Trademark License Agreement

Exhibit 10.3


TRADEMARK LICENSE AGREEMENT


THIS TRADEMARK LICENSE AGREEMENT (this "Agreement") is made as of the 3rd day of December 1996 between BANKAMERICA CORPORATION, a Delaware corporation
----------------------- ("BAC") and BA MERCHANT SERVICES, INC., a Delaware corporation ("BAMSI").
-------------------------


RECITALS


A. BAC. BAC is an existing corporation duly organized and in good
--- standing under the laws of the State of Delaware, with its principal executive offices located in San Francisco, California.


B. BAMSI. BAMSI is an existing corporation, formed under the laws of
----- the State of Delaware, with its principal executive offices located in San Francisco, California.


C. Corporate Approvals. Each of the parties to this Agreement has
------------------- obtained all necessary corporate approvals for the execution and delivery of this Agreement.


D. Arm's Length Relationship. The parties to this Agreement intend
------------------------- to conduct their relationships hereunder on an arm's length basis.


E. BAC/BAMSI Transactions. Bank of America National Trust and
---------------------- Savings Association ("BofA") and Bank of America NW, National Association ("BANW"), each a subsidiary of BAC, currently own 100% of the outstanding common stock of BAMSI. BofA and BANW have entered or will enter into certain agreements with BAMSI (1) transferring the BofA United States domestic merchant processing business and the BANW merchant processing business to BAMSI and (2) covering the contemplated transfer of the Philippine and Thailand merchant processing businesses of BofA to BAMSI upon the receipt of certain governmental approvals (collectively, the BAC/BAMSI Transactions"). BAMSI is currently considering an initial public offering of shares of its Class A common stock, $.01 par value per share.


F. Related Agreements. BAMSI has entered or will enter into (1) a
------------------ Non-Competition and Corporate Opportunities Allocation Agreement of even date herewith between BAC and BAMSI (the "Corporate Opportunities Agreement"), (2) a Marketing Agreement of even date herewith among BAMSI, BofA and BANW (the "Marketing Agreement"), (3) a Sponsorship and Processing Services Agreement of even date herewith between BAMSI and BofA (the "Sponsorship Agreement") (4) Processing Services Agreements of even date herewith between BAMSI and other subsidiary banking institutions of BAC (the "Affiliate Bank Processing Agreements"), (5) an Administrative Services Agreement of even date herewith between BofA and BAMSI (the "Administrative Services Agreement"), (6) a Registration Rights Agreement to be entered into among BAMSI, BofA and BANW (the "Registration Rights Agreement"), and (7) a Tax Allocation Agreement of


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even date herewith between BAC and BAMSI (the "Tax Agreement"). The Corporate Opportunities Agreement, the Marketing Agreement, the Sponsorship Agreement, the Affiliate Bank Processing Agreement, the Administrative Services Agreement, the Registration Rights Agreement and the Tax Agreement are herein collectively referred to as the "Related Agreements."


G. Trademark Licenses. In connection with the consummation of the
------------------ BAC/BAMSI Transactions and entry into the Related Agreements, (i) BAMSI desires to license from BAC and BAC is willing to grant to BAMSI a nonexclusive license to the BAC Trademarks (as defined below), and (ii) BAC desires to license from BAMSI and BAMSI is willing to grant to BAC and its Affiliates a nonexclusive license to the BAMSI Trademarks (as defined below), all in accordance with and subject to the terms and provisions herein set forth.


NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of their mutual promises and obligations herein contained, intending to be legally bound, the parties do hereby agree as follows:


ARTICLE 1 - DEFINITIONS


Section 1.1 "Affiliate" means with respect to any person, any other person which directly or indirectly controls, is controlled by, or is under common control with, such person. A person is regarded in control of another person if it owns, or directly or indirectly controls, at least 50% of the voting stock or other ownership interest of the other person, or if it directly or indirectly possesses the power to direct or cause the direction of the management and policies of the other person by any means whatsoever; provided however that, for the purposes of this Agreement, BAMSI shall not be an Affiliate of BAC and BAC shall not be an Affiliate of BAMSI.


Section 1.2 "BAC Services" means the products and services of BAC and its Affiliates defined as "Bank Services" in the Marketing Agreement, as amended from time to time pursuant to the terms thereof.


Section 1.3 "BAC Trademarks" means the trademarks, service marks, tradenames and other intellectual property of BAC identified on Schedule A, which include the "Bank's Marks" as defined in the Marketing Agreement.


Section 1.4 "BAMSI Services" means the merchant processing business of BAMSI defined as "BAMSI Services" in the Marketing Agreement, as amended from time to time pursuant to the terms thereof.


Section 1.5 "BAMSI Trademarks" means the trademarks, service marks, tradenames and other intellectual property of BAMSI identified on Schedule B, which include "BAMSI's Marks" as defined in the Marketing Agreement.


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Section 1.6 "Effective Date" means the date of this Agreement.


Section 1.7 "Licensee" means, as the case may be, BAC in its capacity as licensee of the BAMSI Trademarks hereunder, and BAMSI in its capacity as licensee of the BAC Trademarks hereunder.


Section 1.8 "Licensor" means, as the case may be, BAC in its capacity as licensor of the BAC Trademarks hereunder, and BAMSI in its capacity as licensor of the BAMSI Trademarks hereunder.


Section 1.9 "Licensor's Trademarks" means the BAC Trademarks, in the case of BAC, and the BAMSI Trademarks, in the case of BAMSI.


ARTICLE 2 - GRANTS OF TRADEMARK LICENSES


Section 2.1 BAC Grant of License.
--------------------


(a) BAC grants to BAMSI the worldwide, nonexclusive right and license to use the BAC Trademarks in the marketing, promotion, sale and provision of BAMSI Services and BAC Services in accordance with the provisions of the Marketing Agreement.


(b) The BAC Trademarks are initially as established by BAC as of the Effective Date and may be modified from time to time by BAC in its sole discretion and reflected on a revised Schedule A.


Section 2.2 BAMSI Grant of License.
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