Exhibit 10.29


 


EXECUTION COPY


 


MERCHANT
PORTFOLIO PURCHASE AGREEMENT


 


This MERCHANT PORTFOLIO
PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of September 22,
2005, by and between Heartland Payment Systems, Inc., a Delaware
corporation and successor-in-interest to Heartland Payment Systems, L.L.C., a
Missouri limited liability company (“Purchaser”), and Certegy Payment
Services, Inc., a Delaware corporation and formerly known as Equifax
Payment Services, Inc., a Delaware corporation (“Seller”).


 


WHEREAS, Purchaser and
Seller are parties to a certain Merchant Portfolio Purchase Agreement dated as
of November 1, 2000, as amended on January 16, 2002 (the “Old
Merchant Portfolio Purchase Agreement”), pursuant to which Purchaser sold,
assigned and transferred to Seller all of its rights, interests and
responsibilities to certain merchant processing agreements and the revenues
payable to Buyer arising out of such merchant processing agreements.


 


WHEREAS, Seller wishes to
sell, assign and transfer to Purchaser all of its rights, interests and
responsibilities to the Merchant Agreements and Assigned Merchant Revenues, and
Purchaser wishes to acquire and assume these rights, interest and
responsibilities under the terms of this Agreement;


 


NOW THEREFORE, in
consideration of the payment of the Purchase Price, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree:


 


DEFINITIONS


 


1.                                       As used in
this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined).


 


1.1                                 “Assigned Merchant Revenues” are
those revenues payable to Purchaser arising out of the Merchant Agreements.


 


1.2                                 “Effective Date” is September 1,
2005.


 


1.3                                 “Merchant Agreements” are those
certain merchant processing agreements originated by Purchaser and transferred
to Seller pursuant to the Old Merchant Portfolio Purchase Agreement, including
any such agreements subsequently transferred.


 


1.4                                 “Purchase Price” means Three
Million Dollars ($3,000,000).


 


2.                                       Sale and
Purchase.  In consideration
of tender of the Purchase Price and subject to the terms and conditions of this
Agreement, Seller hereby transfers and assigns to Purchaser and Purchaser
hereby purchases and accepts assignment from Seller, of all of Seller’s rights,
title and interest, both tangible and intangible, accrued or contingent, in the
Merchant Agreements and the Assigned Merchant Revenues commencing with


 





















 


transactions processed on or after
September 1, 2005 and Purchaser shall assume and be responsible for all
liabilities and responsibilities for any transactions processed prior to, or on
or after, September 1, 2005.  For
the avoidance of doubt, the intention of the parties hereto is that upon the
Effective Date, all right, title and interest in the Merchant Agreements and
the revenue relating thereto be transferred and assigned to Purchaser.  Notwithstanding the foregoing, Seller shall
reimburse Purchaser for up to $50,000 of chargeback losses associated with
transactions processed for Knob, Pull and Handle, Inc., merchant
identification number 650000000517121, prior to September 1, 2005, where
the chargebacks are recorded prior to December 31, 2005.  Purchaser shall notify Seller of the
aggregate amount of all such chargebacks in each calendar month from and after September 2005
through December 2005 promptly after the end of each such month, and
Seller shall pay to Purchaser such month’s aggregate chargebacks within 15
business days of each such notification.


 


3.                                       Representations
and Warranties of Seller.  Seller makes the
following representations and warranties to Purchaser:


 


3.1                                 Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Delaware and has the corporate power and authority necessary to own and
operate its properties and to carry on its business as now conducted.


 


3.2                                 Seller has the right, power,
capacity and authority to assign the Seller’s rights in and to the Merchant
Agreements and Assigned Merchant Revenues, and to perform the acts contemplated
by this Agreement.  The execution,
delivery and performance of this Agreement have been approved by all requisite
actions on the part of the Seller, and when executed and delivered shall
constitute valid, binding and enforceable obligations of the Seller.  The execution and performance of this
Agreement do not constitute an event of default of Seller under any other
agreement.


 


3.3                                 There are no actions, suits, or
proceedings pending or, to the knowledge of Seller, threatened against Seller
relating to the Merchant Agreements and there are no actions, suits, or
proceedings pending or, to the knowledge of Seller, threatened against Seller which,
if adversely determined, would have a material adverse effect on the Merchant
Agreements and Assigned Merchant Revenues or Seller’s ability to perform its
obligations hereunder or any other agreement in connection herewith.


 


3.4                                 Seller is owner of the Merchant
Agreements and Assigned Merchant Revenues free and clear of all liens,
encumbrances, charges and assessments of any nature.  The delivery of the Merchant Agreements and
Assigned Merchant Revenues to Purchaser pursuant to this Agreement will transfer
valid title thereto, free of all liens, encumbrances, charges and assessments
of any kind.


