting Statement, HPS Intrusion and the aggregate number results of Claimed-On Accounts evidenced by all Mistaken Issuer Claims is less than 70,000 and does not exceed the aggregate number of all Adjusted Worksheet Account Totals evidenced by all Mistaken Issuer Claims by more than 1,000. MasterCard shall in no event be deemed MasterCard’s having applied its preliminary review processes to be in breach of the representations and warranties contained in clause (iv) of the second sentence of this Section 2 and clause (iii) of the first sentence of Section 4.3 merely because, in regard to the Issuer Claim in question, MasterCard failed to notify the MasterCard Issuer that filed such Issuer Claim that MasterCard populated Item 4.1 of the Worksheet for such Issuer Claim with a number of MasterCard Accounts that was not fully deduplicated and/or failed to determine whether (i) the number of Claimed-On Accounts in such Issuer Claim before deducting the number of MasterCard Accounts, if any, appearing in Items 5.2-5.4 and 6.2-6.3 of the Worksheet for such Issuer Claim was greater than (ii) the Adjusted Worksheet Account Total for such Issuer Claim minus the number of MasterCard Accounts, if any, appearing in Items 4.2-4.5 of the Worksheet for such Issuer Claimclaims.
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Sources: Settlement Agreement (Heartland Payment Systems Inc)