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
4
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