 


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4.                                       Representations
and Warranties of Purchaser.  Purchaser makes
the following representations and warranties to Seller:


 


4.1                                 Purchaser has the right, power,
capacity and authority to enter into this Merchant Portfolio Purchase
Agreement, perform its obligations under this Agreement and perform the acts
contemplated by this Agreement.  The execution,
delivery and performance of this Agreement have been approved by all requisite
corporate actions on the part of the Purchaser, and when executed and delivered
will constitute valid, binding and enforceable obligations of the Purchaser.  The execution and performance of this
Agreement do not constitute an event of default of Purchaser under any other
agreement.


 


4.2                                 There are no actions, suits, or
proceedings pending or, to the knowledge of Purchaser, threatened against
Purchaser or Seller relating to the Merchant Agreements and there are no
actions, suits or proceedings pending or, to the knowledge of Purchaser,
threatened against Purchaser which, if adversely determined, would have a
material impact on the ability of Purchaser to perform under this Agreement.


 


5.                                       Closing
Conditions.  Seller and
Purchaser shall execute a Bill of Sale for the Merchant Agreements and the
related Assigned Merchant Revenues.


 


6.                                       Indemnification.


 


6.1                                 Indemnification by Seller.  Seller shall indemnify Purchaser, and hold
Purchaser harmless from any liability, loss, cost, claim or expense, including
reasonable attorney’s fees and expenses, that results from or arises out of (i) any
breach or inaccuracy of any representation or warranty of Seller contained
herein; (ii) the breach by Seller of any of its covenants or agreements
contained herein; (iii) any claim by any third party that Seller’s
transfer and assignment of the Merchant Agreements and Assigned Merchant
Revenues made by this Agreement is in violation of any other agreement or legal
obligation of Seller or that such transfer and assignment is otherwise illegal
or invalid; (iv) any liability or obligation, contingent or otherwise, of
Seller that is not assumed by Purchaser, except to the extent that such
liability is determined by a court of competent jurisdiction to have resulted
from or arisen out of an act, omission, circumstance or matter for which Seller
is to be indemnified under Paragraph 6.2, hereof; (v) violation of law or
governmental rules or regulations or intentional wrongdoing or negligence
by Seller in performing obligations in connection with this Agreement.


 


6.2                                 Indemnification by Purchaser.  Purchaser shall indemnify Seller, and hold
Seller harmless from any liability, loss, cost, claim or expense, including
reasonable attorney’s fees and expenses that results from or arises out of (i) any
breach or inaccuracy of any representation or warranty of Purchaser contained
herein; (ii) the breach by Purchaser of any of its covenants or agreements
contained herein; (iii) any liability or obligation, contingent or
otherwise, of Purchaser that is not assumed by Seller pursuant to the terms
hereof, except to the extent that such


 


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liability is determined by a court of competent jurisdiction to have
resulted from or arisen out of an act, omission, circumstance or matter for
which Purchaser is to be indemnified under Paragraph 6.1, hereof; (iv) violation
of law or governmental rules or regulations or intentional wrongdoing or
negligence by Purchaser in performing its obligation in connection with this
Agreement.


 


7.                                       Termination
of Servicing Agreement.  Effective as of
the Effective Date, that certain Servicing Agreement between Purchaser and
Seller dated November 1, 2000, and as amended on January 16, 2002
(the “Servicing Agreement”) shall be terminated.  Upon such termination and notwithstanding any
provisions of the Servicing Agreement, which by its terms purport to continue
beyond termination thereof, neither party shall owe any further obligations to
the other party under the Servicing Agreement.


 


8.                                       Mutual
General Release.


 


8.1                                 In consideration of entering
into this Agreement, each party, acting on behalf of itself and its successors
and assigns (the “Releasors”), hereby releases and forever discharges
the other party and the other party’s successors and assigns, its and their
subsidiaries and affiliates, and its and their past and present officers,
directors, employees, managers, attorneys (including in-house attorneys),
accountants and agents, and each of them, in all capacities, including
individually (collectively, the “Releasees”), from any and all Claims
(defined below) that Releasors may have against any of the Releasees arising
out of or related to the relationship or transactions between the parties
occurring before the Effective Date, including, without limitation, the
relationship or transactions between the parties pursuant to the Old Merchant
Portfolio Purchase Agreement and Servicing Agreement, and waives any and all
defenses and rights of offset which the Releasors may have arising out of or
related to the relationship or transactions between the parties.  For purposes of this Agreement, “Claims”
shall mean any and all actions, liabilities, liens, debts, damages, claims, suits,
judgments, executions and demands of every kind, nature and description,
including but not limited to tort claims.


 


8.2                                 Notwithstanding the foregoing,
nothing in this Section 8 shall affect, and nothing herein shall be
interpreted to affect, the rights of the parties hereunder or the validity,
effect or enforceability of this Agreement and the transactions contemplated
hereby.


 


9.                                       Miscellaneous.


 


9.1                                 Notices.  All notices, demands and other communication
hereunder shall be in writing and shall be delivered in person or by certified
mail, with return receipt requested, as follows:


 


	
  a)

  	
  If to Purchaser,
  to:

  	
  Heartland
  Payment Systems, Inc.

