Dated 6 August 2010 THE ROYAL BANK OF SCOTLAND PLC AND OTHERS and SHIP BIDCO LIMITED TRANSFER AGREEMENT relating to the transfer of the companies and businesses comprising the point of sale, e-commerce gateway, merchant acquiring business and related...

EXHIBIT 4.23

Dated 6 August 2010

THE ROYAL BANK OF SCOTLAND PLC AND OTHERS

and

SHIP BIDCO LIMITED

TRANSFER AGREEMENT

relating to the transfer of the companies and businesses comprising the point of sale, e-commerce

gateway, merchant acquiring business and related payment processing business of The Royal Bank of

Scotland plc, National Westminster Bank plc, Ulster Bank Limited, Ulster Bank Ireland Limited,

Citizens Financial Group, Inc. and RBS Netherlands Holdings B.V. including the contribution of such

business operated by National Westminster Bank plc in satisfaction of a proposed dividend in specie

Linklaters

Llnklaters LLP

One Xxxx Xxxxxx

Xxxxxx XX0X 0XX

Telephone (x00 00) 0000 0000

Facsimile (x00 00) 0000 0000

Ref: M Middleditch/S Xxxxxxx

Transfer Agreement

This Agreement is made on 6 August 2010 between:

(1)	THE ROYAL BANK OF SCOTLAND plc, a company incorporated in Scotland (registered no SC090312) whose registered office is at 00 Xx Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX (“RBS”);

(2)	Each of the other Share Sellers and Business Sellers whose names and registered offices are set out in Schedule 1 (together with RBS, the “Sellers”);

(3)	NATIONAL WESTMINSTER BANK plc, a company incorporated in England (registered no 929027) whose registered office is at 000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX (“NatWest”); and

(4)	SHIP BIDCO LIMITED, a company incorporated in England and Wales (registered no 07316500), whose registered office is at Xxx Xxxxx Xxxxx, Xxxxxx XX0X 2WG (the “Purchaser”);

each being a “party” to this Agreement and together comprising the “parties” to this Agreement.

Whereas:

(A)	NatWest intends to declare the Dividend in Specie.

(B)

NatWest has agreed to transfer the Contribution Business to the Purchaser and to assume the obligations imposed on NatWest under this Agreement. In exchange, the Purchaser has agreed to procure the issue of the Contribution Securities and to pay the Contribution Cash to the Contribution Party on the terms set out in this Agreement. These transactions will have the effect of satisfying the Dividend in Specie which NatWest intends to declare.

(C)	The Sellers have agreed to transfer the Group Companies and the Sale Businesses and to assume the obligations imposed on the Sellers under this Agreement.

(D)	The Purchaser has agreed to accept the transfer of the Group Companies and the Sale Businesses and to assume the obligations imposed on it under this Agreement.

(E)	Each of RBS, the Sellers, NatWest and the Relevant Purchasers have agreed to assume certain obligations imposed on it under this Agreement and the Tax Indemnity.

It is agreed as follows:

1	Interpretation

In this Agreement, unless the context otherwise requires, the provisions in this Clause 1 apply:

1.1	Definitions

“Accounts Date” means 31 December 2009;

“Agreed Terms” means, in relation to a document, such document in the terms agreed between RBS and the Relevant Purchaser and signed for identification by or on behalf of RBS and by or on behalf of the Relevant Purchaser at the date of this Agreement with such alterations as may be agreed in writing between RBS and the Relevant Purchaser from time to time;

“Allocation Principles” means the principles in the Agreed Terms in relation to the allocation of employees to the Businesses (including the associated allocation appeals process);

“Assumed Liabilities” means the liabilities of the Business Transferors or any member of the RBSG Group to be assumed by the Purchaser under or pursuant to Clause 2.3.3 and “Assumed Liability” means any one of them;

“Bank Debt” means the indebtedness of each member of the Purchaser’s Group on Closing under the Senior Facilities Agreement and Subordinated Facility Agreement;

“Banking Arrangements Side Letter” means the side letter in the Agreed Terms relating to the negotiation of the Banking Services Arrangement, Cash Management Agreement and the FX Micropay Agreement, including the term sheets relating to each of such agreements;

“Banking Services Agreement” means the agreement to reflect the terms set out in the Banking Arrangements Side Letter for commercial and transactional banking services to be entered into on Closing between a member of the Relevant Purchasers’ Group and a member of the RBSG Group in relation to the provision of banking services following Closing in relation to the Group;

“Books and Records” means in the case of each Business or Group Company, all statutory books, notices, correspondence, orders, inquiries, customer or supplier details, business plans, records and documents relating to the Group’s products services or Information Technology Assets (save for the software components of the Streamline Platform) (including user guides, operating policies and manuals) and other documents and all computer disks or tapes or other machine legible programs or other records, but only in so far as such documents and records relate exclusively to each Business or the

business of each Group Company and are separable and discrete (and save for books, records and other documents (i) which the Transferors are required by Law and Regulations to retain or which they are otherwise entitled to retain in accordance with Clause 9.10 or (ii) in the case of records of the Businesses, which relate to tax, accounting, insurance or regulatory matters or to Excluded Assets or Excluded Liabilities);

“Xxxxxxx-Xxxxx Claim” ***

“Business” means, in the case of each Business Transferor, the business being transferred by it hereunder, being:

(i)

in the case of NatWest, the point of sale and e-commerce gateway and merchant acquiring business (including “card-not-present” activities) and the related payment processing business carried on by it, on its own behalf or through partner bank arrangements, at Closing under the names Streamline, Streamline International or RBS WorldPay;

(ii)

in the case of RBS, the point of sale and e-commerce gateway and merchant acquiring business (including “card-not-present” activities) and the related payment processing business carried on by it, on its own behalf or through partner bank arrangements, at Closing under the names Streamline, Streamline International or RBS WorldPay;

(iii)

in the case of Ulster Bank Limited, the point of sale and e-commerce gateway and merchant acquiring business (including “card-not-present” activities) and the related payment processing business carried on by it at Closing under the name Ulster Bank Limited;

(iv)

in the case of Ulster Bank Ireland Limited, the point of sale and e-commerce gateway and merchant acquiring business (including “card-not-present” activities) and the related payment processing business carried on by it at Closing under the name Ulster Bank Ireland Limited under the name Streamline Ireland,

and “Businesses” means all of the Businesses taken together;

“Business Assets” means, in relation to each Business, all the property, rights and assets in respect of that Business agreed to be transferred under Clause 2.3.1 of this Agreement but excluding the Excluded Assets;

“Business Assignment Properties” means the leasehold properties which are to be assigned by the relevant Business Transferors to the Relevant Purchaser in accordance with Part 6 of Schedule 3, further details of which are

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

set out in Part 2 of Schedule 3 and “Business Assignment Property” means any one of them;

“Business Day” means a day which is not a Saturday, a Sunday or a public holiday in London;

“Business Intellectual Property” means the Intellectual Property details of which are set out or referred to in paragraphs 1 and 2 of Part 1 of Schedule 4 together with, in the case of each Business, all ownership rights held by any member of the RBSG Group in Intellectual Property which at or immediately before Closing is used exclusively in the course of that Business, but excluding Information Technology;

“Business Licence Properties” means those parts of the freehold and leasehold properties in respect of which a licence to occupy is to be granted by the relevant member of the Transferor’s Group to the Relevant Purchaser in accordance with Part B of Schedule 3, further details of which are set out in Part 4 of Schedule 3 and “Business Licence Property” means any one of them;

“Business Receivables” means, in the case of each Business, all book and other debts receivable by, payable to, or owed to the relevant Business Transferor or any member of the RBSG Group to the extent that such debts and sums arise in the course of that Business and are outstanding at Closing whether or not yet immediately due or payable (including trade debts, deposits, prepayments, retrospective rebates and overpayments) and interest thereon but excluding:

(i)

debts owed to the Business Transferor by any relevant Taxation Authority in respect of Taxation including, for the avoidance of doubt, any bond or other security issued by any Taxation Authority or other governmental agency representing any such debts;

(ii)

any item which falls to be treated as part of the Cash Balances held by or on behalf of any of the Business Transferors at close of business on the Closing Date to the extent related to the Businesses; and

(iii)

the Card Scheme Debtors of such Business;

“Business Seller” means, in relation to each of the Sale Businesses referred to in column (2) of Part 2 of Schedule 1, the company whose name and details are set out opposite that Sale Business in column (1);

“Business Transferors” means the Business Sellers and NatWest (in its capacity as owner of the Contribution Business) and “Business Transferor” means any one of them;

“Business Underletting Properties” means those parts of the leasehold properties in respect of which the relevant Business Transferor will grant an underlease to the Purchaser in accordance with Part 7 of Schedule 3, further details of which are set out in Part 3 of Schedule 3, and “Business Underletting Property” means any one of them;

“Card Scheme Debtors” means, in the case of each Group Company and Business, amounts due, as at Closing, from any credit, debit or charge card scheme in respect of the Merchant Payables of that Group Company or Business;

“Carve-Out Accounts” means the audited accounts of the Group in the Agreed Terms for the three year period ended on the Accounts Date;

“Cash Advances Agreement” has the meaning given in Clause 5.8;

“Cash Balances” means, in respect of the Businesses, cash in hand or credited to any account with a financial institution and securities with a maturity of less than one year which are readily convertible into cash excluding (i) Merchant Cash Balances; and (ii) cash held in trust or escrow, xxxxx cash and cash held overseas where there are restrictions on the repatriation of monies, and after deducting Required Separation Cash. For the avoidance of doubt, Cash Balances may be a negative number. No amounts paid to the Group by the Transferors under Clause 7.6 shall be included in Cash Balances;

“Cash Consideration” means an amount equal to the aggregate of (i) the Premium, plus (ii) the Net Asset Value, less (iii) the Contribution Securities Value;

“Cash Management Agreements” means the agreements or application forms to be entered into on Closing between a member of the Purchasers’ Group and a member of the RBSG Group to reflect the terms relating to such agreements set out in the Banking Arrangements Side Letter in relation to the provision of cash management services and related banking services;

“Chargee” has the meaning given to it in Clause 16.4.2;

“Claims” means all rights and claims as at Closing of any member of the RBSG Group under any warranties, undertakings, covenants, conditions, guarantees or indemnities (whether express or implied) and arising under any contract, undertaking or agreement (not being a Contract) to which any Business Transferor or any member of the RBSG Group is a party to the extent that such rights or claims relate to any of the Business or Business Assets or any Assumed Liability (but excluding any rights or claims under any RBSG Group Insurance Policies or Target Group Insurance Policies) and “Claim” means any one of them;

“Clause 5 Claim” has the meaning given to it in Clause 11.1;

“Closing” means the completion of the transfer of Shares and Businesses, pursuant to Clause 7 of this Agreement and any relevant Local Transfer Document;

“Closing Date” means the date on which Closing takes place;

“Closing Statement” means the statement setting out the Net Asset Value, the Intra-Group Receivables, the Intra-Group Payables, the Merchant Payables, the Merchant Cash and the Card Scheme Debtors, such statement to be prepared by RBS in accordance with Clause B and Parts 1 and 2 of Schedule 11;

“Committee Employees” means ***

“Companies” means the companies, details of which are set out in paragraph 1 of Schedule 2, and “Company” means any one of them;

“Companies’ Properties” means the Owned Properties and the Company Leasehold Properties as defined in Part 5 of Schedule 3 and “Company Property” means any one of them;

“Company Leasehold Properties” means the properties, further details of which are set out in Part B of Part 1 of Schedule 3;

“Confidentiality Agreement” means each of (i) the confidentiality agreement dated 27 February 2010 between RBSG and Advent International plc and (ii) the confidentiality agreement dated 26 February 2010 between RBSG and Xxxx Capital Ltd, in each case pursuant to which RBSG made available to the Purchaser certain confidential information relating to the Group;

“Consideration” has the meaning given to it in Clause 3.1;

“Consumer Credit Act” means the UK Consumer Credit Act 1974 (as amended);

“Contracts” means, in relation to each Business or business of the Group Companies, all contracts, undertakings, arrangements and agreements entered into prior to Closing by or on behalf of any of the Group Companies or the Business Transferors exclusively in relation to the Business (including those relating to Information Technology used exclusively by the Group) to the extent that immediately prior to Closing the same remain to be completed or performed or remain in force, including, without prejudice to the generality of the foregoing, the Licence Agreements and the Merchant Contracts of that

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

Business or Group Company relating to the Businesses, but excluding, in relation to the Businesses:

(i)

contracts of employment and other agreements with Relevant Employees (to which the provisions set out in Schedule 6 shall apply);

(ii)

contracts of insurance relating to the Businesses;

(iii)

leases and any other related or similar agreements, undertakings and arrangements with respect to the Properties (to which the provisions set out in Schedule 3 shall apply); and

(iv)

all contracts, undertakings, agreements or binding arrangements which form part of or relate to the Excluded Assets or any of the Excluded Liabilities,

and “Contract” means any of them;

“Contribution Business” means the Business being transferred by NatWest hereunder;

“Contribution Cash” means an amount equal to the Cash Consideration less the Sale Cash;

“Contribution Loan Notes” means the loan notes in a form agreed between RBS and the Purchaser acting reasonably, to be issued by UK Holdco to the Contribution Party pursuant to Clauses 3 and 7.3;

“Contribution Party” means RBS in its capacity as beneficial owner of all issued ordinary shares in NatWest or, in the event that NatWest does not declare the Dividend in Specie, NatWest (in which case Clause 3.2.3 shall not apply);

“Contribution Securities” means the Contribution Shares and any Contribution Loan Notes;

“Contribution Securities Value” means the Premium plus the Estimated Net Asset Value minus Estimated Intra-Group Indebtedness plus the Transaction Costs less the Bank Debt, the aggregate of which is multiplied by 19.99 per cent;

“Contribution Shares” means the shares in the capital of UK Holdco and which are valued at the Contribution Shares Value and which are to be issued by UK Holdco credited as fully paid to the Contribution Party pursuant to Clauses 3 and 7.3 and which shall rank in all respects pari passu with the existing issued fully paid shares in the capital of UK Holdco including the right to receive in full all dividends and other distributions hereafter declared, paid or made;

“Conversion Rate” has the meaning given to it in Clause 1.15;

“Current Employees” means the employees of the Group Companies and those employees who are identified as Relevant Employees in each case, at the date of this Agreement;

“Data Room” has the meaning given to it in paragraph 2 of the Disclosure Letter;

“Deed of Adherence” means a deed of adherence in the form attached as Schedule 15;

“Disclosed” means fairly disclosed in accordance with this Agreement or the Disclosure Letter, and a matter will be deemed to be fairly disclosed if it could be reasonably expected that an informed and sophisticated purchaser, which has experience of buying and selling companies and businesses (including in the financial services and related sectors) and which has taken professional advice and has reviewed the Disclosure Letter and the documents disclosed pursuant thereto (including the documents in the Data Room) would become aware of the nature of the matter disclosed and would be reasonably able to form a view of the scope or potential scope of such matter;

“Disclosure Letter” means the letter dated the same date as this Agreement from the Transferors to the Purchaser disclosing:

(i)

information constituting exceptions to the Transferor Warranties; and

(ii)

details of other matters referred to in this Agreement;

“Dispensation” means the dispensation granted by the DNB to Bibit B.V. with effect from 30 June 2010 providing a dispensation from the prohibition under section 3:5(1) of the Dutch Financial Supervision Act to invite, receive or have repayable funds in the operation of a business outside a restricted circle from parties other than professional market parties in the Netherlands;

“Dividend In Specie” means the dividend in specie which NatWest intends to declare on its ordinary shares equal in aggregate to the book value of the Contribution Business as at Closing, to be satisfied by the transfer of the Contribution Business to the Purchaser on terms that the Contribution Securities are issued, and the Contribution Cash is paid, to the ordinary shareholders of NatWest in respect of and in proportion to their shareholdings;

“DNB” means De Nederlandsche Bank;

“Draft Closing Statement” has the meaning given to it in Clause 8.1;

“Dutch Financial Supervision Act” means the Dutch Financial Supervisions Act (Wet Financieel Toezicht);

“Dutch Civil Code” means the Dutch Civil Code (Nederlands Burgerlijk Wetboek);

“Dutch CIT Fiscal Unity” has the meaning given to it in the Tax Indemnity;

“Dutch VAT Fiscal Unity” has the meaning given to it in the Tax Indemnity;

“Employees” means the Relevant Employees and the employees of the Group Companies from time to time;

“Encumbrance” means any claim, charge, mortgage, lien, option, equity, power of sale, hypothecation, usufruct, retention of title, right of pre-emption, right of first refusal or other third party right or security interest of any kind or an agreement, arrangement or obligation to create any of the foregoing other than repairers’ or similar liens or suppliers’ retentions of title arising in the ordinary course of business;

“Estimated Intra-Group Indebtedness” means the aggregate amount of the Estimated Intra-Group Payables (on the one hand) and the aggregate amount of the Intra-Group Receivables (on the other hand) and shall be a negative number if Intra-Group Payables exceed Intra-Group Receivables and vice versa;

“Estimated Intra-Group Payables” means RBS’s good faith best estimate of the aggregate of the Intra-Group Payables at the Closing Date;

“Estimated Intra-Group Receivables” means RBS’s good faith best estimate of the aggregate of the Intra-Group Receivables at the Closing Date;

“Estimated Net Asset Value” means RBS’s good faith best estimate of the Net Asset Value at the Closing Date (which, for the avoidance of doubt, may be a negative amount), which estimate shall be notified by RBS to the Purchaser pursuant to Clause 7.4 and added to the relevant Premium for the purposes of Clause 7.3.1 and added to the relevant Premium prior to the deduction of the Contribution Securities Value for the purposes of Clause 7.3.2;

“Exchange Agreement” means the put and call agreement in Agreed Terms enabling the indirect exchange of the Contribution Shares and the Contribution Loan Notes into shares and debt securities of Holdco;

“Excluded Assets” means the property, rights and assets referred to in Clause 2.3.2 and “Excluded Asset” means any one of them;

“Excluded Intellectual Property” means the Intellectual Property described at paragraph 4 of Part 1 of Schedule 4;

“Excluded Liabilities” means the debts, liabilities and obligations referred to in Clause 2.3.5 and “Excluded Liability” means any one of them;

“Financing Banks” means the banks and financial institutions who are, from time to time, the providers of the senior and subordinated facilities made available to the Purchaser and certain members of the Purchaser’s Group for the purpose of, inter alia, application in or towards financing the consummation of the transaction contemplated by this Agreement;

“Financing Structure Memorandum” means a document in the Agreed Terms which describes the financing structure and security;

“FSA” means the UK Financial Services Authority;

“FX Micropay Agreement” means the FX Micropay agreement to reflect the terms relating to such agreement set out in the Banking Arrangements Side Letter to be entered into between the Relevant Purchaser and a member of the RBSG Group in relation to currency conversion services to be provided from Closing in respect of the Group;

“Good Industry Practice” means, in relation to any business being carried on in a territory, no less than:

(i)

those practices, methods, procedures (or one of a range of practices, methods and procedures) which are operated by the Group in a territory on the date hereof or have been operated at the relevant time when the Group operated in that territory; and

(ii)

practices, methods, procedures (or one of a range of practices, methods and procedures) which at the relevant time (a) are (where operations are ongoing in a territory) or (b) were (where operations have closed in a particular territory) comparable to, or materially consistent with, those which are commonly adopted by entities carrying on a business in that territory at the relevant time similar to the business of the Group in that territory or which are materially consistent at the relevant time with the requirements of, or otherwise on a basis agreed with or acceptable to, Visa Inc. or Visa Europe, as the case may be, or MasterCard Worldwide or any other relevant card scheme at the relevant time;

“Goodwill” means, in relation to each Business, the goodwill of the relevant Business Transferor to the extent that it relates to that Business as at Closing with the exclusive right to carry on that Business in succession to the relevant Business Transferor excluding goodwill in any trade marks, service marks or trade names used in relation to one of more of the Businesses and also used by one or more other businesses or operations of any member of the RBSG Group which are not Businesses;

“Group” means the Group Companies and the Businesses, taken as a whole;

“Group Companies” means the Companies and the Subsidiaries and “Group Company” means any one of them;

“Group Company Intellectual Property” means all rights and interest owned by any of the Group Companies in Intellectual Property;

“Group Intellectual Property” means the Business Intellectual Property and the Group Company Intellectual Property;

“Group Payment Arrangements” has the meaning given to it in the Tax Indemnity;

“Group Regulatory Capital Contributions” means any payments (including loans) which may be made by a Group Company to the Purchaser, without breaching banking covenants or any capital requirements of the relevant Group Company, and which would be accepted by the FSA as a means of satisfying Purchaser Regulatory Capital;

“Group Relief” has the meaning given to it in the Tax Indemnity;

“Group Retirement Benefit Arrangements” has the meaning given to it in paragraph 7.6.1 of Schedule 12;

“Guarantees” means:

(i)

the letter guarantees issued by RBS to Australia and New Zealand Banking Group Limited dated 13 January 2005 and 14 April 2005 in relation to WorldPay Limited (the “Australian Guarantee”);

(ii)

the letter guarantee issued by RBS to BNP Paribas SA dated on or around 29 April 2005 in relation to Bibit B.V. and Bibit Foundation; and

(iii)

the statements pursuant to Article 2:403 paragraph 1 sub f of the Dutch Civil Code dated 20 December 2005 pursuant to which RBS assumes joint and several liability for certain obligations of Bibit B.V.;

“HMRC” means HM Revenue & Customs;

“HM Treasury” has the meaning given to it in Clause 15.2.3;

“Holdco” means Ship Luxco Holdings S.a.r.I, having its registered office at 0-0 xxx Xxxx, X-0000 Xxxxxxxxxx and duly registered with the Luxembourg Trade & Companies Register or such other Luxembourg corporate entity as may be determined by Clause 2.7 of the Shareholders’ Agreement;

“HSR Act” has the meaning given to it in Clause 4.1.3;

“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board (“IASB”) and the official interpretations issued by the International Financial Reporting Interpretations Committee of the IASB as adopted by the European Union;

“Independent Card Scheme Membership Date” means the date on which the Relevant Purchaser commences operations as an independent member of the Visa Europe and Mastercard Worldwide card schemes;

“Information Memorandum” means the information memorandum concerning the Businesses and Group Companies dated February 2010 provided to the Purchaser by or on behalf of RBSG;

“Information Technology” means software, hardware and networks;

“Information Technology Assets” means (i) in relation to each Business, the Information Technology owned by any Business Transferor or any other member of the RBSG Group and used exclusively in relation to that Business immediately prior to Closing; and (ii) the software components of the Streamline Platform owned by any Business Transferor or any other member of the RBSG Group;

“Intellectual Property” means trade marks, service marks, trade names, domain names, get-up, logos, patents, inventions, registered and unregistered design rights, copyrights (including rights in software), database rights, trade secrets, know-how, rights in information and other similar rights in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;

“Intra-Day Facility Agreement” means the facility letter in the Agreed Terms to be entered into between a member of the Relevant Purchasers’ Group and a member of the RBSG Group in relation to the provision of intra-day finance arrangements;

“Intra-Group Indebtedness” means, at Closing, the aggregate amount of the Intra-Group Payables (on the one hand) and the aggregate amount of the Intra-Group Receivables (on the other hand) and shall be a negative number if Intra-Group Payables exceed Intra-Group Receivables and vice versa;

“Intra-Group Payables” means, in the case of each Business and Group Company, all outstanding loans or other financing liabilities or obligations (including, for the avoidance of doubt, accrued interest up to and including Closing and any redemption premium or penalty arising as a result of repayment prior to Closing (if any)) to the extent owed by the relevant Group Company or owed by a relevant Business to a member of the RBSG Group (other

than a Group Company) or to a business of the RBSG Group (other than a Business) as at the close of business on the Closing Date but excluding, for the avoidance of doubt, any trading debts (which shall be a negative number);

“Intra-Group Receivables” means, in the case of each Business and Group Company, all outstanding loans or other financing liabilities or obligations (including, for the avoidance of doubt, accrued interest up to and including Closing and any redemption premium or penalty arising as a result of repayment prior to Closing (if any)) to the extent owed by a member of the RBSG Group (other than a Group Company) or owed by a business of the RBSG Group (other than a Business) to a Group Company or Business as at the close of business on the Closing Date but excluding, for the avoidance of doubt, any trading debts (which shall be a positive number);

“Joint Implementation Committee” has the meaning given in Clause 6.1.2;

“Joint Steering Committee” means the committee described in the Separation Plan;

“Law and Regulations” means any applicable law, regulation or ordinance or any direction, instruction, pronouncement, requirement, decision of, or contractual obligation owed to, an applicable Regulatory Authority;

“Leaseback Properties” has the meaning given to it in paragraph 1 of Part 9 of Schedule 3;

“Letters of Credit” has the meaning given to it in Clause 7.6.9;

“Liability” means, with respect to any person, any indebtedness, liability, fine or obligation of such person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required by IFRS to be accrued in the financial statements of such person;

“LIBOR” means the British Bankers Association Interest Settlement Rate for deposits in £ (Pounds Sterling) for a period of three months, which appears on the relevant Reuters Screen, rounded upwards to four decimal places at approximately 11.00 am (London Time) on the day specified for the determination of an interest rate (or, if such day is not a Business Day, such rate from the immediately preceding Business Day) and, if no such screen rate is available, a replacement rate or service agreed between RBS and the Purchaser (such agreement not to be unreasonably withheld or delayed) or, in the absence of such agreement, the arithmetic mean of the rates quoted by the principal London offices of each member of the British Bankers

Association LIBOR Contributor Panel for Pounds Sterling to leading banks In the London interbank market;

“Licence Agreements” means, in relation to each Business, all licence agreements, including computer software licence agreements, entered into on or prior to Closing by any of the Business Transferors or a member of the RBSG Group and which either (i) relate to Intellectual Property used exclusively in relation to the Businesses or (ii) comprise the licence of software components of the Streamline Platform, in each case to the extent that immediately prior to Closing the same remain to be completed or performed or remain in force, including the licence agreements, brief details of which are set out in Schedule 14 but excluding, for the avoidance of doubt, any licences granted to any Business Transferor by any credit, debit or charge card scheme;

“Local Transfer Documents” has the meaning given to it in Clause 2.9.1 and “Local Transfer Document” shall be construed accordingly;

“Long Stop Date” means 31 January 2011, being the last date on which Closing can occur (unless otherwise agreed by RBS and the Purchaser in writing);

“Losses” means all losses, liabilities, damages, reasonable costs (including legal costs and expenses, experts’ and consultants’ fees, reasonable expenses and costs and expenses of investigation and enforcement), charges, expenses, actions, proceedings, claims (including compensation claims), damages, interest, fines, penalties, awards, judgments, settlements and demands;

“Luxco l” means Ship Luxco 1 S.à.x.x. a private company limited by shares incorporated under the laws of Luxembourg having its registered office at 0-0 xxx Xxxx, X-0000 Xxxxxxxxxx;

“Luxco 2” means Ship Luxco 2 S.à.x.x. a private company limited by shares incorporated under the laws of Luxembourg having its registered office at 0-0 xxx Xxxx, X-0000 Xxxxxxxxxx;

“Luxco 3” means Ship Luxco 3 S.à.x.x. a private company limited by shares incorporated under the laws of Luxembourg having its registered office at 0-0 xxx Xxxx, X-0000 Xxxxxxxxxx;

“Management Accounts” has the meaning given to it in paragraph 2.3.1 of Schedule 12;

“Mastercard” has the meaning given in Clause 7.6.6;

“Merchant Cash Balances” means, in the case of each Group Company and Business, as at Closing, all monies in the form of cash (including cash in hand

or credited to any account with a financial institution and cash in transit to the merchants in each case as recorded in the cash books and ledgers maintained by each Transferor in respect of each Group Company and Business) and which has been received from any credit, debit or charge card scheme and is held by the relevant Group Company or Business for onward payment to merchants;

“Merchant Collateral” means any guarantee, mortgage, charge, pledge, lien or other security interest or other collateral or credit support (including letters of credit and bank guarantees) held by or on behalf of any Business Transferors wholly or partly in respect of any Merchant Contracts;

“Merchant Contracts” means, in the case of each Group Company and Business, as at Closing, Contracts entered into between: (i) the relevant Group Company or Business Transferor; and (ii) merchants or other parties who may refer or introduce merchants for the provision of point of sale, e-commerce gateway, merchant acquiring or related payment processing services (or a combination of such services) exclusively in the course of the business of the Group, to the extent that immediately before Closing the same remain to be completed or performed or remain in force together, in the case of any Merchant Contract, with any Merchant Collateral held by or on behalf of any Group Company or Business Transferor exclusively in relation to that Merchant Contract and not in relation to any other obligation of the counterparty to any member of the RBSG Group;

“Merchant Payables” means, in the case of each Group Company and Business, the amounts payable as at Closing to merchants under Merchant Contracts in respect of transactions which have been notified to the relevant Group Company or Business as at that time including, for the avoidance of doubt, amounts held as deferred settlement or withheld for any other reason from such merchants;

“Monthly Management Accounts” means the unaudited management accounts relating to each of the Group Companies and each of the Businesses which are prepared on a monthly basis by the Group;

“Moveable Assets” means, in the case of each Business where a Property (excluding the Companies’ Properties and the Business Licence Properties) is being acquired or contributed, the plant and machinery, vehicles and other equipment (excluding the Information Technology Assets but including furniture) owned by any of the Business Transferors or any member of the RBSG Group and used exclusively by any Business Transferor for the purposes of that Business and situate (or normally situate) at such a Property subject to the terms and conditions of the relevant leases in each case at Closing;

“NatWest Trade Marks” has the meaning given in the Transitional Trade Xxxx Licences;

“Net Asset Value” has the meaning given in Part 3 of Schedule 11;

“Notice” has the meaning given to it in Clause 16.14;

“Operating Cash” means:

(i)

cash held overseas where there are restrictions on repatriation of monies to the extent they prevent the payment of a dividend;

(ii)

cash held in trust or escrow without a matching liability; and

(iii)

deposits for rent;

“Order” means the Value (Special Provisions) Order 1995, 51 1995/1268, as variously amended;

“Other Business Assets” means, in the case of each Business, such assets, properties and rights as are owned by the relevant Business Transferor or any other member of the RBSG Group and used or held exclusively for the purposes of that Business at Closing (excluding the Excluded Assets and any other assets falling within Clause 2.3.1(i) to (xi) or Clause 2.3.2(i)-(viii));

“PADSS” means the Payment Application Data Security standard;

“Partial Exemption Method” means any method operated by the relevant Business Transferors;

“Payment Date” means the date falling five Business Days after the date on which the process described in paragraph 3 of Part 1 of Schedule 11 for the preparation and determination of the Closing Statement is complete;

“Payment Services Directive” means the EU Payment Services Directive 2007/64/EC;

“Payment Services Regulations” means the Payment Services Regulations 2009 (SI 2009/209);

“PCI DSS” means the Payment Card Industry Data Security Standard;

“Plan Variation” has the meaning given to it in Clause 6.2.4;

“Premium” means, in relation to any Shares or Business, the amount determined pursuant to Schedule 8, being in aggregate *** (subject to Clause 8.2.3);

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

“Pre-Closing Separation Obligations” means the matters referred to in Schedule 16 relating to the separation of the Group from the RBSG Group and which, save as provided in Clause 7.1.2 are intended to be implemented by the RBSG Group before Closing takes place;

“Pre-Closing US Separation Costs” means the cost items listed in the schedule in Agreed Terms relating to the US separation activities;

“Project Vision” means the proposed replacement, development or upgrade of the Streamline Platform as described on pages 167 to 172 of Volume 1b of the Vendor Due Diligence Report prepared by KPMG LLP;

“Property Third Party Consents” has the meaning given to it in Clause 1.1 of Part 6 of Schedule 3;

“Properties” means the Business Assignment Properties, the Business Underletting Properties, the Companies’ Properties and the Business Licence Properties, and “Property” means any one of them;

“Proposed Transaction” has the meaning given to it in Clause 4.1;

“Purchaser Indemnified Person” has the meaning given in Clause 9.2;

“Purchaser Regulatory Capital” means after taking account of Group Regulatory Capital Contributions the lower of (i) the own funds that must be held and maintained with effect from the Closing Date by the Purchaser in relation to the Businesses in the UK under Regulation 18 of the Payment Services Regulations or assets (in cash or a form readily convertible into cash) equivalent to such own funds requirement which are determined by the FSA to be required by the Purchaser as regulatory capital in addition to its share capital and (ii) £50,000,000;

“Purchaser’s Group” means Holdco and its direct and indirect subsidiaries and subsidiary undertakings from time to time, including the Purchaser and, after Closing, the Group Companies;

“RBSG” means The Royal Bank of Scotland Group plc;

“RBSG Group” means RBSG and its subsidiaries and subsidiary undertakings from time to time (excluding, if applicable, the Group Companies);

“RBSG Group Insurance Policies” means all insurance policies (whether under policies maintained with third party insurers or any member of the RBSG Group), other than Target Group Insurance Policies, maintained by the Transferors or any member of the RBSG Group in relation to the Group or under which, immediately prior to Closing, any Group Company, or the Transferors or a member of the RBSG Group in relation to the Businesses, is

entitled to any benefit, and “RBSG Group Insurance Policy” means any one of them;

“RBS Trade Marks” has the meaning given in the Transitional Trade Xxxx Licences;

“RBS WorldPay Properties” means the Business Assignment Properties, the Business Underletting Properties and the Companies’ Properties;

“Referral Agreements” means the UK Referral Agreement and the US Referral Agreement;

“Registered Business Intellectual Property” means such of the Business Intellectual Property as is registered or the subject of applications for registration in any patent, trade xxxx or other Intellectual Property registry anywhere in the world, including those trade marks and domain names, the details of which are listed in paragraphs 1 and 2 of Part 1 of Schedule 4;

“Regulation” has the meaning given to it in Clause 4.1.2;

“Regulatory Authority” means: (i) any government department or governmental, quasi-governmental, supranational, statutory, regulatory or investigative body, authority, agency, bureau, board, commission, court, association, institution, department, tribunal or instrumentality thereof; or (ii) any banking or financial services or other regulatory authority which regulates or supervises any part of the Businesses or the Group Companies;

“Relevant Benefits” means pensions, lump sums, or other similar benefits on or in connection with retirement, death, termination of employment (whether voluntary or not) in period of disablement or ill-health (during or after employment) on the attainment of a particular age or particular number of years’ service of Relevant Employees, or employees of any Group Company or their dependants or former employees or their dependants;

“Relevant Business Assets” means Business Assets other than (i) assets which would be zero-rated or exempt from VAT if they were supplied in the United Kingdom by a relevant person; (ii) assets to which Part XV of the Value Added Tax Regulations 1995 apply; or (iii) goodwill;

“Relevant Capacity” has the meaning given to it in Clause 13.4.1;

“Relevant Claim” has the meaning given to it in Clause 11.1;

“Relevant Date” has the meaning given to it in Clause 1.15;

“Relevant Employees” means (i) those employees who are wholly or mainly assigned to a Business as at the date of this Agreement but excluding any such individual whose employment has terminated by reason of their

resignation or in accordance with Clause 5.1.3 prior to Closing and including any new employees wholly or mainly assigned to a Business or who are hired in accordance with Clause 5.1.3 prior to Closing; and (ii) those employees who become wholly or mainly assigned to a Business before the Closing Date in accordance with the Allocation Principles and who were not so assigned as at the date of this Agreement;

“Relevant Purchaser’s Group” means the Relevant Purchasers and their subsidiaries and subsidiary undertakings from time to time, including, after Closing, the Companies;

“Relevant Purchasers” means the Purchaser and, only if such entity executes a Deed of Adherence, any member of the Purchaser’s Group which is notified to the Transferors at least 15 Business Days prior to Closing as the purchaser of any Company, Sale Business or Contribution Business and each is a “Relevant Purchaser” in respect of the relevant Business or Group Company being acquired by it. For the avoidance of doubt, nothing shall permit any Purchaser to acquire part but not the whole of any Company, Sale Business or the Contribution Business;

“Relief” has the meaning given to it in the Tax Indemnity;

“Reporting Accountants” means an internationally recognised firm of accountants (with a specialist forensics or dispute resolution department or group) to be agreed by RBS and the Purchaser within seven days of a notice by one to the other requiring such agreement or failing such agreement to be nominated on the application of either of them by or on behalf of the President for the time being of the Institute of Chartered Accountants in England and Wales;

“Required Capital Expenditure Amount” ***

“Required Separation Cash” means *** minus the aggregate of all third party cash costs actually spent or incurred by the Group or the RBSG Group prior to Closing in respect of the Pre-Closing Separation Obligations and the other items set out in the Separation Plan provided that such deduction shall not exceed ***;

“Restricted Employee” has the meaning given to it in Clause 13.4.3;

“Restricted Period” has the meaning given to it in Clause 13.4.4;

“Retained Seller VAT Group” has the meaning given to it in the Tax Indemnity;

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

“ROW Sponsorship Agreement” means the sponsorship agreement to be entered into in accordance with this Agreement at Closing to reflect the terms of the ROW Sponsorship Term Sheet between members of the RBSG Group and members of the Relevant Purchasers’ Group or a member of the Group at Closing, relating to the sponsorship by a member of the RBSG Group of such party for the purposes of the Visa, Inc., Visa Europe, MasterCard and other payment networks in Singapore, Hong Kong, Japan and the UK and Europe and in relation to the e-commerce business carried on in the United States by RBS WorldPay, Inc.;

“ROW Sponsorship Term Sheet” means the term sheet in the Agreed Terms relating to the ROW Sponsorship Agreement;

“Sale Business” means, in the case of each Business Seller, the Business being transferred by it hereunder and “Sale Businesses” means all of the Sale Businesses taken together;

“Sale Cash” means an amount equal to the aggregate of:

(i)

the Premium attributable to each of the Companies and Sale Businesses as set out in Schedule 8; plus

(ii)

the Net Asset Value attributable to each of the Companies and the Sale Businesses;

“SDLT” means stamp duty land tax;

“SDRT” means stamp duty reserve tax;

“Second Request” has the meaning given to it in Clause 4.2.5;

“Section 44 Charge” means the charge arising pursuant to section 44 VATA 1994;

“Senior Employee” means *** the Committee Employees, each of whom will be a Relevant Transferring Employee or employed by a Group Company at the Closing Date;

“Senior Facilities Agreement” means the senior facilities agreement to be entered into between, among others, (i) Ship Luxco 3 S.à.x.x. as the Parent, (ii) Ship Midco Limited and Ship US Bidco, Inc. as Original Borrowers, (iii) the Parent, Ship Holdco Limited, UK Midco, the Purchaser, Ship US Holdco, Inc. and US Bidco as Original Guarantors, (iv) The Royal Bank of Scotland plc as Facility Agent and Security Agent, and various others as (v) Arrangers, (vi)

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

Original Lenders, and (vii) Issuing Bank, (in each case as such terms are defined therein);

“Separation Plan” means the plan in the Agreed Terms setting out the key steps to be implemented by the parties so as to achieve separation of the Group from RBSG Group as updated and modified from time to time by agreement as envisaged in Clause 6.2.4;

“Shared Merchant Collateral” has the meaning given to it in paragraph 5.3 of Schedule 5 Part I;

“Shared Transferor IP” means the Intellectual Property which would fall within the definition of Business Intellectual Property but for the fact that such Intellectual Property is also used or has been used by one or more other business or operations of any member of the RBSG Group which are not Businesses (but excluding any rights in Information Technology, trade marks, service marks, trade names and domain names);

“Shareholders’ Agreement” means the shareholders’ investment agreement to be entered into on or around the date of this Agreement relating to Holdco;

“Shares” means the shares in the capital of the Companies specified in Part 1 of Schedule 1;

“Share Seller” means, in relation to each of the Companies referred to in column (2) of Part 1 of Schedule 1, the company whose name is set out opposite that Company in column (1);

“Share Tax Warranties” means the warranties set out in paragraph 12 of Schedule 12;

“Signing UK Referral Agreement” means the form of UK Referral Agreement which is in the Agreed Terms (save for service levels which will be agreed between the Relevant Purchasers and the Transferors prior to Closing);

“Signing TSAs” means the form of Transitional Services Agreement which is in Agreed Terms (save for the schedules describing the type, detail of the services (including scope, costs and service standards) to be provided under the TSAs which will be agreed between the Relevant Purchasers and the Transferors prior to Closing);

“Sponsorship Agreements” means the US Sponsorship Agreement and the ROW Sponsorship Agreement;

“Standard Form Merchant Contracts” means any Merchant Contract in or substantially in the standard form in the Agreed Terms;

“Streamline Platform” means the software components listed in Schedule 14 which are owned by or licensed to the Business Transferors or any member of the RBSG Group and which comprise the system known as “Streamline” and “Interstream” (Streamline International);

“Subordinated Facility Agreement” means the subordinated facility agreement to be entered into between, among others, (i) Ship Luxco 3 S.à.x.x. as the Parent, (ii) Ship Midco Limited as the Borrower, (iii) the Parent, UK Holdco, UK Midco, UK Bidco, US Holdco and US Bidco as Original Guarantors, (iv) The Royal Bank of Scotland plc as Security Agent, (v) KAM Loan Administration LLC as Facility Agent, and various others as (vi) Arrangers, and (vii) Original Lenders, (in each case as such terms are defined therein);

“Subsidiaries” means the companies listed in paragraph 2 of Schedule 2 and “Subsidiary” means any one of them;

“Target Group Insurance Policies” means all insurance policies held exclusively for the benefit of the Group Companies and “Target Group Insurance Policy” means any one of them;

“Taxation” or “Tax” includes all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies (including without limitation social security contributions and any other payroll taxes), whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and in respect of any person (whether primarily or secondarily liable) and all penalties, charges, costs and interest relating to any of the foregoing;

“Taxation Authority” means any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration and/or collection of Taxation or enforcement of any law in relation to Taxation;

“Taxation Benefit” has the meaning given to it in the Tax Indemnity;

“Tax Clearances” has the meaning given to it in Clause 5.3.1;

“Tax Indemnity” means the deed of covenant against Taxation in the Agreed Terms to be entered into at Closing;

“Tax Returns” means all returns, declarations, reports, estimates, information and statements (including any schedules or attachments thereto) filed or required to be filed to a Taxation Authority in respect of any Taxes;

“TCGA” means the Taxation of Chargeable Gains Xxx 0000;

“Third Party Claim” has the meaning set out in Clause 12.4;

“Third Party Consents” means all consents, licences, approvals, permits, authorisations or waivers required from third parties for the assignment, transfer or novation in favour of the Purchaser of any of the Contracts, as the case may be, or In respect of the potential change of control of any Group Company and “Third Party Consent” means any one of them;

“Third Party Rights Clauses” has the meaning given to it in Clause 16.5.1;

“Trade Xxxx Assignment” means a trade xxxx assignment in the form attached at Part 4 of Schedule 4 to be dated on or around the Closing Date;

“Transaction Costs” means all reasonable legal, accounting commercial, financial, tax, insurance and other professional fees and transaction fees (together with value added tax on them) and all stamp duty or stamp duty reserve tax and any other taxes or similar duties or fees incurred by the Purchaser’s Group in connection with the Transaction Documents (and any ancillary documentation) and the transactions contemplated therein;

“Transaction Documents” means this Agreement, the Confidentiality Agreement, the Trade Xxxx Assignment, the Transitional Services Agreements, the Tax Indemnity, the Exchange Agreement, the Transitional Trade Xxxx Licences, the Referral Agreements, the US Referral Term Sheet, the Sponsorship Agreements, the ROW Sponsorship Term Sheet, the US Sponsorship Term Sheet, the Cash Management Agreements, the FX Micropay Agreement, the Intra-Day Facility Agreement, the Cash Balances Agreement, the Banking Services Agreement, the Banking Arrangement Side Letter, the Shareholders’ Agreement and any other agreements entered Into between RBS or any of the other Transferors on the one hand and a Relevant Purchaser on the other hand pursuant to or in connection with this Agreement;

“Transferor Claim” means any fact, matter or circumstance which gives rise to or may give rise to a claim against any Transferor or the Contribution Party under any Transaction Document or which constitutes or may constitute an Excluded Liability;

“Transferor Indemnified Person” has the meaning given in Clause 9.1;

“Transferors” means the Business Transferors and the Share Sellers and “Transferor” means any one of them;

“Transferor Warranties” means the representations, warranties and undertakings given by the Transferors pursuant to Clause 10 and Schedule 12 and “Transferor Warranty” means any one of them;

“Transitional Services Agreements” or “TSAs” means the transitional services agreements to be entered into on Closing which fully reflect the Signing TSAs and which provide the terms and conditions on which:

(i)

RBS will provide or procure the provision of certain transitional services to a member of the Purchasers’ Group to allow such members to carry on the Group’s relevant acquiring business; and

(ii)

a member of the Purchasers’ Group will provide certain transitional services to members of the RBSG Group to allow such members to carry on the RBSG Group’s card issuing business;

“Transitional Trade Xxxx Licences” means the non-exclusive, royalty-free transitional trade xxxx and domain licences to be entered into at Closing in accordance with the terms of Parts 2 and 3 of Schedule 4;

“TSA Third Party Consents” means a “Third Party Consent” as defined in the Signing TSAs;

“UK Holdco” means Ship Holdco Limited (company number 07329558) a private company limited by shares incorporated under the laws of England and Wales having its registered office at Xxx Xxxxx Xxxxx, Xxxxxx, XX0X 0XX;

“UK Referral Agreement” means the referral agreement to be entered into at or before Closing between (i) a member of the RBSG Group and (ii) members of the Relevant Purchasers’ Group or members of the Group, as the case may be which reflect the Signing UK Referral Agreement;

“US Referral Agreement” means the referral agreement to be entered into in accordance with this Agreement at Closing to effect the terms of the US Referral Term Sheet between a member of the RBSG Group and a member of the Relevant Purchaser’s Group or members of the Group as the case may be;

“US Referral Term Sheet” means the term sheet in the Agreed Terms relating to the US Referral Agreement;

“US Sponsorship Agreement” means the sponsorship agreement to be entered into in accordance with this Agreement at Closing to reflect the terms of the US Sponsorship Term Sheet between RBS Citizens, NA and a member of the Relevant Purchasers’ Group or a member of the Group, relating to the sponsorship by RBS Citizens, NA of such party for the purposes of the Visa, Inc. and MasterCard payment networks and other credit and debit payment networks (including ATM networks) in the US (excluding the e-commerce business carried on in the United States by RBS WorldPay, Inc.);

“US Sponsorship Term Sheet” means the term sheet in the Agreed Terms relating to the US Sponsorship Agreement;

“VAT” means, within the European Union, such Tax as may be levied in accordance with (but subject to derogations from) Council Directive

2006/112/EC and, outside the European Union, any Taxation levied by reference to added value or sales;

“VATA 1994” means the Value Added Tax Xxx 0000; and

“Vendor Due Diligence Reports” means the due diligence reports in the Agreed Terms prepared by Linklaters LLP and KPMG LLP in connection with the Proposed Transaction.

1.2	Rights of RBS

RBS, the relevant Transferors and the Contribution Party agree that where any right is given to any relevant Transferor or the Contribution Party under this Agreement, unless RBS otherwise notifies the Purchaser in writing, such right shall be exercisable exclusively by RBS and any such exercise shall be binding on the relevant Transferors and the Contribution Party.

1.3	Rights and Liabilities of the Transferors and the Contribution Party

Subject to Clause 1.4, each Transferor and Contribution Party shall only have rights and liabilities (including in relation to payment) under or in relation to a breach of any Transaction Document:

1.3.1

to the extent that those rights and liabilities or the relevant breach relate to or affect itself or the Shares (including the relevant underlying business(es)) and/or the Businesses it agrees to transfer under this Agreement (or, in the case of the Contribution Party, the Business NatWest agrees to transfer) or otherwise arise in connection with the transfer of those Shares or Businesses to the Relevant Purchaser; and

1.3.2

on a several basis,

and references to “Seller”, “Transferor”, “Share Seller”, “Business Seller”, “NatWest” and “Business Transferor’ shall be construed accordingly.

1.4	Default in obligations of RBS Netherlands Holdings B.V.

RBS hereby agrees that if RBS Netherlands Holdings B.V., as Transferor of Bibit B.V. defaults for any reason whatsoever in the performance of any of its obligations, commitments, undertakings, warranties and indemnities under or pursuant to any Transaction Document (the “Obligations”), RBS shall perform such Obligations so that the same benefits, on an after-Tax basis, shall be conferred on the Relevant Purchaser as they would have received if the Obligations had been duly performed and satisfied by RBS Netherlands Holdings B.V.

1.5	Default In obligations of a Relevant Purchaser

The Purchaser hereby agrees that if another Relevant Purchaser defaults for any reason whatsoever in the performance of any of its obligations, commitments, undertakings, warranties and indemnities under or pursuant to any Transaction Document (the “Relevant Purchaser Obligations”), the Purchaser shall perform such Relevant Purchaser Obligations so that the same benefits, on an after-Tax basis, shall be conferred on RBS and the RBSG Group as they would have received if the Relevant Purchaser Obligations had been duly performed and satisfied by the Relevant Purchaser.

1.6	Singular, Plural, Gender

References to one gender include all genders and references to the singular include the plural and vice versa.

1.7	References to Persons and Companies

References to:

1.7.1

a person include any individual, firm, company, corporation, body corporate, government, state or agency of a state, local or municipal authority or government body or any joint venture, partnership or unincorporated association (whether or not having separate legal personality); and

1.7.2

a company include any company, corporation or any body corporate, wherever and however incorporated or established.

1.8	References to Subsidiaries and Holding Companies

The words “holding company”, “subsidiary” and “subsidiary undertaking” shall have the same meanings in this Agreement as their respective definitions in the Companies Xxx 0000 (United Kingdom).

1.9	Schedules etc.

References to this Agreement shall include any Recitals and Schedules to it and references to Clauses and Schedules are to Clauses of, and Schedules to, this Agreement. References to paragraphs and Parts are to paragraphs and Parts of the Schedules.

1.10	References to Agreements etc.

References to any agreement, instrument or deed shall be to such agreement, instrument or deed as amended, varied, modified, supplemented, extended, novated, renewed or replaced from time to time.

1.11	Information

References to books, records or other information mean books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm.

1.12	Legal Terms

1.12.1

References to any English legal term (including for any action, remedy, method of judicial proceeding, legal document, legal status, court, official, or any legal concept or thing) shall, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction.

1.12.2

A reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted.

1.13	Non-limiting Effect of Words

The words “including”, “include”, “in particular” and words of similar effect shall not be deemed to limit the general effect of the words that precede them.

1.14

Headings

All headings and titles are inserted for convenience only. They are to be ignored in the interpretation of this Agreement.

1.15	Currency Conversion

Any amount to be converted from one currency into another currency for the purposes of this Agreement shall be converted into an equivalent amount at the Conversion Rate prevailing at the Relevant Date. For the purposes of this Clause:

“Conversion Rate” means the close spot mid-trade composite (London) rate for a transaction between the two currencies in question as quoted on Bloomberg on the date immediately preceding the Relevant Date or, if no such rate is quoted on that date, on the preceding date on which such rates are quoted;

“Relevant Date” means, save as otherwise provided in this Agreement, the date on which a payment or an assessment is to be made, save that, for the following purposes, the date shall mean:

(i)

for the purposes of Clause 5.1, Clause 11 and Schedule 12, the date of this Agreement;

(ii)

for the purposes of Clauses 7.3 and 7.4, the date of RBS’s notification to the Purchaser pursuant to Clause 7.4;

(iii)

for the purposes of Clause 8 and Schedule 11, the Closing Date (except to the extent that the accounting policies referred to in paragraph 2 of Part 1 of Schedule 11 require otherwise for the purposes of the preparation of the Closing Statement).

1.16	References to “after-Tax basis”

Where this Agreement refers to an indemnity being provided or a payment being made on an “after-Tax basis” such references shall be construed as meaning that:

1.16.1

the amount payable shall be determined having regard to, or after taking into account, the extent to which any Tax would be payable by the recipient which is referable to the matter giving rise to the payment and the extent to which the recipient will be entitled to any Relief which is referable to the matter giving rise to the payment; and

1.16.2

to the extent that the payment is subject to Tax in the hands of the recipient or by way of withholding or deduction, it shall be increased to the extent required to ensure that the benefit of the indemnity or payment is equivalent to the benefit that would have been received if there was no Tax referable to, or payable in respect of, the payment,

provided that this shall be without prejudice to Clause 16.8.2.

1.17	References to Times

All references to times shall be references to the time in London, United Kingdom.

2	Agreement to Transfer the Group

2.1	Transfer of the Group

On and subject to the terms of this Agreement and the Local Transfer Documents the Transferors (each as to the Shares or Businesses set out against its name in Schedule 1) agree to transfer and the Relevant Purchasers (each in relation to the Business or Group Company it is nominated to buy) agree to accept the transfer of the Group as a going concern in each case with effect from 11.59 pm on the Closing Date.

2.2	Transfer of the Shares

2.2.1

The Shares shall be transferred with full title guarantee and free from Encumbrances together with all rights and advantages attaching to

them immediately prior to Closing (including the right to receive all dividends or distributions declared, made or paid on or after Closing).

2.2.2

The Transferors shall procure that on or prior to Closing any and all rights of preemption over the Shares are waived irrevocably by the persons entitled thereto.

2.3	Transfer of the Businesses

2.3.1

Subject to Clause 2.3.2, the transfer of each Business under this Agreement or, where relevant, the Local Transfer Documents shall comprise:

(i)

the Business Assignment Properties (subject to and on the terms set out in Schedule 3);

(ii)

the Business Underletting Properties (subject to and on the terms set out in Schedule 3);

(iii)

the Business Intellectual Property (subject to and on the terms set out in Schedule 4);

(iv)

the Goodwill;

(v)

the Moveable Assets;

(vi)

the rights and benefits (subject to the burden) of the relevant Business Transferor or a member of the RBSG Group arising under the Contracts in relation to the Businesses (subject to and on the terms set out in Schedule 5);

(vii)

the benefit (so far as the same can lawfully be assigned or transferred to the Purchaser) of the Claims;

(viii)

the Information Technology Assets;

(ix)

all rights, title and interest of the relevant Business Transferor (excluding Intellectual Property) in the Books and Records of the relevant Businesses;

(x)

the Business Receivables;

(xi)

Card Scheme Debtors and Merchant Cash Balances of the relevant Business; and

(xii)

the Other Business Assets,

together the “Business Assets”. The Business Assets shall be transferred free from Encumbrances and together with all rights attaching to them as at Closing. Without prejudice to Clause 2.3.3, risk in the Business Assets shall pass to the Purchaser or Relevant Purchaser with effect from 11.59 pm on the Closing Date.

2.3.2

There shall be excluded from the transfer of the Businesses under this Agreement and the Local Transfer Documents the following:

(i)

any asset, contract, undertaking, arrangement or agreement not referred to in Clause 2.3.1;

(ii)

any of the assets of any Business which RBS and the Purchaser agree in writing shall not be transferred;

(iii)

the Cash Balances held by or on behalf of the Business Transferors on Closing in relation to the Businesses;

(iv)

the benefit of any claim made by any of the Business Transferors for grants from any government, local or public authority not received prior to Closing;

(v)

except as provided in Clause 14, the benefit of any claim under a RBSG Group Insurance Policy;

(vi)

amounts due from any relevant Taxation Authority or any member of the RBSG Group in respect of Taxation or any Taxation Benefit in relation to the period up to and including the Closing Date;

(vii)

the Excluded Intellectual Property and any trade marks which are licensed to the Purchaser’s Group under the Transitional Trade Xxxx Licences;

(viii)

any rights of any member of RBSG Group (Including rights of set off or counterclaim) to the extent that such rights relate to assets referred to in this Clause 2.3.2 or Excluded Liabilities,

together the “Excluded Assets”.

2.3.3

The Purchaser agrees to assume, satisfy, discharge, perform or fulfil all “Assumed Liabilities” when due.

For the purposes of this Agreement, “Assumed Liabilities” means:

(i)

all Liabilities to the extent arising out of or relating to the Business Assets on or after Closing save as expressly provided herein;

(ii)

all Liabilities under the Contracts (including Merchant Payables) in each case whether arising prior to or after Closing save as expressly provided herein;

(iii)

all other Liabilities expressly assumed by the Purchaser or for which the Purchaser expressly has agreed to be liable or for which the Purchaser has agreed to give an indemnity, in any case, pursuant to this Agreement or any other Transaction Document; and

(iv)

all Liabilities to the extent reflected in the Closing Statement.

2.3.4

Except as otherwise expressly provided for in this Agreement, Clause 2.3.3 shall not apply to, and neither the Purchaser nor any other member of the Purchaser’s Group shall be obliged to accept the transfer of or to assume, satisfy, discharge, perform or fulfil any “Excluded Liabilities”.

2.3.6

For the purposes of this Agreement, “Excluded Liabilities” means any Liabilities of the Business Transferors or any member of the RBSG Group in relation to the Businesses up to Closing other than the Assumed Liabilities. For the avoidance of doubt, Excluded Liabilities shall include the following (which shall not be Assumed Liabilities):

(i)

any such Liability expressly reserved to any Business Transferor under this Agreement;

(ii)

any such Liability in relation to a breach of PCI DSS, PADSS or other applicable data security requirements in any jurisdiction in which the Business operates, or operated prior to Closing, to the extent such Liability relates to the period prior to Closing including any such Liability of the Business Transferors or any member of the RBSG Group flowing from such security breach;

(iii)

any such Liability in relation to the class action proceedings, Xxxxx et al. v National Westminster Bank Plc and Xxxxxxxxx et al. v National Westminster Bank Plc, both pending in U.S. federal court in the Eastern District of New York; and

(iv)

any such Liabilities in respect of Taxation in relation to any period for Taxation purposes up to and including the Closing Date.

For the avoidance of doubt, a Liability which is an Excluded Liability shall not cease to be such as a result of having been assumed, satisfied, discharged, performed or fulfilled by the Purchaser.

2.4	Properties and the Leaseback Properties

The provisions of Schedule 3 shall apply in respect of the Properties and the Leaseback Properties.

2.5	Intellectual Property

The provisions of Schedule 4 shall apply in respect of the Business Intellectual Property.

2.6	Contracts and Merchant Collateral

The provisions of Schedule 5 shall apply in respect of the Contracts and Merchant Collateral.

2.7	Employees and Group Retirement Benefit Arrangements

2.7.1

The provisions of Schedule 6 shall apply in respect of the Relevant Employees, the Dedicated Services Employees and certain other matters concerning employees.

2.7.2

The provisions of Schedule 7 shall apply in respect of the Group Retirement Benefit Arrangements.

2.8	Streamline Platform

The delivery of the Streamline Platform will be subject to the TSAs.

2.9	Local Transfer Documents

2.9.1

On or before Closing, the Transferors and the Relevant Purchasers shall execute such agreements, transfers, conveyances and other documents (subject to the relevant local Law and Regulations and otherwise as may be agreed between RBS and the Relevant Purchaser (acting reasonably)) to implement the transfer of (i) the Shares and (ii) the Businesses on Closing (the “Local Transfer Documents” and each, a “Local Transfer Document”). The parties do not intend this Agreement to transfer title to any of the Shares. Title shall be transferred by the applicable Local Transfer Document.

2.9.2

To the extent that the provisions of a Local Transfer Document are inconsistent with or (except to the extent they implement a transfer in accordance with this Agreement) additional to the provisions of this Agreement:

(i)

the provisions of this Agreement shall prevail; and

(ii)

so far as permissible under the laws of the relevant jurisdiction, RBS and the Relevant Purchasers shall procure that the provisions of the relevant Local Transfer Document are adjusted, to the extent necessary to give effect to the provisions of this Agreement or, to the extent this is not permissible, RBS shall indemnify the Relevant Purchasers on an after-Tax basis against all Losses suffered by the Relevant Purchasers or, as the case may be, the Relevant Purchasers shall indemnify RBS on an after-Tax basis against all Losses suffered by the Transferors, in either case through or arising from the inconsistency between the Local Transfer Document and the Agreement or the additional provisions (except to the extent they implement a transfer in accordance with this Agreement).

2.9.3

If there is an adjustment to the consideration hereunder which relates to a part of the Group which is the subject of a Local Transfer Document, then, if required to implement the adjustment and so far as permissible under the laws of the relevant jurisdiction, the Transferor, the Contribution Party and the Relevant Purchaser shall enter into a supplemental agreement reflecting such adjustment and the allocation of such adjustment.

2.9.4

No Relevant Purchaser shall bring any claim against any Transferor in respect of or based upon the Local Transfer Documents save to the extent necessary to implement any transfer of the Shares or Businesses in accordance with this Agreement.

2.10	Separation Costs

RBS shall obtain the prior written consent of the Purchaser (such consent not to be unreasonably withheld) in respect of any individual third party cash cost which exceeds *** which it proposes to count as a deduction from Required Separation Cash and shall promptly provide the Purchaser with an invoice in respect of all third party cash costs which it proposes to count as a deduction from Required Separation Cash. Notwithstanding Clause 2.3.2(iii), the Transferors shall procure the Required Separation Cash is transferred in freely accessible cash with the Businesses on Closing to the Purchaser.

2.11	Pre-Closing US Separation Costs

RBS shall, prior to Closing, spend *** in respect of Pre-Closing US Separation Costs, provided that where the Joint Implementation Committee (acting reasonably) determines that any individual cost item comprised in the Pre-Closing US Separation Costs may be undertaken as effectively at a lower

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

cost, and is so undertaken, then the sum of US$13.6 million shall be reduced by any savings so effected.

3	Consideration

3.1

Amount

The consideration for the transfer of the Group under this Agreement and the Local Transfer Documents (the “Consideration”) shall be satisfied by the Relevant Purchasers:

(i)

paying an amount in cash equal to the Cash Consideration; and

(ii)

procuring the issue of the Contribution Securities, which shall be allotted and issued in accordance with Clause 7.3,

in each case, in accordance with Clause 3.2 provided that the value of the Consideration minus Intra-Group Indebtedness will not exceed *** in aggregate.

3.2	Allocation and Recipients of Consideration

3.2.1

The Consideration shall be allocated to the transfers of the Shares, the Sale Businesses and the Contribution Business and provided to the appropriate parties as follows:

(i)

the consideration for the transfer of the Shares and the Sale Businesses shall be the payment of the Sale Cash by the Relevant Purchasers to the Sellers, which shall be allocated in accordance with Schedule 8; and

(ii)

the consideration for the transfer of the Contribution Business shall be:

(a)

the obligation of the Purchaser to procure the issue of the Contribution Securities to the Contribution Party; and

(b)

the payment of the Contribution Cash by the Purchaser to the Contribution Party,

the value of which shall be allocated between the Business Assets included in the transfer of the Contribution Business in accordance with Schedule 8.

3.2.2

The parties shall accept the allocation under Clause 3.2.1 for all relevant purposes (including Tax).

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

3.2.3

For the avoidance of doubt, NatWest shall receive no part of the Consideration.

3.3	Satisfaction of Dividend in Specie

3.3.1

Declaration of Dividend in Specie

(A)

the Condition in Clause 4.1.5 is satisfied (but not, for the avoidance of doubt, waived), and all other conditions in Clause 4.1 are either satisfied or waived in accordance with Clause 4.3, and NatWest is legally able to declare the Dividend in Specie, NatWest shall declare the Dividend in Specie at or before Closing;

(B)

the condition in Clause 4.1.5 is not satisfied but is waived pursuant to Clause 4.3.2, or NatWest is not legally able to declare the Dividend in Specie, NatWest shall not be required to declare the Dividend in Specie (but may if it wishes to do so where the condition in Clause 4.1.5 is waived pursuant to Clause 4.3.2); and

(C)

NatWest does not declare the Dividend in Specie in the circumstances in (B) above, for the avoidance of doubt the provisions of Clause 2 shall still apply if all the conditions in Clause 4.1 have been satisfied or waived in accordance with Clause 4.3 and NatWest shall be the Contribution Party.

3.3.2

Satisfaction of Dividend in Specie

If the Dividend in Specie is declared by NatWest pursuant to Clause 3.3.1, the transfer of the Contribution Business by NatWest to the Purchaser pursuant to Clauses 2.1 and 2.3 and the issue of the Contribution Securities and the payment of the Contribution Cash to the Contribution Party pursuant to Clauses 3.1 and 3.2 will be in satisfaction of the Dividend in Specie, and the Contribution Securities and Contribution Cash will be received by RBS in respect of and in proportion to the ordinary shares which it beneficially owns in NatWest.

3.4	Fixed Plant and Machinery Apportionment

The parties agree that on Closing each relevant Business Transferor and the Purchaser shall jointly enter into a statutory election or elections pursuant to Section 19B of the Capital Allowances Act 2001 in relation to the fixed plant and machinery forming part of the Business Assets. To the extent that the

amount of consideration allocated to any fixed plant and machinery is clear from Schedule 8, the election or elections shall be made on the basis of the maximum amount permitted by section 198(3) of the Capital Allowances Xxx 0000, taking into account such apportionment of the Consideration to the fixed plant and machinery pursuant to Schedule 8. Otherwise, the election or elections shall be made on the basis of amounts to be agreed between each relevant Business Transferor and the Purchaser, acting reasonably. After Closing each party shall deliver its election notice to an officer of HM Revenue & Customs within the time prescribed by Section 201 of the Capital Allowances Xxx 0000.

3.5

VAT

Schedule 9 makes provision about VAT.

3.6	Adjustment to Consideration

3.6.1

If any payment is made by any Transferor or the Contribution Party to any Relevant Purchaser (or vice versa) in respect of any claim for any breach of this Agreement or any Transaction Document or pursuant to an indemnity or guarantee under this Agreement or a Transaction Document or under the adjustments to the Consideration under Clause 8.4 or pursuant to Clause 9.8 or 9.9, the payment shall, to the extent possible, be made by way of adjustment of the Cash Consideration paid by the Relevant Purchasers for the Shares or the particular category of Business Asset (if any) to which the payment and/or claim relates under this Agreement (or the relevant Transaction Document) and the Cash Consideration shall be deemed to be reduced (or, as the case may be, increased) by the amount of such payment.

3.6.2

If:

(i)

the payment and/or claim relates to the shares in more than one Group Company or to more than one category of Business Asset, it shall be allocated in a manner which RBS and the Relevant Purchasers agree reflects the impact of the matter to which the payment and/or claim relates, failing which it shall be allocated rateably to the shares in the Group Companies or Business Assets concerned by reference to the proportions in which the consideration is allocated in accordance with Clause 3.2 and Schedule 8; or

(ii)

the payment and/or claim relates to no particular shares in any Group Company or no particular category of Business Asset, it shall be allocated rateably to all the Shares and all the Business Assets by reference to the proportions in which

the consideration is allocated in accordance with Clause 3.2 and Schedule 8,

and in each case the Cash Consideration shall be deemed to have been reduced (or, as the case may be, increased) by the amount of such payment.

4	Conditions

4.1	Conditions Precedent

The agreement to transfer the Group contained in Clause 2.1 (the “Proposed Transaction”) is conditional upon satisfaction (or waiver in accordance with Clause 4.3) of the following conditions:

4.1.1

the aggregate amount of regulatory capital or equivalent assets required by the relevant Regulatory Authorities at Closing to satisfy the conditions set out in Clause 4.1.7 and/or maintain any such authorisations on an ongoing basis (as determined in the process of satisfying the conditions set out in Clause 4.1.7) in addition to that available as a result of share capital of, and the net assets then available in the relevant members of the Purchaser’s Group for regulatory capital purposes not exceeding £50,000,000;

4.1.2

to the extent that the Proposed Transaction either constitutes (or is deemed to constitute under Article 4(5)) a concentration falling within the scope of Council Regulation (EC) 139/2004 (as amended) (the “Regulation”) or is to be examined by the European Commission as a result of a decision under Article 22(3) of the Regulation:

(i)

the European Commission taking a decision (or being deemed to have taken a decision) under Article 6(1)(b) of the Regulation declaring the Proposed Transaction compatible with the common market; or

(Ii)

the European Commission taking a decision (or being deemed to have taken a decision) to refer the whole or part of the Proposed Transaction to the competent authorities of one or more Member States under Articles 4(4) or 9(3) of the Regulation; and

(a)

each such authority taking a decision with equivalent effect to Clause 4.1.2(i) with respect to those parts of the Proposed Transaction referred to it; and

(b)

the European Commission taking any of the decisions under Clause 4.1.2(i) with respect to any part of the Proposed Transaction retained by it;

4.1.3

all required filings having been made under the United States Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (as amended) (the “HSR Act”) and the rules and regulations thereunder and the applicable waiting periods (and any extensions thereof) with respect thereto having expired or been terminated as appropriate, in each case in connection with the Proposed Transaction;

4.1.4

if required, a filing having been made to the Chinese Ministry of Commerce (“MOFCOM”) pursuant to the Anti-Monopoly Law of the People’s Republic of China (the “Anti-Monopoly Law”) and MOFCOM taking a decision (or being deemed to have taken a decision) allowing the implementation of the Proposed Transaction pursuant to Section 25 and 26 of the Anti-Monopoly Law;

4.1.5

the Tax Clearances having been obtained or having been deemed to have been obtained in accordance with Clause 5.3.6 and not having been revoked or become invalid prior to Closing without revised Tax Clearances having been obtained;

4.1.6

if required, a filing having been made to the Swiss Competition Commission pursuant to the Swiss Cartel Act and the Swiss Competition Commission either (i) refraining from opening an investigation within the statutory timeframe, or (Ii) taking a decision allowing the consummation of the Proposed Transaction, pursuant to arts. 32 et seq, of the Swiss Cartel Act;

4.1.7

the Relevant Purchaser:

(i)

becoming an authorised payment institution under the Payment Services Directive with the permissions and passport rights necessary to carry on the Business as it is carried on in the EU as at Closing;

(Ii)

obtaining a consumer credit licence from the UK Office of Fair Trading under the Consumer Credit Act;

(iii)

receiving consent from the FSA to the acquisition of a qualifying holding in WorldPay Limited within the meaning of the Payment Services Regulations; and

(iv)

receiving confirmation from the DNB of the continuation of the Dispensation in respect of Bibit B.V.;

4.1.8

no event, matter or circumstance occurring or being discovered or change in circumstances arising on or after the date of this Agreement which involves:

(i)

failure to maintain adequate data security measures in accordance with any relevant data security Law and Regulations to protect systems, information and data from damage, disruption, disablement or interference and a breach of such security measures; or

(ii)

a systems technology or process failure,

and which in any of the foregoing cases materially and adversely impacts, or will so impact or where there is a high degree of certainty that it will so impact, the Group or customers of the Group, and which results, or will result, or where there is a high degree of certainty that it will result, in a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Group taken as a whole, but excluding any event or circumstances:

(a)

relating to the financial, banking or capital markets or to general economic conditions;

(b)

effected in accordance with, or arising out of, any Transaction Document or any change in any Law and Regulation coming into effect after the date of this Agreement;

(c)

which arise out of a Force Majeure Event (as defined in the Transitional Services Agreement);

(d)

which arise out of any matter approved in writing by the Purchaser and where implementation of that matter has been in accordance with that approval; or

(e)

(where the impact of such event or circumstance (including on customers) has been remedied in all material respects prior to Closing;

4.1.9

the receipt of written confirmation from or on behalf of the Treasurer of the Commonwealth of Australia (“Treasurer”) of no objections under the terms of the Australian Federal Government’s Foreign Investment Policy to:

(i)

the acquisition by the Purchaser of WorldPay Limited (incorporated in Jersey), to the extent that any direct or

indirect shareholder in the Purchaser is a Foreign Government Related Entity; and

(ii)

the issue of the Contribution Shares to RBS and the entry by RBS and the relevant members of the Purchaser’s Group into the Exchange Agreement].

For the purposes of this Clause 4.1.9, “Foreign Government Related Entity” shall mean: (a) a body politic of a country other than the Commonwealth of Australia; (b) companies or other entities in which governments other than the Australian government or their agencies or related entities have more than a 15 per cent interest; or (c) companies or entities that are otherwise controlled by governments other than the Australian government or by their agencies or related entities; and

4.1.10

the condition contained in Clause 4.1.7 (i) having been satisfied on the basis that the relevant members of the Purchaser’s Group are permitted by the FSA, the DNB, or any other relevant regulator to grant to the Financing Banks the guarantees and security in all material respects as envisaged in the Financing Structure Memorandum.

4.2	Responsibility for Satisfaction

4.2.1

The Purchaser and RBS shall each use all reasonable endeavours to minimise the amount of regulatory capital required for the purposes of Clause 4.1.1, but in each case without being required to agree to:

(i)

any changes to the Businesses or the Group which would have an adverse consequence with more than a de minimis effect;

(ii)

any changes to the structure or proposed structure of the Purchaser’s Group as outlined in the application and correspondence first presented to the relevant regulators;

(iii)

any changes for which a third party consent is necessary and which consent cannot be obtained (the Purchaser having used reasonable endeavours to obtain such consents);

(iv)

vary the arrangements agreed within the banks or other parties providing financing to transactions contemplated by this Agreement except with consent of such parties which the Purchaser shall use reasonable endeavours to obtain; or

(v)

accept any requirement for additional regulatory or other capital made by any relevant regulator in excess of the amount provided by RBS pursuant to Clause 7.6.

4.2.2

The Relevant Purchasers shall in respect of the conditions set out in Clauses 4.1.2, 4.1.3, 4.1.4, 4.1.6 and 4.1.9, use reasonable endeavours and take all steps reasonably necessary, to ensure the satisfaction of those conditions as soon as practicable and in any event no later than the Long Stop Date including proposing and agreeing to any divestments or other conditions or undertakings provided that, in relation to the condition set out in Clause 4.1.3, nothing in this Agreement shall require the Relevant Purchasers to propose, negotiate or commit to any behavioural undertaking or limitation, or (hold separate) order or any other equivalent act for the sale, transfer, divestiture or disposition:

(i)

in respect of the Group, that would have more than a de minimis effect on the businesses or assets to be acquired that operate primarily outside of the United states; or

(ii)

which relates to any business or assets of any entity which is controlled by funds managed and/or advised by either of Xxxx Capital Limited or Advent International Corporation respectively.

4.2.3

The Transferors shall use reasonable endeavours to provide, or procure the provision to the Relevant Purchasers of such information and assistance as the Relevant Purchasers may reasonably request for the purposes of satisfying the conditions set out in Clause 4.1 as soon as possible and in any event no later than the Long Stop Date.

4.2.4

Without prejudice to Clause 4.2.3, the Relevant Purchasers shall submit the appropriate filing promptly following the date of this Agreement and in accordance with any applicable time limit (or extension thereof) and shall use reasonable endeavours and take all necessary steps (including offering and/or agreeing to any conditions, undertakings or divestments) to:

(i)

obtain a decision under Article 6(1)(b) of the Regulation within 35 working days of notification and to seek to avoid a decision to refer all or part of the Proposed Transaction to the competent authorities of a Member State under Article 9(3) of the Regulation. Where necessary to obtain such clearance the Purchaser shall discuss with the European Commission, prior to the expiry of 20 working days from the date of notification, the need for any modifications to the concentration as envisaged by Article 6(2) of the Regulation,

and shall make all necessary proposals for the appropriate commitments to ensure that the transaction will be the subject of a decision under Article 6(1)(b) of the Regulation;

(ii)

where a referral of all or part of the Proposed Transaction to the competent authorities of the Member State is made, and subject to the duty in Clause 4.2.4(1) to avoid such reference, obtain a decision in all such Member States equivalent to a decision under Article 6(1)(b) of the Regulation (a “Phase I” decision).

4.2.6

Without prejudice to Clauses 4.2.3 and 4.2.4, each of the Relevant Purchasers and the Transferors shall, in order to ensure satisfaction of the condition set out In Clause 4.1.3 as soon as possible, submit pre-merger notification filings required by the HSR Act promptly following the date of this Agreement. Furthermore, the Relevant Purchasers shall use reasonable endeavours and take all reasonably necessary steps to avoid the issuance of a Request for Additional Information and Documentary Material under 15 U.S.C § 18(a)(e)(2) (“Second Request”) In the United States, including, consistent with its legal counsel’s judgement, pulling and re-filing any filing made under the Regulation or the HSR Act. Subject to the proviso in Clause 4.2.2 and to the extent necessary to resolve objections of the United States reviewing authority the Relevant Purchasers shall use reasonable endeavours to propose, negotiate, and commit to, in due time, an undertaking, (hold separate) order or any other equivalent act for the sale, transfer, divestiture or disposition of, or the imposition of any limitation upon, such assets or businesses or to accept any behavioural undertakings in its endeavour to ensure satisfaction of the Conditions set out in Clause 4.1.3 prior to the Long Stop Date.

4.2.6

Without prejudice to Clause 4.2.2, the Relevant Purchasers shall submit all relevant filings promptly following the date of this Agreement, and (subject to the Transferor’s compliance with their obligations under Clauses 4.2.3 and 4.2.5) use all reasonable endeavours to avoid any declaration of incompleteness by the European Commission or any delay in the commencement of the waiting period by the United States reviewing authority, or any other suspension of the time periods for clearance. In addition, the Relevant Purchasers shall not, without the prior consent of RBS, withdraw any filing made under the Regulation or the HSR Act other than as envisaged in Clause 4.2.5.

4.2.7

Without prejudice to Clause 4.2.2 and 4.2.4, the parties agree that all requests and enquiries from any Regulatory Authority arising out of or in connection with the transactions contemplated by this

Agreement shall, subject to Clause 4.2.11, be dealt with by the relevant Transferors (to the extent that such requests and enquiries relate to their respective Group Companies or Businesses) and the Relevant Purchasers in consultation with each other and the relevant Transferor and the Relevant Purchasers shall promptly co-operate with and provide all reasonably necessary information and assistance reasonably required by such Regulatory Authority upon being requested to do so by the other.

4.2.8

In respect of the Condition set out in Clause 4.1.5:

(i)

RBS and NatWest shall use such endeavours and take such steps as provided in Clause 5.3; and

(ii)

the Relevant Purchasers shall use such endeavours and take such steps as provided in Clause 5.3.

4.2.9

The Relevant Purchasers shall in respect of the conditions set out in Clause 4.1.7, use best endeavours and take all necessary steps, but in each case without being required to agree to:

(i)

any changes to the Businesses or the Group which would have an adverse consequence with more than a de minimis effect;

(ii)

any changes to the structure or proposed structure of the Purchaser’s Group as outlined in the application and correspondence first presented to the relevant regulators;

(iii)

any changes for which a third party consent is necessary and which consent cannot be obtained (the Purchaser having used reasonable endeavours to obtain such consents);

(iv)

(v)

accept any requirement for additional regulatory or other capital made by any relevant regulator in excess of the amount provided by RBS pursuant to Clause 7.6.

4.2.10

RBS shall use reasonable endeavours to ensure the satisfaction of the condition set out in Clause 4.1.9 as soon as practicable.

4.2.11

Each of RBS and the Relevant Purchasers undertake to keep the other informed as to the progress towards satisfaction of the conditions in Clause 4.1 and in particular to disclose anything of

which they are aware which will or may prevent any of those conditions from being satisfied before the Long Stop Date, promptly upon it coming to their notice. In particular, each party shall promptly provide the other with copies of all material relevant correspondence, documents or other communications received from or sent to Regulatory Authorities relating to the conditions set out in Clause 4.1 (provided that the disclosing party may redact any confidential information, or business secrets or any other information as appropriate to comply with Law and Regulations and provided further that the receiving party’s external counsel may receive a complete and unredacted version on an “external counsel only” basis). Each party shall also, to the extent practicable, promptly provide the other with reasonable notice of any meeting, telephone conference call, or other material conversation that it is proposed will take place between the Regulatory Authority and that party (or any of its employees, directors, officers or advisers) and provide the other party, subject to any confidentiality requirements, with reasonable opportunity to attend in such meeting or conference call. If a party (or any of its employees, directors, officers or advisers) should nevertheless have a meeting, conference call, or material conversation with a Regulatory Authority without the presence of the other party (or any of its employees, directors, officers, or advisors) that party shall, if requested by the other party, provide a written summary thereof.

4.2.12

Nothing in this Clause 4.2 shall require either party to disclose to the other any information concerning any businesses or assets other than the Group Companies, the Businesses and Business Assets which any such party (acting in good faith) regards as confidential and commercially sensitive, unless such information is expressly required by a Regulatory Authority to be provided to it, in which case such information shall be provided to the Transferors’ or Purchaser’s external legal counsel (as appropriate) on an “external counsel only” basis.

4.3	Non-Satisfaction/Waiver

4.3.1

The party responsible under Clause 4.2 for satisfaction of each condition in Clause 4.1 shall give notice to the other party of the satisfaction of the relevant condition within two Business Days of becoming aware of the same.

4.3.2

RBS may at any time waive in whole or in part and conditionally or unconditionally the condition set out in clause 4.1.5 by notice in writing to the Purchaser. If the condition in Clause 4.1.5 is not satisfied or duly waived by the Long Stop Date, then in circumstances where (i) all of the other conditions have been

satisfied or duly waived, (ii) the Purchaser has complied with its obligations under Clause 5.3, and (iii) the Investors (as defined in the Shareholders’ Agreement) have complied with their equivalent obligations in Clauses 3.9 to 3.15 of the Shareholders’ Agreement), RBS shall pay to the Purchaser the sum of £18,750,000 (exclusive of VAT, if any), such sum to be a debt due on demand immediately and paid in cash in full on the Long Stop Date, without any counterclaim, set off, withholding or other reduction whatever.

4.3.3

In relation to the condition set out in Clause 4.1.1:

(i)

the Purchaser may at any time waive such condition in whole by notice in writing to the Transferor;

(ii)

such condition shall be deemed to be satisfied if the relevant Transferor confirms to the Purchaser in writing (within 21 days of receipt by the Transferors of formal written responses from the relevant Regulatory Authorities to a request from the Purchaser for formal evidence of their regulatory capital requirements or, if there is more than one such response, receipt of the last such response) that it will increase the amount to be provided by it by way of capital contribution in accordance with Clause 7.6 by such amount as will fulfil the requirements of the relevant Regulatory Authorities in relation to the regulatory capital to be held by the Group on Closing and confirms that it will make such capital contribution on Closing. Nothing shall oblige a Transferor to give any such confirmation as is referred in to in this sub-Clause 4.3.3(ii);

4.3.4

The Purchaser shall, with effect from the date of this Agreement, use its best endeavours to become a member of the Visa Europe and MasterCard Worldwide card schemes and to be able to operate the Businesses in the UK and Europe as a member of such card schemes without reliance on members of the RBSG Group as Sponsors as soon as practicable following Closing and in any event prior to the end of the term of the Sponsorship Agreement to the extent it relates to the UK and Europe.

4.3.6

The Purchaser may at any time waive in whole or in part and conditionally or unconditionally the condition set out in clause 4.1.10 by notice in writing to the Transferors.

4.4	Long Stop Date Termination

If, on or before the date which is six Business Days prior to the Long Stop Date, one or more of the conditions referred to in Clause 4.1: (a) has failed to be satisfied; or (b) has not been waived by the Purchaser and RBS in writing

or by RBS pursuant to Clause 4.3.2; or (c) has become incapable of satisfaction, then:

4.4.1

the Group Companies and Businesses shall not be transferred pursuant to this Agreement and all terms of this Agreement (including Clause 5) relating to such transfer shall forthwith cease to apply (other than Clauses 1, 4, 15, and 16.2 to 16.19 (inclusive)); and

4.4.2

no party shall have a claim against any other party under this Agreement, save for any claim arising from breach of any obligation under a Transaction Document (including Clause 4 of this Agreement) on or before the Long Stop Date.

5	Pre-Closing

5.1	The Transferors’ Obligations in Relation to the Conduct of Business

Subject to Law and Regulations, each of the Transferors undertakes (in each case in relation to the Group Company or Business being transferred or contributed by it) between the date of this Agreement and Closing, that it shall carry on the business of the Group as a going concern and in all material respects in the ordinary and usual course as carried on prior to the date of this Agreement, save in so far as agreed in writing by the Purchaser. In particular, subject as aforesaid, each of the Transferors undertakes (in each case in relation to such Group Company or Business being transferred or contributed by it), between the date of this Agreement and Closing, that:

5.1.1

it shall or shall procure that the relevant member of the RBSG Group shall maintain in force all existing insurance policies for the benefit of the Business Transferors (in relation to the Businesses) and the Group Companies and shall not knowingly do anything to make such policy of insurance void or voidable. For the avoidance of doubt, nothing in this Clause 5.1.1 shall prevent or restrict the Business Transferors (in relation to the Businesses) or the Group Companies replacing existing insurance policies in the ordinary course of business with new insurance policies with materially equivalent cover;

5.1.2

it shall take commercially reasonable steps in the ordinary course of business and consistent with past practice with the aim of:

(i)

maintaining the Group’s and the RBSG Group’s relationships with and membership of the Visa Europe, Visa Inc. and, Mastercard Worldwide Maestro, Solo and Laser card schemes;

(ii)

keeping and maintaining the Information Technology Assets in reasonable working order (including procuring the provision of support and maintenance services in relation thereto) and protecting the Information Technology Assets from material damage, loss, unauthorised access or use; and

(iii)

avoiding, to the extent it is reasonably able to do so, any material data security breach occurring;

5.1.3

it shall not, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld or delayed:

(i)

make any capital expenditure, enter into any agreement, arrangement or undertaking or incur any commitment involving any capital expenditure, in each case, in excess of £100,000 per item and £750,000 in aggregate, in each case exclusive of VAT (or the equivalent) and which is in excess of the amount of capital expenditure envisaged for the particular commitment in the Information Memorandum;

(ii)

enter into any agreement, arrangement or undertaking, which would constitute a Contract and:

(a)

which contains any materially unusual or abnormal terms in the context of the relevant Group Company or Business;

(b)

which is with any member of the RBSG Group, other than on arm’s length terms and in the ordinary course of business;

(c)

(other than a Merchant Contract) which is not capable of being terminated without compensation at any time with 12 months’ notice or less; or

(d)

which is an agreement, undertaking or commitment which would neither constitute a Merchant Contract nor involve capital expenditure and which is of a value in excess of £750,000 or which involves or may involve total annual expenditure in excess of £100,000, in each case, exclusive of VAT;

(iii)

(except for any amendment or variation reasonably necessary to facilitate any transfer or assignment of any Merchant Contract or other transaction contemplated by the Transaction Documents) other than in the ordinary course of business, amend or vary any Merchant Contract, save for any

minor amendment or variation or any amendment or variation required by Law and Regulations;

(iv)

(except for any amendment or variation reasonably necessary to facilitate any transfer or assignment of any Contract relating to Information Technology, or any Licence Agreement or other transaction contemplated by the Transaction Documents), other than in the ordinary course of business, materially amend, vary or terminate any Contract (including any Licence Agreement but excluding any Merchant Contract) which is material to the Group as a whole save for any minor amendment or variation or any amendment or variation required by Law and Regulations;

(v)

terminate any material Merchant Contract other than pursuant to the terms of this Agreement or in the ordinary course of business (which ordinary course shall include, for the avoidance of doubt, termination following review of the risk profile of the merchant);

(vi)

amend or vary any of the merchant underwriting criteria in relation to the Merchant Contracts, other than in the ordinary course of business or in accordance with the rules of any credit, debit or charge card scheme or the implementation of a generally applicable risk policy of the Group;

(vii)

dispose of or agree to dispose of any Business Asset or any material asset of a Group Company, other than in the ordinary course of business;

(viii)

create, grant or issue any Encumbrance over any of the Business Assets or any material asset of a Group Company;

(ix)

make any loan (other than in the ordinary course of business and other than loans given or facilitated by any member of the RBSG Group to Employees as part of the terms of employment to any person);

(x)

grant any guarantee or indemnity for the obligations of any person or incur any indebtedness, in each case except in the ordinary course of business;

(xi)

factor or sell any debts or other receivables of any Business or Group Company;

(xii)

make any material amendment (including any material increase in emoluments, pension contributions, bonuses,

commissions and benefits in kind) to the terms of employment or engagement of any Senior Employee or any grade of Employees or provide or agree to provide any gratuitous payment or benefit to any Senior Employee or grade of Employees or any of their dependants, save in each case for increases in emoluments or gratuities made in accordance with the normal practice of the Group Companies or Business Transferors on the date of this Agreement and which are not likely to increase the aggregate total employment costs of the Group (at the date such increase is made) by more than 3 per cent. per annum, or adopt, enter into, terminate or materially amend any benefit plan or any arrangement, which, if adopted, would be such a benefit plan unless such amendments are consistent with the terms applied by the RBSG Group in relation to the terms applicable to the RBSG Group generally save that nothing in this sub-clause shall prevent the employer of any Dedicated Services Employee making changes to the terms of employment of such employees in the ordinary course of business;

(xiii)

other than in accordance with the Allocation Principles transfer or assign any Employee (or any person who would be an Employee but for the transfer or assignment) to any other member of the RBSG Group or into a Business or a Group Company;

(xiv)

other than in the ordinary course of business, take any steps to terminate or suspend (or give notice of the termination or suspension of) the employment of any Employee (including, for the avoidance of doubt, any Senior Employee), other than for cause or unless to do so would not adversely affect the relevant Business or Group Company;

(xv)

assign, license, charge, abandon, cease to prosecute or otherwise dispose of, or fail to maintain or diligently pursue applications for, any of the Group Intellectual Property or enter into any licence, sub-licence, assignment or other similar agreement in respect of or affecting any licences of Group Intellectual Property;

(xvi)

fail to take commercially reasonable steps in the ordinary course of business to defend the Group Intellectual Property;

(xvii)

enter into any tenancy, lease or licence agreement in respect of or affecting any of the RBS WorldPay Properties save and

except for the renewal of the relevant tenancy lease or licence and/or as contemplated in Schedule 3;

(xviii)

dispose of, or agree to dispose of, or grant or agree to grant any option in respect of any RBS WorldPay Property or interest therein;

(xix)

grant, or agree to grant, any rights over or create any restriction, covenant or Encumbrance affecting any RBS WorldPay Property;

(xx)

acquire or enter into any tenancy, lease or licence agreement in respect of any real property interest or change the location where the Group carries on its business;

(xxi)

release any security or collateral held by any Group Company or by any Business Transferor exclusively in connection with any Business; or

(xxii)

in the case of each Group Company:

(a)

create, allot or issue, or grant an option to subscribe for, any share capital;

(b)

repay, redeem, reduce or repurchase any share capital;

(c)

create any Encumbrance outside the ordinary course of business; or

(d)

amend its constitutional documents;

(xxiii)

institute or settle any litigation where it could result in a payment to or by a Group Company or a Business Transferor (in relation to the Businesses) of (i) £200,000 or more, except for collection in the ordinary course of business; (ii) $300,000 in respect of any payment in relation to the Xxxxxxx-Xxxxx Claim; or (iii) €450,000 in respect of any payment in relation to the claim in Belgium with Keyware;

(xxiv)

other than as required for the purposes of consultation over any aspect of this the transactions (including the TSAs) referred to in this Agreement, enter into or materially amend any recognition agreement with an employee representative body;

(xxv)

other than for serious misconduct, give notice of termination of employment to or dismiss any Senior Employee;

(xxvi)

make or change any material Tax election, change an annual accounting period for Tax purposes or adopt or change any accounting method for Tax purposes if such election, change or adoption would have the effect of materially increasing the Tax liability of any Group Company for any period ending on or after Closing, other than where such election, change or adoption is required as a result of a change in law or accounting practice coming into force after the date of this Agreement;

(xxvii)

vary the timing of settlement of Merchant Cash Balances to merchants; or

(xxviii)

enter into any agreement (conditional or otherwise) to do any of the foregoing,

provided that nothing in this Clause 5.1 shall prevent the Transferors (i) from causing any Group Company to pay dividends of any amount prior to Closing; (ii) hiring new employees into a Business or Group Company provided always (a) any such new hires shall be on terms substantially the same as those disclosed in the Data Room as being the standard terms applicable to that grade or category of employee; (b) no new hire with an annual basic salary in excess of £80,000 shall be made without appropriate consultation with the Purchaser; and (c) the total number of Relevant Employees and employees of Group Companies at the Closing Date shall not exceed 2616.2 on a full-time equivalent basis; or (iii) procuring that any Orphan Employees became employed by a Group Company on or before the Closing Date in accordance with paragraph 7 of Schedule 6.

5.2

Access

Subject to Law and Regulations (including with regard to any relevant anti-trust regulations) and for the purposes of access in respect of planning and implementation under Clause 6.2 only, the following provisions shall apply:

5.2.1

as from the date of this Agreement and subject to Clause 5.2.2 below, in relation to each Business and each Group Company, until the earlier of Closing or the Long Stop Date, the Transferors shall upon reasonable notice of the timing, purposes and scope of such access, and during normal business hours, procure that a reasonable number of persons representing the Purchaser and as authorised by the Joint Implementation Committee are given at the cost of the Purchaser reasonable access to:

(i)

the RBS WorldPay Properties and any other premises from which the business of the Group is operated or where their Books and Records are kept;

(ii)

the Books and Records (excluding financial, risk and customer data) provided that copies shall only be taken of such information where reasonable and at the Purchaser’s cost; and

(iii)

the Senior Employees;

in each case only if such access is reasonably necessary for planning the implementation of the transactions or matters contemplated by this Agreement or for any future strategic planning purposes relating to the Group or any part thereof;

5.2.2

the Purchaser may be denied or refused access or assistance by a Transferor under Clause 5.2.1 above if, in the Transferors reasonable opinion, the proposed access or assistance will or is reasonably likely to:

(i)

significantly disrupt the operation of any material part of the Business or Group Companies; or

(ii)

contravene the requirements of any Law and Regulations.

5.2.3

from the date of this Agreement until Closing, RBS shall provide to the Purchaser copies of the Monthly Management Accounts in the form prepared for its own internal working purposes relating to the Group for each calendar month as soon as reasonably practicable after the relevant calendar month end.

5.3	Tax Clearances and Structure

5.3.1

RBS, NatWest and the Purchaser agree that until the Closing Date they shall work together in good faith and use reasonable endeavours to obtain (as soon as reasonably practicable following the date of this Agreement) clearances from HMRC (or confirmations that any clearances previously obtained remain valid) in terms reasonably satisfactory to RBS and NatWest (the “Tax Clearances”) that the following Tax treatment will apply:

(i)

the transfer of the Contribution Business pursuant to the terms of this Agreement (as it may be amended) falls within Section 139 TCGA and Section 818 of the Corporation Tax Xxx 0000;

(ii)

the acquisition of the Contribution Shares by RBS falls within Section 136 TCGA;

(iii)

any exchange of shares or debentures pursuant to the Exchange Agreement (as it may be amended) falls within Section 135 TCGA;

(iv)

Section 116(10) TCGA will not result in a chargeable gain arising on a subsequent disposal of the Contribution Loan Notes or any securities received directly or indirectly in exchange for the Contribution Loan Notes;

(v)

the receipt of any Consideration in respect of the Contribution Business will not result in any Tax arising pursuant to Section 128(3) TCGA; and

(vi)

the Dividend in Specie will be exempt from Tax pursuant to Part 9A of the Corporation Tax Xxx 0000 (“CTA 2009”) and will not give rise to any Tax pursuant to Part 15 CTA 2010,

in light of the structure and funding of the Holdco Group and structure of the transfer of the Contribution Business and of any exchange of shares or debentures pursuant to the Exchange Agreement.

5.3.2

The Purchaser shall take such administrative steps before the Closing Date (which, for the avoidance of doubt shall not include any steps specified in Clause 5.3.4 below) as may reasonably be requested by RBS or NatWest in relation to the Tax Clearances and RBS, NatWest and the Purchaser shall promptly keep each other fully informed in respect of all matters relating to the progress of the Tax Clearances (including by way of providing copies of all documents, correspondence or where more appropriate, copies of written notes or records of any dealings with HMRC) and shall take into account each other’s reasonable comments in respect of any dealings with HMRC. Each of RBS, NatWest and the Purchaser (the “relevant parties”) shall ensure that any document due to be submitted to HMRC is provided to the other relevant parties, if reasonably practicable, within 5 Business Days before the proposed submission of the document to HMRC, and shall take into account such other relevant parties’ reasonable comments in relation to any such document.

5.3.3

Subject always to Clause 5.3.4, if HMRC refuses to grant the Tax Clearances (or any of them), or states in the course of any correspondence in relation to the Tax Clearances that any other material adverse Tax consequences are likely to arise for RBS or

NatWest (the “Adverse Tax Consequences”), the parties agree that they shall (and the Purchaser shall procure that each member of the Purchaser’s Group shall), until the Closing Date, work together in good faith and take such reasonable steps as:

(i)

HMRC may indicate would enable the grant of the Tax Clearances and avoid (if applicable) the Adverse Tax Consequences (and in circumstances where HMRC have indicated that Adverse Tax Consequences are likely to arise, the references in this Clause 5.3 and in Clause 4.1.5 to the Tax Clearances shall, if reasonably required by RBS or NatWest, include a confirmation that the Adverse Tax Consequences will not apply); or

(ii)

RBS reasonably considers would ensure that RBS and NatWest would be in no worse a position than they would have been if the Tax Clearances had been granted and (if applicable) that the Adverse Tax Consequences will not arise.

5.3.4

No steps shall be required to be taken pursuant to Clause 5.3.3 which, in the reasonable opinion of the Purchaser, would or are reasonably likely to result in any material adverse consequences for any member of the Purchaser’s Group. The reasonable steps which may be required to be taken pursuant to Clause 5.3.3 shall be limited to matters relating: to the proportions of the Consideration for the transfer of the Contribution Business which comprise cash, Contribution Shares and Contribution Loan Notes; the proportion and form of any interests which RBS may acquire in Holdco pursuant to the Exchange Agreement (provided that the rights attaching to such interests shall be economically equivalent to the interests that it is envisaged that RBS will acquire in UK Holdco as at the date of this Agreement, as set out in the Shareholders’ Agreement); the timing of the issue of any shares or securities by Holdco or any subsidiary of Holdco or of any payments in respect of such shares or securities; the ability of the shares held by RBS in UK Holdco to qualify as ordinary share capital for the purposes of section 139 TCGA; or such other matters as RBS, NatWest and the Purchaser may in their absolute discretion agree, which may be effected by amendments to the terms of this Agreement, the Shareholders’ Agreement or the Exchange Agreement.

5.3.5

If any Tax Clearance is obtained but is subsequently withdrawn or RBS or NatWest has been advised by leading tax counsel that any such clearance may have become invalid as a result of any change in law, judicial decision or change in HMRC practice, or any proposed change in the structure or funding of the Holdco Group or the acquisition of the Group, the parties shall, until the Closing Date,

use all reasonable endeavours to obtain revised Tax Clearances in a form reasonably satisfactory to RBS and NatWest, or to ensure that RBS and NatWest are reasonably satisfied that they are otherwise in no worse a position than they would have been if the Tax Clearances had not been withdrawn or become invalid, and the provisions of Clauses 5.3.2 to 5.3.5 shall apply in relation to such revised Tax Clearances.

5.3.6

The parties acknowledge that the condition in Clause 4.1.5 shall only be satisfied if (i) the Tax Clearances have been obtained in a form reasonably satisfactory to RBS and NatWest by the Closing Date and have not been subsequently withdrawn or rendered invalid, or (ii) in a case where Tax Clearances have been obtained but are subsequently withdrawn or rendered invalid, revised Tax Clearances are obtained in a form reasonably satisfactory to RBS and NatWest and have not been withdrawn or rendered Invalid, or (iii) in a case where valid Tax Clearances are obtained in relation to some only of the matters referred to in Clause 5.3.1, RBS and NatWest have confirmed (acting reasonably) that they are not in a worse position than they would have been in if valid Tax Clearances had been obtained in relation to all of the matters referred to in Clause 5.3.1. For the avoidance of doubt: (i) if NatWest is not legally able to declare the Dividend in Specie at Closing, the parties acknowledge that the condition in Clause 4.1.5 shall be deemed not to be satisfied, provided that this is without prejudice to the right of RBS to waive condition 4.1.5 pursuant to Clause 4.3.2, and (ii) Tax Clearances shall be deemed to be invalid for the purposes of this Clause 5.3.6 if RBS or NatWest has been advised by leading tax counsel that any such clearance may have become invalid as a result of, any change In law, judicial decision, or change in HMRC practice, or any proposed change in the structure or funding of the Holdco Group or the acquisition of the Group.

5.4	Cooperation on other Tax Matters

The parties shall work together in good faith on any Tax matters (other than matters relating to the Tax Clearances), including to obtain any tax clearances or confirmations which may reasonably be requested (which for the avoidance of doubt, shall include a reasonable request for confirmation in relation to the operation of section 44 VATA in connection with the transfer of the Business to the Purchaser) by the Transferors or the Purchaser. Each party shall provide such information and reasonable assistance to the other party or its duly authorised agent (or reasonable notice in writing) as may be reasonably required to enable the other party to obtain any clearance or confirmation in accordance with this Clause, provided that neither party shall be required to disclose any information which does not relate to the Businesses or the Group Companies.

5.5	Sponsorship Agreements

5.5.1

The parties will negotiate reasonably and in good faith the terms of the definitive Sponsorship Agreements in forms consistent with, and on substantially the terms set forth in, the ROW Sponsorship Term Sheet and US Sponsorship Term Sheet. In the event that the parties do not reach definitive agreement at Closing, then the ROW Sponsorship Term Sheet and/or US Sponsorship Term Sheet, as the case may be, will be legally binding on the parties (and references therein to the phrase “Sponsorship Agreement” will be deemed to refer to the ROW Sponsorship Term Sheet or US Sponsorship Term Sheet, as applicable, mutatis mutandis) until such time as the respective definitive Sponsorship Agreement is executed;

5.5.2

If, in the period between the date hereof and Closing, the parties discover that (i) additional members of the RBSG Group are involved in the sponsorship aspect of the Group at any time during such period, then such members will be added to the ROW Sponsorship Term Sheet, US Sponsorship Term Sheet and/or the ROW Sponsorship Agreement and/or US Sponsorship Agreement, as applicable, as “RBS Parties” and (ii) any members of the RBSG Group provide the Group with sponsorship into card schemes or territories then, subject to the mutual written agreement of the parties, such card schemes will be added as “Card Schemes,” and such territories will be added as “Territories,” to the ROW Sponsorship Term Sheet, US Sponsorship Term Sheet and/or the ROW Sponsorship Agreement and/or US Sponsorship Agreement, as applicable

5.6

TSAs

5.6.1

The parties shall negotiate in good faith to reach agreement on the specific services to be provided under the TSAs (including details relating to scope, service standards, costs (including third party costs), duration and notice period) in accordance with Clauses 2, 3, 4, 6 and 7 of the Signing TSAs having regard to the activities set out in the Separation Plan. If there is any conflict, apparent conflict or ambiguity in or between the Signing TSAs and the Separation Plan during such negotiations, the Signing TSAs shall prevail except where the Signing TSAs refer to Standards Document (as defined in the TSAs), in which case the Separation Plan shall prevail. For the avoidance of doubt, Clause 1.13 of the Signing TSAs shall not apply prior to Closing.

5.6.2

When defining service standards pursuant to Clause 5.6.1 above, the following principles shall apply:

(i)

the service standards and/or key performance indicators to be agreed by the parties will be those which existed during the 12 month period prior to Closing or, if no such service standards and/or key performance indicators existed, it will be the same standard to which the service (or relevant part of the service) was provided during the 12 month period prior to Closing.

(ii)

the parties acknowledge and agree that if a service standards and/or key performance indicator is agreed in accordance with Clause 5.6.2(i) above then such service standard and/or key performance indicator may not fully incorporate all the service standards applicable to the relevant service. In such circumstances, the other relevant service standards attaching to the service will be those that applied during the 12 month period prior to Closing.

5.6.3

The Parties agree that the aggregate annual charges for all services to be provided to the Purchaser’s Group under the TSAs shall not exceed *** (exclusive of VAT) as adjusted annually by the Inflation Factor (as defined in the TSAs) (“Aggregate Charges Cap”). The Parties acknowledge and agree that the Aggregate Charges Cap is based on the aggregate costs for all the services envisaged at the date of this Agreement, as listed in Appendix 1 to this Agreement. Accordingly, the Parties acknowledge that as they are finalising the services and charges therefor between the date of this Agreement and Closing, the Aggregate Charges Cap may proportionally increase or decrease as additional services are requested or services are no longer required with any such variation to be agreed by the Joint Implementation Committee. The final, agreed Aggregate Charges Cap as at Closing shall be included in clause 4.1.2 of the TSA.

5.6.4

If, by Closing, the specific services under the TSAs are not agreed by the parties then from Closing:

(i)

RBSG shall provide or procure the provision to the Purchaser’s Group of all services that were provided to the Group (except for Excluded Services (as defined in the TSA)); and

(ii)

the Purchaser shall provide or procure the provision of services that were provided to the Transferors by the Group (except for Excluded Services (as defined in the TSA),

in the 12 months prior to Closing in accordance with the Signing TSAs (except that Clause 1.13 of the TSA shall not apply) and the

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

Separation Plan and the duration period for each service will be specified in the Separation Plan and clause 6.1.2 of the Signing TSA.

5.6.5

If, by Closing, the specific services under the TSAs have been agreed by the parties, those services shall be provided in accordance with the TSAs and the terms of the TSAs shall prevail insofar as the Separation Plan refers to TSA services.

5.6.6

For the purposes of Clause 6.1.2 of the Signing TSA, the IT functions include:

(i)

Streamline Application Change (TSI) (001.009);

(ii)

Streamline Application Change (001.001);

(iii)

WPG Application Change (001.002);

(iv)

WPG Application Change (TSI) (001.003);

(v)

Streamline-Run Operations (001.004);

(vi)

WPG-Run Operations (001.006);

(vii)

TS Services for Desktops (001.007);

(viii)

TS Services for Networks (001.008);

(ix)

Shared Platform & Systems (001.010);

(x)

Distributed Application Hosting (001.005);

(xi)

Business Continuity and Disaster Recovery (003.001); and

(xii)

Incident Management (003.003).

5.7	Referral Agreements

5.7.1

The parties shall work together (acting reasonably and in good faith) from the date of this Agreement to agree prior to Closing and document in the Referral Agreements the service levels applicable to the provision of services by the Purchaser’s Group to customers referred to the Purchaser’s Group by the RBSG Group pursuant to the Referral Agreements (the “Referral Service Levels”). The Referral Service Levels shall include minimum levels of service to be achieved by the Purchaser’s Group against performance metrics substantially similar to the following:

(i)

response times to referrals made by the RBSG Group;

(ii)

the promptness with which appropriate contact is made with a referred customer;

(iii)

the time taken to make credit decisions, set up accounts and deploy terminals;

(iv)

the time taken to activate and on-board merchants;

(v)

call abandonment rates;

(vi)

call pick up rates;

(vii)

the time taken to replace terminals;

(viii)

abandonment rates for voice authorisation calls;

(ix)

the availability of the authorisation service;

(x)

the time taken to authorise transactions and process settlement transactions;

(xi)

complaint numbers;

(xii)

complaint handling/resolution times; and

(xiii)

the availability of funding to merchants.

5.7.2

The Referral Service Levels shall be substantially consistent with the service levels achieved by the Group as it operated within the RBSG Group for similar activities in the 12 months immediately prior to the date of this Agreement. If such service levels have not been agreed by the parties at Closing, RBS and the Purchaser shall appoint an independent expert to benchmark the level of services offered by leading merchant acquirers and providers of related processing services to customers of a similar size and type as the RBS Customers (as defined in the UK Referral Agreement) and Citizens Customer (as defined in the US Referral Agreement Term Sheet) and to recommend the levels at which the Referral Service Levels should be set (and a reasonable period of time within which the Purchaser’s Group must ensure that such service levels are met or exceeded), taking into account the then current levels of service being provided by the Group, the constraints of legacy systems and the time required to migrate to alternative systems. The findings of the independent expert shall be binding on both parties save to the extent of any fraud or manifest error on his part.

5.7.3

There shall be two categories of Referral Service Levels, known respectively as “Critical Service Levels” and “Non-Critical Service

Levels”. The Critical Service Levels shall be comprised of service levels and minimum service levels, with termination rights are applicable only to failures to achieve minimum service levels below the required standard during the stipulated service level period. Breach of:

(i)

a Critical Service Level or a Non-Critical Service Level in a measurement period shall trigger payment to RBS of service credits (such service credits to be without prejudice to RBS’ other rights and remedies);

(ii)

any Critical Service Level shall also give rise to a right for RBS to terminate the Referral Agreement for irremediable material breach.

The parties acknowledge the critical importance to RBS of the quality of service provided by the Purchaser’s Group to customers referred by the RBSG Group. There shall be no more than five Critical Service Levels, which shall in any event be set at a threshold which would allow RBS’ right to terminate to be triggered prior to RBS being forced to accept levels of service which would not comply with the Law or Regulations or which would be likely to lead to a member of the RBSG Group being in breach of the Law or Regulations or the rules of any card scheme or payment scheme used by the RBSG Group.

5.7.4

The Purchaser shall ensure that it puts in place within a reasonable timeframe (such timeframe to be set by an independent expert if the parties cannot agree one prior to Closing) adequate processes and procedures to automatically monitor its performance against the Referral Service Levels and report such information to the RBS on a monthly basis (or at such other frequency as is agreed).

5.7.5

To the extent that any breach of the Service Levels is directly caused by a failure of the any member of the RBSG Group to perform its express obligations under the Transitional Services Agreement, the Purchaser’s Group shall not be liable for such breach.

5.7.6

If, by Closing, the Referral Service Levels or other terms under the Referral Agreements are not agreed by the parties then from Closing the RBSG Group shall provide or procure the provision to the Purchaser’s Group of all services that were provided to the Group in the 12 months prior to Closing in accordance with the (i) the US Referral Term Sheet; or (ii) the Signing UK Referral Agreement; as the case may be.

5.8	Cash Advances

The parties shall, acting reasonably and in good faith, work together from the date of this Agreement in order to agree in writing prior to Closing provisions relating to the continuation of the arrangement for the payment of fees to the Group in connection with over-the-counter cash advances executed within RBS branches by RBS customers (the “Cash Advances Agreement”) on the same basis as such over-the-counter cash advances were operated prior to Closing. If the Cash Balances Agreement is not agreed between the parties at Closing, the parties shall procure that the over-the-counter cash advance arrangements continue to operate as they were operated in the 12 months prior to Closing.

5.9	Banking Services Agreement, Cash Management Agreement and FX Micropay Agreement

To the extent that any of the Banking Services Agreement, the Cash Management Agreement or the FX Micropay Agreement is not agreed between the parties at Closing, the parties shall in each case procure that the relevant arrangements will be undertaken on the basis of the relevant term sheet attached to the Banking Arrangements Side Letter.

5.10	Capital Expenditure

The Transferors shall procure that the Group shall make all material planned capital expenditure payments comprised in the Required Capital Expenditure Amount.

5.11	Bibit B.V. and WorldPay Limited

The Transferors and the Relevant Purchasers shall, acting reasonably and in good faith, work together from the date of this Agreement to consider the possibility of combining the operations of Bibit B.V. and the English company WorldPay Limited into a single entity including via the possibility of a merger of Bibit BV into WorldPay Limited by way of crossborder merger. In considering the feasibility of such proposals, the parties shall have regard to the operational requirements and the regulatory position of Bibit BV and WorldPay Limited.

6	Implementation Planning

6.1

Committee

6.1.1

The parties shall work together in good faith from the date of this Agreement up to and including Closing to plan for the implementation of the transactions contemplated by this Agreement,

including without limitation (i) separation of the Businesses and Group Companies from the other businesses and operations of the RBSG Group which are not the subject of this Agreement and (ii) mapping out the current technology infrastructure of the Group in order to prepare for the separation and migration of the information technology infrastructure on or after Closing, in each case in accordance with the Separation Plan.

6.1.2

Subject to Law and Regulations (including any applicable anti-trust regulations) as soon as practicable after the date of this Agreement (but in any event, no later than 5 Business Days from the date of this Agreement), the parties shall constitute an Joint Implementation Committee to assist, and manage the successful separation and planning referred to in Clause 6.1.1, consisting of an equal number of nominees from the Transferors and the Purchaser (as notified to the other party in writing from time to time) (the “Joint Implementation Committee”).

6.2	Planning and Implementation

6.2.1

The parties acknowledge and agree that the Joint Implementation Committee will be the primary forum through which the Transferors and the Purchaser will work together to plan and implement the proposed transactions contemplated by this Agreement. The parties agree that the Joint Implementation Committee shall meet regularly to achieve this aim and at least once every week, unless the parties agree otherwise.

6.2.2

From the date of this Agreement, the Transferors and the Purchaser shall use reasonable endeavours to ensure that the Joint Implementation Committee seeks, in good faith, to agree:

(i)

the steps each party will take in order to secure the necessary regulatory approvals (other than relating to merger control which will be addressed via the steps as specified in Clause 4.2) and support for the transfers and transactions contemplated by the Transaction Documents;

(ii)

the steps each party will take in accordance with Schedule 5 to notify customers of the proposed transfer and to give effect to the transfer of the Contracts;

(iii)

the steps each party will take in accordance with Schedule 5 to seek all necessary Third Party Consents and to implement the other arrangements contemplated by Schedule 5;

(iv)

the steps each party will take in accordance with Schedule 6 in respect of Relevant Employees;

(v)

the steps each party will take in accordance with Schedule 3 to seek all necessary consents from landlords;

(vi)

the steps each party will take to ensure that re-branding occurs in accordance with the terms of the Transaction Documents;

(vii)

the steps the Transferors will take to complete the Pre-Closing Separation Obligations as soon as reasonably practicable after the date of this Agreement and in any event before Closing; and

(viii)

the steps to be completed by the parties as soon as reasonably practicable in accordance with the Separation Plan and the Signing TSAs.

6.2.3.

Without limiting the foregoing, the Transferors and the Purchaser shall use reasonable endeavours to ensure that the Joint Implementation Committee seeks, in good faith, to plan for:

(i)

Closing;

(ii)

the provision of services under the TSAs on and from Closing;

(iii)

the membership of the Group of the International Maestro card scheme from as soon as possible after Closing; and

(iv)

the membership of the Group of the Xxxxxx card scheme, to the extent the scheme would permit the Group 10 become a member, from as soon as possible after Closing.

6.2.4

The Transferors and the Purchaser acknowledge and agree that the Separation Plan will be varied, updated, developed and expanded (“Plan Variation”) from time to time. The Transferors and the Purchaser shall use their reasonable endeavours to agree any Plan Variation. Each Plan Variation shall only be effective if it is approved by the Joint Implementation Committee.

6.2.5

The Transferors will use their reasonable endeavours to complete the Pre-Closing Separation Obligations (with reasonable assistance from the Relevant Purchasers) as soon as reasonably practicable after the date of this Agreement and in any event before Closing.

6.3	TSA Third Party Consents

From the date of this Agreement until Closing, the Transferors and the Purchaser shall each comply with their respective obligations under Clause 3.1 of the Signing TSAs as if they were set out herein, provided that:

6.3.1

the provisions of this Clause 6.3 shall cease to have effect on the execution of the TSAs, save in respect of rights and liabilities which have accrued before the execution of the TSAs;

6.3.2

any such TSA Third Party Consent obtained prior to Closing shall be conditional on Closing; and

6.3.3

the provisions in Clauses 11, 12 and 16.1 and 16.13 of this Agreement shall not apply to this Clause 6.3 and instead the provisions of Clause 8 of the TSAs shall apply mutatis mutandis as if there were set out herein.

6.4	Post Closing

Without limiting Clause 6.2, each of the Transferors and the Purchaser shall use reasonable endeavours to ensure that the Joint implementation Committee meets no later than one week following the Closing Date and weekly thereafter unless agreed otherwise to:

6.4.1

identify any property, right or asset forming part of the Business Assets or Group Companies to be transferred to the Purchaser that has not been transferred and seek to effect that transfer to the Purchaser in accordance with Clause 9.8;

6.4.2

identify any property, right or asset that has been transferred to the Purchaser which did not form part of the Business Assets or Group Companies to be transferred and seek to effect the re-transfer to the relevant Transferor in accordance with Clause 9.9; and

6.4.3

review the status of the transfer and separation of the relevant Business and Group Companies including the implementation of the Separation Plan.

Without prejudice to the TSAs, from the Closing Date, the Parties shall work together in good faith to separate the Group from the other business and operations of the RBSG Group which are not subject of this Agreement, including using reasonable endeavours to implement and complete the activities referred to or set out in the Separation Plan.

6.5	Dispute Resolution

6.5.1

If a dispute or difference of opinion arises in relation to any of the matters referred to in Clause 6.2.2 or otherwise dealt with by the Joint Implementation Committee and the members of the Joint Implementation Committee are unable to resolve that dispute or difference of opinion within a reasonable period, then each of the Transferors or the Purchaser may issue a notice requiring that the dispute be referred to the Joint Steering Committee, if constituted, or if not constituted in the case of the Transferors, to ***, or such other person as the Transferors may nominate from time to time and, in the case of the Purchaser, to *** and *** or such other persons as the Purchaser may nominate from time to time.

6.5.2

If a dispute or difference of opinion is referred under Clause 6.5.1 to the Joint Steering Committee or the individuals named in Clause 6.5.1, the Purchaser and the Transferors shall each procure that its representative negotiates in good faith to resolve the dispute or difference of opinion for a period of up to 20 Business Days.

6.6	Law and Regulations

The operation of the Joint Implementation Committee shall be consistent with Law and Regulations.

Closing

7.1	Date and Place

7.1.1

Subject to Clauses 4, 7.1.2 and 7.1.3 and unless otherwise specified by a relevant Regulatory Authority or Taxation Authority, the Closing for each jurisdiction shall take place at the locations agreed between the Purchaser and RBS (each acting reasonably) as at 11.59 pm on 30 November 2010 unless:

(i)

notification at least 6 Business Days prior to Closing or acknowledgement of the fulfilment of one or more of the conditions pursuant to Clause 4.1 has not been received; or

(ii)

either RBSG or the Purchaser are not satisfied (each acting reasonably) that Closing is able to occur in accordance with Clause 7.1.2,

in which case, if at least 6 Business Days prior to Closing notification or acknowledgement of the fulfilment of the condition(s) pursuant to Clause 4.1 has been received and subject to Clause 7.1.2, Closing

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

shall take place on 31 January 2011 or at such other place, time or date as may be agreed between RBS and the Purchaser and in each case Closing shall take place in each jurisdiction at the same time and on the same date and simultaneously and provided that Closing occurs on or before the Long Stop Date. If the last day of the relevant calendar month does not fall on a Business Day or a day which is not a public holiday in the relevant location, the parties shall make arrangements for Closing to take place in escrow on the immediately preceding Business Day or a day which is not a public holiday in the relevant location so that Closing can take place as at 11.59 pm on such last day of the relevant calendar month.

7.1.2

Notwithstanding satisfaction of the conditions set out in Clause 4.1, Closing shall not occur until each of RBS (subject to compliance by the Transferors with Clause 6.2.5) and the Purchaser are satisfied (acting reasonably) that, if Closing were to take place on a particular date, either (i) the Pre Closing Separation Obligations would have been completed to the extent necessary to ensure that Closing would take place without material disruption to clients of the Group; or (ii) if such obligations would not be so completed, RBSG would be prepared to satisfy the underlying obligation through the provision of services under the TSAs or the Signing TSAs, if the TSAs are not agreed at the relevant time, such that there should not be material disruption to clients of the Group if Closing were to take place. In the event of any delay to Closing pursuant to this Clause 7.1.2, RBSG and the Purchaser shall, without prejudice to each party’s obligations under this Agreement and the TSAs, use reasonable endeavours so as to enable Closing to take place as soon as reasonably practicable. If this Clause 7.1.2 applies and if its conditions to enable Closing to take place are not satisfied by six Business Days prior to the Long Stop Date, the Group shall not be transferred under this Agreement and the provisions of Clause 4.4 shall apply mutatis mutandis.

7.1.3

Where:

(i)

Closing is delayed beyond either a date on which the parties had otherwise agreed that it would occur pursuant to Clause 7.1.1, or a date identified pursuant to a notification under Clause 7.1.2; and

(ii)

this results in additional costs being incurred in order to comply with the relevant endeavours obligation(s),

then if the delay in Closing is a result of any party’s acts or omissions, the Purchaser and RBSG shall negotiate in good faith to allocate such additional costs to the party whose acts or omissions caused the delay to Closing and, if the delay in Closing is not the result of

any party’s acts or omissions, such additional costs shall be borne by the Transferors on the one hand and the Purchaser on the other in equal share.

7.2	Closing Events

On Closing, the parties shall comply with their respective obligations specified in Schedule 10 in relation to the Group Companies and Businesses. RBS may waive some or all of the obligations of the Purchaser as set out in Schedule 10 and the Purchaser may waive some or all of the obligations of RBS or the Transferors as set out in Schedule 10.

7.3	Payment on Closing and Initial Allocation of the Consideration

7.3.1

Subject to Clause 7.3.3, on Closing the Relevant Purchaser shall pay an amount in cash to each Seller in relation to the Company or Sale Business being transferred by it which is equal to the sum of:

(i)

the Premium;

plus

(ii)

the Estimated Net Asset Value,

in each case attributable to the Company or Sale Business comprising the part of the Group being transferred by such Seller.

7.3.2

Subject to Clause 7.3.3, on Closing the Purchaser shall:

(i)

pay an amount in cash in relation to the Contribution Business which is equal to the sum of:

(a)

the Premium attributable to the Contribution Business as set out in Schedule 8;

plus

(b)

the Estimated Net Asset Value attributable to the Contribution Business;

less

(c)

the Contribution Securities Value; and

(ii)

procure the delivery of share certificates in respect of the Contribution Shares and loan note certificates in respect of the Contribution Loan Notes,

in each case to the Contribution Party.

7.3.3

The Consideration payable pursuant to Clause 7.3.1 and 7.3.2 minus the Estimated Intra Group Indebtedness shall not exceed *** in aggregate.

7.3.4

The Consideration shall initially be allocated in accordance with Schedule 8.

7.4	Notifications to Determine Payments on Closing

7.4.1

Not less than 10 Business Days prior to Closing, RBS shall notify the Relevant Purchasers of:

(i)

the Estimated Net Asset Value attributable to each Group Company or Business to be transferred at Closing and to each of the Business Assets in accordance with Schedule 8; and

(ii)

(a) the Estimated Intra-Group Receivables; and (b) the Estimated IntraGroup Payables; specifying (i) the relevant debtor and creditor for each Estimated Intra-Group Payable and Estimated Intra-Group Receivable and (ii) the currency of each such Estimated Intra-Group Receivable and Estimated Intra Group Payable;

7.4.2

Simultaneously with Closing:

(i)

the Relevant Purchaser shall procure that each relevant Group Company or Business repays in sterling to the relevant member of the RBSG Group the amount of any Estimated Intra-Group Payables; and

(ii)

the Transferors shall procure that each relevant member of the RBSG Group repays in sterling to the relevant Group Company the amount of any Estimated Intra-Group Receivables.

7.4.3

The repayments made pursuant to Clause 7.4.2 shall be adjusted in accordance with Clause 8.3 when the Closing Statement becomes final and binding in accordance with Clause 8.2.1.

7.5	Breach of Closing Obligations

7.5.1

If any party fails to comply with any material obligation in Clause 7.2, 7.3, 7.4 or Schedule 10 in relation to Closing, the Relevant Purchaser, in the case of noncompliance by any Transferor, or RBS, in the case of non-compliance by the Relevant Purchaser, shall be

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

entitled (in addition to and without prejudice to all other rights or remedies available, including the right to claim damages) by written notice to RBS or the Relevant Purchaser, as the case may be:

(i)

to effect Closing so far as practicable having regard to the defaults which have occurred; or

(ii)

to fix a new date for Closing being the last day of a calendar month provided such date is on or before Long Stop Date in which case:

(a)

the provisions of Schedule 10 shall apply to Closing as so deferred but provided such deferral may only be effected once by each of (a) RBS and (b) the Purchaser; and

(b)

if a party from the same group (being any relevant Transferor (on the one hand) or the Relevant Purchaser (on the other)) fails to comply with any material obligation in Clause 7.2, 7.3 or 7.4 or Schedule 10 in relation to the deferred Closing, then the non-defaulting party (being either of RBS or the Relevant Purchaser, as the case may be) shall be entitled to terminate this Agreement (other than Clauses 1, 15, and 16.2 to 16.19 (inclusive)). Save as aforesaid or as otherwise provided, neither the Transferors nor the Relevant Purchaser shall have any right to terminate or rescind this Agreement.

7.5.2

If this Agreement is terminated in accordance with Clause 7.5.1(ii)(b) (and without limiting the terminating party’s right to any remedy provided by law or under this Agreement) all obligations in respect of Closing shall end, save in respect of rights and liabilities which have accrued before termination.

7.6	Regulatory Capital and Card Scheme Collateral

7.6.1

The Purchaser shall notify the Transferors of the amount of Purchaser Regulatory Capital as soon as practicable and in any event at least six Business Days prior to Closing.

7.6.2

The Transferors shall, notwithstanding Clause 2.3.2(iii), procure that the Businesses are transferred with an amount equal to the Purchaser Regulatory Capital in freely accessible cash.

7.6.3

The parties shall use reasonable endeavours to minimise the Purchaser Regulatory Capital, (including through the use of Group

Regulatory Capital Contributions) but in each case without being required to agree to:

(i)

any changes to the Businesses or the Group which would have an adverse consequence with more than a de minimis effect;

(ii)

any changes to the structure or proposed structure of the Purchaser’s Group as outlined in the application and correspondence first presented to the relevant regulators;

(iii)

any changes for which a third party consent is necessary and which consent cannot be obtained (the Purchaser having used reasonable endeavours to obtain such consents);

(iv)

(v)

accept any requirement for additional regulatory or other capital made by any relevant regulator in excess of the amount provided by RBS pursuant to Clause 7.6.

7.6.4

The Transferors shall be entitled to be fully involved in any discussions, correspondence or meetings with the FSA in relation to the regulatory capital required by the Purchaser.

7.6.5

The cash balance referred to in Clause 7.6.2 shall not be included in the calculation of the Net Asset Value.

7.6.6

***

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

7.6.7

Subject to Clause 7.6.5, RBS and the Purchaser shall work together and shall each use reasonable endeavours to seek to keep any Card Scheme Collateral Requirement to a minimum and the provisions of Clause 7.6.3 shall apply mutatis mutandis.

7.6.8

The Relevant Purchaser will procure that the relevant members of the Purchaser’s Group will manage the settlement of their respective chargeback liabilities in respect of MasterCard and Visa in each case in accordance with the rules and terms of membership thereof and so as to minimise the amounts drawn under the Letters of Credit. The Purchaser shall indemnify and keep indemnified the Transferors against all Losses suffered by any Transferor which arises out of or in connection with any breach by the Purchaser or any member of its Group of this Clause 7.6.8.

7.6.9

For the purposes of this Clause 7.6, “Letters of Credit” mean the letters of credit envisaged by Clause 7.6.6 substantially in the same form as the letter of credit in the Agreed Terms.

8	Post-Closing Adjustments

8.1	Closing Statements

RBS shall procure that no later than 90 days following Closing or such other date as may be agreed between the Purchaser and RBS there shall be drawn up a draft of the Closing Statement (the “Draft Closing Statement”) in accordance with Part 1 of Schedule 11 in relation to the Group Companies and Businesses.

8.2	Determination of Closing Statement

8.2.1

The Draft Closing Statement as agreed or determined pursuant to paragraph 3 of Part 1 of Schedule 11:

(i)

shall constitute the Closing Statement for the purposes of this Agreement; and

(ii)

shall be final and binding on the parties.

8.2.2

The Net Asset Value, Intra-Group Indebtedness, Intra-Group Receivables and the Intra-Group Payables shall be derived from the Closing Statement.

8.2.3

***

8.3	Repayments of Intra-Group Indebtedness and Adjustments to Consideration

8.3.1

Repayment of Intra-Group Indebtedness

(i)

Subject to Clause 8.3.1(iii), if (a) the amount of Intra-Group Payables are greater than the Estimated Intra-Group

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

Payables; or (b) the amount of the Intra-Group Receivables are less than the Estimated Intra-Group Receivables, then, as an adjustment to the repayments made pursuant to Clause 7.4.2, the Relevant Purchaser shall pay or procure the payment to the relevant member of the RBSG Group an amount equal to the difference(s) between the amounts on or before the Payment Date.

(ii)

Subject to Clause 8.3.1(iii), if (a) the amount of Intra-Group Payables are less than the Estimated Intra-Group Payables; or (b) the amount of the Intra-Group Receivables are greater than the Estimated Intra-Group Receivables, then, as an adjustment to the repayments made pursuant to Clause 7.4.2, the Transferors shall pay or procure the payment by the relevant member of the RBSG Group to the relevant Group Company of an amount equal to the difference(s) between the amounts on or before the Payment Date.

(iii)

Any payments made pursuant to Clause 8.3.1(i) or (ii) shall be made in sterling and together with an amount equal to interest thereon in accordance with Clause 8.6.

The Transferors and the Relevant Purchaser shall procure that such adjustments to the repayments pursuant to Clause 7.4.2 are made as are necessary to ensure that (taking into account such adjustments) the actual amount of each Intra-Group Payable and each Intra-Group Receivable has been repaid to or by the relevant member of the RBSG Group, as the case may be.

8.4	Adjustment to Consideration

8.4.1

If the Premium plus the Net Asset Value attributable to a Group Company or Business is greater than the amount actually paid by the Relevant Purchaser pursuant to Clause 7.3 (plus the Contribution Securities Value in the case of the Contribution Business), the Relevant Purchaser shall pay to the Seller or the Contribution Party as applicable, an amount equal to the excess.

8.4.2

If the Premium plus the Net Asset Value attributable to a Group Company or Business is less than the amount actually paid by the Relevant Purchaser pursuant to Clause 7.3 (plus the Contribution Securities Value In the case of the Contribution Business), the Seller or the Contribution Party, as applicable, shall pay to the Relevant Purchaser an amount equal to the deficiency.

8.4.3

Such payments shall be made on or before the Payment Date and such amount shall be allocated between the Sellers or Contribution

Party or the Relevant Purchaser, as the case may be, by reference to the deficiency or excess attributed to the Group Company or Business in the relevant Closing Statement

8.4.4

Adjustments to the Consideration under this Clause 8.4 are subject to the cap in Clause 3.1.

8.5	Merchant Payables, Merchant Cash Balances and Card Scheme Debtors

8.5.1

If at Closing, the aggregate of the Merchant Payables, Merchant Cash Balances actually transferred and the Card Scheme Debtors is less than zero (the “Deficiency”), the Transferors shall pay to the Relevant Purchaser an amount equal to the Deficiency.

8.5.2

Any payment due under this Clause 8.5 shall be determined by the Transferors (acting reasonably and in good faith) and be made no later than 2 Business Days following Closing.

8.5.3

Following the determination of the actual amounts of Merchant Payables, Merchant Cash Balances and the Card Scheme Debtors in accordance with Schedule 11, if the Deficiency is greater than the payment made under Clause 8.5.2 then the Seller shall pay the Purchaser the difference, if the Deficiency is less than the amount paid in Clause 8.5.2 then the Purchaser shall pay the Seller the difference.

8.6

Interest

Any payment to be made in accordance with Clause 8.3 shall be made together with an amount equal to interest thereon calculated from and including the Closing Date to the date of payment at a rate per annum of 1 per cent. above LIBOR from time to time, accruing from day-to-day calculated on the basis of the actual number of days elapsed and a year of 360 days.

8.7	Payment and Allocation

Where any payment is required to be made pursuant to Clauses 8.3 or 8.4, the allocation of the Consideration shall be adjusted in accordance with paragraph 10 of Schedule 8.

9	Post-Closing Obligations

9.1	Indemnity by the Purchaser Against Assumed Liabilities

Notwithstanding any Law and Regulations which require the Business Transferors, in relation to their respective Businesses, to discharge, perform or honour any Assumed Liability, or Liability or Losses arising from the carrying on by the Purchaser of each Business after Closing, the Purchaser shall

indemnify and keep indemnified the Business Transferors and each member of the RBSG Group (each a “Transferor Indemnified Person”) on an after-Tax basis from and against:

9.1.1

all Assumed Liabilities discharged, performed or honoured by any Transferor Indemnified Person and any Liability or Losses incurred after Closing by a Transferor Indemnified Person to the extent they arise in relation to the conduct by the Purchaser of each Business after Closing; and

9.1.2

any reasonable and properly incurred third-party professional or other out-of-pocket costs and expenses directly arising out of or in connection with any Transferor Indemnified Person being required to discharge, perform or honour any Assumed Liability or taking any reasonable action to investigate, avoid, resist or defend itself against any matter referred to in Clause 9.1.1.

9.2	Indemnity by Business Transferors Against Excluded Liabilities

Notwithstanding any Law and Regulations which require any member of the Purchaser’s Group to assume, discharge, perform or honour any Excluded Liability, each Business Transferor shall indemnify and keep indemnified each member of the Purchaser’s Group (each a “Purchaser Indemnified Person”) on an after-Tax basis from and against:

9.2.1

any Excluded Liabilities assumed, discharged, performed or honoured by any Purchaser Indemnified Person; and

9.2.2

any reasonable and properly incurred third-party professional or other out-of-pocket costs and expenses directly arising out of or in connection with any Purchaser Indemnified Person being required to assume, discharge, perform or honour any Excluded Liability or taking any reasonable action to investigate, avoid, resist or defend against any matter referred to in Clause 9.2.1.

9.3	Indemnity by Transferors against Data Security breaches

9.3.1

Notwithstanding any Law and Regulations which might require any Purchaser Indemnified Person to assume, discharge, perform or honour any such Third Party Claim, each Transferor shall indemnify and keep indemnified each Purchaser Indemnified Person, in each case on an after Tax basis, from and against:

(i)

the amount of any Third Party Claim which results from any breaches of PCI DSS or PADSS or other applicable data security Law and Regulation in any jurisdiction in which the Business operates, or operated prior to Closing, in each case

in the period up to the Closing Date or which relate to such breaches which existed at or prior to the Closing Date and which continue in the conduct of the business of the Group on or after the Closing Date (and including, for the avoidance of doubt, any such Third Party Claim in respect of claims or fines imposed by any of Visa Inc or Visa Europe or MasterCard Worldwide or other Third Party Claims), but always only to the extent that the underlying matters, facts or circumstances giving rise to the relevant breach and Third Party Claim has been Disclosed and are therefore not the subject of a claim hereunder for breach of a Transferor Warranty; and

(ii)

any reasonably and properly incurred third party professional or other out of pocket costs and expenses directly arising out of or in connection with any Purchaser Indemnified Person taking reasonably action to investigate, avoid, resist or defend itself against any such Third Party Claim.

9.3.2

No Transferor shall be liable under the indemnity contained in Clause 9.3.1 to the extent that such Third Party Claim has been increased or exacerbated by any act or omission of a Purchaser Indemnified Person. For the avoidance of doubt, without prejudice to Clause 11.12, a failure by any Purchaser Indemnified Person to have remedied any Disclosed breach of PCI DSS, PADSS or other applicable data security Law and Regulation shall not be taken to have increased or exacerbated any Third Party Claim unless there is a failure by any Purchaser Indemnified Person to take any action previously agreed in writing with the Transferor.

9.3.3

No Transferor shall be liable under the indemnity contained in Clause 9.3.1 in respect of any Third Party Claim unless details of that Third Party Claim and written notice of a claim under Clause 9.3.1 in respect of that Third Party Claim are given by the Purchaser to RBS specifying the mailers set out in Clause 12 within 3 years after Closing.

9.4	Indemnity by Transferors in respect of international and debit card processing

9.4.1

(i)

the amount of any Third Party Claim which results from any breaches of any Merchant Contract which relate to the processing of non-EU issued MasterCard debit cards and non-UK issued MasterCard debit or Visa debit cards (“International Debit Cards”) as credit cards, in each case in the period up to the Closing Date or which relate to such breaches which existed at or prior to the Closing Date and which continue in the conduct of the business of the Group for up to 180 days after the Closing Date (and including, for the avoidance of doubt, any Third Party Claim in respect of claims or fines imposed by any of Visa Inc or Visa Europe or MasterCard Worldwide which relate to such breaches of Merchant Contracts)); and

(ii)

9.4.2

No Transferor shall be liable under the indemnity contained in Clause 9.4.1 to the extent that such Third Party Claim has been increased or exacerbated by any act or omission of a Purchaser Indemnified Person.

9.4.3

No Transferor shall be liable under the indemnity contained in Clause 9.4.1 in respect of any Third Party Claim unless details of that Third Party Claim and written notice of a claim under Clause 9.4.1 in respect of that Third Party Claim are given by the Purchaser to RBS specifying the mailers set out in Clause 12 within 18 months after Closing.

9.5	Indemnity by Transferors In respect of ***

9.5.1

(i)

the amount of any Third Party Claim which results from the matters referred to in paragraph 9.2.2 of the Executive Summary, the second paragraph (save for the second sentence) of paragraph 2 of Part B of Annex 8 and paragraph 2.1.2 of Part B of Annex 11 of the Vendor Due Diligence Report prepared by Linklaters LLP (and including, for the avoidance of doubt, any Third Party Claim in respect of

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

claims or fines related to such matters imposed by any of Visa Inc or MasterCard Worldwide); and

(ii)

9.5.2

No Transferor shall be liable under the indemnity contained in Clause 9.5.1 to the extent that such Third Party Claim has been increased or exacerbated by any act or omission of a Purchaser Indemnified Person.

9.5.3

No Transferor shall be liable under the indemnity contained in Clause 9.5.1 in respect of any Third Party Claim unless details of that Third Party Claim and written notice of a claim under Clause 9.3.1 in respect of that Third Party Claim are given by the Purchaser to RBS specifying the matters set out in Clause 12 within 18 months after Closing.

9.6	Release of Guarantees etc.

9.6.1

The Relevant Purchasers shall use their best endeavours to procure by Closing or, to the extent not done by Closing, as soon as reasonably practicable thereafter, the release by providing to the beneficiary an alternative company or bank guarantee or other security arrangement reasonably acceptable to the beneficiary with effect from Closing of the Transferors or any member of the RBSG Group from the Guarantees (save for the Australian Guarantee). Pending such release, the Relevant Purchaser shall indemnify and keep indemnified (on an after-Tax basis) the Transferors and any member of the RBSG Group against all amounts paid by any of them pursuant to the Guarantees (save for the Australian Guarantee) and any Losses arising out of or in connection with them, in each case to the extent that such amounts or Losses relate to events occurring or acts or omissions after Closing.

9.6.2

The Relevant Purchaser shall use reasonable endeavours to procure by Closing or, to the extent not done by Closing, as soon as reasonably practicable thereafter, the release by providing to the beneficiary an alternative company or bank guarantee or other security arrangement reasonably acceptable to the beneficiary with effect from Closing of the Transferors, or any member of the RBSG Group from the Australian Guarantee and any security, guarantees or indemnities other than the Guarantees (save for the Australian Guarantee), given by or binding upon the Transferors or any member

of the RBSG Group in respect of any of the Business Assets or the Assumed Liabilities or in connection with a liability of any of the Group Companies. Pending such release, the Relevant Purchaser shall indemnify and keep indemnified (on an after-Tax basis) the Transferors and any member of the RBSG Group against all amounts paid by any of them pursuant to any such security, guarantees and indemnities or the Australian Guarantee and any Losses arising out of or in connection with them, in each case to the extent that such amounts or Losses relate to events occurring or acts or omissions after Closing.

9.6.3

The Transferors shall use their best endeavours to procure by Closing or, to the extent not done by Closing, as soon as reasonably practicable thereafter, the release by providing to the beneficiary an alternative company or bank guarantee or other security arrangement reasonably acceptable to the beneficiary with effect from Closing of any Group Company from any security, guarantees or indemnities given by or binding upon any Group Company in respect of any of the Excluded Liabilities or in connection with a liability of any of member of the RBSG Group. Pending such release, the Transferors shall indemnify and keep indemnified (on an after-Tax basis) the Group Companies and any member of the Relevant Purchaser’s Group against all amounts paid by any of them pursuant to any such security, guarantees and indemnities and any Losses arising out of or in connection with them, in each case to the extent that such amounts or Losses relate to events occurring or acts or omissions after Closing.

9.6.4

For the purposes of Clause 9.6.2 and Clause 9.6.3 the parties acknowledge and agree that:

(i)

one or more of the relevant securities, guarantees or indemnities may become known to the Transferors, or the Relevant Purchaser (as the case may be) on or after Closing; and

(ii)

upon becoming so aware of such a security, guarantee or indemnity (as the case may be) the relevant party shall notify the other parties in writing as soon as practicable of its existence, and the obligations under Clause 9.6.2 and 9.6.3 shall apply.

9.6.6

The provisions of this Clause 9.6 shall only apply to each Relevant Purchaser to the extent that the relevant underlying Guarantee or other obligation hereunder arises or exists in that part of the Group acquired by that Relevant Purchaser on Closing.

9.7	The Business Receivables and Other Payments

The Business Transferors shall procure that, if at any time after Closing, any member of the RBSG Group receives any monies in respect of any Business Receivable, then the Business Transferor, shall, at monthly intervals, give details of such receipt to the Purchaser save where any such individual Business Receivable, or the aggregate of all such Business Receivables in a calendar month, exceeds £10,000,000 (“Excess Business Receivables”) where the Business Transferors shall provide details of such receipt to the Purchaser within 3 Business Days of receipt. Any monies received by any member of the RBSG Group in respect of Business Receivables shall be held on trust for the Purchaser (but may be held in a co-mingled account) and the Business Transferors shall, in relation to their respective Businesses, pay to the Purchaser the amount recovered. Payments in respect of Excess Business Receivables shall be made without interest within 3 Business Days after receipt or, as the case may be, after the date when Business Receivables received in the relevant calendar month exceed £10,000,000, and payments of Business Receivables which are not Excess Business Receivables shall be aggregated and made on a monthly basis in respect of all such receipts received during each calendar month and shall be made without interest and within five Business Days after the end of each calendar month.

9.8	The Transferors’ Continuing Transfer Obligations

Notwithstanding Closing and, except as provided in Schedules 3, 4 and 5, if any property (including Intellectual Property), right or asset which is agreed to form part of the Group to be transferred to the Purchaser under this Agreement has not been transferred to the Purchaser on Closing, the Transferors shall transfer, such property, right or asset (and any related liability which is an Assumed Liability) as soon as practicable (and at its own cost) to the Purchaser.

9.9	The Purchaser’s Continuing Transfer Obligations

If, following Closing, any Excluded Asset or any property (including Intellectual Property), right or asset, not forming part of the Group to be transferred to the Purchaser under this Agreement, is found to have been transferred to the Purchaser on Closing in error, the Purchaser shall transfer such property, right or asset as soon as practicable to the relevant Transferor or another member of the RBSG Group agreed between the Purchaser and the Transferor.

9.10	Information and Communications

9.10.1

After Closing (and without limiting any of the Transferor Warranties), if any Books and Records are not in the possession of the Relevant Purchaser or a Group Company but are in the possession or under the control of or available to the Transferors or any other member of

the RBSG Group, the Transferors shall procure that such Books and Records are provided to the Relevant Purchaser promptly on request.

9.10.2

Each Transferor shall use reasonable endeavours to procure that all notices, correspondence, orders or inquiries relating to the Group Companies, the Business or the Business Assets which are received by the Transferors or any other member of the RBSG Group (including from customers and clients) on or after Closing shall be passed to the Relevant Purchaser as soon as is reasonably practicable and in any event within 10 Business Days from the receipt of such notice, correspondence, order or enquiry.

9.11	Post·Closing Access for the Relevant Purchaser

Notwithstanding Closing, the Transferors shall retain for a period of 7 years from Closing the books, records and documents of the Businesses and the Group Companies (including records in relation to VAT, subject to the provisions of Schedule 9) to the extent they relate to the period prior to Closing and are not delivered to the Relevant Purchaser on or after Closing and shall (subject to compliance with Law and Regulations and after redaction of any information which does not relate to the Group) allow the Relevant Purchaser and its respective officers, directors, employees, auditors, professional advisers and agents reasonable access, on reasonable notice and during business hours, together with the facility (at the cost of the Relevant Purchaser) to take copies of such books, records and documents.

9.12	Post·Closing Access for Transferors

The Relevant Purchasers shall retain, for a period of 7 years from Closing, the books, records and documents which relate to the Businesses and the Group Companies (including records in relation to VAT, subject to the provisions of Schedule 9) and which are delivered to the Relevant Purchaser on or after Closing to the extent they relate to the period prior to Closing and shall (subject to compliance with Law and Regulations and after redaction of any information relating to periods after Closing) allow the Transferors and their respective officers, directors, employees, auditors, professional advisers and agents reasonable access, on reasonable notice and during business hours, together with the facility (at the cost of the Transferors) to take copies of such books, records and documents.

10	Warranties

10.1	The Transferor Warranties

10.1.1

Each Transferor, in respect only of the Business or Group Companies which it owns, represents and warrants to the Purchaser

and each Relevant Purchaser that the statements set out in Schedule 12 are true and accurate as of the date of this Agreement.

10.1.2

Each Transferor gives the Transferor Warranties only to the extent that the Transferor Warranties or a breach of the Transferor Warranties relate to or affect the Shares (including the relevant underlying businesses) and/or Businesses it agrees to transfer under this Agreement.

10.1.3

Each of the Transferor Warranties shall be construed as being separate and independent and shall not be limited by reference to, or inference from, any other Transferor Warranty or any other term of this Agreement or any other Transaction Document.

10.1.4

The only Transferor Warranties given in respect of Tax matters are the Warranties set out in paragraphs 2, 7.6.4, 11 and 12 of Schedule 12 and each of the other Transferor Warranties shall be deemed not to be given in respect of such matters.

10.1.5

Each of RBS and the Transferors undertakes, if any claim, is made against it in connection with the transfer of the Group to the Relevant Purchasers not to make any claim against any director or employee of the Businesses or Group Companies on whom any of them may have relied before agreeing to any terms of this Agreement or any other Transaction Document or authorising any statement in the Disclosure Letter.

10.1.6

All Transferor Warranties, indemnities, covenants and other undertakings contained in or entered into in accordance with this Agreement or any other Transaction Document shall remain in full force and effect notwithstanding Closing.

10.1.7

Any Transferor Warranty qualified by the expression “so far as the Transferors are aware” or any similar expression shall, unless otherwise stated, be deemed only to refer to the actual knowledge on the date of this Agreement of the Senior Employees (but excluding the Committee Employees), ***.

10.2	Transferors’ Disclosures

The Transferor Warranties are subject to all matters fairly Disclosed in this Agreement or in the Disclosure Letter or in the documents referred to in the Disclosure Letter including all those documents provided in the Data Room.

10.3	Updating of the Transferor Warranties to Closing

*** Material has been omitted pursuant to a request for confidential treatment and has been filed separately.

10.3.1

Subject to Clause 10.2, each Transferor, in respect only of the Business or Group Company that it owns, further represents and warrants to the Purchaser that the Transferor Warranties In paragraphs 1.1, 1.2, 2.4, 3.2, 4.1.1, 4.1.3, 4.1.4, 4.4, 5.1, 5.2, 5.5.2, 5.5.5, 5.6.1, 6.1, 6.2, 6.4, 7.1.2, 7.1.3, 7.1.4, 7.5, 7.6.1, 7.6.6, 7.6.7, 8.3, 11.2, 11.3, 12.2, 12.3, 12.6, 12.7, 12.9, 12.11, 14 and 15 of Schedule 12 will be true and accurate at Closing as if they had been repeated at Closing in each case by reference to the facts and circumstances subsisting at the Closing Date and on the basis that any reference, whether express or implied, in such Transferor Warranties to the date of this Agreement is substituted by a reference to the Closing Date.

10.4	The Purchaser’s Warranties

10.4.1

The Purchaser and the Relevant Purchasers represent and warrants to the Transferors and the Contribution Party that the statements set out in Schedule 13 are true and accurate as of the date of this Agreement.

10.4.2

The Purchaser and the Relevant Purchaser further represent and warrant to the Transferors and the Contribution Party that the statements set out in Schedule 13 will be true and accurate at Closing as if they had been repeated at Closing in each case by reference to the facts and circumstances subsisting at the Closing Date and on the basis that any reference, whether express or implied, in such statements to the date of this Agreement is substituted by a reference to the Closing Date.

11	Limitation of Transferors’ Liability

11.1	Time Limitation for Relevant Claims

No Transferor shall be liable under this Agreement in respect of any claim for breach of its Transferor Warranties or for breach of the Tax Indemnity (a “Relevant Claim”) or of the provisions of Clause 5.1 to 5.11 (inclusive) (a “Clause 5 Claim”) unless a notice of the claim is given by the Purchaser to RBS specifying the matters set out in Clause 12.2:

11.1.1

in the case of any claim under paragraph 11 or paragraph 12 of Schedule 12 or under the Tax Indemnity (a “Tax Claim”) within 30 days after expiration of the applicable statute of limitations; and

11.1.2

in the case of any other Relevant Claim, or a Clause 5 Claim, within 18 months following Closing.

11.2	Minimum Relevant Claims

11.2.1

No Transferor shall be liable in respect of any individual Relevant Claim or individual Clause 5 Claim (and for the purposes of this Clause 11.2.1 a series of Relevant Claims or Clause 5 Claims arising from substantially identical facts, events or circumstances shall be treated as one claim (including, without limitation, in respect of different Merchant Contracts) where the liability agreed or determined (disregarding the provisions of this Clause 11.2) in respect of any such claim or series of claims does not exceed £500,000 or, in respect of a Clause 5 Claim, £250,000.

11.2.2

Where the liability agreed or determined in respect of any such claim or series of claims exceeds £500,000 or, as the case may be, £250,000, subject as provided elsewhere in this Clause 11, the Transferors shall be liable for the full amount of the claim or series of claims as agreed or determined and not just the excess.

11.3	Aggregate Minimum Relevant Claims

11.3.1

Subject to Clause 11.3.3, no Transferor shall be liable, in respect of any Relevant Claim, any Clause 5 Claim or any claims under Clause 9.3 unless the aggregate amount of all such claims for which the Transferors would otherwise be liable (disregarding the provisions of this Clause 11.3) exceeds £12,500,000.

11.3.2

Subject to Clause 11.3.3, where the liability agreed or determined in respect of all Relevant Claims, any Clause 5 Claim and any claims under Clause 9.3 exceeds £12,500,000, (subject as provided elsewhere in this Clause 11), the Transferors shall be liable for the aggregate amount of all such claims, as agreed or determined and not just the excess.

11.3.3

For the purposes of Clauses 11.3.1 and 11.3.2, the definition of Relevant Claim shall exclude any Tax Claim.

11.4	Maximum Liability

The aggregate liability of the Transferors in respect of all Relevant Claims, Clause 5 Claims and any claims under Clause 9.3, 9.4 and 9.5 together shall not exceed £450,000,000 provided that: (i) the aggregate liability of the Transferors in respect of claims under Clause 9.3 shall not exceed £50,000,000; (ii) the aggregate liability of the Transferors in respect of claims under Clause 9.4 shall not exceed £5,000,000; (iii) the aggregate liability of the Transferors in respect of claims under Clause 9.5 shall not exceed US$5,000,000 and (iv) the aggregate liability of the Transferors in respect of claims for breach of the Transferor Warranties contained in paragraphs 1.1.1, 15 and 16 of Schedule 12 (when aggregated with all other Relevant Claims and any other claim under this Agreement) shall not exceed the Consideration.

11.5	Contingent Liabilities

No Transferor shall be obliged to make payment under this Agreement or any other Transaction Document in respect of any liability which is contingent unless and until such contingent liability becomes an actual liability. Nothing in this Clause 11.5 shall preclude the giving of notice of a claim which is contingent within the latest time set out in clause 11.1, in which case Clause 12.5.1 shall apply.

11.6	Consequential Losses

No Transferor shall be liable under this Agreement or any other Transaction Document in respect of any indirect or consequential losses, but this Clause 11.6 shall not operate to exclude liability for any loss or damage which would fairly and reasonably be considered as arising naturally from the relevant breach or liability. For the avoidance of doubt, this Clause 11.6 is not intended to preclude any method of calculating damages which may be applicable to the claim in question.

11.7	Provisions

No Transferor shall be liable under this Agreement or any other Transaction Document in respect of any claim if and to the extent that any identifiable allowance, provision or reserve is made in the Closing Statement for the matter giving rise to the claim.

11.8	Voluntary Matters Arising

No Transferor shall be liable under this Agreement or any other Transaction Document in respect of any matter, act, omission or circumstance (or any combination thereof), including the aggravation of a matter or circumstance and any Losses arising therefrom, to the extent that the same is attributable to:

11.8.1

Agreed Matters

any matter or thing done or omitted to be done pursuant to and in compliance with this Agreement or any other Transaction Document or otherwise at the request in writing or with the approval in writing of the Purchaser, including any breach of a confidentiality obligation arising as a result of the disclosure of the Contracts in the Data Room; or

11.8.2

Acts of the Purchaser

any voluntary act, omission or transaction of the Relevant Purchasers or any member of the Relevant Purchasers’ Group or their respective directors, officers, employees or agents or

successors in title after Closing outside the ordinary and usual course of business other than an act or omission:

(i)

pursuant to a binding commitment entered into by the Group or a Business Transferor prior to Closing; or

(ii)

to comply with Law and Regulations.

11.9	Matters Arising After Closing

No liability shall attach to the Transferors in respect of any claim under this Agreement or any other Transaction Document to the extent that the same is attributable to:

11.9.1

Changes in Legislation

(i)

the passing of, or coming into effect of any change in, after Closing any law, rule, regulation or administrative practice of any government, governmental department, agency or regulatory body including (without prejudice to the generality of the foregoing) any increase in the rates of Taxation or any imposition of Taxation or any withdrawal of relief from Taxation not actually (or prospectively) in effect at Closing; or

(ii)

any change after Closing of any generally accepted interpretation or application of any legislation; or

11.9.2

Accounting and Taxation Policies

any change in accounting or Taxation policy, bases or practice of the Relevant Purchasers or any of the Group Companies introduced or having effect after Closing, otherwise than to comply with law or any applicable mandatory accounting standards in force on or before the Closing Date.

11.10

Insurance

No Transferor shall be liable under this Agreement or any other Transaction Document in respect of any claim to the extent that the Losses in respect of which such claim is made are covered by a policy of insurance and the Relevant Purchaser actually recovers under that policy (after deducting any costs reasonably incurred in making such recovery). In such circumstances, the Purchaser must use all reasonable endeavours to seek to recover amounts under policies of insurance held by it.

11.11

Net Financial Benefit

No Transferor shall be liable under this Agreement or any other Transaction Document in respect of any Losses suffered by the Relevant Purchasers or any Group Company to the extent that the Relevant Purchaser or any Group Company obtains and is able then to utilise either:

(i)

an actual reduction (or extinction) in any actual liability to make a payment of Taxation (being a reduction or extinction not otherwise taken into account in determining any amount payable by or to any member of the RBSG Group); or

(ii)

an actual repayment of Taxation (being a repayment not otherwise taken into account in determining any amount payable by or to any member of the RBSG Group, including by virtue of being included in the Closing Statement),

in either case, as a result of the Losses in question, or the facts which give rise to such Losses and, in determining the amount by which the relevant Transferor’s liability shall be reduced by reference to such reduction, extinction or repayment, account shall be taken of the time value of money, taking into account the amount of time which expires between (a) the date on which the relevant Transferor is (or, but for this Clause 11.11, would have been) liable to make the payment under the indemnification provision or warranty in question and (b) either (i) the date on which the Taxation referred to in Clause 11.11(i) would, but for such reduction or extinction, be due to be paid to the Tax Authority in question or, as the case may be, (ii) the date on which the repayment of Taxation is due to be made.

11.12

Mitigation of Losses

The Relevant Purchasers shall procure that all reasonable steps are taken and all reasonable assistance is given to avoid or mitigate any Losses which might give rise to a liability in respect of any claim under this Agreement or any other Transaction Document provided that nothing in this Clause 11.12 shall oblige a Relevant Purchaser to take any action if the Relevant Purchaser reasonably considers such action to be materially prejudicial to the goodwill or business of the Group.

11.13

Purchaser’s Right to Recover

11.13.1

Recovery for Actual Liabilities

No Transferor shall be liable to pay any amount in discharge of a claim under this Agreement or any other Transaction Document unless and until the liability in respect of which the claim is made has become due and payable.

11.13.2

Prior to Recovery from the Transferors

If, before any Transferor pays an amount in discharge of any claim under this Agreement or any other Transaction Document, a Relevant Purchaser or any Group Company recovers or is entitled to recover (whether by payment, discount, credit, relief, insurance or otherwise) from a third party a sum which indemnifies or compensates the Relevant Purchaser or Group Company (in whole or in part) in respect of the loss or liability which is the subject matter of the claim, the Relevant Purchaser shall procure that, before steps are taken to enforce a claim against the Transferor following notification under Clause 12.2 of this Agreement or under any other Transaction Document, all reasonable steps are taken to enforce recovery against the third party and any actual recovery (less any reasonable costs incurred in obtaining such recovery) shall reduce or satisfy, as the case may be, such claim to the extent of such recovery.

11.13.3

Following Recovery from the Transferors

If any Transferor has paid an amount in discharge of any claim under this Agreement or any other Transaction Document and a Relevant Purchaser or any Group Company is entitled to recover (whether by payment, discount, credit, relief, insurance or otherwise) from a third party a sum which indemnifies or compensates the Relevant Purchaser or Group Company (in whole or in part) in respect of the loss or liability which is the subject matter of the claim, the Transferor shall be subrogated to all rights that the Relevant Purchaser has or would otherwise have in respect of the claim against the third party, or if subrogation is not possible, the Relevant Purchaser shall procure that all steps are taken as the Transferor may reasonably require to enforce such recovery and shall, or shall procure that the relevant Group Company shall, pay to the Transferor as soon as practicable after receipt an amount equal to (i) any sum recovered from the third party less any costs and expenses incurred In obtaining such recovery or if less (ii) the amount previously paid by the Transferor to the Relevant Purchaser.

11.13.4

Nothing in this Clause 11.13 shall oblige a Relevant Purchaser to take any action if the Relevant Purchaser reasonably considers such action to be materially prejudicial to the goodwill or business of the Group.

11.14

Double Claims

The Relevant Purchasers shall not be entitled to recover from any Transferor under this Agreement or any other Transaction Document more than once in respect of the same Losses suffered and, without prejudice to the generality of the foregoing, no Transferor shall be liable in respect of:

11.14.1

any breach of the Agreement or any Local Transfer Document if and to the extent that the Losses resulting from or connected with such breach are or have been included in a claim under the Tax Indemnity which has been satisfied; or

11.14.2

a claim under the Tax Indemnity if and to the extent that the Losses in respect of which such claim was made are or have been included in a claim for breach of the Agreement or any Local Transfer Document which has been satisfied.

11.15

Tax Indemnity

The provisions of Clauses 11.3, 11.6, 11.7, 11.8, 11.9, 11.11, 11.12, 11.13 and 11.14 shall not apply in respect of a claim under the Tax Indemnity or in respect of the Share Tax Warranties and instead the provisions of clause 3 of the Tax Indemnity shall apply.

11.16

Fraud

None of the limitations contained in this Clause 11 shall apply to any claim to the extent that such claim which arises or is increased, or to the extent to which it arises or is increased, as the consequence of, or which is delayed as a result of, fraud, by any relevant Transferor or any of its directors, officers or employees.

11.17

Relevant Purchaser’s breaches of Law and Regulation

Save as expressly provided in this Agreement or in any Transaction Document and for the avoidance of doubt, any act or omission after Closing by a Relevant Purchaser or any member of the Relevant Purchaser’s Group in relation to any of the Businesses or Group Companies and which is in breach of any Law and Regulation or the rules of Visa Europe, Visa Inc, Mastercard Worldwide, Maestro, Solo, Laser or any other credit, debit or charge card scheme shall be for the account of the Relevant Purchaser or the relevant member of the Relevant Purchaser’s Group and no member of the RBSG Group shall have any liability therefor under any indemnity in any Transaction Document or under any Transferor Warranty.

11.18

Remediation Expenses

No Transferor shall be liable under the indemnities contained in Clause 9.3.1, 9.4.1 or 9.5.1 or the Transferor Warranties contained in Schedule 12 paragraphs 2, 5.6.1 to 5.6.3, 5.7 and (to the extent they relate to data security and compliance) 8 and 9 in respect of remediation expense relating to Information Technology.

Claims

12.1	Assumed Liabilities

Subject to Clause 12.4, the relevant Transferors shall, to the extent permitted by any Law and Regulations, take such action as the Purchaser may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes or may constitute an Assumed Liability (an “Assumed Liability Claim”) subject to the Transferors being indemnified on an after-Tax basis by the Purchaser against all Losses which may thereby be incurred and, without limitation to the foregoing:

12.1.1

each relevant Transferor shall provide the Purchaser and its financial, accounting, tax or legal advisers reasonable access to enable them to investigate the facts, matter or circumstance alleged to (or which may) give rise to such Assumed Liability Claim and whether and to what extent any amount is or may be payable in respect of such claim;

12.1.2

each relevant Transferor shall disclose to the Purchaser all material of which it is aware which relates to such Assumed Liability Claim and shall, and shall procure that any other relevant members of the RBSG Group shall, give, subject to their being paid all reasonable out-of-pocket costs and expenses, all such assistance, including:

(i)

access to premises and personnel;

(ii)

making such personnel available for factual interviews, preparation for testimony, giving, evidencing, producing affidavits and other similar activities; and

(iii)

the right to examine and copy or photograph any assets, accounts, correspondence, documents and records,

as the Purchaser or its/their financial, accounting or legal advisers may reasonably request; and

12.1.3

each Transferor shall, and shall procure that any other members of the RBSG Group shall, at all times take all reasonable steps to maintain any legal privilege that exists in relation to any information referred to in this Clause 12.1 (including books of account, records and correspondence) relevant to the Assumed Liability Claim.

Nothing in this Clause 12.1 shall entitle the Purchaser or its advisers to have access to any information which relates to legal advice in respect of any claim for breach of the Transaction Documents.

12.2	Notification of Potential Claims

12.2.1

Notices of Transferor Claims (other than a claim by a third party in respect of an Excluded Liability) by the Relevant Purchasers under this Agreement or any Transaction Document shall be given by the Relevant Purchaser to the Transferors or the Contribution Party within the time limit specified in Clause 11.1, to the extent applicable.

12.2.2

If the Purchaser receives notices of claims in respect of an Excluded Liability by a third party it shall give notice of such claim to the Transferors or the Contribution Party as soon as reasonably practicable.

12.2.3

Without prejudice to the obligations of the Relevant Purchasers under Clause 12.3, if the Purchaser becomes aware of any matter or circumstance that may give rise to a claim against any Transferor or the Contribution Party, as the case may be under this Agreement or any other Transaction Document (ignoring for these purposes the application of Clause 12.3 or 12.4), the Relevant Purchaser shall within 60 days give a notice in writing to RBS setting out in reasonable detail information concerning the legal and factual basis of the claim or potential claim and setting out (on a without prejudice basis) the Relevant Purchaser’s estimate of the amount of Losses which are, or are to be, the subject of the claim (including any Losses which are contingent on the occurrence of any future event). Following such notice, the Relevant Purchaser shall as soon as reasonably practicable (and in any event within such period as will afford the Transferors or the Contribution Party, as the case may be, reasonable opportunity to take appropriate defensive or mitigating action, make any filings or lodge any appeal on a timely basis, or require the Relevant Purchaser to do so), give such further notice(s) in writing to the Transferors or the Contribution Party, as the case may be setting out such information as is available to the Purchaser at the relevant time as is reasonably requested by the Transferors or the Contribution Party, as the case may be.

12.3	Investigation by the Transferors

In connection with any Transferor Claim and to the extent permitted by any Law and Regulations:

12.3.1

the Relevant Purchaser shall, and shall procure that the relevant member of the Relevant Purchasers’ Group shall, allow any Transferor or the Contribution Party, as the case may be, and its respective financial, accounting, tax or legal advisers reasonable access to allow them to investigate the fact, matter or circumstance alleged to (or which may) give rise to such a Transferor Claim and whether and to what extent any amount is or may be payable in respect of such Transferor Claim; and

12.3.2

the Relevant Purchaser shall, and shall procure that any other relevant members of the Relevant Purchasers’ Group shall, disclose to RBS and the relevant Transferor or the Contribution Party, as the case may be, all material of which the Relevant Purchaser or any such member is aware which relates to such Transferor Claim and shall, subject to their being paid all reasonable out-of-pocket costs and expenses, give all such information and reasonable assistance, including:

(i)

access to premises and personnel (including any Relevant Employee with knowledge relating to the relevant facts, matters or circumstances or who can otherwise reasonably assist the Transferor or the Contribution Party, as the case may be);

(ii)

making such personnel available for factual interviews, preparation for testimony, giving evidence, producing affidavits and other similar activities; and

(iii)

the right to examine and copy or photograph any assets, accounts, correspondence, documents and records,

as RBS, the Transferor or the Contribution Party, as the case may be, or their financial, accounting, tax or legal advisers may reasonably request, provided that such assistance does not significantly disrupt the operation of the Group; and

12.3.3

the Relevant Purchasers shall, and shall procure that any other members of the Relevant Purchasers’ Group shall, at all times take all reasonable steps to maintain any legal privilege that exists in relation to any information referred to in this Clause 12.3 (including books of account, records and correspondence) relevant to the Transferor Claim.

12.3.4

Nothing in this Clause 12.3 shall entitle any of RBS or any Transferor, or the Contribution Party, as the case may be, or their advisers to have access to any information which relates to legal advice in respect of any claim for breach of the Transaction Documents or shall oblige the Relevant Purchasers to take any action if the Relevant Purchasers reasonably consider such action to be materially prejudicial to the goodwill or business of the Group.

12.4	Conduct of Third Party Claims

If the matter or circumstance that may give rise to a Transferor Claim is a result of or in connection with a claim or fine by or from a third party (including any regulator, government or governmental authority or Taxation Authority) (a

“Third Party Claim”), then to the extent that a Relevant Purchaser or any member of the Relevant Purchasers’ Group is involved directly in such Third Party Claim:

12.4.1

no admissions in relation to the Third Party Claim shall be made by or on behalf of the Relevant Purchaser or any other member of the Relevant Purchasers’ Group and the Third Party Claim shall not be compromised, disposed of, settled or otherwise dealt with by the Relevant Purchaser or a member of the Relevant Purchasers’ Group except with the written consent of the Transferor concerned (such consent not to be unreasonably withheld or delayed);

12.4.2

the relevant Transferor shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Relevant Purchaser, to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim (including making counterclaims or other claims against third parties and including instructing such professional and legal or tax advisers as such Transferor may nominate to act on behalf of the Relevant Purchaser or other member of the Relevant Purchasers’ Group) in the name of and on behalf of the Relevant Purchaser or other member of the Relevant Purchasers’ Group concerned and to have the conduct of any related proceedings, negotiations or appeals; and

12.4.3

to the extent that the relevant Transferor does not exercise its rights under Clause 12.4.2, subject to being indemnified (on an after-Tax basis) against Losses which may thereby be incurred and to the extent permitted by applicable Law and Regulations, the Relevant Purchaser and any member of the Relevant Purchasers’ Group shall take such action as such Transferor may reasonably request to avoid, dispute, resist, appeal, compromise, honour, handle, defend or mitigate such Third Party Claim provided that nothing in this Clause 12.4 shall oblige the Relevant Purchaser to take any action if the Relevant Purchaser reasonably considers such action to be materially prejudicial to the goodwill or business of the Group.

12.5	Commencement of Proceedings by the Purchaser

Any claim notified by or on behalf of a Relevant Purchaser shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn nine months after notice is given under Clause 12.2, unless at such time legal proceedings in respect of the relevant claim have been commenced by being both issued and served, provided that:

12.5.1

where Clause 11.5 applies, the nine-month period shall commence on the date that the relevant contingent liability becomes an actual liability; or

12.5.2

where Clause 11.13 applies and the relevant member of the Relevant Purchasers’ Group has a claim against a third party, including any insurer, the nine-month period shall commence on the date that the corresponding claim is finally settled or finally determined; or

12.6.3

where Clause 12.4 applies, the nine-month period shall commence on the date the relevant Third Party Claim has been settled or determined; or

12.5.4

where notice is given for a claim for breach of any of the Transferor Warranties pursuant to Clause 12.2 above at a time when the amount set out in Clause 11.3 has not been exceeded, it shall be deemed to have been withdrawn unless legal proceedings in respect of it have been commenced by being both issued and served within nine months of the date of any subsequent notification pursuant to Clause 12.2 above of one or more claims for breach of the Transferor Warranties which result(s) in the total amount claimed in all claims for breach of the Transferor Warranties notified to the relevant Transferor pursuant to Clause 12.2 exceeding the amount set out in Clause 11.3 for the first time.

12.6	Confidentiality

12.6.1

Any documents or information made available to a party in accordance with this Clause 12 shall, subject to Clause 15.2, be kept confidential by the recipient and shall be used by the recipient only for the purposes referred to or contemplated in this Clause 12.

12.6.2

Nothing in this Clause 12 shall require the provision of any documents or information where such provision would contravene any Law and Regulations, breach any duty of confidentiality or prejudice any right of privilege.

12.7	Legal or Regulatory Constraints

Where any Law and Regulations require the consent of any third party (including any Regulatory Authority) to be obtained before any aspect of this Clause 12 can be operated in accordance with applicable Law and Regulations, the relevant party which requires to obtain any such consent before it can comply with its obligations under this Clause 12 in accordance with Law and Regulations shall use all reasonable endeavours to obtain such consent on a timely basis.

12.8	Tax Indemnity

The provisions of this Clause 12 shall not apply in respect of a claim under the Tax Indemnity or in respect of the Share Tax Warranties and instead the provisions of the Tax Indemnity shall apply.

13	Restrictions on the Transferors

13.1	Restrictions

Subject to Clauses 13.2 and 13.3, RBS and the Transferors shall procure that no member of the RBSG Group will in any Relevant Capacity during the Restricted Period:

13.1.1

carry on, be engaged in or be economically interested in: (i) any point of sale merchant acquiring business (including “card-not-present activities”) or related payment processing business in the Relevant Territory; (ii) the business of supplying electronic transaction and related payment processing (including e-commerce gateway) in the United States through automated teller machines at locations other than banks (or bank concessions within other premises); or (iii) any online payment acquiring and related payment processing business (including e-commerce gateway), in each case which is of the same or similar type to the business of the Group as now carried on and which is or is likely to be in competition with any part of the business of the Group as now carried on;

13.1.2

canvass or solicit the custom of any person, firm or company who has within 24 months prior to Closing been a customer of the Group Companies or the Businesses where such canvassing or soliciting is in relation to any business which would involve a breach of Clause 13.1.1; or

13.1.3

induce or seek to induce in the Relevant Territory any present Restricted Employee to become employed whether as employee, consultant or otherwise by any member of the RBSG Group, whether or not such Restricted Employee would thereby commit a breach of his contract of service, provided that this Clause 13.1.3 shall not, subject to any applicable restrictions set out in the relevant termination arrangements, apply after the termination of employment of any Restricted Employee, or to any Restricted Employee who independently approaches the Transferors or a member of the RBSG Group with a view to prospective employment without any prior inducement from either of the Transferors or a member of the RBSG Group. The placing in good faith and in a manner not intended to target a Restricted Employee of an advertisement of a post available to a member of the public generally, recruitment through the RBSG Group intranet or the recruitment of a person through an employment agency or head hunter shall not constitute a

breach of this Clause 13 provided that no member of the RBSG Group encourages or advises such agency or head hunter to approach any Restricted Employee.

13.2	Exceptions

The restrictions in Clause 13.1 shall not operate to prohibit any member of the RBSG Group from:

13.2.1

fulfilling any obligation or exercising any right in respect of any Excluded Liability or any Excluded Asset;

13.2.2

carrying on or being engaged in or being economically interested in any business which is of the same or similar type to the business carried on by the Group after such time as the Purchaser ceases to carry on or be engaged in or economically interested in the business carried on by the Group;

13.2.3

holding or being interested in up to 7.5 per cent. of the outstanding issued share capital of a company listed on any stock exchange;

13.2.4

fulfilling any obligation pursuant to this Agreement and any Transaction Document;

13.2.5

acquiring the whole or part of any business or the shares in any company, provided that the principal purpose of the acquisition is not to acquire a business or company which competes with any Business or Group Company and that the gross income attributed to that part of the business or company which would otherwise cause a breach of Clause 13.1 is less than 20 per cent of the total gross income of the business or company (for the then most recent financial year) and which in any event does not exceed a total gross income of £125,000,000 attributed to that part of the business or company;

13.2.6

carrying on or being engaged in or being economically interested in any banking business, including internet banking (including linking internet banking to merchant websites), currency conversion, foreign exchange and automated teller machine businesses or any business arising out of or in connection with enforcement of rights under any agreement, including security, entered into in the course of any such business;

13.2.7

carrying on or being engaged in or being economically interested in any card issuing business;

13.2.8

carrying on or being engaged in the existing merchant acquiring business through RBS N.V. in France which is currently outsourced to The Credit Mutuel CIC Group;

13.2.9

carrying on or being engaged in or being economically interested in any business necessary to fulfil any requirement applicable to the RBSG Group as a result of Law and Regulations or the rules of any credit, debit or charge card scheme;

13.2.10

acting as sponsor (or the equivalent) to any person under the rules of any credit, debit or charge card scheme; and

13.2.11

performing any Contract excluded pursuant to paragraph 3 of Part 1 of Schedule 5 to this Agreement.

13.3	Reasonableness of Restrictions

RBS and the Transferors agree that the restrictions contained in this Clause are no greater than are reasonable and necessary for the protection of the interest of the Purchaser but if any such restriction shall be held to be void but would be valid if deleted in part or reduced in application, such restriction shall apply with such deletion or modification as may be necessary to make it valid and enforceable.

13.4	Interpretation

The following terms shall have the following meanings respectively in this Clause 13:

13.4.1

“Relevant Capacity” means directly or indirectly for its own account or for that of any person, firm or company (other than the Purchaser) including through the medium of any company controlled by it or in conjunction with any other person;

13.4.2

“Relevant Territory” means each country in the European Union to the extent that the Group Companies and Businesses do business there as at the date of this Agreement, the United States, Canada, Japan, Australia, New Zealand, Hong Kong and Singapore;

13.4.3

“Restricted Employee” means employees employed by any Group Company and Relevant Employees whom (in each case) are of executive or senior managerial grade (or the equivalent local grade); and

13.4.4

“Restricted Period” means three years commencing on Closing.

13.5	Intellectual Property Restrictions

With effect from Closing, RBS and the Transferors shall not and shall procure that each member of the RBSG Group shall not (and shall not permit any person to):

13.5.1

use any trade xxxx, service xxxx or domain name, business, corporate or trading name falling within Group Intellectual Property for so long as such right remains in use by the Purchaser’s Group or the Business; or

13.5.2

renew or apply for registration of any trade xxxx, service xxxx or domain name consisting of “RBS WORLDPAY”, ‘WORLDPAY”, “RBSLYNK”, “RBSSTREAMLlNE”, “STREAMLINE” or “NATWESTSTREAMLINE” for so long as such rights remain in use by the Purchaser’s Group or the Business.

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Dated 6 August 2010 THE ROYAL BANK OF SCOTLAND PLC AND OTHERS and SHIP BIDCO LIMITED TRANSFER AGREEMENT relating to the transfer of the companies and businesses comprising the point of sale, e-commerce gateway, merchant acquiring business and related...