  
	
   

  	
   

  	
  47 Hulfish
  Street, Suite 400

  



 


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  Princeton, New
  Jersey 08452

  
	
   

  	
   

  	
  Attn: Robert
  H.B. Baldwin, Jr.

  
	
   

  	
   

  	
   

  
	
  b)

  	
  If to Seller,
  to:

  	
  Certegy Payment
  Services, Inc.

  
	
   

  	
   

  	
  11601 Roosevelt
  Blvd.

  
	
   

  	
   

  	
  St. Petersburg,
  FL 33716

  
	
   

  	
   

  	
  Attn: Jeffrey S.
  Carbiener

  



 


The persons or
addresses to which mailings shall be made may be changed from time to time by
notice in writing to the other party.


 


9.2                                 Governing Law.  This agreement is made and entered into under
the laws of the State of New York and the laws of that State shall govern the
validity and interpretation hereof and the performance by the parties hereto of
their respective duties and obligations hereunder.  The exclusive jurisdiction and venue for any
action or proceeding in connection herewith or related hereto shall be the
courts of the United States District Court for the Southern District of New
York or the Supreme Court of the State of New York, County of New York.  The parties consent to the personal
jurisdiction of such courts and waive any claim of an improper or inconvenient
forum.  The prevailing party in any
action or proceeding in connection herewith shall be entitled to costs and
reasonable attorney’s fees.


 


9.3                                 Entire Agreement.  This Agreement and the Bill of Sale, together
with any supplements, addenda, amendments, modifications or attachments,
comprises the entire agreement between the parties with respect to this subject
matter and supersedes all prior agreements and understandings.  Each party acknowledges that no
representations, inducements, promises, warranties or agreements have been made
by any party, or anyone acting on behalf of any party, other than those set
forth in this Agreement.


 


9.4                                 Severability.  In the event that any portion of this
Agreement is found to be void, illegal or unenforceable, the validity and
enforceability of any other portion shall not be affected.


 


9.5                                 Amendments and Waivers.  This Agreement may be modified, amended or
supplemented only by a written instrument duly executed by the parties.  No covenant, term or condition, or the breach
thereof, shall be deemed waived, unless it is waived in writing and signed by
the party against whom the waiver is claimed. 
The waiver by either party of a breach of any covenant, term or
condition shall not operate or be construed to be a waiver of any preceding or
subsequent breach.


 


9.6                                 No Brokerage.  Each party hereto represents and warrants to
the other party that it has not incurred any obligation or liability,
contingent or otherwise, for brokerage or finders’ fees or agents’ commissions
or other like payment in connection with this Agreement or the transactions
contemplated hereby, and each party agrees to


 


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indemnify and hold the other party harmless against and in respect of
any such obligation or liability based in any way on agreements, arrangements
or understandings claimed to have been made by such party with any third party.


 


9.7                                 Confidentiality.  Each party agrees to take normal and
reasonable precautions and to exercise due care to maintain the confidentiality
of all information provided by the other party pursuant to this Agreement, and
neither party, nor any of its affiliates, shall use any such information other
than in connection with or in the enforcement of this Agreement, except to the
extent that such information (i) was or becomes generally available to the
public other than as a result of disclosure by such party, or (ii) was or
becomes available on a nonconfidential basis from a source other than the other
party, provided, however, that either party may disclose such
information (A) at the request or pursuant to any requirement of any
public authority to which it or any of its affiliates is subject or in
connection with an examination by any such public authority; (B) pursuant
to subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable laws and regulations, including, without
limitation, the Securities Exchange Act of 1934, as amended, and the rules of
the New York Stock Exchange; (D) to the extent reasonably required in
connection with any litigation or proceeding involving such party or any of its
affiliates; (E) to the extent reasonably required in connection with the
exercise of any remedy under this Agreement; and (F) to such party’s
independent auditors, accountants, attorneys and other professional
advisors.  Either party shall be free to
disclose the tax treatment or tax structure of any transaction under this
Agreement.


 


9.8                                 Counterparts.  This Agreement may be executed in several
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.


 


9.9                                 Facsimile Execution.  To evidence the fact that it has executed
this Agreement, each party shall send a copy of its executed counterpart to the
other party by facsimile transmission. 
Immediately subsequent to such exchange of counterparts by facsimile
transmission, Seller shall forward two (2) executed original Agreements to
Purchaser, which Purchaser shall execute and shall return one (1) fully
executed original Agreement to Seller.


 


[signatures appear on next page]


 


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IN WITNESS WHEREOF, the
parties hereto have duly executed and delivered this Merchant Portfolio
Purchase Agreement as of the date written above.


 


	
   

  	
  CERTEGY PAYMENT
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Larry Towe

  	
   

  
	
   

  	
   

  	
  Name: Larry Towe

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEARTLAND
  PAYMENT SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert H.B.
  Baldwin, Jr.

  	
   

  
	
   

  	
   

  	
  Name: Robert
  H.B. Baldwin, Jr.

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer