UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 27, 2006
THE WESTERN UNION COMPANY
(Exact name of registrant as specified in its charter)

Delaware	 	001-32903	 	20-4531180	
(State or other jurisdiction
of incorporation)	 	(Commission File Number)	 	(IRS Employer
Identification No.)	

12500 East Belford Avenue
Englewood, Colorado	 	80112	
(Address of principal executive offices)	 	(Zip Code)	
Registrant’s telephone number, including area code: (866) 405-5012
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

Item 1.01.	Entry into a Material Definitive Agreement	
On September 29, 2006 (the “Distribution Date”), the distribution (the “Distribution”) by First Data Corporation (“First Data”) of all of the outstanding shares of common stock of The Western Union Company (“Western Union” or the “Company”) to the stockholders of First Data was completed in a spin-off intended to qualify for tax-free treatment.
On the Distribution Date, and in consideration for the contribution by First Data to Western Union of its money transfer and consumer payments businesses, Western Union transferred to First Data $100.0 million in cash, notes with an aggregate principal amount of $1.0 billion and 765,255,173 shares of Western Union common stock, par value $0.01 per share.
In connection with the Distribution, Western Union entered into certain agreements with First Data to govern the terms of the spin-off and to define the ongoing relationship between Western Union and First Data following the spin-off, allocating responsibility for obligations arising before and after the spin-off, including obligations with respect to liabilities relating to First Data’s business and to Western Union’s business and obligations with respect to each company’s employees, certain transition services and taxes.
Separation and Distribution Agreement
On the Distribution Date, Western Union entered into a Separation and Distribution Agreement with First Data which provides, among other things, for the principal corporate transactions required to effect the contribution by First Data of the subsidiaries that operate Western Union’s business, the distribution of Western Union common stock to the holders of record of First Data common stock and certain other agreements governing Western Union’s relationship with First Data after the spin-off. The contribution by First Data to Western Union of the subsidiaries that operate Western Union’s business and related assets occurred immediately prior to the Distribution. The contribution was made on an “as is, where is” basis without any representations or warranties, and Western Union will bear the economic and legal risk of the contribution. First Data generally will not retain any of the liabilities of the subsidiaries contributed to Western Union or liabilities associated with the related assets contributed to Western Union, and Western Union and the contributed subsidiaries have agreed to perform and fulfill all of the liabilities arising out of the operation of the money transfer and consumer payments businesses. A copy of the Separation and Distribution Agreement is attached hereto as Exhibit 2.1 and incorporated herein by reference into this Item 1.01.
Tax Allocation Agreement
On the Distribution Date, Western Union entered into a Tax Allocation Agreement with First Data that sets forth the rights and obligations of First Data and Western Union with respect to taxes imposed on each company’s respective businesses both prior to and after the spin-off and taxes and other liabilities that could be imposed as a result of a final determination by the Internal Revenue Service that is inconsistent with the anticipated tax consequences, as set forth in the private letter ruling received by First Data from the Internal Revenue Service, in connection with the spin-off (and certain related transactions) if such transactions do not qualify for tax-free treatment under the Internal Revenue Code. A copy of the Tax Allocation Agreement is attached hereto as Exhibit 10.1 and incorporated herein by reference into this Item 1.01.
Employee Matters Agreement
On the Distribution Date, Western Union entered into an Employee Matters Agreement with First Data which provides for each company’s respective obligations to employees and former employees who are or were associated with Western Union and for other employment and employee benefits matters. A copy of the Employee Matters Agreement is attached hereto as Exhibit 10.2 and incorporated herein by reference into this Item 1.01.
Transition Services Agreement
On the Distribution Date, Western Union entered into a Transition Services Agreement with First Data pursuant to which First Data and Western Union will provide each other with a variety of administrative services for a period of time following the spin-off. Services provided by First Data to Western Union include data center
 
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hosting; disaster recovery and monitoring services; call center support, network connectivity, system support (e.g., financial, legal, human resources, treasury and audit systems); information security system support; payroll; benefits; and human resources. First Data has agreed to make each service available to Western Union on an as-needed basis for a period of time not to exceed one year following the Distribution Date. The fees charged for the services will be based on either cost plus or local market conditions for comparable services. A copy of the Transition Services Agreement is attached hereto as Exhibit 10.3 and incorporated herein by reference into this Item 1.01.
Patent Ownership Agreement
On the Distribution Date, Western Union entered into a Patent Ownership Agreement and Covenant Not to Sue with First Data which will govern the ownership of and rights relating to certain patents. A copy of the Patent Ownership Agreement and Covenant Not to Sue is attached hereto as Exhibit 10.4 and incorporated herein by reference into this Item 1.01.
Money Order Agreement
Prior to the Distribution Date, Western Union Financial Services, Inc., which became an indirect wholly owned subsidiary of Western Union in connection with the spin-off, entered into a Retail Money Order Issuance and Management Agreement with Integrated Payment Systems Inc., a subsidiary of First Data. A description of the Retail Money Order Issuance and Management Agreement was included in Western Union’s Registration Statement on Form 10, and a form of the agreement was filed as an exhibit to the Registration Statement on Form 10. A fully-executed copy of the Retail Money Order Issuance and Management Agreement is attached hereto as Exhibit 10.5 and incorporated herein by reference into this Item 1.01.
Revolving Credit Agreement
On September 27, 2006, Western Union entered into unsecured financing facilities in an aggregate amount of $1.5 billion with a syndicate of lenders including Citibank, N.A., as administrative agent, Wells Fargo Bank, National Association, as syndication agent, and Citigroup Global Markets Inc. and Wells Fargo Bank, National Association, as joint lead arrangers and joint book runners (the “Western Union Financing Facility”). On September 29, 2006, Western Union made an initial borrowing under the Western Union Financing Facility in an aggregate principal amount equal to $100 million in connection with the spin-off.
The Western Union Financing Facility provides for a $1.5 billion revolving credit facility, a $250 million letter of credit subfacility and a swing line subfacility in the amount of up to $150 million. The Western Union Financing Facility contains certain covenants that limit or restrict indebtedness of significant subsidiaries and Western Union’s or any significant subsidiary’s incurrence of liens, mergers and consolidations and sale and leaseback transactions, subject to certain exceptions. Western Union is also required to maintain compliance with a consolidated interest coverage ratio covenant. The final maturity date of the Western Union Financing Facility is September 27, 2011.
A copy of the Western Union Financing Facility is attached hereto as Exhibit 10.6 and incorporated herein by reference into this Item 1.01.
FFMC Bridge Loan
On September 27, 2006, First Financial Management Corporation (“FFMC”), the outstanding capital stock of which was contributed by First Data to Western Union on the Distribution Date, entered into an unsecured financing facility in an aggregate amount of $2.4 billion with a syndicate of lenders including Citicorp North America, Inc., as administrative agent, Wachovia Bank, National Association, as syndication agent, and Morgan Stanley Bank, as documentation agent (the “FFMC Bridge Loan”). On September 29, 2006, FFMC borrowed under the FFMC Bridge Loan an aggregate principal amount equal to $2.4 billion in connection with the spin-off.
The FFMC Bridge Loan provides for a $2.4 billion term credit facility. The FFMC Bridge Loan contains certain covenants that limit or restrict indebtedness of significant subsidiaries and FFMC’s or any significant
 
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subsidiary’s incurrence of liens, mergers and consolidations and sale and leaseback transactions, subject to certain exceptions. The final maturity date of the FFMC Bridge Loan is September 26, 2007.
A copy of the FFMC Bridge Loan is attached hereto as Exhibit 10.7 and incorporated herein by reference into this Item 1.01.
Director Indemnification Agreements
On the Distribution Date, Western Union entered into director indemnification agreements with the following individuals, each of whom is an outside director of the Company: Jack M. Greenberg, Dinyar S. Devitre, Betsy D. Holden, Alan J. Lacy, Linda Fayne Levinson, Roberto G. Mendoza, Michael A. Miles and Dennis Stevenson. Under each indemnification agreement, Western Union has agreed to indemnify and hold harmless each individual to the fullest extent permitted or authorized by the General Corporation Law of the State of Delaware in effect on the date of each indemnification agreement or as such laws may be amended or replaced to increase the extent to which a corporation may indemnify its directors. A copy of the form of director indemnification agreement is attached hereto as Exhibit 10.8 and incorporated herein by reference into this Item 1.01.
Executive Officer Employment Agreements
Employment Agreement with David G. Barnes, Executive Vice President, Finance and Strategic Development
Western Union is a party to an employment agreement with David G. Barnes, pursuant to which Mr. Barnes will serve as executive vice president of finance and strategic development of the Company. The terms of Mr. Barnes’ employment agreement provide for (i) an annual base salary of $475,000, subject to merit increases, (ii) a guaranteed bonus of 70% of Mr. Barnes’ annualized base salary for 2006, prorated from August 15, 2006 through December 2006, (iii) eligibility to participate in the Senior Executive Incentive Plan of the Company, (iv) sign-on bonus of $75,000, subject to forfeiture if Mr. Barnes’ employment is terminated within 12 months of his start date, unless such termination is involuntarily and not for cause, (v) eligibility to participate in the Company’s retirement, health, welfare and financial security benefit programs, (vi) eligibility for an annual target grant of either stock options or a combination of stock options and restricted stock with respect to the Western Union common stock of approximately two times Mr. Barnes’ base salary and (vii) relocation assistance. The terms of Mr. Barnes agreement also provides that Mr. Barnes will be eligible for a grant of stock options to purchase 50,000 shares of common stock of First Data, which options were replaced with substitute Western Union stock options in connection with the spin-off. The employment agreement does not have a fixed term and may be terminated by either party at any time for any reason, provided that if Mr. Barnes’ employment is involuntarily terminated and not for cause within the first two years of employment, Mr. Barnes will be eligible for 24 months termination pay equal to $1,615,000 subject to Section 409A of the Internal Revenue Code (“Section 409A”). If, however, the applicable Western Union Executive Severance Plan provides for a severance payment that is equal to or greater than the severance payments provided for under the employment agreement, then Mr. Barnes will receive severance benefits equal to the applicable Western Union executive severance plan rather than the terms of the employment agreement. After the second anniversary of his employment date, Mr. Barnes will be subject to the then applicable Western Union executive severance plan, if any.
A copy of Mr. Barnes’ employment agreement is attached hereto as Exhibit 10.9 and incorporated herein by reference into this Item 1.01.
Employment Agreement with Scott T. Scheirman, Executive Vice President and Chief Financial Officer
On September 30, 2006, the Company entered into an employment agreement with Scott T. Scheirman pursuant to which Mr. Scheirman will serve as executive vice president and chief financial officer of the Company and as a member of the Western Union Executive Committee. The terms of Mr. Scheirman’s employment agreement provide for (i) an annual base salary of $425,000, subject to merit increases, (ii) eligibility to participate in the Company’s 2006 Long-Term Incentive Plan and Senior Executive Incentive Plan, (iii) receipt, on or about September 29, 2006, of Western Union stock options and restricted stock valued at approximately $1,912,500, (iv) financial planning services, (v) eligibility to receive stock options, restricted stock and other compensation
 
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consistent with similarly situated members of the Executive Committee and (vi) eligibility to participate in the Company’s retirement, health and welfare programs on the same basis as similarly situated employees. The employment period under the employment agreement commences on October 1, 2006 and, unless terminated earlier pursuant to the terms of the employment agreement, ends on November 30, 2008. The employment agreement provides that during February 2008, either Western Union or Mr. Scheirman may give notice to the other party that the employment relationship will terminate effective November 30, 2008 (the “Termination Election”). The employment agreement further provides that the employment relationship may be terminated by Mr. Scheirman prior to February 29, 2008, subject to the Company’s right to cure, for good reason (as defined in the employment agreement) or by the Company prior to February 29, 2008 other than for cause (as defined in the employment agreement) (the “Good Reason or No Cause Termination”). The terms of Mr. Scheirman’s employment agreement provide for the following termination payments and provisions: (i) termination payments equal to two times the sum of Mr. Scheirman’s annual base salary and annual target bonus plus a prorated amount of Mr. Scheirman’s annual target bonus payable to Mr. Scheirman for 2008, in the case of a Termination Election, or the year in which termination occurs, in the case of a Good Reason or No Cause Termination, to be paid, subject to Section 409A, over a 24 consecutive month period, commencing on November 30, 2008, in the case of a Termination Election, or on the date of termination, in the case of a Good Reason or No Cause Termination; (ii) effective March 1, 2008, in the case of a Termination Election, or the termination date, in the case of a Good Reason or No Cause Termination, the vesting of all non-qualified stock options and restricted stock awards granted in connection with the spin-off and any other non-qualified stock options and restricted stock awards granted from the date of the spin-off through February 29, 2008, in the case of a Termination Election, or the termination date, in the case of a Good Reason or No Cause Termination; (iii) Mr. Scheirman’s unvested awards will be exercisable until February 28, 2009, in the case of a Termination Election, or for three months following the termination date, in the case of a Good Reason or No Cause Termination, subject, in both cases, to Section 409A or until the terms of such awards have expired, if earlier and (iv) lump sum payment equal to the difference in cost between COBRA premiums and active employee premiums for 18 months of COBRA coverage. The Company’s executive severance plan will govern Mr. Scheirman’s termination in the event of a change of control.
A copy of Mr. Scheirman’s employment agreement is attached hereto as Exhibit 10.10 and incorporated herein by reference into this Item 1.01.
Adoption of Equity Compensation, Incentive and Other Benefit Plans
On September 28, 2006, Western Union adopted and First Data, in its capacity as the sole stockholder of Western Union prior to the Distribution, approved, the following equity compensation, incentive and other benefit plans for its executive officers, general employees and non-employee directors:
 
 	•	 	The Western Union Company 2006 Long-Term Incentive Plan (the “2006 LTIP”)	
 
 	•	 	The Western Union Company 2006 Non-Employee Director Equity Compensation Plan (the “2006 Director’s Plan”)	
 
 	•	 	The Western Union Company Non-Employee Director Deferred Compensation Plan (the “Deferred Compensation Plan”)	
 
 	•	 	The Western Union Company Severance/Change in Control Policy (the “Severance Plan”)	
 
 	•	 	The Western Union Company Senior Executive Incentive Plan (the “SEIP”)	
 
 	•	 	The Western Union Company Supplemental Incentive Savings Plan (the “SISP”)	
 
 	•	 	The Western Union Company Grandfathered Supplemental Incentive Savings Plan (the “Grandfathered SISP”)	
2006 LTIP
The purposes of the 2006 LTIP are (i) to advance the interests of Western Union by attracting and retaining high caliber employees and other key individuals, (ii) to align the interests of Western Union’s stockholders and recipients of awards under the 2006 LTIP by increasing the proprietary interest of such recipients in Western Union’s growth and success and (iii) to motivate award recipients to act in the long-term best interests of Western Union and its stockholders. Awards under the 2006 LTIP may include one or more of the following types: (i) stock options (both nonqualified and incentive stock options), (ii) stock appreciation rights, (iii) restricted stock awards,
 
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(iv) restricted stock unit awards, (v) phantom stock units, (vi) performance grants and (vii) bonus awards. A copy of the 2006 LTIP is filed as Exhibit 10.11 to this Current Report on Form 8-K and incorporated herein by reference thereto.
2006 Director’s Plan
The purpose of the 2006 Director’s Plan is to advance the interest of Western Union and its stockholders by encouraging increased stock ownership by the Company’s outside directors, in order to promote long-term stockholder value through continuing ownership of Western Union’s common stock. The 2006 Director’s Plan provides for the grant of non-qualified stock options, stock appreciation rights, restricted stock awards, unrestricted stock awards and restricted stock units. A copy of the 2006 Director’s Plan is filed as Exhibit 10.12 to this Current Report on Form 8-K and incorporated herein by reference thereto.
Deferred Compensation Plan
The Deferred Compensation Plan allows those non-employee directors of Western Union selected by the compensation and benefits committee of Western Union’s Board of Directors to elect to defer the receipt of all or any portion of their annual retainers otherwise payable to them in their capacity as non-employee directors of the Company. Elections under the Deferred Compensation Plan will result in the grant of stock options and unrestricted stock units authorized by the 2006 Director’s Plan. A copy of the Deferred Compensation Plan is attached hereto as Exhibit 10.13 and incorporated herein by reference into this Item 1.01.
Severance Plan
The Severance Plan provides for the payment of certain benefits to senior executives of Western Union upon termination of employment from Western Union and upon a change in control of Western Union. The purpose of the Severance Plan is to promote uniform treatment of senior executives who are involuntarily terminated other than for “cause” or who, following a change in control of Western Union, are involuntarily terminated other than for “cause,” or terminate for good reason within twenty-four months after a change in control, and to afford such executives and other employees the opportunity to protect the share value they have helped create in the event of any change in control. The Severance Plan provides for the following severance benefits, which will be the same in the event of a change in control or involuntary termination other than for “cause” except as indicated below:
 
 	•	 	A cash payment equal to the senior executive’s base pay plus target bonus for the year in which the termination occurs, multiplied by two.	
 
 	•	 	A cash payment equal to the senior executive’s prorated bonus at target for the year in which the termination occurs.	
 
 	•	 	Provided that the senior executive properly elects continued health care coverage under applicable law, a lump sum payment equal to the difference between active employee premiums and continuation coverage premiums for eighteen months of coverage.	
 
 	•	 	Upon a change in control only, all equity compensation awards that were made pursuant to the 2006 LTIP, including those that are performance based, will become fully vested and exercisable on the date of the change of control and the right to exercise awards will continue twenty-four months (thirty-six months in the case of the Chief Executive Officer) after the senior executive’s termination (but not beyond their original terms).	
 
 	•	 	If a senior executive is involuntarily terminated without cause and no change in control has occurred, stock options granted pursuant to the 2006 LTIP will continue to vest and be exercisable for twenty-four months (thirty-six months in the case of the Chief Executive Officer) after the senior executive’s termination (but not beyond their original terms), and restricted stock awards and restricted stock unit awards will vest on a prorated basis based on the period from the grant date to the termination date.	
 
 	•	 	If severance benefits payable after a change in control exceed 110% of the maximum amount of such benefits that would not be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, an additional cash payment in an amount that after payment of all taxes on such benefits (and on such amount) provides the senior executive with the amount necessary to pay such tax. (If the severance benefits so payable do not exceed such 110% threshold, the amount thereof will be reduced to the maximum amount not subject to such excise tax.)	
 
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A copy of the Severance Plan is attached hereto as Exhibit 10.14 and incorporated herein by reference into this Item 1.01.
SEIP
The SEIP will become effective on January 1, 2007 and will allow Western Union to make annual incentive awards to eligible participants to provide them with an incentive to carry out the Company’s business plan and to reward them for having done so. Western Union’s compensation and benefits committee intends to set performance goals under the SEIP in each year at the beginning of the year, and expects that it will determine the bonuses based on an evaluation of our performance in light of those goals. Amounts payable under the SEIP are intended to qualify as qualified performance based compensation under Section 162(m) of the Internal Revenue Code such that amounts payable under the SEIP would be fully deductible, to the extent permitted by applicable law. A copy of the SEIP is attached hereto as Exhibit 10.15 and incorporated herein by reference into this Item 1.01.
SISP
The SISP provides a select group of senior management and highly compensated employees of Western Union the opportunity to defer a portion of their cash compensation. The SISP is intended to provide participants with an opportunity to supplement their retirement income through deferral of current compensation. The SISP was spun off from the First Data Corporation Supplemental Incentive Savings Plan-2. The SISP is subject to and is intended to comply with Section 409A of the Internal Revenue Code of 1986. A copy of the SISP is filed as Exhibit 10.16 to this Current Report on Form 8-K and incorporated herein by reference thereto.
Grandfathered SISP
The Grandfathered Plan also provides a select group of senior management and highly compensated employees of Western Union the opportunity to defer a portion of their cash compensation. The Grandfathered SISP is intended to provide participants with an opportunity to supplement their retirement income through deferral of current compensation. The Grandfathered SISP was spun off from the First Data Corporation Supplemental Incentive Savings Plan-1. Unlike the SISP, the Grandfathered SISP is not subject to Section 409A of the Internal Revenue Code of 1986. A copy of the Grandfathered SISP is attached hereto as Exhibit 10.17 and incorporated herein by reference into this Item 1.01.
Non-Employee Director Compensation Program
On the Distribution Date, prior to the Distribution, the compensation and benefits committee of Western Union’s Board of Directors (the “Compensation Committee”) recommended, and the Board of Directors (the “Board”) approved, the following cash compensation to be paid to non-employee directors of Western Union: (i) an annual retainer fee of $70,000; (ii) an annual retainer fee of $15,000 for the chairperson of each committee of the Board other than the audit committee; and (iii) an annual retainer fee of $25,000 for the chairperson of the audit committee and $10,000 for each other member of the audit committee; provided that the Compensation Committee recommended, and the Board approved, that the initial cash retainer fees paid to non-employee directors equal 125% of the normal annual levels in order to cover the period beginning with the spin-off through the end of 2007.
The Compensation Committee also recommended, and the Board approved, the following equity compensation to be granted to non-employee directors of Western Union: (i) an annual grant of options to purchase shares of Western Union common stock with a value of $75,000; (ii) an annual grant of fully vested stock units with a value of $25,000; and (iii) a grant of options to purchase shares of Western Union’s common stock with a value of $75,000 and fully vested stock units with a value of $25,000 upon initially becoming a director and three years after initially becoming a director, if they are still a director at that time (the “service grants”); provided that the Compensation Committee recommended, and the Board approved, that the initial annual equity grants (but not the service grants) to non-employee directors equal 125% of the normal annual levels in order to cover the period beginning with the spin-off through the end of 2007.
 
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In lieu of the compensation outlined above for other outside directors, the Compensation Committee recommended, and the Board approved, the following compensation for Western Union’s Non-Executive Chairman: (i) an annual retainer fee of $100,000; (ii) an annual grant of options to purchase shares of Western Union common stock with a value of $262,500; (iii) an annual grant of fully vested stock units with a value of $87,500; and (iv) a grant of options to purchase shares of Western Union common stock with a value of $75,000 and fully vested stock units with a value of $25,000 upon initially becoming Western Union’s Non-Executive Chairman and every three years thereafter (the “service grant”); provided that the Compensation Committee recommended, and the Board approved, that the initial cash retainer fee and the initial annual equity grant (but not the service grant) to the Non-Executive Chairman equal 125% of the normal annual levels in order to cover the period beginning with the spin-off through the end of 2007.
Equity Grants to Non-Employee Directors
In connection with the non-employee director compensation program described above, on the Distribution Date, prior to the Distribution, the Compensation Committee approved the grant of nonqualified stock options and unrestricted stock units under the 2006 Director’s Plan to the non-employee directors of Western Union as follows:

Director	  	Stock Options	  	Unrestricted Stock Units	
Jack M. Greenberg	  	62,659	  	8,659	
Dinyar S. Devitre	  	21,281	  	9,149	
Betsy D. Holden	  	21,281	  	7,515	
Alan J. Lacy	  	21,281	  	9,149	
Linda Fayne Levinson	  	21,281	  	2,941	
Roberto Mendoza	  	30,739	  	4,248	
Michael A. Miles	  	21,281	  	7,515	
Dennis Stevenson	  	29,557	  	4,085	
All nonqualified stock option grants have ten year terms and are fully vested at the date of grant. All unrestricted stock unit awards are to be settled in shares of Western Union common stock.
With respect to Mr. Stevenson, who is a taxpayer of the United Kingdom, the Compensation Committee required that he receive a grant of nonqualified stock options and unrestricted stock units in lieu of receiving his annual retainer fees. Consistent with the Deferred Compensation Plan, the other directors had the option to receive their annual retainers in the form of cash or equity. The nonqualified stock option grants have ten year terms and are fully vested at the date of grant. In addition, all stock units awarded to directors (whether in lieu of their annual retainer fees, as part of their service grants or as part of their annual equity grants) will be settled in shares of Western Union common stock on the first business day in the month of January in the calendar year  following the calendar year in which such individuals are no longer directors.
Multi-Year Equity Grants
On the Distribution Date, prior to the Distribution, the Compensation Committee granted equity awards to Western Union’s executive officers, including the following equity awards to the named executive officers:

Named Executive Officer	  	Stock Options	  	Restricted Stock	  	Restricted Stock Units	
Christina A. Gold	  	957,598	  	132,319	  	—  	
Guy A. Battista	  	167,649	  	23,166	  	—  	
William D. Thomas	  	239,968	  	33,159	  	—  	
Hikmet Ersek	  	276,127	  	—  	  	38,155	
Ian Marsh	  	157,787	  	—  	  	21,803	
All nonqualified stock option grants have ten year terms and are subject to four year graded vesting schedules (25% vesting each year for four years), subject to the terms and conditions of the 2006 LTIP and the Severance Plan. All restricted stock awards
 
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(or restricted stock unit awards, in the case of an executive officer whose primary work location is outside the U.S.) are subject to three year cliff vesting schedules (no vesting during first three years, after which the awards are 100% vested), subject to the terms and conditions of the 2006 LTIP and the Severance Plan. All restricted stock unit awards are to be settled in shares of Western Union common stock. These awards were in an amount equal to 225% of the recommended annual target dollar value to be received by each executive officer in order to cover the period beginning with the spin-off through the end of 2008.
Spin-off Related Equity Adjustments
Grant of Substitute Stock Options
In accordance with Section 5.01(b) of the Employee Matters Agreement, on the Distribution Date the Compensation Committee approved the grant of substitute options to purchase Western Union common stock under the 2006 LTIP or the 2006 Director’s Plan to each person who became an employee or director of Western Union immediately after the spin-off, including executive officers, and who held an outstanding option to purchase First Data common stock immediately prior to the spin-off.
Grant of Substitute Restricted Stock
In accordance with Section 5.02 of the Employee Matters Agreement, on the Distribution Date the Compensation Committee approved the grant of substitute restricted stock awards under the 2006 LTIP or the 2006 Director’s Plan to each person who became an employee or director of Western Union immediately after the spin-off, including executive officers, and who held an outstanding First Data restricted stock award immediately prior to the spin-off.
Grant of Substitute Restricted Stock Units
In accordance with Section 5.03 of the Employee Matters Agreement, on the Distribution Date the Compensation Committee approved the grant of substitute restricted stock unit awards under the 2006 LTIP or the 2006 Director’s Plan to each person who became an employee or director of Western Union immediately after the spin-off, including executive officers, and who held an outstanding First Data restricted stock unit award immediately prior to the spin-off.
 
Item 2.01.	Completion of Acquisition or Disposition of Assets.	
The information included in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference into this Item 2.01.
 
Item 2.03.	Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.	
Revolving Credit Agreement
The information included in Item 1.01 of this Current Report on Form 8-K under the caption “Revolving Credit Agreement” is incorporated by reference into this Item 2.03.
On the Distribution Date, FFMC also agreed to fully and unconditionally guarantee (the “Subsidiary Guaranty”) the obligations of Western Union under the Revolving Credit Agreement. A copy of the Subsidiary Guaranty is attached hereto as Exhibit 10.6.1 and incorporated herein by reference into this Item 2.03.
FFMC Promissory Note
On September 27, 2006, FFMC declared and paid to First Data, as its sole stockholder, a dividend in the form of a promissory note in an aggregate principal amount of approximately $2.4 billion. The promissory note bore interest at 5.31375% per year and was payable upon demand at any time after September 29, 2006. On the
 
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Distribution Date, following the Distribution, FFMC borrowed $2.4 billion under the FFMC Bridge Loan and used the proceeds to repay the promissory note.
 
Item 3.03.	Material Modification to Rights of Security Holders.	
On the Distribution Date, prior to the Distribution, Western Union amended and restated its certificate of incorporation (the “Amended and Restated Certificate of Incorporation”) and by-laws (the “Amended and Restated By-laws”). A description of the material provisions of the Amended and Restated Certificate of Incorporation and Amended and Restated By-laws is included in the information statement filed as an exhibit to the Company’s Registration Statement on Form 10 filed with the Securities and Exchange Commission. Copies of the Amended and Restated Certificate of Incorporation and Amended and Restated By-laws are attached hereto as Exhibits 3.1 and 3.2, respectively, and incorporated herein by reference into this Item 3.03.
 
Item 5.02.	Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.	
Election of Directors
On the Distribution Date, prior to the Distribution, the following persons were elected to Western Union’s Board of Directors (the “Board”) for a term expiring at the annual meeting of the stockholders of Western Union in the year set forth beside each such person’s name:
Christina A. Gold – 2007
Jack M. Greenberg – 2008
Dinyar S. Devitre – 2007
Betsy D. Holden – 2007
Alan J. Lacy – 2008
Linda Fayne Levinson – 2008
Roberto G. Mendoza – 2009
Michael A. Miles – 2009
Dennis Stevenson – 2009
There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which such individuals were selected as directors. There are no transactions involving any of the individuals listed above that would be required to be reported under Item 404(a) of Regulation S-K.
Resignation of Director
On the Distribution Date, prior to the Distribution, Scott Scheirman resigned from the Board. Mr. Scheirman remains as Executive Vice President, Chief Financial Officer and co-Principal Financial Officer of Western Union.
Appointment of Committee Members
On the Distribution Date, the Board appointed Mr. Devitre (Chair), Mr. Lacy, Ms. Levinson and Mr. Mendoza as members of the audit committee, Ms. Levinson (Chair), Ms. Holden, Mr. Mendoza and Mr. Stevenson as members of the compensation and benefits committee and Mr. Lacy (Chair), Ms. Holden, Mr. Miles and Mr. Stevenson as members of the corporate governance committee.
Information regarding the directors listed above is contained in the information statement filed as an exhibit to the Company’s Registration Statement on Form 10 filed with the Securities and Exchange Commission.
 
Item 5.03.	Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.	
The information included in Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
 
10

Item 8.01.	Other Events.	
Stock Repurchase Plan
On the Distribution Date, Western Union announced that the Board has authorized the purchase of up to $1 billion of Western Union common stock on the open market through December 31, 2008. A copy of the press release announcing the repurchase plan is attached hereto as Exhibit 99.1 and incorporated by reference into this Item 8.01.
 
Item 9.01.	Financial Statements and Other Exhibits.	
(d) Exhibits

Exhibit
No.	  	Description	
		
  2.1   	  	Separation and Distribution Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
  3.1   	  	Amended and Restated Certificate of Incorporation of The Western Union Company (filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 (registration no. 333-137665) and incorporated herein by reference thereto).	
		
  3.2   	  	Amended and Restated By-laws of The Western Union Company (filed as Exhibit 4.2 to the Company’s Registration Statement on Form S-8 (registration no. 333-137665) and incorporated herein by reference thereto).	
		
10.1   	  	Tax Allocation Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.2   	  	Employee Matters Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.3   	  	Transition Services Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.4   	  	Patent Ownership Agreement and Covenant Not to Sue, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.5   	  	Retail Money Order Issuance and Management Agreement, dated as of August 14, 2006, between Integrated Payment Systems Inc. and Western Union Financial Services Inc.	
		
10.6   	  	Revolving Credit Agreement, dated as of September 27, 2006, among The Western Union Company, the banks named therein, as lenders, Wells Fargo Bank, National Association, as syndication agent, Citibank, N.A., as administrative agent, and Citigroup Global Markets Inc. and Wells Fargo Bank, National Association, as joint lead arrangers and joint book runners.	
		
10.6.1	  	Subsidiary Guaranty, dated as of September 29, 2006, from First Financial Management Corporation in favor of Citibank, N.A., as agent for the Guaranteed Parties named therein.	
		
10.7   	  	Credit Agreement, dated as of September 27, 2006, among First Financial Management Corporation, the banks named therein, as lenders, Wachovia Bank, National Association, as syndication agent, Morgan Stanley Bank, as documentation agent, Citicorp North America, Inc., as administrative agent, and Citigroup Global Markets Inc., Wachovia Capital Markets, LLC and Morgan Stanley Bank, as lead arrangers and book runners.	
 
11

			
		
10.8   	  	Form of Director Indemnification Agreement (incorporated by reference to Exhibit 10.11 to the Company’s Registration Statement on Form 10 (file no. 001-32903) and incorporated herein by reference thereto).	
		
10.9   	  	Letter Agreement, dated July 12, 2006, between The Western Union Company and David G. Barnes.	
		
10.10 	  	Employment Agreement, dated as of September 30, 2006, by and between Western Union LLC, The Western Union Company and Scott T. Scheirman.	
		
10.11 	  	The Western Union Company 2006 Long-Term Incentive Plan (incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8 (file no. 333-137665) and incorporated herein by reference thereto).	
		
10.12 	  	The Western Union Company 2006 Non-Employee Director Equity Compensation Plan (incorporated by reference to Exhibit 4.4 to the Company’s Registration Statement on Form S-8 (file no. 333-137665) and incorporated herein by reference thereto).	
		
10.13 	  	The Western Union Company Non-Employee Director Deferred Compensation Plan.	
		
10.14 	  	The Western Union Company Severance/Change in Control Policy.	
		
10.15 	  	The Western Union Company Senior Executive Incentive Plan.	
		
10.16 	  	The Western Union Company Supplemental Incentive Savings Plan (incorporated by reference to Exhibit 4.5 to the Company’s Registration Statement on Form S-8 (file no. 333-137665) and incorporated herein by reference thereto).	
		
10.17 	  	The Western Union Company Grandfathered Supplemental Incentive Savings Plan.	
		
99.1   	  	Press Release dated September 29, 2006.	
 
12

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	 		 	THE WESTERN UNION COMPANY	
					
	 	Dated: October 3, 2006.	 		 	By:	 	/s/ Sarah J. Kilgore	
	 		 		 		 	Name:	 	Sarah J. Kilgore	
	 		 		 		 	Title:	 	Vice President and Assistant Secretary	
 
13

EXHIBIT INDEX

Exhibit
No.	  	Description	
		
  2.1   	  	Separation and Distribution Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
  3.1   	  	Amended and Restated Certificate of Incorporation of The Western Union Company (filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 (registration no. 333-137665) and incorporated herein by reference thereto).	
		
  3.2   	  	Amended and Restated By-laws of The Western Union Company (filed as Exhibit 4.2 to the Company’s Registration Statement on Form S-8 (registration no. 333-137665) and incorporated herein by reference thereto).	
		
10.1   	  	Tax Allocation Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.2   	  	Employee Matters Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.3   	  	Transition Services Agreement, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.4   	  	Patent Ownership Agreement and Covenant Not to Sue, dated as of September 29, 2006, between First Data Corporation and The Western Union Company.	
		
10.5   	  	Retail Money Order Issuance and Management Agreement, dated as of August 14, 2006, between Integrated Payment Systems Inc. and Western Union Financial Services Inc.	
		
10.6   	  	Revolving Credit Agreement, dated as of September 27, 2006, among The Western Union Company, the banks named therein, as lenders, Wells Fargo Bank, National Association, as syndication agent, Citibank, N.A., as administrative agent, and Citigroup Global Markets Inc. and Wells Fargo Bank, National Association, as joint lead arrangers and joint book runners.	
		
10.6.1	  	Subsidiary Guaranty, dated as of September 29, 2006, from First Financial Management Corporation in favor of Citibank, N.A., as agent for the Guaranteed Parties named therein.	
		
10.7   	  	Credit Agreement, dated as of September 27, 2006, among First Financial Management Corporation, the banks named therein, as lenders, Wachovia Bank, National Association, as syndication agent, Morgan Stanley Bank, as documentation agent, Citicorp North America, Inc., as administrative agent, and Citigroup Global Markets Inc., Wachovia Capital Markets, LLC and Morgan Stanley Bank, as lead arrangers and book runners.	
		
10.8   	  	Form of Director Indemnification Agreement (incorporated by reference to Exhibit 10.11 to the Company’s Registration Statement on Form 10 (file no. 001-32903) and incorporated herein by reference thereto).	
		
10.9   	  	Letter Agreement, dated July 12, 2006, between The Western Union Company and David G. Barnes.	
		
10.10 	  	Employment Agreement, dated as of September 30, 2006, by and between Western Union LLC, The Western Union Company and Scott T. Scheirman.	
		
10.11 	  	The Western Union Company 2006 Long-Term Incentive Plan (incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8 (file no. 333-137665) and incorporated herein by reference thereto).	
 
14

			
		
10.12 	  	The Western Union Company 2006 Non-Employee Director Equity Compensation Plan (incorporated by reference to Exhibit 4.4 to the Company’s Registration Statement on Form S-8 (file no. 333-137665) and incorporated herein by reference thereto).	
		
10.13 	  	The Western Union Company Non-Employee Director Deferred Compensation Plan.	
		
10.14 	  	The Western Union Company Severance/Change in Control Policy.	
		
10.15 	  	The Western Union Company Senior Executive Incentive Plan.	
		
10.16 	  	The Western Union Company Supplemental Incentive Savings Plan (incorporated by reference to Exhibit 4.5 to the Company’s Registration Statement on Form S-8 (file no. 333-137665) and incorporated herein by reference thereto).	
		
10.17 	  	The Western Union Company Grandfathered Supplemental Incentive Savings Plan.	
		
99.1   	  	Press Release dated September 29, 2006.	
 
15
 
Exhibit 2.1
Separation and Distribution Agreement
Dated as of September 29, 2006
Between
First Data Corporation
and
The Western Union Company

TABLE OF CONTENTS

 	  	Page	
ARTICLE I
DEFINITIONS	  		
SECTION 1.1 Definitions	  	1	
SECTION 1.2 Interpretation	  	12	
		
ARTICLE II
ACTIONS PRIOR TO THE DISTRIBUTION DATE	  		
		
SECTION 2.1 SEC and Other Securities Filings; Western Union Note Offering	  	13	
SECTION 2.2 Financial Instruments	  	14	
		
ARTICLE III
BUSINESS SEPARATION	  		
		
SECTION 3.1 Actions Taken Prior to the Distribution Date	  	15	
SECTION 3.2 Actions Prior to the Separation	  	16	
SECTION 3.3 The Separation	  	17	
SECTION 3.4 Termination of Existing Intercompany Agreements	  	18	
		
ARTICLE IV
THE DISTRIBUTION	  		
		
SECTION 4.1 Record Date and Distribution Date	  	18	
SECTION 4.2 Increase In Western Union Authorized Shares	  	18	
SECTION 4.3 The Agent	  	18	
SECTION 4.4 Delivery of Western Union Shares	  	18	
SECTION 4.5 The Distribution	  	19	
SECTION 4.6 Delivery of Western Union Shares	  	19	
SECTION 4.7 Distribution is at First Data’s Discretion	  	19	
SECTION 4.8 Additional Approvals	  	19	
		
ARTICLE V
ACTIONS SUBSEQUENT TO THE DISTRIBUTION	  		
		
SECTION 5.1 Actions Following the Distribution	  	20	
SECTION 5.2 Paydown of First Data Debt	  	20	
		
ARTICLE VI
BUSINESS SEPARATION CLOSING MATTERS	  		
		
SECTION 6.1 Delivery of Instruments of Conveyance	  	21	
SECTION 6.2 Provision of Corporate Records	  	21	

			
 	  	Page	
		
ARTICLE VII
NO REPRESENTATIONS AND WARRANTIES	  		
		
SECTION 7.1 No First Data Representations or Warranties	  	21	
SECTION 7.2 No Western Union Representations or Warranties	  	22	
		
ARTICLE VIII
CERTAIN COVENANTS	  		
		
SECTION 8.1 Governmental Approvals and Consents; Third Party Consents	  	22	
SECTION 8.2 Non-Assignable Contracts	  	22	
SECTION 8.3 Further Assurances	  	24	
SECTION 8.4 Receipt of Misdirected Assets	  	24	
SECTION 8.5 Late Payments	  	25	
SECTION 8.6 Certain Business Matters	  	25	
SECTION 8.7 Litigation	  	25	
SECTION 8.8 Signs; Use of Company Name	  	26	
SECTION 8.9 Stock Options Registration Statement	  	27	
		
ARTICLE IX
CONDITIONS TO THE DISTRIBUTION	  		
		
SECTION 9.1 Conditions to the Distribution	  	27	
SECTION 9.2 First Data Right Not to Close or to Terminate	  	29	
		
ARTICLE X
INSURANCE MATTERS	  		
		
SECTION 10.1 Insurance Prior to the Distribution Date	  	29	
SECTION 10.2 Ownership of Existing Policies and Programs	  	30	
SECTION 10.3 Maintenance of Insurance for Western Union	  	30	
SECTION 10.4 Acquisition and Maintenance of Post-Distribution Insurance by Western Union	  	30	
SECTION 10.5 Rights Under Shared Policies	  	30	
SECTION 10.6 Administration and Reserves	  	32	
SECTION 10.7 Insurance Premiums	  	32	
SECTION 10.8 Agreement for Waiver of Conflict and Shared Defense	  	32	
SECTION 10.9 Duty to Mitigate Settlements	  	33	
SECTION 10.10 Non-Waiver of Rights to Coverage	  	33	
		
ARTICLE XI
EXPENSES	  		
		
SECTION 11.1 Expenses Incurred On or Prior To the Distribution Date	  	33	
SECTION 11.2 Expenses Incurred or Accrued After the Distribution Date	  	33	
 
ii

			
 	  	Page	
		
ARTICLE XII
INDEMNIFICATION	  		
		
SECTION 12.1 Release of Pre-Distribution Claims	  	34	
SECTION 12.2 Indemnification by Western Union	  	35	
SECTION 12.3 Indemnification by First Data	  	36	
SECTION 12.4 Applicability of and Limitation on Indemnification	  	38	
SECTION 12.5 Adjustment of Indemnifiable Losses	  	38	
SECTION 12.6 Procedures for Indemnification of Third Party Claims	  	39	
SECTION 12.7 Procedures for Indemnification of Direct Claims	  	41	
SECTION 12.8 Contribution	  	41	
SECTION 12.9 Remedies Cumulative	  	42	
SECTION 12.10 Survival	  	42	
		
ARTICLE XIII
DISPUTE RESOLUTION	  		
		
SECTION 13.1 Agreement to Arbitrate	  	42	
SECTION 13.2 Escalation and Mediation	  	42	
SECTION 13.3 Procedures for Arbitration	  	43	
SECTION 13.4 Selection of Arbitrator(s)	  	44	
SECTION 13.5 Hearings	  	44	
SECTION 13.6 Discovery and Certain Other Matters	  	44	
SECTION 13.7 Certain Additional Matters	  	45	
SECTION 13.8 Continuity of Service and Performance	  	46	
SECTION 13.9 Law Governing Arbitration Procedures	  	46	
SECTION 13.10 Choice of Forum	  	46	
		
ARTICLE XIV
ACCESS TO INFORMATION AND SERVICES	  		
		
SECTION 14.1 Agreement for Exchange of Information	  	46	
SECTION 14.2 Ownership of Information	  	47	
SECTION 14.3 Compensation for Providing Information	  	47	
SECTION 14.4 Retention of Records	  	47	
SECTION 14.5 Limitation of Liability	  	48	
SECTION 14.6 Production of Witnesses	  	48	
SECTION 14.7 Sharing of Knowledge	  	48	
SECTION 14.8 Confidentiality	  	49	
SECTION 14.9 Privileged Matters	  	52	
SECTION 14.10 Attorney Representation	  	53	
SECTION 14.11 Financial Information Certifications	  	53	
		
ARTICLE XV
MISCELLANEOUS	  		
		
SECTION 15.1 Entire Agreement	  	54	
 
iii

			
 	  	Page	
		
SECTION 15.2 Choice of Law	  	54	
SECTION 15.3 Amendment	  	54	
SECTION 15.4 Waiver	  	54	
SECTION 15.5 Partial Invalidity	  	54	
SECTION 15.6 Execution in Counterparts	  	54	
SECTION 15.7 Successors and Assigns	  	55	
SECTION 15.8 Third Party Beneficiaries	  	55	
SECTION 15.9 Notices	  	55	
SECTION 15.10 Performance	  	55	
SECTION 15.11 Force Majeure	  	56	
SECTION 15.12 No Public Announcement	  	56	
SECTION 15.13 Termination	  	56	
SECTION 15.14 Limited Liability	  	56	
SECTION 15.15 Mutual Drafting	  	56	
 
iv

EXHIBITS

Exhibit A	  	Form of Employee Matters Agreement	
Exhibit B	  	First Data Balance Sheet	
Exhibit C	  	Form of Management Agreement	
Exhibit D	  	Form of Patent Ownership Agreement	
Exhibit E	  	Form of Tax Allocation Agreement	
Exhibit F	  	Form of Transferred Action Assignment and Assumption Agreement	
Exhibit G	  	Form of Transition Services Agreement	
Exhibit H	  	Form of Western Union Amended and Restated Certificate of Incorporation	
Exhibit I	  	Western Union Balance Sheet	

SCHEDULES

Schedule 1.1(A)	  	Commercial Agreements	
		
Schedule 1.1(B)	  	First Data Financial Instruments	
		
Schedule 1.1(C)	  	First Data Former Business	
		
Schedule 1.1(D)	  	Asset Transfer Agreements	
		
Schedule 1.1(E)	  	Historic First Data Long-Term Debt	
		
Schedule 1.1(F)	  	Transferred Business Assets	
		
Schedule 1.1(G)	  	Transferred First Data Business Assets	
		
Schedule 1.1(H)	  	Western Union Financial Instruments	
		
Schedule 1.1 (I)	  	Western Union Former Businesses	
		
Schedule 3.3(D)	  	Western Union Board of Directors	
		
Schedule 3.4	  	Intercompany Agreements	
		
Schedule 6.1	  	Certain Conveyancing Instruments	
		
Schedule 8.7(A)	  	Assumed Actions	
		
Schedule 8.7(B)	  	Transferred Actions	
		
Schedule 8.7(C)	  	Certain Actions	
		
Schedule 11.1(A)	  	Separation Costs	
		
Schedule 11.1(B)	  	First Data Separation Costs	
		
Schedule 11.1(C)	  	Western Union Separation Costs	
		
Schedule 12.1(A)	  	Claims Not Released	
		
Schedule 12.1(B)	  	Obligations Not Released	
		
Schedule 12.3(D)	  	First Data Information in Form 10 Registration Statement or Information Statement or Prospectus	
		
Schedule 12.3(E)	  	First Data Information in Note Offering Memorandum or Prospectus	
		
Schedule 12.3(F)	  	First Data Information in Stock Options Registration Statement or Prospectus	

SEPARATION AND DISTRIBUTION AGREEMENT
THIS SEPARATION AND DISTRIBUTION AGREEMENT is made as of September 29, 2006 between First Data Corporation, a Delaware corporation (“ First Data ”), and The Western Union Company, a Delaware corporation (“ Western Union ”), and, as of the date hereof, a wholly-owned subsidiary of First Data.
WHEREAS, First Data, through the Western Union Subsidiaries (as hereinafter defined), is engaged in the business of providing consumer to consumer money transfer services, consumer to business payment services, retail money order services and certain prepaid services (the “ Transferred Business ”);
WHEREAS, the Board of Directors of First Data has determined that it would be advisable and in the best interests of First Data and its stockholders for First Data to transfer to Western Union (i) the Western Union Subsidiaries and (ii) the Transferred Business Assets (as hereinafter defined);
WHEREAS, in connection with the Contribution (as defined herein), First Data has agreed to transfer, or cause to be transferred, to Western Union such Western Union Subsidiaries and the Transferred Business Assets;
WHEREAS, the Board of Directors of First Data has determined that it would be advisable and in the best interests of First Data and its stockholders for First Data to distribute on a pro rata basis to the holders of First Data’s common stock, $0.01 par value per share (“ First Data Common Stock ”), without any consideration being paid by the holders of such First Data Common Stock, all of the outstanding shares of Western Union common stock, $0.01 par value per share (“ Western Union Common Stock ”), owned by First Data as of the Distribution Date (as defined herein);
WHEREAS, for federal income tax purposes, the Contribution and Distribution (as defined herein) are intended to qualify for tax-free treatment under Sections 355 and 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended (the “ Code ”) and this Agreement is intended to be the “plan of reorganization” with respect thereto; and
WHEREAS, it is appropriate and desirable to set forth the principal transactions required to effect the Contribution and Distribution and certain other agreements that will govern the relationship of First Data and Western Union following the Distribution.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . As used in this Agreement, the following terms shall have the meanings set forth in this Section 1.1 :
“ Action ” means any action, claim, demand, suit, arbitration, inquiry, subpoena, discovery request, proceeding or investigation by or before any court, grand jury or Governmental Authority.

“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by or is under common Control with such Person. After the Distribution, Western Union and First Data shall not be deemed to be under common Control for purposes hereof due solely to the fact that Western Union and First Data have common stockholders.
“ Agent ” means Wells Fargo Bank, National Association, the distribution agent appointed by First Data to distribute shares of Western Union Common Stock pursuant to the Distribution.
“ Agreement ” means this Separation and Distribution Agreement, as the same may be amended from time to time.
“ Applicable Deadline ” has the meaning set forth in Section 13.3(b) .
“ Arbitration Act ” means the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
“ Arbitration Demand Notice ” has the meaning set forth in Section 13.3(a) .
“ Asset Transfer Agreements ” means the agreements listed on Schedule 1.1 (D)  pursuant to which certain assets related to the Transferred Business will or have been transferred or licensed by the applicable First Data Party to the applicable Western Union Party, or by the applicable Western Union Party to the applicable First Data Party.
“ Assumed Actions ” has the meaning set forth in Section 8.7(a).
“ Cash Consideration ” has the meaning set forth in Section 3.3(a) .
“ CESI Holdings ” means CESI Holdings, Inc., a Delaware corporation.
“ Claims Administration ” means the processing of claims made under First Data Policies, including the reporting of claims to the insurance carrier, management and defense of claims, and providing for appropriate releases upon settlement of claims.
“ Claims Made Policies ” has the meaning set forth in Section 10.5(a) .
“ Code ” has the meaning set forth in the Recitals.
“ Commercial Agreements ” means the agreements entered into on or before the Distribution Date regarding the ongoing business and service relationships between the First Data Parties and the Western Union Parties identified on Schedule 1.1(A) .
“ Confidential Information ” means any of the following:
 
 	(a)	any information that is competitively sensitive material or otherwise of value to First Data, Western Union and its or their Subsidiaries and/or Affiliates and not generally known to the public, including, but not limited to, product planning	
 
2

 	information, marketing strategies, plans, finance, operations, consumer and/or customer relationships, consumer and/or customer profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of First Data, Western Union and its and their Subsidiaries and/or Affiliates and the consumers, customers, clients and suppliers of any of the foregoing;	
 
 	(b)	Confidential Personal Information;	
 
 	(c)	any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret in the sense that its confidentiality affords First Data, Western Union and its and their Subsidiaries and/or Affiliates a competitive advantage over its competitors; and	
 
 	(d)	all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, information, and trade secrets, whether or not patentable or copyrightable.	
Confidential Information includes without limitation, all documents, inventions, substances, engineering and laboratory notebooks, drawings, diagrams, computer programs and data, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation (including data in computer or other digital format) of the foregoing.
“ Confidential Personal Information ” shall mean any information about identifiable individuals (including, without limitation, identifiable consumers or employees or other personnel) which First Data, Western Union and its and their Subsidiaries and/or Affiliates provides access or transfers to the other hereunder or which the other otherwise collects, uses, discloses, processes or otherwise handles in connection with this Agreement or any Transaction Agreement including (without limitation) any (A) information: (i) a consumer provides to First Data, Western Union, its or their Subsidiaries and/or Affiliates and/or its or their employees, agents or contractors to obtain a financial product or service; (ii) about a consumer resulting from any transaction involving a financial product or service between First Data, Western Union, its or their Subsidiaries and/or Affiliates, its or their employees, agents or contractors and a consumer; or (iii) First Data, Western Union, its or their Subsidiaries and/or Affiliates and its or their employees, agents or contractors otherwise obtain about a consumer (directly or indirectly) in connection with providing a financial product or service to that consumer; (B) list, description, or other grouping of consumers (and publicly available information pertaining to them) that is derived using any information of the type described in subsection (A) hereof; and (C) employment and personnel records and related information of First Data, Western Union and its or their Subsidiaries and Affiliates.
“ Consideration ” has the meaning set forth in Section 3.3(a) .
“ Contract ” means any written or oral agreement, undertaking, contract, commitment, lease, license, permit, franchise, concession, deed of trust, contract, note, bond, mortgage, indenture, arrangement or other instrument or obligation.
 
3

“ Contribution ” has the meaning set forth in Section 3.3(a) .
“ Control ” means the power to direct the management of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled by” and “under common Control” have meanings correlative to the foregoing.
“ Conveyancing Instruments ” has the meaning set forth in Section 6.1 .
“ Debt Exchange ” has the meaning set forth in Section 3.1(a) .
“ Distributed Companies ” means FDCS Holdings, CESI Holdings, TeleCheck, EBP Re, Ltd., IPS Holdings, Inc., Virtual Financial Services, LLC, First Data Canada Limited and their respective Subsidiaries (including those formed or acquired after the date hereof).
“ Distribution ” has the meaning set forth in Section 4.5(a) .
“ Distribution Date ” means September 29, 2006.
“ Distribution Ratio ” has the meaning set forth in Section 4.5(a) .
“ ECG ” means E Commerce Group, Inc., a New York corporation.
“ Effective Time ” means the time at which the Distribution occurs on the Distribution Date.
“ Eligible First Data Debt ” means principal and interest on (a) all or a portion of the outstanding Historic First Data Long-Term Debt (as reduced by the amount of Refinancing Commercial Paper) and/or (b) First Data Commercial Paper outstanding on the Distribution Date up to an amount equal to the sum of (i) $700 million plus (ii) the amount of Refinancing Commercial Paper.
“ Employee Contract ” means any written agreement or contract between a Party and a current or former employee of any Party.
“ Employee Matters Agreement ” means the Employee Matters Agreement, dated the date hereof, between First Data and Western Union, the form of which is attached hereto as Exhibit A .
“ Escalation Notice ” has the meaning set forth in Section 13.2(a) .
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Exchange Agreement ” has the meaning set forth in Section 3.1(a) .
“ Exchange Banks ” has the meaning set forth in Section 3.1(a) .
“ Expenses ” means any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees,
 
4

and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals).
“ FDCS Holdings ” means First Data Commercial Services Holdings, Inc., a Delaware corporation.
“ FDR ” means First Data Resources Inc., a Delaware corporation.
“ FFMC ” means First Financial Management Corporation, a Georgia corporation.
“ FFMC Note ” has the meaning set forth in Section 3.1(c) .
“ FIFO Basis ” means, with respect to the payment of Unrelated Claims pursuant to the same Shared Policy, the payment in full of each successful claim (regardless of whether a First Data Insured Party or a Western Union Insured Party is the claimant) in the order in which such successful claim is approved by the insurance carrier, until the limit of the applicable Shared Policy is met.
“ First Data ” has the meaning set forth in the first paragraph of this Agreement.
“ First Data Balance Sheet ” means the unaudited consolidated balance sheet of First Data as of June 30, 2006 attached hereto as Exhibit B.
“ First Data Business ” means (a) all businesses and operations of the First Data Parties, other than the Western Union Business, and (b) the First Data Former Businesses.
“ First Data Commercial Paper ” means First Data commercial paper and First Data Extendible Commercial Notes.
“ First Data Common Stock ” has the meaning set forth in the Recitals.
“ First Data Extendible Commercial Notes ” means unsecured notes of First Data issued at a discount having an initial redemption date not more than 90 days from the date of issue and a final maturity date of up to 390 days from the date of issue.
“ First Data Financial Instruments ” means all credit facilities, guaranties, foreign currency forward exchange contracts, letters of credit and similar instruments primarily related to the First Data Business under which any Western Union Party has any primary, secondary, contingent, joint, several or other Liability, including those set forth on Schedule 1.1(B) .
“ First Data Former Business ” means the Former Businesses set forth on Schedule 1.1(C) and any Former Business (other than the Western Union Parties, the Transferred Business and the Former Businesses identified on Schedule 1.1(I) ) owned by, in whole or in part, and/or operated by, in whole or in part, any of the First Data Parties.
“ First Data Indemnified Parties ” has the meaning set forth in Section 12.2 .
 
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“ First Data Insured Party ” means any First Data Party that is a named insured, additional named insured or insured under any Shared Policy.
“ First Data Intercompany Notes Payable ” means the payables of the type reflected on the historical portion of the Western Union Balance Sheet as “Notes receivable from affiliated companies” (which, as of June 30, 2006, was in the amount of approximately $778.8 million) owed by one or more First Data Parties to one or more Western Union Subsidiaries incurred at any time prior to the Effective Time; it being understood that to the extent the amount of any balance included on the Western Union Balance Sheet was an estimate thereof, or is estimated as of a particular date or time, the actual amount of such balance (rather than the estimated amount) shall be deemed to be the balance used in determination of the First Data Intercompany Notes Payable.
“ First Data Liabilities ” means, without duplication, (a) all Liabilities of the First Data Parties to the extent based upon or arising out of the First Data Business and the Transferred First Data Business Assets, (b) all Liabilities of the Western Union Parties to the extent based upon or arising out of the First Data Business the Transferred First Data Business Assets, (c) all Liabilities based upon or arising out of the First Data Financial Instruments, (d) all outstanding Liabilities (other than the Western Union Liabilities) included on the First Data Balance Sheet and the notes thereto and all other Liabilities (other than the Western Union Liabilities) that are of a nature or type that would have resulted in such Liabilities being included as Liabilities on a consolidated balance sheet of First Data, and the notes thereto, as of the Effective Time (were such balance sheet and notes to be prepared) on a basis consistent with the determination of the nature and type of Liabilities included on the First Data Balance Sheet; it being understood that to the extent the amount of any Liability included on the First Data Balance Sheet or the notes thereto was an estimate thereof, the actual amount of such Liability (rather than the estimated amount) shall be deemed to be a First Data Liability for purposes of clause (d).
“ First Data Net Intercompany Payable ” means the payables of the type reflected on the historical portion of the Western Union Balance Sheet as “Receivables from affiliated companies, net” (which, as of June 30, 2006, was in the amount of approximately $167.2 million) owed by one or more First Data Parties to one or more Western Union Parties incurred at any time prior to the Effective Time; it being understood that to the extent the amount of any balance included on the Western Union Balance Sheet was an estimate thereof, or is estimated as of a particular date or time, the actual amount of such balance (rather than the estimated amount) shall be deemed to be the balance used in determination of the First Data Net Intercompany Payable.
“ First Data Parties ” means First Data and its Subsidiaries (including those formed or acquired after the date hereof), other than the Western Union Parties.
“ First Data Policies ” has the meaning set forth in Section 10.2(a) .
“ Foreign Exchange Rate ” means, with respect to any currency other than United States dollars, as of any date of determination, the rate set forth in the exchange rate section of The Wall Street Journal or, if not published in The Wall Street Journal , then the average of the opening bid and asked rates on such date at which such currency may be exchanged for United States
 
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dollars as quoted by JPMorgan Chase Bank (or any successor thereto or other major money center commercial bank agreed to by the Parties hereto).
“ Form 10 Registration Statement ” has the meaning set forth in Section 2.1(a).
“ Former Business ” means any corporation, partnership, entity, division, business unit or business within the definition of Rule 11-01(d) of Regulation S-X (in each case, including any assets and liabilities comprising the same) that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part) or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated (in whole or in part).
“ GMT ” means GMT Group, Inc., a Delaware corporation.
“ Governmental Approvals and Consents ” means any material notices, reports or other filings to be made with or to, or any material consents, registrations, approvals, permits, clearances or authorizations to be obtained from, any Governmental Authority.
“ Governmental Authority ” means any foreign, federal, state, local or other government, governmental, statutory or administrative authority, regulatory body or commission or any court, tribunal or judicial or arbitral body.
“ Historic First Data Long-Term Debt ” means those certain First Data long-term notes issued prior to January 1, 2006 and set forth on Schedule 1.1(E) .
“ Indemnified Party ” has the meaning set forth in Section 12.5(a) .
“ Indemnifying Party ” has the meaning set forth in Section 12.5(a) .
“ Indemnity Payment ” has the meaning set forth in Section 12.5(a) .
“ Information ” has the meaning set forth in Section 14.1(a) .
“ Information Statement ” has the meaning set forth in Section 2.1(a) .
“ Insured Party ” means a First Data Insured Party or a Western Union Insured Party.
“ Intercompany Agreements ” means any Contract, other than this Agreement and the Operating Agreements, between one or more of the First Data Parties, on the one hand, and one or more of the Western Union Parties, on the other hand, entered into prior to the Distribution.
“ Internal Distribution ” has the meaning set forth in Section 3.1(e) .
“ IPS ” means Integrated Payment Systems Inc., a Delaware corporation.
“ IRS ” means the Internal Revenue Service.
“ Liabilities ” means any and all debts, liabilities and obligations, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
 
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whenever arising, including all costs and expenses relating thereto, and including, without limitation, those debts, liabilities and obligations arising under any law, rule, regulation, Action, threatened Action, order or consent decree of any Governmental Authority or any award of any arbitrator of any kind, and those arising under any contract, commitment or undertaking.
“ Losses ” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, fees, expenses, deficiencies, claims or other charges.
“ Management Agreement ” means the Retail Money Order Issuance and Management Services Agreement, dated August 14, 2006, between IPS and WUFSI, the form of which is attached hereto as Exhibit C .
“ Merchant Alliance ” means any joint venture (in any form, including in corporate, partnership or limited liability company form) or contractual alliance now or hereafter entered into between a First Data Party and one or more financial institutions or other Persons for the provision of merchant processing services.
“ Merchant Alliance Agreement ” means any contract or agreement between a Western Union Party and a Merchant Alliance.
“ Note Offering ” means the offering under the Note Offering Memorandum of the Western Union Notes.
“ Note Offering Memorandum ” means the Preliminary Offering Memorandum and the Final Offering Memorandum with respect to the offering and sale of the Western Union Notes.
“ NYSE ” means the New York Stock Exchange, Inc.
“ Occurrence Based Policies ” has the meaning set forth in Section 10.5(a) .
“ Operating Agreements ” means the Transaction Agreements and the Commercial Agreements.
“ Out-of-Pocket Expenses ” means expenses involving a payment to a Third Party (other than an employee of the party making the payment).
“ Party ” means a First Data Party or a Western Union Party, as applicable.
“ Patent Ownership Agreement ” means the Patent Ownership Agreement, dated the date hereof, between First Data and Western Union, the form of which is attached hereto as Exhibit D .
“ Paymap ” means Paymap Inc., a Delaware corporation.
“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, entity, association, joint-stock company, trust, unincorporated organization or Governmental Authority.
 
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“ Personal Information Incident ” shall mean any actual or threatened unauthorized access, acquisition, use, alteration, creation, destruction, loss, theft, copying or disclosure of Confidential Personal Information, including but not limited to user IDs or passwords, regardless of whether such has been encrypted. Personal Information Incidents shall exclude the following to the extent occurring in the normal course of business and not reasonably likely to result in harm to a consumer or customer or misuse of Confidential Personal Information: (a) data input errors that are immediately rectified; and (b) any authorized access, acquisition, use, alteration, creation, destruction, copying or disclosure of Confidential Personal Information.
“ Prime Rate ” means the rate that JPMorgan Chase Bank (or any successor thereto or other major money center commercial bank agreed to by the Parties hereto) announces from time to time as its prime lending rate, as in effect from time to time.
“ Privilege ” has the meaning set forth in Section 14.9(a) .
“ Privileged Information ” has the meaning set forth in Section 14.9(a) .
“ Record Date ” means September 22, 2006.
“ Refinancing Commercial Paper ” means First Data Commercial Paper outstanding on the Distribution Date having a stated principal amount equal to the amount of First Data Commercial Paper proceeds used to pay principal and/or interest on Historic First Data Long-Term Debt.
“ Related Claims ” means a claim or claims against a Shared Policy made by one or more Western Union Insured Parties, on the one hand, and one or more First Data Insured Parties, on the other hand, filed in connection with Losses suffered by either a Western Union Insured Party or a First Data Insured Party, as the case may be, arising out of the same underlying transaction or series of transactions or event or series of events that have also given rise to Losses suffered by a First Data Insured Party or a Western Union Insured Party, as the case may be, which Losses are the subject of a claim or claims by such Person against a Shared Policy.
“ SEC ” means the United States Securities and Exchange Commission.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Shared Policies ” has the meaning set forth in Section 10.5(a) .
“ Stock Options Registration Statement ” means the Registration Statement on Form S-1, as amended and supplemented, including all documents incorporated by reference, to effect the registration under the Securities Act of shares of Western Union Common Stock subject to certain stock options granted to current and former officers, employees, directors and consultants of the First Data Parties pursuant to the Employee Matters Agreement.
“ Subsidiary ” means, when used with reference to any Person, any corporation or other organization whether incorporated or unincorporated of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or
 
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other organization is directly or indirectly owned or Controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not directly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person Controls, or has the right, power or ability to Control, that Person. After the Distribution, First Data and Western Union shall not be deemed to be under common Control for purposes hereof due solely to the fact that First Data and Western Union have common stockholders.
“ Tax Allocation Agreement ” means the Tax Allocation Agreement, dated the date hereof, between First Data and Western Union, the form of which is attached hereto as Exhibit E .
“ TeleCheck ” means TeleCheck International, Inc., a Georgia corporation.
“ Third Party ” means a Person that is not an Affiliate of any Party hereto.
“ Third Party Claim ” has the meaning set forth in Section 12.6(a).
“ Third Party Consents ” means any material consent, approval or authorization to be obtained from any Person that is not a Governmental Authority.
“ Transaction Agreements ” means the Employee Matters Agreement, the Management Agreement, the Patent Ownership Agreement, the Tax Allocation Agreement, the Transition Services Agreement, the Transferred Action Assignment and Assumption Agreement, the Asset Transfer Agreements and the Conveyancing Instruments.
“ Transferred Action Assignment and Assumption Agreement ” means the Transferred Action Assignment and Assumption Agreement, dated the date hereof, between First Data and Western Union, the form of which is attached hereto as Exhibit F .
“ Transferred Actions ” has the meaning set forth in Section 8.7(b) .
“ Transferred Business Assets ” means, collectively, the assets set forth on Schedule 1.1(F) .
“ Transferred Business ” has the meaning set forth in the Recitals.
“ Transferred First Data Business Assets ” means, collectively, the assets set forth on Schedule 1.1(G) .
“ Transition Services Agreement ” means the Transition Services Agreement, dated the date hereof, between First Data and Western Union, the form of which is attached hereto as Exhibit G .
“ Unrelated Claims ” means a claim or claims against a Shared Policy that is not a Related Claim.
“ Western Union ” has the meaning set forth in the first paragraph of this Agreement.
 
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“ Western Union Amended and Restated Certificate of Incorporation ” means the Amended and Restated Certificate of Incorporation of Western Union, the form of which is attached hereto as Exhibit H .
“ Western Union Balance Sheet ” means the unaudited pro forma combined balance sheet of Western Union as of June 30, 2006 and attached hereto as Exhibit I.
“ Western Union Business ” means (a) all businesses and operations of the Western Union Parties and (b) the Western Union Former Businesses.
“ Western Union Common Stock ” has the meaning set forth in the Recitals.
“ Western Union Credit Facility ” means a $1.5 billion credit facility to be entered into by Western Union.
“ Western Union Financial Instruments ” means all credit facilities, guaranties, foreign currency forward exchange contracts, letters of credit and similar instruments primarily related to the Western Union Business under which any First Data Party has any primary, secondary, contingent, joint, several or other Liability, including those set forth on Schedule 1.1(H) .
“ Western Union Former Business ” means the Former Businesses set forth on Schedule 1.1(I) and any Former Business (other than the Former Businesses identified on Schedule 1.1(C) ) owned by, in whole or in part, and/or operated by, in whole or in part, any of the Western Union Parties.
“ Western Union Indemnified Parties ” has the meaning set forth in Section 12.3.
“ Western Union Insured Party ” means any Western Union Party that is a named insured, additional named insured or insured under any Shared Policy.
“ Western Union Intercompany Notes Payable ” means the payables of the type reflected on the historical portion of the Western Union Balance Sheet as “Notes payable to affiliated companies” (excluding an $11.3 million note payable cancelled by a First Data Party on September 26, 2006) (which, as of June 30, 2006, was in the amount of approximately $52.2 million) owed by one or more Western Union Parties to one or more First Data Parties incurred at any time prior to the Effective Time; it being understood that to the extent the amount of any balance included on the Western Union Balance Sheet was an estimate thereof, or is estimated as of a particular date or time, the actual amount of such balance (rather than the estimated amount) shall be deemed to be the balance used in determination of the Western Union Intercompany Notes Payable.
“ Western Union Liabilities ” means (a) all Liabilities of the Western Union Parties to the extent based upon or arising out of the Western Union Business and the Transferred Business Assets, (b) all Liabilities of the First Data Parties to the extent based upon or arising out of the Western Union Business and the Transferred Business Assets, (c) all Liabilities based upon or arising out of the Western Union Financial Instruments, (d) all outstanding Liabilities included on the Western Union Balance Sheet and the notes thereto and all other Liabilities that are of a nature or type that would have resulted in such Liabilities being included as Liabilities on a
 
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consolidated balance sheet of Western Union, and the notes thereto, as of the Effective Time (were such balance sheet and notes to be prepared) on a basis consistent with the determination of the nature and type of Liabilities included on the Western Union Balance Sheet; it being understood that to the extent the amount of any Liability included on the Western Union Balance Sheet or the notes thereto was an estimate thereof, the actual amount of such Liability (rather than the estimated amount) shall be deemed to be a Western Union Liability for purposes of clause (d).
“ Western Union Notes ” means the 5.930% Notes due 2016 of Western Union in the aggregate principal amount of $1,000,000,000, as more fully described in the Note Offering Memorandum.
“ Western Union Parties ” means Western Union, the Western Union Subsidiaries and any other Subsidiary of Western Union (including those formed or acquired after the date hereof), in each case, other than the Distributed Companies.
“ Western Union Subsidiaries ” means, collectively, ECG, FFMC, GMT, Paymap, WUSI and each Subsidiary of any of the foregoing other than the Distributed Companies.
“ Western Union Share ” means a share of Western Union Common Stock.
“ WUFSI ” means Western Union Financial Services, Inc., a Colorado corporation.
“ WUSI ” means Western Union Services Inc., a Maryland corporation.
SECTION 1.2 Interpretation . (a) In this Agreement, unless the context clearly indicates otherwise:
(i) words used in the singular include the plural and words used in the plural include the singular;
(ii) references to any Person include such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and a reference to such Person’s “Affiliates” shall be deemed to mean such Person’s Affiliates following the Distribution;
(iii) reference to any gender includes the other gender;
(iv) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”;
(v) reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;
(vi) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;
 
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(vii) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;
(viii) reference to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;
(ix) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”;
(x) accounting terms used herein shall have the meanings historically ascribed to them by First Data and its Subsidiaries, including Western Union, in its and their internal accounting and financial policies and procedures in effect prior to the date of this Agreement;
(xi) if there is any conflict between the provisions of the body of this Agreement and the Schedules hereto, the provisions of the body of this Agreement shall control unless explicitly stated otherwise in such Schedule;
(xii) if there is any conflict between the provisions of this Agreement and a Transaction Agreement, the provisions of such Transaction Agreement shall control unless explicitly stated otherwise therein;
(xiii) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement;
(xiv) any portion of this Agreement obligating a Party to take any action or refrain from taking any action, as the case may be, shall mean that such Party shall also be obligated to cause its relevant Subsidiaries to take such action or refrain from taking such action, as the case may be; and
(xv) unless otherwise specified in this Agreement, all references to dollar amounts herein shall be in respect of lawful currency of the United States.
ARTICLE II
ACTIONS PRIOR TO THE DISTRIBUTION DATE
SECTION 2.1 SEC and Other Securities Filings; Western Union Note Offering . In order to effect the transactions contemplated by Articles III and IV , the First Data Parties and the Western Union Parties shall take the following actions prior to the Distribution Date:
(a) Western Union shall file with the SEC (i) a registration statement under the Exchange Act on Form 10 (including all amendments or supplements thereto, in each case prior to the Distribution Date, the “ Form 10 Registration Statement ”) to effect the registration of the Western Union Common Stock under the Exchange Act and (ii) the Stock Options Registration Statement. The Form 10 Registration Statement will include an information statement to be sent
 
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by First Data to its stockholders in connection with the Distribution (as may be amended or supplemented, the “ Information Statement ”). Western Union and First Data shall use their respective commercially reasonable efforts to cause the Form 10 Registration Statement and the Stock Options Registration Statement to become effective as soon as reasonably practicable. As soon as practicable after the Form 10 Registration Statement becomes effective, First Data shall mail the Information Statement to the holders of record of First Data Common Stock.
(b) In connection with the Distribution:
(i) the Parties shall use their respective commercially reasonable efforts to take all such action as may be necessary or appropriate under state and foreign securities and “blue sky” laws in connection with the transactions contemplated by this Agreement;
(ii) the Parties shall prepare, and Western Union shall file and seek to have approved, an application for the listing of the Western Union Common Stock on the NYSE, subject to official notice of issuance;
(iii) First Data shall give the NYSE notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act; and
(iv) the Parties shall cooperate in preparing, filing with the SEC and causing to become effective any other registration statements or amendments or supplements thereto that are necessary or appropriate in order to effect the transactions contemplated hereby, or to reflect the establishment of, or amendments to, any employee benefit plans contemplated hereby.
SECTION 2.2 Financial Instruments.
(a) Western Union will use its commercially reasonable efforts to take or cause to be taken all actions, and enter into (or cause the other Western Union Parties to enter into) such agreements and arrangements, as shall be necessary to cause, as of the Effective Time, (i) the removal of the First Data Parties from all Western Union Financial Instruments and (ii) the First Data Parties to be fully and unconditionally released from all Liabilities in respect of the Western Union Financial Instruments. It is understood and agreed that all Liabilities in respect of the Western Union Financial Instruments are Western Union Liabilities and Western Union shall indemnify the First Data Parties from any Liabilities suffered thereby arising out of, resulting from or relating to the Western Union Financial Instruments. Without limiting the foregoing, after the Effective Time, (A) Western Union will not, and will not permit any Western Union Party to, renew, extend, modify, amend or supplement any Western Union Financial Instrument in any manner that would increase, extend or give rise to any Liability of a First Data Party under such Western Union Financial Instrument and (B) with respect to any Western Union Financial Instrument for which any First Data Party was not removed and fully and unconditionally released from all Liabilities in respect of such Western Union Financial Instrument prior to the Effective Time, Western Union shall continue to use its reasonable best efforts to cause such removal and release.
(b) First Data will use its commercially reasonable efforts to take or cause to be taken all actions, and enter into (or cause the other First Data Parties to enter into) such agreements and arrangements, as shall be necessary to cause, as of the Effective Time, (i) the removal of the
 
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Western Union Parties from all First Data Financial Instruments and (ii) the Western Union Parties to be fully and unconditionally released from all Liabilities in respect of the First Data Financial Instruments. It is understood and agreed that all Liabilities in respect of the First Data Financial Instruments are First Data Liabilities and First Data shall indemnify the Western Union Parties from any Liabilities suffered thereby arising out of, resulting from or relating to the First Data Financial Instruments. Without limiting the foregoing, after the Effective Time, (A) First Data will not, and will not permit any First Data Party to, renew, extend, modify, amend or supplement any First Data Financial Instrument in any manner that would increase, extend or give rise to any Liability of a Western Union Party under such First Data Financial Instrument and (B) with respect to any First Data Financial Instrument for which any Western Union Party was not removed and fully and unconditionally released from all Liabilities in respect of such First Data Financial Instrument prior to the Effective Time, First Data shall continue to use its reasonable best efforts to cause such removal and release.
ARTICLE III
BUSINESS SEPARATION
SECTION 3.1 Actions Taken Prior to the Distribution Date . Prior to the Distribution Date, First Data and Western Union took or caused to be taken the following actions in the following order:
(a) Purchase and Exchange Arrangements . On September 26, 2006, Western Union, Barclays Capital Inc. and J.P. Morgan Securities Inc. (Barclays Capital Inc. and J.P. Morgan Securities Inc., collectively, the “ Exchange Banks ”) entered into a purchase agreement, dated as of September 20, 2006, which established the terms upon which the Western Union Notes will be sold to the purchasers thereof and which provides for a closing date that is the same day as the Distribution Date and at a time following the Effective Time. On September 26, 2006, First Data, Western Union and the Exchange Banks entered into an exchange agreement (“ Exchange Agreement ”) regarding the exchange of Eligible First Data Debt having an aggregate fair market value equal to the amount set forth in the Exchange Agreement (the “ Debt Exchange ”).
(b) FDR Conversion . First Data, on September 25, 2006, caused FDR to file a certificate of conversion with the Secretary of State of the State of Delaware converting FDR from a corporation to a limited liability company, which certificate provided that it is effective at the time of the filing thereof.
(c) Repayment of Western Union Intercompany Notes . On September 26, 2006, one or more Western Union Parties paid to one or more First Data Parties by wire transfer of immediately available funds to an account specified in writing by a First Data Party an amount equal to the Western Union Intercompany Notes Payable in full satisfaction thereof.
(d) Repayment of First Data Intercompany Notes . On September 26, 2006, one or more First Data Parties paid to one or more Western Union Parties by wire transfer of immediately available funds to an account specified in writing by a Western Union Party an amount equal to the First Data Intercompany Notes Payable in full satisfaction thereof.
 
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(e) Asset Transfers . Prior to the close of business on September 27, 2006, the applicable First Data Parties and the applicable Western Union Parties entered into the Asset Transfer Agreements and consummated the transactions contemplated thereby in accordance with their terms.
(f) FFMC Dividend; GMT Contribution . The board of directors of FFMC, on September 27, 2006, in accordance with the articles of incorporation and bylaws of FFMC and the Georgia Business Corporation Code, declared a dividend to First Data, as the sole stockholder of FFMC as of the September 27, 2006 record date of the dividend, in the amount of $2,399,291,710, and caused the dividend amount to be paid to First Data on such record date by execution and delivery of a promissory note (the “ FFMC Note ”). Concurrently with the distribution of the FFMC Note described in this Section 3.1(c) , First Data contributed all of its right, title and interest in and to the issued and outstanding shares of capital stock of GMT to FFMC.
(g) Dividends and Distributions Related to First Data Net Intercompany Payable . The board of directors or other governing body or equity owner of each of substantially all of the Western Union Subsidiaries and the Distributed Companies formed under the laws of the United States, on September 27, 2006, in accordance with the organizational documents of such Persons and the laws of their respective jurisdictions, declared a dividend or distribution to their respective parent companies as of the September 27, 2006 record date of the dividend or distribution, to effectuate, as of the close of business on September 27, 2006, the distribution in cancellation of the First Data Net Intercompany Payable. Immediately following declaration of such dividends and distributions, First Data and each of the applicable Western Union Subsidiaries and Distributed Companies entered into instruments of assignment, contribution and assumption in furtherance of the actions contemplated by the distribution in cancellation of the First Data Net Intercompany Payable as of the close of business on September 27, 2006.
(h) Internal Distribution Declaration . The board of directors of FFMC, on September 28, 2006, in accordance with the articles of incorporation and bylaws of FFMC and the Georgia Business Corporation Code, declared a dividend to First Data, as the sole stockholder of FFMC as of the September 28, 2006 record date of the dividend, of all of FFMC’s right, title and interest in and to the issued and outstanding shares of capital stock of FDCS Holdings (the “ Internal Distribution ”), such dividend being payable on September 29, 2006.
SECTION 3.2 Actions Prior to the Separation . Subject to the terms and conditions of this Agreement, on the Distribution Date but prior to the Contribution and Distribution, First Data and Western Union shall take or cause to be taken the following actions in the following order:
(a) Dividends and Distributions Related to First Data Net Intercompany Payable . The board of directors or other governing body or equity owner of each of substantially all of the Western Union Subsidiaries and the Distributed Companies formed under the laws of the United States shall, effective as of 5:00 AM (Eastern Time) on the Distribution Date (the “ Intercompany Distribution Time ”), in accordance with the organizational documents of such Persons and the laws of their respective jurisdictions, declared a dividend or distribution to their respective parent companies as of the Intercompany Distribution Time, to effectuate, as of the
 
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Intercompany Distribution Time, the distribution in cancellation of the First Data Net Intercompany Payable as of the close of business on the Distribution Date (after giving effect to the transactions contemplated by Section 5.1(d) ). Immediately following declaration of such dividends and distributions, First Data and each of the applicable Western Union Subsidiaries and Distributed Companies shall enter into instruments of assignment, contribution and assumption in furtherance of the actions contemplated by the distribution in cancellation, as of the Intercompany Distribution Time, of the First Data Net Intercompany Payable as of the close of business on the Distribution Date.
(b) Internal Contribution . First Data shall cause FFMC to contribute all of its right, title and interest in and to the issued and outstanding shares of capital stock and other equity interests of each of CESI, TeleCheck, EBP Re, Ltd., IPS Holdings, Inc., Virtual Financial Services, LLC, and First Data Canada Limited to FDCS Holdings, and in consideration therefor and simultaneously therewith FDCS Holdings shall issue to FFMC 100 fully paid, nonassessable shares of common stock of FDCS Holdings, which shares shall be free of preemptive rights (the “ Internal Contribution ”).
(c) Internal Distribution . FFMC shall effect the Internal Distribution by distributing to First Data all of FFMC’s right, title and interest in and to the outstanding shares of common stock of FDCS Holdings. For federal income tax purposes, the Internal Contribution and the Internal Distribution are intended to qualify for tax-free treatment under Sections 355 and 368(a)(1)(D) of the Code.
(d) Western Union Borrowings . Western Union shall borrow $100 million in principal amount under the Western Union Credit Facility.
SECTION 3.3 The Separation . Subject to the terms and conditions of this Agreement, on the Distribution Date and following the consummation of the transactions to be taken pursuant to Section 3.2 , First Data and Western Union shall take the following actions in the following order:
(a) Western Union Board . The Board of Directors of Western Union shall be reconstituted so that it consists of the persons set forth on Schedule 3.3 .
(b) Western Union Contribution . First Data shall (i) contribute to Western Union all of First Data’s right, title and interest in and to the issued and outstanding shares of capital stock of each of FFMC, ECG, Paymap and WUSI and (ii) contribute to Western Union all of First Data’s right, title and interest in and to the Transferred Business Assets set forth on Schedule 3.3(A) and simultaneously therewith and in consideration therefor Western Union shall (A) pay to First Data by wire transfer of immediately available funds to an account described in Section 5.1(d) and specified in writing by First Data an amount equal to $100 million (the “ Cash Consideration ”), (B) deliver to First Data the Western Union Notes, and (C) deliver to First Data a number of uncertificated Western Union Shares which, together with the Western Union Shares held by First Data, shall equal the number of Western Union Shares to be distributed by First Data in the Distribution, which shares shall be fully paid, nonassessable and free of preemptive rights (the consideration described in clauses (A) , (B)  and (C) , the “ Consideration ”, and the transfers in clauses (i)  and (ii)  and delivery of the Consideration, the “ Contribution ”).
 
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(c) Transaction Agreements . The applicable First Data Parties and the applicable Western Union Parties shall execute and deliver to the other the Transaction Agreements to which they are intended to be a Party.
(d) Commercial Agreements . To the extent not already executed, the applicable First Data Parties and the applicable Western Union Parties shall execute and deliver to the other the Commercial Agreements to which they are intended to be a Party.
Notwithstanding the foregoing, First Data may elect in its sole and absolute discretion at any time prior to the Distribution to omit or modify any of the transactions set forth in Sections 3.2 through 3.3 or to include additional transactions.
SECTION 3.4 Termination of Existing Intercompany Agreements . Except as otherwise provided or contemplated by this Agreement, the Operating Agreements, Merchant Alliance Agreements or as set forth on Schedule 3.4, all Intercompany Agreements and all other intercompany arrangements and course of dealings, whether or not in writing and whether or not binding, in effect immediately prior to the Distribution, shall be terminated and be of no further force and effect from and after the Distribution; provided that, for the avoidance of doubt, this Section 3.4 shall not terminate or affect this Agreement, any Operating Agreement or any Merchant Alliance Agreement. If, as a result of mistake or oversight, any Intercompany Agreement, intercompany arrangement and/or course of dealings is terminated pursuant to this Section 3.4 , then, at the request of First Data or Western Union, the Parties shall negotiate in good faith after the Distribution to determine whether, notwithstanding such termination, such Intercompany Agreement, intercompany arrangement and/or course of dealings should continue following the Effective Time and the terms and conditions upon which the Parties may continue with respect thereto.
ARTICLE IV
THE DISTRIBUTION
SECTION 4.1 Record Date and Distribution Date . Subject to the terms and conditions of this Agreement, the Board of Directors of First Data shall, in its sole and absolute discretion, establish the Record Date and the Distribution Date and any necessary or appropriate procedures in connection with the Distribution. The Board of Directors of First Data shall have the right to adjust the Distribution Ratio at any time prior to the Distribution.
SECTION 4.2 Increase In Western Union Authorized Shares . Prior to the Contribution, the Western Union Board of Directors and First Data, as sole stockholder of Western Union, shall have adopted the Western Union Amended and Restated Certificate of Incorporation and Western Union shall have filed the Western Union Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware.
SECTION 4.3 The Agent . Prior to the Distribution Date, First Data will enter into a distribution agent agreement with the Agent or otherwise provide instructions to the Agent regarding the Distribution.
SECTION 4.4 Delivery of Western Union Shares . First Data shall take such steps as are necessary or appropriate to permit the Western Union Shares to be distributed in the manner
 
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described in this Article IV. In its capacity as First Data’s distribution agent and Western Union’s transfer agent, the Agent will distribute the Western Union Shares in the manner described in this Article IV.
SECTION 4.5 The Distribution . (a) Subject to the satisfaction or waiver of the conditions set forth in Section 9.1 and at the sole and absolute discretion of First Data, on the Distribution Date First Data shall cause the Agent to distribute to each holder of record of shares of First Data Common Stock as of the Record Date (or, if such holder has sold its shares of First Data Common Stock in the regular way market on or prior to the Distribution Date, to the transferee of such shares) by means of a pro rata dividend of one Western Union Share for each share of First Data Common Stock (the “ Distribution Ratio ”) held of record by such holder (or such transferee) as of the Record Date (the “ Distribution ”).
(b) Subject to the terms and conditions of this Agreement, each holder of record of First Data Common Stock as of the Record Date (or such holder’s designated transferee) will be entitled to receive in the Distribution one share of Western Union Common Stock for each share of First Data Common Stock held of record by such record holder (or such transferee) as of the Record Date.
SECTION 4.6 Delivery of Western Union Shares . Each distributed Western Union Share shall be validly issued, fully paid and nonassessable and free of preemptive rights. The shares of Western Union Common Stock distributed shall be distributed as uncertificated shares registered in book-entry form through the direct registration system. No certificates therefor shall be distributed. First Data shall cause the Agent to deliver an account statement to each holder of record of Western Union Common Stock reflecting such holder’s ownership interest in shares of Western Union Common Stock.
SECTION 4.7 Distribution is at First Data’s Discretion . The consummation of the transactions provided for in this Article IV shall only be effected after the Distribution has been declared by the Board of Directors of First Data and after all of the conditions set forth in Section 9.1 shall have been satisfied or waived by First Data. Notwithstanding the foregoing, at any time prior to the Distribution, First Data, in its sole and absolute discretion, may determine not to consummate the Distribution.
SECTION 4.8 Additional Approvals . First Data shall cooperate with Western Union in effecting, and if so requested by Western Union, First Data shall, as the sole stockholder of Western Union prior to the Distribution, ratify any actions which are reasonably necessary or desirable to be taken by Western Union to effectuate the transactions referenced in or contemplated by this Agreement in a manner consistent with the terms hereof, including the preparation and implementation of appropriate plans, agreements and arrangements for employees of the Western Union Business and non-employee members of Western Union’s Board of Directors.
 
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ARTICLE V
ACTIONS SUBSEQUENT TO THE DISTRIBUTION
SECTION 5.1 Actions Following the Distribution . On the Distribution Date and promptly following the consummation of the Distribution, the following transactions shall be undertaken:
(a) FFMC Debt Financing. FFMC shall, pursuant to one or more financing agreements previously entered into, borrow a sufficient amount of cash to comply with its obligations pursuant to Section 5.1(b) .
(b) Satisfaction of FFMC Note . FFMC shall pay to First Data by wire transfer of immediately available funds to an account specified in writing by First Data an amount equal to the outstanding principal amount of, and accrued interest on, the FFMC Note in full satisfaction thereof.
(c) Debt Exchange and Note Offering . Pursuant to the Exchange Agreement and subject to the terms thereof, First Data will transfer the Western Union Notes to the Exchange Banks in exchange for all or a portion of the Eligible First Data Debt. First Data and Western Union shall use their respective reasonable best efforts to cause the Debt Exchange and the Note Offering to be consummated on the Distribution Date. Without limiting the generality of the foregoing, each of First Data and Western Union shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Debt Exchange and the Note Offering and in delivering all documents and instruments deemed reasonably necessary by First Data and Western Union and otherwise cooperating and assisting in satisfying the conditions of the Debt Exchange and the Note Offering.
(d) Intercompany Arrangements on the Distribution Date . During the period beginning at the Effective Time and concluding immediately following the close of business on the Distribution Date, with respect to intercompany arrangements which historically have resulted in the creation of a First Data Net Intercompany Payable, the First Data Parties and the Western Union Parties shall continue such intercompany arrangements in the ordinary course of business consistent with past practice, including the transfer to First Data at the close of business on the Distribution Date of operating cash received by the Western Union Parties on the Distribution Date in excess of amounts, consistent with past practice, which have historically been retained by the applicable Western Union Parties at the close of business. For the purpose of this Agreement and the transactions contemplated by Section 3.2(a) , the intercompany arrangements and resulting accounts arising from this Section 5.2(d) shall be deemed to have taken effect prior to the Contribution and the Intercompany Distribution Time, and the rights of the Parties with respect therein shall be effective and enforceable as of the Intercompany Distribution Time.
SECTION 5.2 Paydown of First Data Debt . First Data agrees (i) subject to the payment of indebtedness of the First Data Parties in accordance with this Section 5.2 , to maintain the Cash Consideration in a separate, interest-bearing account from all other cash and cash equivalents of the First Data Parties, (ii) not to commingle the Cash Consideration with any other
 
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assets owned or held by First Data and (iii) to, not later than one year following the Distribution Date, use all of the Cash Consideration plus all earnings on any amounts held in such account solely to repay Eligible First Data Debt.
ARTICLE VI
BUSINESS SEPARATION CLOSING MATTERS
SECTION 6.1 Delivery of Instruments of Conveyance . In order to effectuate the transactions contemplated by Articles II through IV, the Parties shall execute and deliver, or cause to be executed and delivered, prior to or as of the Distribution Date, such deeds, bills of sale, instruments of assumption, instruments of assignment, stock powers, certificates of title and other instruments of assignment, transfer, assumption, license and conveyance (collectively, the “ Conveyancing Instruments ”) as First Data and Western Union shall reasonably deem necessary or appropriate to effect such transactions, including the Asset Transfer Agreements.
SECTION 6.2 Provision of Corporate Records . (a) Without limitation of the Parties rights and obligations pursuant to Article XIV , prior to or as promptly as reasonably practicable after the Distribution, First Data shall deliver to Western Union all corporate books and records of the Western Union Parties and, upon request, copies of all corporate books and records of the First Data Parties relating to the Western Union Business in its possession or control, including in each case all active agreements, litigation files and government filings.
(b) Without limitation of the Parties rights and obligations pursuant to Article XIV , prior to or as promptly as reasonably practicable after the Distribution, Western Union shall deliver to First Data all corporate books and records of the First Data Parties and, upon request, copies of all corporate books and records of the Western Union Parties relating to the First Data Business in its possession or control, including in each case all active agreements, litigation files and government filings.
ARTICLE VII
NO REPRESENTATIONS AND WARRANTIES
SECTION 7.1 No First Data Representations or Warranties . Except as expressly set forth herein or in any Operating Agreement, none of the First Data Parties represents or warrants in any way (a) as to the value, condition, prospects or freedom from encumbrance of, or any other matter concerning, any of the Western Union Subsidiaries (including their respective assets), the Transferred Business Assets or the Western Union Business, (b) as to the legal sufficiency to convey title to any of the Western Union Subsidiaries or Transferred Business Assets on the execution, delivery and filing of the Conveyancing Instruments or (c) the amount or nature of, or any other matter concerning, the Liabilities of the Western Union Parties. THE WESTERN UNION BUSINESS AND ALL SUCH WESTERN UNION SUBSIDIARIES (AND THEIR RESPECTIVE ASSETS) AND TRANSFERRED BUSINESS ASSETS ARE BEING TRANSFERRED ON AN “AS IS, WHERE IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY, TITLE, VALUE, FREEDOM FROM ENCUMBRANCE OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, and the Western Union Parties shall bear the economic and legal risks that any conveyances of such assets shall
 
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prove to be insufficient or that the Western Union Parties’ title to any such assets shall be other than good and marketable and free of encumbrances. Except as expressly set forth in this Agreement or in any Operating Agreement, none of the First Data Parties represents or warrants that the obtaining of the consents or approvals, the execution and delivery of any amendatory agreements and the making of the filings and applications contemplated by this Agreement shall satisfy the provisions of all applicable agreements or the requirements of all applicable laws or judgments and, subject to Section 7.2 , the Western Union Parties shall bear the economic and legal risk that any necessary consents or approvals are not obtained or that any requirements of law or judgments are not complied with with respect to the Contribution or the contribution of GMT to FFMC.
SECTION 7.2 No Western Union Representations or Warranties . Except as expressly set forth herein or in any Operating Agreement, none of the Western Union Parties represents or warrants in any way (a) as to the value or freedom from encumbrance of, or any other matter concerning, any of the Distributed Companies (including their respective assets), the Transferred First Data Business Assets or the First Data Business, (b) as to the legal sufficiency to convey title to any of the Distributed Companies or the Transferred First Data Business Assets on the execution, delivery and filing of the Conveyancing Instruments or (c) the amount or nature of, or any other matter concerning, the Liabilities of the Distributed Companies. THE DISTRIBUTED COMPANIES (AND THEIR RESPECTIVE ASSETS) AND THE TRANSFERRED FIRST DATA BUSINESS ASSETS ARE BEING TRANSFERRED ON AN “AS IS, WHERE IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY, TITLE, VALUE, FREEDOM FROM ENCUMBRANCE OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, and the First Data Parties shall bear the economic and legal risks that any conveyances of such assets shall prove to be insufficient or that the First Data Parties’ title to any such assets shall be other than good and marketable and free of encumbrances. Except as expressly set forth in this Agreement or in any Operating Agreement, solely with respect to the Internal Distribution, none of the Western Union Parties represents or warrants that the obtaining of the consents or approvals, the execution and delivery of any amendatory agreements and the making of the filings and applications contemplated by this Agreement shall satisfy the provisions of all applicable agreements or the requirements of all applicable laws or judgments and, subject to Section 7.1 , the First Data Parties shall bear the economic and legal risk that any necessary consents or approvals are not obtained or that any requirements of law or judgments are not complied with respect to the Internal Distribution.
ARTICLE VIII
CERTAIN COVENANTS
SECTION 8.1 Governmental Approvals and Consents; Third Party Consents . Prior to the Distribution, the Parties hereto will use their respective commercially reasonable efforts to obtain all Governmental Approvals and Consents and all Third Party Consents that are required or appropriate in connection with the transactions contemplated by this Agreement.
SECTION 8.2 Non-Assignable Contracts . (a) If and to the extent that any First Data Party is unable to obtain any consent, approval or amendment necessary for the transfer or
 
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assignment to any Western Union Party of any Contract or other rights relating to the Western Union Business that would otherwise be transferred or assigned to such Western Union Party as contemplated by this Agreement or any other agreement or document contemplated hereby, (i) such First Data Party shall continue to be bound thereby and the purported transfer or assignment to such Western Union Party shall automatically be deemed deferred until such time as all legal impediments are removed and all necessary consents have been obtained and (ii) unless not permitted by the terms thereof or by law, the Western Union Parties shall pay, perform and discharge fully all of the obligations of the First Data Parties thereunder from and after the Distribution, or such earlier time as such transfer or assignment would otherwise have taken place, and indemnify the First Data Parties for all Losses arising out of such performance by such Western Union Party. The First Data Parties shall, without further consideration therefor, pay and remit to the applicable Western Union Party promptly all monies, rights and other considerations received in respect of such performance. The First Data Parties shall exercise or exploit their rights and options under all such Contracts and other rights, agreements and documents referred to in this Section 8.2(a) only as reasonably directed by Western Union and at Western Union’s expense. If and when any such consent, approval or amendment shall be obtained or such Contract or other right or agreement shall otherwise become transferable or assignable or be able to be novated, the First Data Parties shall promptly assign or transfer and novate (to the extent permissible) all of their rights and obligations thereunder to the applicable Western Union Party without payment of further consideration, and the Western Union Party shall, without the payment of any further consideration therefor, assume such rights and obligations. To the extent that the transfer or assignment of any Contract or other right (or the proceeds thereof) pursuant to this Section 8.2(a) is prohibited by law or the terms thereof, this Section 8.2(a) shall operate to create a subcontract with the applicable Western Union Party to perform each relevant Contract or other right, agreement or document at a subcontract price equal to the monies, rights and other considerations received by the First Data Parties with respect to the performance by such Western Union Party.
(b) If and to the extent that any Western Union Party is unable to obtain any consent, approval or amendment necessary for the transfer or assignment to any First Data Party of any Contract or other rights relating to the First Data Business that would otherwise be transferred or assigned to such First Data Party as contemplated by this Agreement or any other agreement or document contemplated hereby, (i) such Western Union Party shall continue to be bound thereby and the purported transfer or assignment to such First Data Party shall automatically be deemed deferred until such time as all legal impediments are removed and all necessary consents have been obtained and (ii) unless not permitted by the terms thereof or by law, the First Data Parties shall pay, perform and discharge fully all of the obligations of the Western Union Parties thereunder from and after the Distribution, or such earlier time as such transfer or assignment would otherwise have taken place, and indemnify the Western Union Parties for all indemnifiable Losses arising out of such performance by such First Data Party. The Western Union Parties shall, without further consideration therefor, pay and remit to the applicable First Data Party promptly all monies, rights and other considerations received in respect of such performance. The Western Union Parties shall exercise or exploit their rights and options under all such Contracts and other rights, agreements and documents referred to in this Section 8.2(b) only as reasonably directed by First Data and at First Data’s expense. If and when any such consent, approval or amendment shall be obtained or such Contract or other right or agreement shall otherwise become transferable or assignable or be able to be novated, the Western Union
 
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Parties shall promptly assign or transfer and novate (to the extent permissible) all of their rights and obligations thereunder to the applicable First Data Party without payment of further consideration, and the First Data Party shall, without the payment of any further consideration therefor, assume such rights and obligations. To the extent that the transfer or assignment of any Contract or other right (or the proceeds thereof) pursuant to this Section 8.2(b) is prohibited by law or the terms thereof, this Section 8.2(b) shall operate to create a subcontract with the applicable First Data Party to perform each relevant Contract or other right, agreement or document at a subcontract price equal to the monies, rights and other considerations received by the Western Union Parties with respect to the performance by such First Data Party.
SECTION 8.3 Further Assurances . (a) Each Party shall use its commercially reasonable efforts, after the Distribution Date, to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary or advisable under applicable laws to consummate or make effective the transactions contemplated by this Agreement; provided , however , that no First Data Party or Western Union Party shall be obligated under this Section 8.3(a) to pay any consideration, grant any concession or incur any Liability to any third Person.
(b) If, as a result of mistake or oversight, any asset or Contract reasonably necessary to the conduct of the Western Union Business is not transferred to the applicable Western Union Party, or any asset or Contract reasonably necessary to the conduct of the First Data Business is not transferred to the applicable First Data Party or is transferred to any Western Union Party, the Parties intend that such asset or Contract shall be transferred to the Party which requires such asset or Contract for the conduct of its business without the payment of any additional consideration (to the extent such asset or Contract is transferred on or prior to the one year anniversary of the Distribution Date), and First Data and Western Union shall negotiate in good faith after the Distribution to determine whether, notwithstanding such intent, such asset or Contract should not be transferred to a Western Union Party or to a First Data Party, as the case may be, and/or the terms and conditions upon which such asset or Contract shall be made available to a Western Union Party or to a First Data Party, as the case may be. Unless expressly provided to the contrary in this Agreement or any Operating Agreement, if, as a result of mistake or oversight, any Western Union Liability is retained or assumed by any First Data Party, or any First Data Liability is retained or assumed by any Western Union Party, the Parties intend that such Liability shall be transferred to the Party with respect to which such Liability relates without the payment of any additional consideration (to the extent such Liability is transferred on or prior to the one year anniversary of the Distribution Date), and First Data and Western Union shall negotiate in good faith after the Distribution to determine whether, notwithstanding such intent, such Liability should not be transferred to a Western Union Party or a First Data Party, as the case may be, and/or the terms and conditions upon which any such Liability shall be transferred. Notwithstanding anything to the contrary in this Section 8.3(b) , no First Data Party or Western Union Party shall be obligated under this Section 8.3(b) to pay any consideration, grant any concession or incur any Liability to any third Person other than the Liability to be transferred.
SECTION 8.4 Receipt of Misdirected Assets . In the event that at any time and from time to time after the Effective Time, any First Data Party shall receive from a Third Party an asset of the Western Union Business (including any remittances from account debtors in respect of the Western Union Business), such Party shall promptly transfer such asset to the appropriate
 
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Western Union Party. In the event that at any time and from time to time after the Effective Time, any Western Union Party shall receive from a Third Party an asset of the First Data Business (including any remittances from account debtors in respect of the First Data Business), such Party shall promptly transfer such asset to the appropriate First Data Party. Each Party shall cooperate with the other Party and use its commercially reasonable efforts to set up procedures and notifications as are reasonably necessary or advisable to effectuate the transfers contemplated by this Section 8.4 .
SECTION 8.5 Late Payments . Except as expressly provided to the contrary in this Agreement or in any Operating Agreement, any amount not paid when due pursuant to this Agreement or any Operating Agreement (and any amounts billed or otherwise invoiced or demanded in writing and properly payable that are not paid within 30 days of the date of such bill, invoice or other written demand) shall accrue interest at a rate per annum equal to the Prime Rate plus 2%.
SECTION 8.6 Certain Business Matters . (a) First Data represents that as of the date hereof, First Data management does not currently intend for First Data to re-enter the consumer money transfer business as conducted by Western Union as of the Effective Date.
(b) Notwithstanding Section 8.6(a) , following the Effective Time and except as otherwise set forth in any Operating Agreement (excluding Section 8.6(a) hereof), either Party may (i) engage in the same or similar activities or lines of business as the other Party is or in the future may be engaged in and/or (ii) do business, or refrain from doing business, with any potential or actual supplier or customer of the other Party
(c) Each Party agrees that, for a period of six months from the Distribution Date, such Party (a “ Soliciting Party” ) will not solicit for employment any employee of the other Party (a “ Protected Party ” ), provided , however , that it is understood that this employee non-solicitation provision shall not prohibit: (i) generalized solicitations by advertising and the like, which are not directed to specific individuals or employees of the Protected Party; (ii) solicitations of persons whose employment was terminated by the Protected Party; or (iii) solicitations of persons who have terminated their employment with the Protected Party without any prior solicitation by the Soliciting Party, and, provided further , that the restrictions on solicitation set forth in this Section 8.6(c) shall not apply to any Merchant Alliance.
SECTION 8.7 Litigation . (a) As of the Distribution, the Western Union Parties shall assume and thereafter, except as provided in Article XII , be responsible for all Liabilities that may result from the Assumed Actions and all fees and costs relating to the defense of the Assumed Actions, including attorneys’ fees and costs incurred after the Distribution. “ Assumed Actions ” means those Actions (in which any First Data Party or any Affiliate of a First Data Party, other than any Western Union Party, is a defendant or the Party against whom the claim or investigation is directed) primarily relating to the Western Union Business.
(b) The First Data Parties shall transfer the Transferred Actions to Western Union, and Western Union shall receive and have the benefit of all of the proceeds of such Transferred Actions. “ Transferred Actions ” means those Actions (in which any First Data Party or any of its Affiliates is a plaintiff or claimant) primarily relating to the Western Union Business,
 
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including those listed on Schedule 8.7(B) pursuant to the Transferred Action Assignment and Assumption Agreement.
(c) (i) First Data agrees that at all times from and after the Distribution if an Action relating primarily to the First Data Business is commenced by a Third Party naming both First Data and Western Union as defendants thereto, then First Data shall use its commercially reasonable efforts to cause Western Union to be removed from such Action; provided that if First Data is unable to cause Western Union to be removed from such Action, First Data and Western Union shall cooperate and consult to the extent necessary or advisable with respect to such Action.
(ii) Western Union agrees that at all times from and after the Effective Time if an Action relating primarily to the Western Union Business is commenced by a Third Party naming both First Data and Western Union as defendants thereto, then Western Union shall use its commercially reasonable efforts to cause First Data to be removed from such Action; provided that if Western Union is unable to cause First Data to be removed from such Action, First Data and Western Union shall cooperate and consult to the extent necessary or advisable with respect to such Action.
(iii) First Data and Western Union agree that at all times from and after the Distribution if an Action which does not relate primarily to the Western Union Business or the First Data Business is commenced by a Third Party naming both First Data and Western Union as defendants thereto, then First Data and Western Union shall cooperate and consult to the extent necessary or advisable with respect to such Action.
(iv) Without limiting the generality of the foregoing, with respect to the Actions identified on Schedule 8.7(C) , First Data shall have the right to negotiate, settle and compromise such Actions on behalf of both all First Data Parties and all Western Union Parties, provided that, except to the extent First Data settles and compromises such Actions within the scope of the authorization set forth in Schedule 8.7(C) , First Data shall not settle or compromise such Actions with respect to the portion of such Actions which would constitute a Western Union Liability without the written consent of Western Union. Western Union agrees to reimburse First Data for its proportionate share of First Data’s Out-of-Pocket Expenses incurred in connection with such Actions, determined by dividing the amount of Western Union Liability with respect to such Actions by the sum of the amount of First Data Liability and Western Union Liability arising from such Actions.
SECTION 8.8 Signs; Use of Company Name . (a) Except as provided in the Operating Agreements, on or prior to 180 days after Distribution Date, the Parties hereto, at the expense of the Party which owns the tangible assets, shall remove (or, if necessary, on an interim basis cover up) any and all exterior and interior signs and identifiers on assets or properties owned or held by the Western Union Parties that refer or pertain to any First Data Party or the First Data Business, or on assets or properties owned or held by the First Data Parties that refer or pertain to any Western Union Party or the Western Union Business. Western Union hereby grants to the First Data Parties and First Data hereby grants to the Western Union Parties for a period of 180 days following the Distribution Date, a non-exclusive, non-transferable, fully-paid and royalty-free license to use their respective corporate names (the “ Marks” ) on stationery and signage used
 
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in their respective businesses as of the Effective Time. Notwithstanding the foregoing, First Data and Western Union shall use reasonable efforts to change all references to the other Party’s Marks as soon as practicable following the Effective Time.
(b) Except as provided in the Operating Agreements, after 180 days following the Effective Time, (i) without the prior written consent of First Data, the Western Union Parties shall not use or display the name First Data, or any variations thereof, or other trademarks, any trade names, logos or identifiers using any of such names or otherwise owned by or licensed to any First Data Party that have not been assigned or licensed to a Western Union Party, and (ii) without the prior written consent of Western Union, the First Data Parties shall not use or display the name Western Union or any variations thereof, or other trademarks, trade names, logos or identifiers using any of such names or otherwise owned by or licensed to any Western Union Party that have not been assigned or licensed to a First Data Party; provided, however, that notwithstanding the foregoing, nothing contained in this Agreement shall prevent either Party hereto from using the other’s name in public filings with Governmental Authorities, materials intended for distribution to either Party’s stockholders or any other communication in any medium that describes the relationship between the Parties, including materials distributed to employees relating to the transition of employee benefit plans; and, provided further, that the continuation of references to the Marks in telephone directories (and other similar third Party or incidental uses which are not capable of being updated within the time period set forth above) for a period not to exceed one year following the Effective Time shall not be deemed a breach of this Section 8.8 .
SECTION 8.9 Stock Options Registration Statement . Western Union shall prepare and file with the SEC such amendments and supplements to the Stock Options Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Stock Options Registration Statement effective under the Securities Act for a period of not less than ten (10) years following the Distribution Date, provided that, Western Union’s obligations pursuant to this Section 8.9 shall terminate on the date upon which there are no further securities covered thereby which may be issued pursuant to the terms of the applicable stock option agreements.
ARTICLE IX
CONDITIONS TO THE DISTRIBUTION
SECTION 9.1 Conditions to the Distribution . The obligation of First Data to effect the Distribution is subject to the satisfaction or the waiver by First Data, in its sole and absolute discretion, of each of the following conditions:
(a) Approval by the First Data Board of Directors . This Agreement and the transactions contemplated hereby, including the declaration of the Distribution, shall have been duly approved by the Board of Directors of First Data in accordance with applicable law and the Second Amended and Restated Certificate of Incorporation and By-laws of First Data.
(b) Receipt of IRS Private Letter Ruling and Opinion . First Data shall have received (i) a private letter ruling from the IRS (which shall not have been revoked or modified in any material respect) in form and substance satisfactory to First Data, to the effect that, among other
 
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things, the Contribution followed by the Distribution, taken together, will be tax-free to First Data, Western Union and holders of First Data Common Stock for United States federal income tax purposes under Sections 355, 368 and related provisions of the Code and (ii) with respect to certain requirements necessary to obtain tax-free treatment under Section 355 of the Code on which the IRS will not rule, an opinion of Sidley Austin LLP (or other nationally recognized tax counsel), in form and substance satisfactory to First Data, to the effect that such requirements will be satisfied.
(c) Receipt of Solvency Conveyance Opinion . An independent firm acceptable to First Data, in its sole and absolute discretion, shall have delivered one or more opinions to the Board of Directors of each of First Data and Western Union confirming the solvency and financial viability of Western Union and First Data, which opinions shall be in form and substance satisfactory to First Data, in its sole and absolute discretion, and shall not have been withdrawn or rescinded.
(d) State and Foreign Securities and “Blue Sky” Laws Approvals . First Data and Western Union shall have received all permits, registrations and consents required under the securities or “blue sky” laws of states or other political subdivisions of the United States or of foreign jurisdictions in connection with the Distribution.
(e) SEC Filings and Approvals . The Parties shall have prepared and Western Union shall, to the extent required under applicable law, have filed with the SEC any such documentation that First Data determines, in its sole and absolute discretion, is necessary or desirable to effectuate the Distribution and the other transactions contemplated by this Agreement and the Operating Agreements, and each Party shall have obtained all necessary approvals from the SEC.
(f) Effectiveness of Registration Statements; No Stop Order . The SEC shall have declared effective the Form 10 Registration Statement and the Stock Options Registration Statement, and no stop order suspending the effectiveness of the Form 10 Registration Statement and the Stock Options Registration Statement shall be in effect or, to the knowledge of either First Data or Western Union, threatened by the SEC.
(g) Permits . First Data and Western Union shall have received all material Governmental Approvals and Consents and all material permits, registrations, clearances and consents from Third Parties, in each case, necessary to effect the Distribution and permit the operation of the Western Union Business thereafter.
(h) Dissemination of Information to First Data Stockholders . Prior to the Distribution, the Parties shall have prepared and mailed to the holders of record of First Data Common Stock such information concerning Western Union, its business, operations and management, the Distribution and such other matters as First Data shall determine in its sole and absolute discretion and as may otherwise be required by law.
(i) Approval of NYSE Listing Application . The NYSE shall have approved the Western Union Common Stock for listing, subject to official notice of issuance.
 
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(j) Resignations . Prior to the Distribution, all of First Data’s representatives or designees shall have resigned or been removed as officers and directors from all Western Union Parties and such Western Union Parties’ Boards of Directors or similar governing bodies, and all of Western Union’s representatives or designees shall have resigned or been removed as officers and directors from all First Data Parties and such First Data Parties’ Boards of Directors or similar governing bodies.
(k) Consents . First Data and Western Union shall have received all Governmental Approvals and Consents and all Third Party Consents necessary to effect the Contribution and the Distribution and to permit the operation of the Western Union Business after the Distribution Date.
(l) No Legal Restraint . No order, injunction or decree issued by any court of competent jurisdiction or other legal restraint or prohibition preventing consummation of the Distribution or any of the transactions related thereto, including the Contribution, shall be in effect.
(m) Consummation of Pre-Distribution Transactions . The pre-Distribution transactions contemplated by Articles II and III , including the execution and delivery of the Operating Agreements, shall have been consummated.
(n) Credit Ratings . First Data and Western Union shall have each received credit ratings from the credit rating agencies that are satisfactory to First Data in its sole and absolute discretion.
(o) Exchange Agreement . All of the conditions under the Exchange Agreement shall have been satisfied (other than the condition that the Distribution has occurred and other than those conditions which can only be satisfied at the consummation of the Debt Exchange).
(p) No Other Events . No other events or developments shall have occurred that, in the judgment of the Board of Directors of First Data, in its sole and absolute discretion, would result in the Contribution or the Distribution having a material adverse effect on First Data or its stockholders.
SECTION 9.2 First Data Right Not to Close or to Terminate . The satisfaction of the foregoing conditions are for the sole benefit of First Data and shall not give rise to or create any duty on the part of First Data or the Board of Directors of First Data to waive or not waive any such condition or to effect the Distribution, or in any way limit First Data’s power of termination set forth in Section 15.13 .
ARTICLE X
INSURANCE MATTERS
SECTION 10.1 Insurance Prior to the Distribution Date . Except as may otherwise be expressly provided in this Article X , Western Union does hereby agree, for itself and on behalf of the Western Union Parties, that the First Data Parties shall not have any Liability whatsoever as a result of the insurance policies, insurance contracts and claim administration contracts and practices related to the foregoing of the First Data Parties in effect at any time prior
 
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to the Effective Time, including as a result of the level or scope of any such insurance policies, insurance contracts, claim administration contracts, the creditworthiness of any insurance carrier, the terms and conditions of any policy or contract and the adequacy or timeliness of any notice to any insurance carrier or claims administrator with respect to any actual claim or potential claim or otherwise.
SECTION 10.2 Ownership of Existing Policies and Programs . First Data or one or more of the other First Data Parties shall continue to own all insurance policies, insurance contracts and claim administration contracts of any kind of any First Data Party which were or are in effect at any time at or prior to the Effective Time (other than insurance policies, insurance contracts and claim administration contracts established in contemplation of the Distribution to cover only the Western Union Parties after the Effective Time), including general liability (whether primary, excess or umbrella), fiduciary liability, automobile, aircraft hull and liability, all risk property (including business interruption) and casualty, directors and officers liability, employer’s liability, workers’ compensation, comprehensive crime, errors and omissions and property/boiler and machinery insurance policies, together with all rights, benefits and privileges thereunder (collectively, the “ First Data Policies ”). Subject to the provisions of this Agreement, (a) the First Data Parties shall retain all of their respective rights, benefits and privileges, if any, under the First Data Policies and (b) coverage of the Western Union Parties under the First Data Policies shall cease as of the Effective Time. Nothing contained herein shall be construed to be an attempted assignment of or a change to any part of the ownership of the First Data Policies.
SECTION 10.3 Maintenance of Insurance for Western Union . Until the Effective Time, First Data shall maintain in full force and effect the First Data Policies to the extent that such policies apply to the Western Union Business.
SECTION 10.4 Acquisition and Maintenance of Post-Distribution Insurance by Western Union . Commencing on and as of the Distribution Date, Western Union shall be responsible for establishing and maintaining separate property damage and business interruption and liability insurance policies and programs (including general liability (whether primary, excess or umbrella), fiduciary liability, automobile, aircraft hull and liability, all risk property (including business interruption) and casualty, directors and officers liability, employer’s liability, workers’ compensation, comprehensive crime, errors and omissions and property/boiler and machinery insurance policies) for activities and claims involving any Western Union Party or any of their Affiliates, in each case with commercially reasonable limits and deductibles or self-insured retentions. Each of the Western Union Parties and each of their Affiliates, as appropriate, shall be responsible for all administrative and financial matters relating to insurance policies established and maintained by the Western Union Parties and each of their Affiliates for claims relating to any period at or after the Effective Time involving any Western Union Party or any of its Affiliates.
SECTION 10.5 Rights Under Shared Policies . (a) At and after the Effective Time: (i) Western Union will have the right to assert claims (and First Data will use commercially reasonable efforts to assist Western Union in asserting claims if so requested by Western Union in writing) for any Losses with respect to the Western Union Business and the Transferred Business Assets under First Data Policies that include any Western Union Party and/or any or all of the Western Union Business within the definition of the named insured, additional named
 
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insured, additional insured or insured (excluding, for the avoidance of doubt, any group health and welfare insurance policies) (“ Shared Policies ”) with Third Party insurers that are “occurrence based” insurance policies (“ Occurrence Based Policies ”) arising out of insured occurrences occurring from the date coverage thereunder first commenced until the Effective Time to the extent that the terms and conditions of any such Occurrence Based Policies and agreements relating thereto so allow; (ii) Western Union will have the right to continue to prosecute claims with respect to the Western Union Business properly asserted under Occurrence Based Policies prior to the Effective Time to the extent that the terms and conditions of any such Occurrence Based Policies and agreements relating thereto so allow (and First Data will use commercially reasonable efforts to assist Western Union in asserting claims if so requested by Western Union in writing); and (iii) Western Union will have the right to assert and/or continue to prosecute claims with respect to the Western Union Business and the Transferred Business Assets (and First Data will use commercially reasonable efforts to assist Western Union in asserting claims if so requested by Western Union in writing) under Shared Policies with Third Party insurers that are made under liability insurance policies written on a “claims made” basis (“ Claims Made Policies ”) arising out of insured incidents occurring from the date coverage thereunder first commenced until the Effective Time to the extent that the terms and conditions of any such Claims Made Policies and agreements relating thereto so allow; provided, that in the case of clauses (i) , (ii)  and (iii) , (A) all of the First Data Parties’ reasonable Out-of-Pocket Expenses incurred in connection with their efforts to assist Western Union in asserting or continuing to prosecute the claims described above are promptly paid by Western Union following receipt of an invoice for such expenses, (B) subject to Section 10.5(b) , the First Data Parties may, at any time, without liability or obligation to the Western Union Parties, amend, commute, terminate, buy-out, extinguish liability under or otherwise modify any Shared Policies (and such claims shall be subject to any such amendments, commutations, terminations, buy-outs, extinguishments and modifications), (C) such claims will be subject to (and recovery thereon will be reduced by the amount of) any applicable deductibles, retentions or self-insurance provisions, and, with respect to any such deductibles, retentions or self-insurance provisions which require a payment by a First Data Party or any Affiliate of a First Data Party in respect thereof, Western Union shall reimburse such First Data Party or Affiliate for such payment, (D) Western Union shall be responsible for and shall pay any claims handling expenses or residual Liability arising from such claims and (E) such claims will be subject to exhaustion of existing sublimits and aggregate limits as provided in Section 10.5(b) . First Data’s obligation to use commercially reasonable efforts to assist Western Union in asserting claims under applicable Shared Policies will include using commercially reasonable efforts to assist Western Union to establish its right to coverage under such Shared Policies (so long as all of the First Data Parties’ Out-of-Pocket Expenses in connection therewith are promptly paid by Western Union). No First Data Party will bear any Liability for the failure of an insurer to pay any claim under any Shared Policy. It is understood that any Claims Made Policies may not provide any coverage to the Western Union Parties for incidents occurring prior to the Effective Time but that are asserted with the insurance carrier after the Effective Time.
(b) In the event that after the Effective Time First Data proposes to amend, commute, terminate, buy-out, extinguish liability under or otherwise modify any Shared Policies under which Western Union has or may in the future have rights to assert claims pursuant to this Article X in a manner that would adversely affect any such rights of Western Union, (i) First Data will give Western Union prior notice thereof and consult with Western Union with respect
 
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to such action, (ii) First Data will not take such action without the prior written consent of Western Union, such consent not to be unreasonably withheld, and (iii) First Data will pay to Western Union its equitable share (which shall be mutually agreed upon by First Data and Western Union, acting reasonably), if any, of any net proceeds actually received by First Data from the insurer under the applicable Shared Policy as a result of such action by First Data (after deducting First Data’s reasonable costs and expenses incurred in connection with such action).
(c) To the extent that the limits of any Shared Policy preclude payment in full of Unrelated Claims filed by First Data and Western Union, the insurance proceeds available under such Shared Policy shall be paid to First Data and/or Western Union on a FIFO Basis. In the event that First Data and Western Union file Related Claims under any Shared Policy, each of First Data and Western Union shall receive a pro rata amount of the available insurance proceeds, based on the relationship the Loss incurred by each such Party bears to the total Loss to both such Parties from the occurrence or event underlying the Related Claims.
SECTION 10.6 Administration and Reserves . (a) From and after the Effective Time, the First Data Parties will be responsible for the Claims Administration with respect to claims of the First Data Parties under Shared Policies.
(b) From and after the Effective Time, the Western Union Parties will be responsible for the Claims Administration with respect to claims of the Western Union Parties under Shared Policies, and First Data shall provide appropriate instructions to the applicable insurance brokers under the Shared Policies to facilitate Claims Administration by Western Union.
(c) Any reserves of the First Data Parties with respect to the Western Union Business shall be transferred to Western Union by such First Data Parties on or prior to the Effective Time.
SECTION 10.7 Insurance Premiums . From and after the Effective Time, First Data will pay all premiums, taxes, assessments or similar charges (retrospectively-rated or otherwise) as required under the terms and conditions of the respective Shared Policies in respect of periods of coverage prior to the Effective Time, whereupon Western Union will upon the request of First Data promptly reimburse First Data for that portion of such additional premiums and other payments paid by First Data as are reasonably determined by First Data to be attributable to the Western Union Business. Notwithstanding the foregoing, to the extent that Western Union has previously paid a premium (or has been allocated a portion of a premium by First Data) or satisfied a deductible amount under a Shared Policy, Western Union shall not be required to pay such premium pursuant to the foregoing sentence or satisfy such deductible again if Western Union makes a claim under such Shared Policy in accordance with this Article X .
SECTION 10.8 Agreement for Waiver of Conflict and Shared Defense . In the event that a Shared Policy provides coverage for both a First Data Party, on the one hand, and a Western Union Party, on the other hand, relating to the same occurrence, First Data and Western Union agree to defend jointly, provided that in the event there is a conflict of interest which in the reasonable opinion of either Party would otherwise prevent the conduct of that joint defense, the Parties shall cooperate to pursue coverage under such Shared Policy pursuant to appropriate arrangements (which may require separate counsel) as permitted by such Shared Policy. Nothing
 
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in this Section 10.8 will be construed to limit or otherwise alter in any way the indemnity obligations of the Parties, including those created by this Agreement, by operation of law or otherwise.
SECTION 10.9 Duty to Mitigate Settlements . To the extent that any Party is responsible for the Claims Administration for any claims under any Shared Policies after the Effective Time, such Party shall use its commercially reasonable efforts to mitigate the amount of any settlements of such claims.
SECTION 10.10 Non-Waiver of Rights to Coverage . An insurance carrier that would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the provisions of this Article X, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurance carrier or any third Party shall be entitled to a benefit (i.e., a benefit such Person would not be entitled to receive had the Distribution not occurred or in the absence of the provisions of this Article X ) by virtue of the provisions hereof.
ARTICLE XI
EXPENSES
SECTION 11.1 Expenses Incurred On or Prior To the Distribution Date . Except as otherwise provided in this Agreement, any Operating Agreement or any other agreement contemplated hereby, or as otherwise agreed to in writing by the Parties hereto, each of First Data and Western Union shall pay all Third Party fees, costs and expenses paid or incurred by it (including those fees, costs and expenses identified on Schedule 11.1(A) ) in connection with the preparation, execution, delivery and implementation of this Agreement, any Operating Agreement, any other agreement contemplated hereby, the Form 10 Registration Statement, the Stock Options Registration Statement and the Distribution and the consummation of the transactions contemplated hereby and thereby (“ Separation Costs ”); provided , however , that First Data will pay all non-recurring Third Party fees, costs and expenses in connection with the foregoing incurred on or prior to the Distribution Date that First Data deems necessary to effect the Distribution (including those Separation Costs identified on Schedule 11.1(B) ) and Western Union will pay all non-recurring Third Party fees, costs and expenses in connection with the foregoing incurred prior to the Distribution that are expected to benefit Western Union following the Distribution in the ordinary course of business (including those Separation Costs identified on Schedule 11.1(C) ).
SECTION 11.2 Expenses Incurred or Accrued After the Distribution Date . Except as otherwise provided in this Agreement, any Operating Agreement or any other agreement contemplated hereby, or as otherwise agreed to in writing by the Parties hereto, First Data and Western Union shall each bear its own costs and expenses incurred after the Distribution Date.
 
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ARTICLE XII
INDEMNIFICATION
SECTION 12.1 Release of Pre-Distribution Claims .
(a) Except as provided in Section 12.1(b) , effective as of the Distribution Date, each Party hereto does hereby, on behalf of itself and its successors and assigns, release and forever discharge the other Party and such other Party’s respective successors and assigns and all Persons who at any time prior to the Distribution Date have been directors, officers or employees of such other Party (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all demands, Actions and Liabilities whatsoever, whether at law or in equity (including any right of contribution), whether arising under any Contract or agreement, by operation of law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Date, including in connection with the transactions and all other activities to implement the Distribution.
(b) Nothing contained in Section 12.1(a) shall impair any right of any Person identified in Section 12.1(a) to enforce this Agreement, any Transaction Agreement or any Employee Contract. Nothing contained in Section 12.1(a) shall release or discharge any Person from:
(i) any Liability or obligation provided in or resulting from any Merchant Alliance Agreement to the extent set forth therein;
(ii) any Liability, contingent or otherwise, assumed, transferred, assigned, retained or allocated to that Person in accordance with, or any other Liability of that Person under, this Agreement or any of the Transaction Agreements;
(iii) any Liability that any Party may have with respect to indemnification or contribution pursuant to this Agreement for claims brought against the Parties or their respective Subsidiaries or Affiliates by Third Parties, which Liability shall be governed by the provisions of this Article XII ;
(iv) any Liability that any Party may have with respect to indemnification or contribution pursuant to any of the Operating Agreements for claims brought against the Parties or their respective Subsidiaries or Affiliates by Third Parties, which Liability shall be governed by the provisions of the appropriate provisions of the Operating Agreements;
(v) any Liability the release of which would result in the release of any Person other than a First Data Party or a Western Union Party or their respective directors, officers and employees; provided , however , that the Parties hereto agree not to bring suit against the other Party or any of their respective directors, officers and employees with respect to any such Liability;
(vi) any Liability or obligation provided in or resulting from any Employee Contract; or
 
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(vii) any Liability or obligation between a Western Union Party and a Merchant Alliance.
In addition, nothing contained in Section 12.2(a) shall release any Party from honoring its existing obligations to indemnify any Person who was a director, officer or employee of such Party, at or prior to the Effective Time, to the extent such Person becomes a named defendant in any Action involving such Party, and was entitled to such indemnification pursuant to then existing obligations; provided , however , that to the extent applicable, Sections 12.2 and 12.3 hereof shall determine whether any Party shall be required to indemnify the other in respect of such Liability.
(c) No Party hereto shall make, nor permit any Affiliates to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against the other Party, or any other Person released pursuant to Section 12.1(a) , with respect to any Liability released pursuant to Section 12.1(a) .
(d) It is the intent of each of the Parties hereto by virtue of the provisions of this Section 12.1 to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Distribution Date between the First Data Parties and the Western Union Parties (including any contractual agreements or arrangements existing or alleged to exist between the Parties on or before the Distribution Date), except as expressly set forth in Section 12.1(b) . At any time, at the reasonable request of either Party, the other Party hereto shall execute and deliver releases reflecting the provisions hereof.
SECTION 12.2 Indemnification by Western Union . Except as provided in Section 12.5 , as expressly provided in the Operating Agreements or as provided in Schedule 12.2 , Western Union shall indemnify, defend and hold harmless the First Data Parties (for so long as such Person is a First Data Party) and each of their Affiliates (for so long as such Person is an Affiliate of a First Data Party), directors, officers, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ First Data Indemnified Parties ”), from and against any and all Expenses or Losses incurred or suffered by one or more of the First Data Indemnified Parties in connection with, relating to, arising out of or due to, directly or indirectly, any of the following items:
(a) the failure by any Western Union Party or any other Person to pay, perform or otherwise promptly discharge any Western Union Liability;
(b) any Western Union Liability;
(c) the Western Union Business as conducted (regardless of whether by First Data and its Subsidiaries, including the Western Union Parties, or another Person) on, at any time prior to or at any time after the Distribution Date;
(d) except to the extent provided in Section 12.3(d) , any claim that the information included in the Form 10 Registration Statement or the Information Statement is or was false or misleading with respect to any material fact or omits or omitted to state any material fact
 
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required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) except to the extent provided in Section 12.3(e) , any claim that the information included in the Note Offering Memorandum is or was false or misleading with respect to any material fact or omits or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) except to the extent provided in Section 12.3(f) , any claim that the information included in the Stock Options Registration Statement or the prospectus forming a part thereof is or was false or misleading with respect to any material fact or omits or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) the use by any Western Union Party after the Effective Time of the name First Data or any variation thereof, or other trademarks, trade names, logos or identifiers using any of such names or otherwise owned by or licensed to any First Data Party;
(h) the breach by any Western Union Party of any covenant or agreement set forth in this Agreement or any Conveyancing Instrument;
(i) any item or matter for which reimbursement or indemnification is to be provided by Western Union in accordance with Section 7.04 of the Employee Matters Agreement; and
(j) any Western Union Financial Instrument,
in each case, regardless of when or where the loss, claim, accident, occurrence, event or happening giving rise to the Expense or Loss took place, or whether any such loss, claim, accident, occurrence, event or happening is known or unknown, or reported or unreported and regardless of whether such loss, claim, accident, occurrence, event or happening giving rise to the Expense or Loss existed prior to, on or after the Distribution Date or relates to, arises out of or results from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to, on or after the Distribution Date.
SECTION 12.3 Indemnification by First Data . Except as provided in Section 12.5 and except as expressly provided in the Operating Agreements or as provided in Schedule 12.3 , First Data shall indemnify, defend and hold harmless the Western Union Parties (for so long as such Person is a Western Union Party) and each of their Affiliates (for so long as such Person is an Affiliate of a Western Union Party), directors, officers, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ Western Union Indemnified Parties ”), from and against any and all Expenses or Losses incurred or suffered by one or more of the Western Union Indemnified Parties in connection with, relating to, arising out of or due to, directly or indirectly, any of the following items:
(a) the failure by any First Data Party or any other Person to pay, perform or otherwise promptly discharge any First Data Liability;
 
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(b) any First Data Liability;
(c) the First Data Business as conducted (regardless of whether by First Data and its Subsidiaries, including the Western Union Parties, or another Person) on, at any time prior to or at any time after the Distribution Date;
(d) solely with respect to the information contained in the Form 10 Registration Statement or the Information Statement that is set forth on Schedule 12.3(D) (and to the extent provided therein), any claim that the information included in the Form 10 Registration Statement or the Information Statement is or was false or misleading with respect to any material fact or omits or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) solely with respect to the information contained in the Note Offering Memorandum that is set forth on Schedule 12.3(E) , any claim that the information included in the Note Offering Memorandum is or was false or misleading with respect to any material fact or omits or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) solely respect to the information contained in the Stock Options Registration Statement or the prospectus forming a part thereof that is set forth on Schedule 12.3(F) , any claim that the information included in the Stock Options Registration Statement or the prospectus forming a part thereof is or was false or misleading with respect to any material fact or omits or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) the use by any First Data Party after the Effective Time of the name Western Union or any variation thereof, or other trademarks, trade names, logos or identifiers using any of such names or otherwise owned by or licensed to any Western Union Party;
(h) the breach by any First Data Party of any covenant or agreement set forth in this Agreement or any Conveyancing Instrument;
(i) any item or matter for which reimbursement or indemnification is to be provided by First Data in accordance with Section 7.04 of the Employee Matters Agreement; and
(j) any First Data Financial Instrument,
in each case, regardless of when or where the loss, claim, accident, occurrence, event or happening giving rise to the Expense or Loss took place, or whether any such loss, claim, accident, occurrence, event or happening is known or unknown, or reported or unreported and regardless of whether such loss, claim, accident, occurrence, event or happening giving rise to the Expense or Loss existed prior to, on or after the Distribution Date or relates to, arises out of or results from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to, on or after the Distribution Date.
 
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SECTION 12.4 Applicability of and Limitation on Indemnification . Except as expressly provided herein, the indemnity obligation under this Article XII shall apply notwithstanding any investigation made by or on behalf of any Indemnified Party and shall apply without regard to whether the Loss or Expense for which indemnity is claimed hereunder is based on strict liability, absolute liability or any other theory of liability or arises as an obligation for contribution.
SECTION 12.5 Adjustment of Indemnifiable Losses .
(a) The amount that either Party (an “ Indemnifying Party ”) is required to pay to any Person entitled to indemnification hereunder (an “ Indemnified Party ”) shall be reduced by any insurance proceeds and other amounts actually recovered by or on behalf of such Indemnified Party in reduction of the related Expense or Loss. Each of First Data and Western Union shall use its respective reasonable best efforts to collect any proceeds under its respective available and applicable Third Party insurance policies to which it or any of its Subsidiaries is entitled prior to seeking indemnification or contribution under this Agreement, where allowed; provided , however , that any such actions by an Indemnified Party will not relieve the Indemnifying Party of any of its obligations under this Agreement, including the Indemnifying Party’s obligation to pay directly or reimburse the Indemnified Party for costs and expenses actually incurred by the Indemnified Party. If an Indemnified Party receives a payment (an “ Indemnity Payment ”) required by this Agreement from an Indemnifying Party in respect of any Expense or Loss and subsequently actually receives insurance proceeds or other amounts in respect of such Expense or Loss, then such Indemnified Party shall refund to the Indemnifying Party a sum equal to the lesser of (i) the after-tax amount of such insurance proceeds or other amounts actually received and (ii) the net amount of Indemnity Payments actually received previously. The Indemnified Party agrees that the Indemnifying Party shall be subrogated to such Indemnified Party under any insurance policy.
(b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.
(c) Indemnity Payments (i) shall not be increased to take into account any tax costs incurred by the Indemnified Party arising from any Indemnity Payments from the Indemnifying Party and (ii) shall not be reduced to take into account any tax benefit received by the Indemnified Party arising from the incurrence or payment of any Indemnity Payment.
(d) Amounts paid by First Data to or for the benefit of Western Union or by Western Union to or for the benefit of First Data under this Article XII (and under other specified provisions of this Agreement) shall be treated by the Parties, for all applicable tax purposes, as adjustments to the amount of the value of the Western Union Subsidiaries and Transferred Business Assets.
 
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(e) In the event that an Indemnity Payment shall be denominated in a currency other than United States dollars, the amount of such payment shall be translated into United States dollars using the Foreign Exchange Rate for such currency determined in accordance with the following rules:
(i) with respect to an Expense or a Loss arising from payment by a financial institution under a guarantee, comfort letter, letter of credit, foreign exchange contract or similar instrument, the Foreign Exchange Rate for such currency shall be determined as of the date on which such financial institution shall have been reimbursed;
(ii) with respect to an Expense or a Loss covered by insurance, the Foreign Exchange Rate for such currency shall be the Foreign Exchange Rate employed by the insurance company providing such insurance in settling such Expense or Loss with the Indemnifying Party; and
(iii) with respect to an Expense or a Loss not covered by clause (i)  or (ii)  above, the Foreign Exchange Rate for such currency shall be determined as of the date that notice of the claim with respect to such Expense or Loss shall be given to the Indemnified Party.
SECTION 12.6 Procedures for Indemnification of Third Party Claims .
(a) If any Third Party shall make any claim or commence any arbitration proceeding or suit (each such claim, proceeding or suit being a “ Third Party Claim ”) against any one or more of the Indemnified Parties with respect to which an Indemnified Party intends to make any claim for indemnification against Western Union under Section 12.2 or against First Data under Section 12.3 , such Indemnified Party shall promptly, but in no event later than 10 days after receipt by the Indemnified Party of written notice of the Third Party Claim, give written notice to the Indemnifying Party describing such Third Party Claim in reasonable detail. Notwithstanding the foregoing, the failure of any Indemnified Party to provide notice in accordance with this Section 12.6(a) shall not relieve the related Indemnifying Party of its obligations under this Article XII , except to the extent that such Indemnifying Party is actually prejudiced by such failure to provide notice.
(b) The Indemnifying Party shall have 30 days after receipt of the notice referred to in Section 12.6(a) to notify the Indemnified Party that it elects to conduct and control the defense of such Third Party Claim. If the Indemnifying Party does not give the foregoing notice, the Indemnified Party shall have the right to defend, contest, settle or compromise such Third Party Claim in the exercise of its exclusive discretion subject to the provisions of this Section 12.6 , and the Indemnifying Party shall, upon request from any of the Indemnified Parties, promptly pay to such Indemnified Parties in accordance with the other terms of this Section 12.6(b) the amount of any Expense or Loss subject to indemnification hereunder resulting from the Third Party Claim. If the Indemnifying Party gives the foregoing notice, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party, and at its sole expense, the conduct and settlement of such Third Party Claim, and the Indemnified Party shall cooperate with the Indemnifying Party in connection therewith, provided that: (i) the Indemnifying Party shall use its reasonable best efforts to prevent any lien, encumbrance or other adverse charge to thereafter attach to any asset of any Indemnified Party;
 
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(ii) the Indemnifying Party shall use its reasonable best efforts to prevent any injunction against any Indemnified Party; (iii) the Indemnifying Party shall permit the Indemnified Party and any counsel chosen by the Indemnified Party and reasonably acceptable to the Indemnifying Party to monitor such conduct or settlement and shall provide the Indemnified Party and any such counsel with such information regarding such Third Party Claim as either of them may reasonably request (which request may be general or specific), but the fees and expenses of such counsel chosen by the Indemnified Party shall be borne by the Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed that the Indemnifying Party should pay for such counsel or (B) the named parties to any such Third Party Claim include the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel would be inappropriate due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and disbursements of counsel for such Indemnified Party shall be paid or reimbursed by the Indemnifying Party; and (iv) the Indemnifying Party shall agree promptly to reimburse to the extent required under this Article XII the Indemnified Party for the full amount of any Expense or Loss resulting from such Third Party Claim. In no event shall the Indemnifying Party, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim.
If the Indemnifying Party shall not have undertaken the conduct and control of the defense of any Third Party Claim as provided above, the Indemnifying Party shall nevertheless be entitled through counsel chosen by the Indemnifying Party and reasonably acceptable to the Indemnified Party to monitor the conduct or settlement of such claim by the Indemnified Party, and the Indemnified Party shall provide the Indemnifying Party and such counsel with such information regarding such Third Party Claim as either of them may reasonably request (which request may be general or specific), but all costs and expenses incurred in connection with such monitoring shall be borne by the Indemnifying Party.
(c) Subject to Section 12.6(f) , so long as the Indemnifying Party is contesting any such Third Party Claim in its reasonable good faith judgment or is settling such Third Party Claim in accordance with this Section 12.6 , the Indemnified Party shall not pay or settle any such Third Party Claim.
(d) If the Indemnified Party determines in its reasonable good faith judgment that the Indemnifying Party is not contesting such Third Party Claim in good faith or is not settling such Third Party Claim in accordance with this Section 12.6 , the Indemnified Party shall have the right to undertake control of the defense of such Third Party Claim upon five (5) days written notice to the Indemnifying Party and thereafter to defend, contest, settle or compromise such Third Party Claim in the exercise of its exclusive discretion.
(e) If the Indemnified Party shall have undertaken the conduct and control of the defense of any Third Party Claim as provided in (b) or (d) above, the Indemnified Party, on not less than 30 days prior written notice to the Indemnifying Party, may make settlement (including payment in full) of such Third Party Claim, and such settlement shall be binding upon the Parties for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such Third Party Claim at the expense of the
 
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Indemnifying Party. In such event, but subject to Section 12.6(f) , the Indemnified Party shall promptly comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon subject to all of the conditions of Section 12.6(b) .
(f) Notwithstanding the limitations on the Indemnified Party’s right to settle a Third Party Claim pursuant to Section 12.6(c) and Section 12.6(e) , the Indemnified Party shall have the right to pay or settle any Third Party Claim, provided that, in such event the Indemnified Party shall waive any right to indemnity therefor by the Indemnifying Party, and no amount in respect thereof shall be claimed as an Expense or a Loss under this Article XII .
(g) To the extent that, with respect to any claim governed by Article V of the Tax Allocation Agreement, there is any inconsistency between the provisions of such Article and of this Section 12.6 , the provisions of Article V of the Tax Allocation Agreement shall control with respect to such claim.
SECTION 12.7 Procedures for Indemnification of Direct Claims . Any claim for indemnification on account of an Expense or a Loss made directly by the Indemnified Party against the Indemnifying Party and that does not result from a Third Party Claim shall be asserted by written notice from the Indemnified Party to the Indemnifying Party specifically claiming indemnification hereunder. Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to provide indemnification with respect to such claim. If such Indemnifying Party does not respond within such 30-day period or does respond within such 30-day period and rejects such claim in whole or in part, such Indemnified Party shall be free to pursue resolution as provided in Article XIII .
SECTION 12.8 Contribution . If the indemnification provided for in this Article XII is judicially determined to be unavailable (other than in accordance with the terms of this Agreement, in which case this Section 12.8 shall not apply) to an Indemnified Party in respect of any Losses or Expenses referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Expense or Loss in such proportion as is appropriate to reflect the relative fault of the Western Union Indemnified Parties, on the one hand, and the First Data Indemnified Parties, on the other hand, in connection with the conduct, statements or omissions that resulted in such Expense or Loss. The relative fault of any Western Union Indemnified Party, on the one hand, and of any First Data Indemnified Party, on the other hand, in the case of any Expense or Loss arising out of or related to information contained in the Form 10 Registration Statement, the Information Statement, the Note Offering Memorandum, the Stock Options Registration Statement (including the related prospectus) or other securities law filing shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission of a material fact relates to information supplied by the Western Union Business or a Western Union Indemnified Party, on the one hand, or by the First Data Business or a First Data Indemnified Party, on the other hand. The information on Schedules 12.3(D) , 12.3(E) and 12.3(F) shall be deemed supplied by the First Data Business or the First Data Indemnified Parties. All other information in the Form 10
 
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Registration Statement, the Information Statement, the Note Offering Memorandum and the Stock Options Registration Statement (including the related prospectus) shall be deemed supplied by the Western Union Business or the Western Union Indemnified Parties.
SECTION 12.9 Remedies Cumulative . The remedies provided in this Article XII shall be cumulative and, subject to the provisions of Article XII , shall not preclude assertion by an Indemnified Party of any other rights or the seeking of any and all other remedies against any Indemnifying Party.
SECTION 12.10 Survival . All covenants and agreements of the Parties contained in this Agreement relating to indemnification shall survive the Distribution Date indefinitely, unless a specific survival or other applicable period is expressly set forth herein.
ARTICLE XIII
DISPUTE RESOLUTION
SECTION 13.1 Agreement to Arbitrate . Except as otherwise specifically provided herein or in any Transaction Agreement, the procedures for discussion, negotiation and arbitration set forth in this Article XIII shall apply to all disputes, controversies or claims (whether sounding in contract, tort or otherwise) that may arise out of or relate to, or arise under or in connection with this Agreement or any Transaction Agreement. Each Party hereto agrees on behalf of itself and its respective Affiliates that the procedures set forth in this Article XIII shall be the sole and exclusive remedy in connection with any dispute, controversy or claim relating to any of the foregoing matters and irrevocably waives any right to commence any Action in or before any Governmental Authority, except as expressly provided in Section 13.7(b) and except to the extent provided under the Arbitration Act in the case of judicial review of arbitration results or awards. EACH PARTY ON BEHALF OF ITSELF AND ITS RESPECTIVE AFFILIATES IRREVOCABLY WAIVES ANY RIGHT TO ANY TRIAL IN A COURT THAT WOULD OTHERWISE HAVE JURISDICTION OVER ANY CLAIM, CONTROVERSY OR DISPUTE SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 13.1 .
SECTION 13.2 Escalation and Mediation . (a) The Parties hereto agree to use commercially reasonable efforts to resolve expeditiously any dispute, controversy or claim between them with respect to the matters covered hereby that may arise from time to time on a mutually acceptable negotiated basis. In furtherance of the foregoing, either Party involved in a dispute, controversy or claim may deliver a notice (an “ Escalation Notice ” ) demanding an in-person meeting involving representatives of the Parties hereto at a senior level of management of the Parties hereto (or if the Parties hereto agree, of the appropriate strategic business unit or division within each Party). A copy of any such Escalation Notice shall be given to the General Counsel, or like officer, of each Party involved in the dispute, controversy or claim (which copy shall state that it is an Escalation Notice pursuant to this Agreement). Any agenda, location or procedures for such discussions or negotiations between the Parties may be established by the Parties from time to time; provided , however , that the Parties shall use commercially reasonable efforts to meet within 30 days of delivery of the Escalation Notice.
 
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(b) The Parties may retain a mediator to aid the Parties in their discussions and negotiations by informally providing advice to the Parties. Any opinion expressed by the mediator shall be strictly advisory and shall not be binding on the Parties, nor shall any opinion expressed by the mediator be admissible in any arbitration proceeding. The mediator shall be selected by the Party that did not deliver the applicable Escalation Notice from a list of individuals to be supplied to the Parties by JAMS/Endispute. Costs of the mediation shall be borne equally by the Parties involved in the matter, except that each Party shall be responsible for its own expenses. Mediation is a prerequisite to a demand for arbitration under Section 13.3 .
SECTION 13.3 Procedures for Arbitration . (a) At any time after the completion of the mediation required by Section 13.2(b) , either Party involved in the dispute, controversy or claim (regardless of whether such Party delivered the Escalation Notice) may, unless the Applicable Deadline (as hereinafter defined) has occurred, make a written demand (the “ Arbitration Demand Notice ”) that the dispute be resolved by binding arbitration, which Arbitration Demand Notice shall be given to the Parties to the dispute, controversy or claim in the manner set forth in Section 15.9 . If either Party shall deliver an Arbitration Demand Notice to another Party, such other Party may itself deliver an Arbitration Demand Notice to such first Party with respect to any related dispute, controversy or claim with respect to which the Applicable Deadline has not passed without the requirement of delivering an Escalation Notice or engaging in mediation as provided in Section 13.2 . No Party may assert that the failure to resolve any matter during any discussions or negotiations, the course of conduct during the discussions or negotiations or the failure to agree on a mutually acceptable time, agenda, location or procedures for the meeting, in each case, as contemplated by Section 13.2 , is a prerequisite to a demand for arbitration under this Section 13.3 . If either Party delivers an Arbitration Demand Notice with respect to any dispute, controversy or claim that is the subject of any then pending arbitration proceeding or of a previously delivered Arbitration Demand Notice, all such disputes, controversies and claims shall be resolved in the arbitration proceeding for which an Arbitration Demand Notice was first delivered unless the arbitrator(s) in his, her or their sole discretion determine(s) that it is impracticable or otherwise inadvisable to do so.
(b) Except as may be expressly provided in any Operating Agreement, any Arbitration Demand Notice may be given until two years after the later of (i) the occurrence of the act or event giving rise to the underlying claim (it being understood that in the case of a Third Party Claim, such date shall be the date of assertion of the Third Party Claim rather than the act or event underlying the Third Party Claim) and (ii) the date on which such act or event was, or should have been, in the exercise of reasonable due diligence, discovered by the Party asserting the claim (as applicable and as it may in a particular case be specifically extended by the Parties in writing, the “ Applicable Deadline ”). Any discussions, negotiations or mediations between the Parties pursuant to this Agreement or otherwise will not toll the Applicable Deadline unless expressly agreed in writing by the Parties. Each Party agrees on behalf of itself and its respective Subsidiaries and Affiliates that if an Arbitration Demand Notice with respect to a dispute, controversy or claim is not given prior to the expiration of the Applicable Deadline, such dispute, controversy or claim will be barred. Subject to Section 13.7(d) , upon delivery of an Arbitration Demand Notice pursuant to Section 13.3(a) prior to the Applicable Deadline, the dispute, controversy or claim shall be decided by one or more arbitrators in accordance with the rules set forth in this Article XIII .
 
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SECTION 13.4 Selection of Arbitrator(s) . (a) If the amount in dispute is less than $2,000,000, the mediator selected by the provisions set forth in Section 13.2(b) above shall also serve as the sole arbitrator. If the amount in dispute equals or exceeds $2,000,000, the mediator selected by the provisions set forth in Section 13.2(b) shall select a panel of three arbitrators from a list provided by JAMS/Endispute. After selection of such panel of arbitrators, the mediator shall have no further role with respect to the dispute. Any arbitrator selected pursuant to this Section 13.4(a) shall be disinterested with respect to each of the Parties and the matter and shall be reasonably competent in the applicable subject matter.
(b) The arbitrator(s) selected pursuant to Section 13.4(a) will set a time for the hearing of the matter which will commence no later than 90 days after the date of appointment thereof pursuant to Section 13.4(a) , and such hearing will be no longer than 30 days (unless in the judgment of the arbitrator(s), the matter is unusually complex and thereby requires a longer time, in which event such hearing shall be no longer than 90 days). The final decision of such arbitrator(s) will be rendered in writing to the Parties not later than 60 days after the last hearing date, unless otherwise agreed by the Parties in writing. Any judgment or decision of a panel of arbitrators pursuant to this Agreement shall be determined by concurrence of at least two of the three members of the panel of arbitrators appointed hereunder with respect to the applicable dispute.
SECTION 13.5 Hearings . Within the time period specified in Section 13.4(b) , the matter shall be presented to the arbitrator(s) at a hearing by means of written submissions of memoranda and verified witness statements, filed simultaneously, and responses, if necessary in the judgment of the arbitrator(s) or both of the Parties. If the arbitrator(s) deem(s) it to be essential to a fair resolution of the dispute, live cross-examination or direct examination may be permitted, but is not generally contemplated to be necessary. The arbitrator(s) shall actively manage the arbitration with a view to achieving a just, speedy and cost-effective resolution of the dispute, claim or controversy. The arbitrator(s) may, in his, her or their sole discretion, set time and other limits on the presentation of each Party’s case, its memoranda or other submissions, and refuse to receive any proffered evidence that the arbitrator(s), in his, her or their sole discretion, find(s) to be cumulative, unnecessary, irrelevant or of low probative nature. Except as otherwise set forth herein, any arbitration hereunder will be conducted in accordance with the JAMS/Endispute Streamlined Rules for Commercial, Real Estate and Construction Cases then prevailing. The decision of the arbitrator(s) will be final and binding on the Parties, and judgment thereon may be had and will be enforceable in any court having jurisdiction over the Parties. Arbitration awards will bear interest from the date of the award at an annual rate of the Prime Rate plus 2%. To the extent that the provisions of this Agreement and the prevailing rules of JAMS/Endispute conflict, the provisions of this Agreement shall govern.
SECTION 13.6 Discovery and Certain Other Matters . (a) Either Party involved in the applicable dispute, controversy or claim may request limited document production from the other Party of specific and expressly relevant documents, with the reasonable expenses of the producing Party incurred in such production paid by the requesting Party. Any such discovery (which rights to documents shall be substantially less than document discovery rights prevailing under the Federal Rules of Civil Procedure) shall be conducted expeditiously and shall not cause the hearing provided for in Section 13.5 to be adjourned except upon consent of both Parties or upon a showing of cause demonstrating that such adjournment is necessary to permit discovery
 
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essential to a Party to the proceeding. Depositions, interrogatories or other forms of discovery (other than the document production set forth above) shall not occur except by consent of both Parties. Disputes concerning the scope of document production and enforcement of the document production requests will be determined by written agreement of the Parties or, failing such agreement, will be referred to the arbitrator(s) for resolution. All discovery requests will be subject to the Parties’ rights to claim any applicable privilege. The arbitrator(s) will adopt procedures to protect the proprietary rights of the Parties and to maintain the confidential treatment of the arbitration proceedings (except as may be required by law). Subject to the foregoing, the arbitrator(s) shall have the power to issue subpoenas to compel the production of documents relevant to the dispute, controversy or claim.
(b) The arbitrator(s) shall have full power and authority to determine issues of arbitrability but shall otherwise be limited to interpreting or construing the applicable provisions of this Agreement or any Operating Agreement, and will have no authority or power to limit, expand, alter, amend, modify, revoke or suspend any condition or provision of this Agreement or any Operating Agreement; it being understood, however, that the arbitrator(s) will have full authority to implement the provisions of this Agreement or any Operating Agreement subject hereto and to fashion appropriate remedies for breaches of this Agreement (including interim or permanent injunctive relief); provided , however , that the arbitrator(s) shall not have any authority in excess of the authority a court having jurisdiction over the Parties and the controversy or dispute would have absent these arbitration provisions. It is the intention of the Parties that in rendering a decision the arbitrator(s) give effect to the applicable provisions of this Agreement and the Operating Agreements and follow applicable law (it being understood and agreed that this sentence shall not give rise to a right of judicial review of the arbitrator(s)’s award).
(c) If a Party fails or refuses to appear at and participate in an arbitration hearing after due notice, the arbitrator(s) may hear and determine the controversy upon evidence produced by the appearing Party.
(d) Arbitration costs shall be borne equally by each Party involved in the matter, except that each Party shall be responsible for its own attorney’s fees and other costs and expenses, including the costs of witnesses selected by such Party.
SECTION 13.7 Certain Additional Matters . (a) Any arbitration award shall be a bare award limited to a holding for or against a Party and shall be without findings as to facts, issues or conclusions of law (including with respect to any matters relating to the validity or infringement of patents or patent applications) and shall be without a statement of the reasoning on which the award rests, but must be in adequate form so that a judgment of a court may be entered thereupon. Judgment upon any arbitration award hereunder may be entered in any court having jurisdiction thereof.
(b) Prior to the time at which one or more arbitrator(s) is appointed pursuant to Section 13.4 , either Party may seek one or more temporary restraining orders in a court of competent jurisdiction if necessary in order to preserve and protect the status quo. Neither the request for, nor the grant or denial of, any such temporary restraining order shall be deemed a waiver of the obligation to arbitrate as set forth herein, and the arbitrator(s) may dissolve,
 
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continue or modify any such order. Any such temporary restraining order shall remain in effect until the first to occur of the expiration of the order in accordance with its terms or the dissolution thereof by the arbitrator(s).
(c) Except as required by law, the Parties shall hold, and shall cause their respective officers, directors, employees, agents and other representatives to hold, the existence, content and result of mediation or arbitration in confidence in accordance with the provisions of Article XIV and except as may be required in order to enforce any award. Each of the Parties shall request that any mediator or arbitrator(s) comply with such confidentiality requirement.
(d) If at any time any arbitrator shall fail to serve as an arbitrator for any reason, the Parties shall select a new arbitrator who shall be disinterested as to the Parties and the matter in accordance with the procedure set forth herein for the selection of the initial arbitrator. The extent, if any, to which testimony previously given shall be repeated or as to which the replacement arbitrator elects to rely on the stenographic record (if there is one) of such testimony shall be determined by the arbitrator(s).
SECTION 13.8 Continuity of Service and Performance . Unless otherwise agreed in writing, the Parties will continue to provide service and honor all other commitments under this Agreement and each Operating Agreement during the course of dispute resolution pursuant to the provisions of this Article XIII with respect to all matters not subject to such dispute, controversy or claim to the extent such Party is obligated to do so pursuant to the underlying agreement.
SECTION 13.9 Law Governing Arbitration Procedures . The interpretation of the provisions of this Article XIII , only insofar as they relate to the agreement to arbitrate and any procedures pursuant thereto, shall be governed by the Arbitration Act and other applicable federal law. In all other respects, the interpretation of this Agreement shall be governed as set forth in Section 15.2 .
SECTION 13.10 Choice of Forum . Any arbitration hereunder shall take place in Denver, Colorado, unless otherwise agreed in writing by the Parties.
ARTICLE XIV
ACCESS TO INFORMATION AND SERVICES
SECTION 14.1 Agreement for Exchange of Information . (a) At all times from and after the Distribution Date for a period of ten years, as soon as reasonably practicable after written request: (i) First Data shall afford to the Western Union Parties and their authorized accountants, counsel and other designated representatives reasonable access during normal business hours to, or, at Western Union’s expense, provide copies of, all records, books, contracts, instruments, data, documents and other information (collectively, “ Information ”) in the possession or under the control of First Data immediately following the Distribution Date that relates to Western Union, the Western Union Business or the employees of the Western Union Business; and (ii) Western Union shall afford to the First Data Parties and their authorized accountants, counsel and other designated representatives reasonable access during normal business hours to, or, at First Data’s expense, provide copies of, all Information in the possession
 
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or under the control of Western Union immediately following the Distribution Date that relates to First Data, the First Data Business or the employees of the First Data Business; provided , however , that in the event that either First Data or Western Union determines that any such provision of or access to Information would be commercially detrimental in any material respect, violate any law or agreement or waive any attorney-client privilege, the work product doctrine or other applicable privilege, the Parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Either Party hereto may request Information under Section 14.1(a) or Section 14.7 : (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities or tax laws) by a Governmental Authority having jurisdiction over the requesting Party; (ii) for use in any other judicial, regulatory, administrative, tax or other proceeding or in order to satisfy audit, accounting, claims defense, regulatory filings, litigation, tax or other similar requirements; (iii) for use in compensation, benefit or welfare plan administration or other bona fide business purposes; or (iv) to comply with its obligations under this Agreement or any Operating Agreement.
(c) Without limiting the generality of the foregoing, until the end of the first full Western Union fiscal year occurring after the Distribution Date (and for a reasonable period of time afterwards as required for each Party to prepare consolidated financial statements or complete a financial statement audit for the fiscal year during which the Distribution Date occurs), each Party shall use its commercially reasonable efforts, to cooperate with the other Party’s Information requests to enable the other Party to meet its timetable for dissemination of its earnings releases, financial statements and enable such other Party’s auditors to timely complete their audit of the annual financial statements and review of the quarterly financial statements.
SECTION 14.2 Ownership of Information . Any Information owned by one Party that is provided to a requesting Party pursuant to Section 14.1 shall be deemed to remain the property of the providing Party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed to grant or confer rights of license or otherwise in any such Information.
SECTION 14.3 Compensation for Providing Information . The Party requesting Information agrees to reimburse the providing Party for the reasonable costs, if any, of gathering and copying such Information, to the extent that such costs are incurred for the benefit of the requesting Party. Except as otherwise specifically provided in this Agreement, such costs shall be computed in accordance with the providing Party’s standard methodology and procedures, if any, and if there is no such standard methodology and procedures, then on a commercially reasonable basis.
SECTION 14.4 Retention of Records . To facilitate the possible exchange of Information pursuant to this Article XIV after the Distribution Date, except as otherwise required or agreed in writing, or as otherwise provided in the Tax Allocation Agreement, the Parties hereto agree to use commercially reasonable efforts to retain all Information in their respective possession or control on the Distribution Date in accordance with the policies and procedures of First Data as in effect on the Distribution Date or such other policies and procedures as may reasonably be adopted by the applicable Party after the Distribution Date as provided herein. For
 
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a period of ten years following the Distribution Date, prior to amending in any material respect its policies and/or legal hold procedures with respect to retention of Information held by such Party as of the Effective Time, the Party proposing to amend its policies and/or legal hold procedures shall use its commercially reasonable efforts to provide no less than 30 days’ prior written notice to the other Party, specifying the amendments proposed to be made, and if, prior to the scheduled date for implementation of such amended policies and/or legal hold procedures, the other Party requests in writing that implementation of such amended policies and/or legal hold procedures be delayed, the other Party shall defer implementation for an additional 30 days and shall discuss in good faith during such 30 day period the written concerns and objections of the other Party. Notwithstanding the foregoing, neither Party shall be required to delay implementation of any amendment to Information retention policies and legal hold procedures to the extent such amendments are required by applicable law.
SECTION 14.5 Limitation of Liability . No Party shall have any liability to the other Party (a) if any Information exchanged or provided pursuant to this Agreement that is an estimate or forecast, or that is based on an estimate or forecast, is found to be inaccurate, in the absence of gross negligence or willful misconduct by the Party providing such Information, or (b) if any Information is destroyed despite using commercially reasonable efforts to comply with the provisions of Section 14.4 .
SECTION 14.6 Production of Witnesses . At all times from and after the Distribution Date, each Party shall use commercially reasonable efforts to make available to the other Party (without cost (other than reimbursement of actual Out-of-Pocket Expenses) to, and upon prior written request of, the other Party) its directors, officers, employees and agents as witnesses to the extent that the same may reasonably be required by the other Party (giving consideration to business demands of such directors, officers, employees and agents) in connection with any legal, administrative or other proceeding (except in the case of any proceeding by one Party against the other Party) in which the requesting Party may from time to time be involved with respect to the Western Union Business, the First Data Business or any transactions contemplated hereby.
SECTION 14.7 Sharing of Knowledge . For a period of two years following the Distribution Date, subject to any limitations set forth in any Operating Agreement, as soon as reasonably practicable after written request: (i) to the extent that information or knowledge with respect to the Western Union Business as of or prior to the Effective Time is available through discussions with employees of the First Data Parties, First Data shall make such employees reasonably available to Western Union to provide such information or knowledge; and (ii) to the extent that information or knowledge relating to the First Data Business as of or prior to the Effective Time is available through discussions with employees of the Western Union Parties, Western Union shall make such employees reasonably available to First Data to provide such information or knowledge; provided , however , that in the event that either First Data or Western Union determines that any such provision of such information or knowledge would be commercially detrimental in any material respect, violate any law or agreement or waive any attorney-client privilege, the work product doctrine or other applicable privilege, the Parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
 
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SECTION 14.8 Confidentiality . (a) From and after the Distribution Date, each of First Data and Western Union shall hold, and shall cause their respective Subsidiaries and Affiliates and its and their directors, officers, employees, agents, consultants, advisors, and other representatives (collectively, “ Representatives ”) to hold, in strict confidence, with at least the same degree of care that applies to First Data’s confidential and proprietary information pursuant to policies in effect as of the Distribution Date or such other procedures as may reasonably be adopted by the receiving party after the Distribution Date, all Confidential Information of the disclosing party or any of its Subsidiaries or Affiliates obtained by it prior to the Distribution Date, accessed by it pursuant to Section 14.1 or furnished to it by or on behalf of the disclosing party or any of its Subsidiaries or Affiliates pursuant to this Agreement or, to the extent not addressed in an Operating Agreement, any agreement contemplated hereby, shall not use such Confidential Information (except as contemplated by this Agreement, an Operating Agreement or any agreement contemplated hereby) and shall not release or disclose such Confidential Information to any other Person, except its Representatives, who shall be bound by the provisions of this Section 14.8 ; provided , however , that First Data and Western Union and their respective Representatives may disclose or use such information if, and only to the extent that, (i) a disclosure of such information is compelled by judicial or administrative process or, in the opinion of the receiving party’s counsel, by other requirements of law (in which case such party will provide, to the extent practicable under the circumstances, advance written notice to the other party of its intent to make such disclosure), or (ii) receiving party can show that such information (A) has been published or has otherwise become available to the general public as part of the public domain without breach of this Agreement, (B) has been furnished or made known to the receiving party without any obligation to keep it confidential by a Third Party under circumstances which are not known to the receiving party to involve a breach of the Third Party’s obligations to a party hereto or (C) was developed independently of information furnished or made available to the receiving party as contemplated under this Agreement (except, in the case of each of (A), (B), and (C), to the extent that notwithstanding the foregoing, use or disclosure thereof would be prohibited by applicable law). Each of First Data and Western Union, respectively, shall be responsible for any breach of this Section 14.8 by any of its Representatives.
(b) Without limiting the generality of Section 14.8(a) , from and after the Distribution Date, each of First Data and Western Union will implement and maintain security measures with at least the same degree of care that applies to First Data’s confidential and proprietary information pursuant to policies in effect as of the Distribution Date or such other procedures as may reasonably be adopted by the receiving party after the Distribution that are designed to: (i) secure and maintain the confidentiality of Confidential Information of the other party; (ii) protect Confidential Information of the other party against anticipated threats or hazards; (iii) prevent Personal Information Incidents; and (iv) protect against loss or theft or unauthorized access, copying, disclosure, loss, damage, modification or use of Confidential Information of the disclosing party.
(c) From and after the Distribution Date, to the extent required by applicable law and subject to the proviso included in Section 14.8(a) , each of First Data and Western Union shall, and shall cause their respective Subsidiaries and Affiliates and its and their Representatives to only use Confidential Personal Information received from the other party: (i) in connection with the receiving party’s performance of this Agreement and/or as described in an Operating
 
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Agreement or any agreement contemplated hereby; and (ii) in compliance with any express written instructions given by the party to which the Confidential Personal Information belongs, as may be modified from time to time. Under completion of either party’s use of Confidential Personal Information pursuant to this subsection, at the request of the disclosing party, the receiving party will use commercially reasonable efforts to return such information to the disclosing party or destroy such information in accordance with past practice; provided , however , that if such return or destruction is not reasonably practical or imposes an undue administrative burden, the receiving party will maintain the Confidential Personal Information in compliance with the applicable requirements of this Section 14.8 and with its reasonable record retention and destruction policies.
(d) Each of First Data and Western Union agrees on behalf of itself and their respective Subsidiaries and Affiliates that in the performance of its obligations under this Agreement or the Transaction Agreements, it is a “data processor” to the extent it “processes personal data” on behalf of the other party within a European Economic Area country or received from the other party’s operations in such a country. The terms “data processor”, “processes personal data” and “data controller” shall have the meaning given or applicable to them in the European Union’s Directive 95/46/EC regarding the protection of personal data.
(e) Excluding Confidential Personal Information, each recipient of Confidential Information of the other may enhance its knowledge and experience retained in intangible form in the unaided memories of its Representatives as a result of developing, working with, or viewing the other party’s Confidential Information (collectively, “ Unaided Knowledge ” ). So long as the recipient complies with Section 14.8 of this Agreement, the recipient may develop, disclose, market, transfer and/or use Unaided Knowledge that may be generally similar to the other party’s Confidential Information (excluding Confidential Personal Information), and the other party shall not have any rights in the works created using such Unaided Knowledge nor any rights to compensation related to the recipient’s use of such Unaided Knowledge, nor any rights in the recipient’s business endeavors.
(f) Each of First Data and Western Union acknowledges that the disclosing party would not have an adequate remedy at law for the breach by the receiving Party of any one or more of the covenants contained in this Section 14.8 and agrees that, in the event of such breach, the disclosing party may, in addition to the other remedies that may be available to it, apply to a court for an injunction to prevent breaches of this Section 14.8 and to enforce specifically the terms and provisions of this Section 14.8 . Notwithstanding any other Section hereof, the provisions of this Section 14.8 shall survive the Distribution Date indefinitely.
(g) (i) Each of First Data and Western Union and their respective Subsidiaries and Affiliates will comply with applicable law with respect to the Confidential Personal Information received by it from the disclosing party and shall maintain procedures reasonably designed to detect and respond to Personal Information Incidents, including procedures for corrective action.
(ii) If a receiving party uses agents or subcontractors who will access, use or otherwise have control over Confidential Personal Information of the disclosing party, the receiving party will enter into a written agreement with such agents and subcontractors that will
 
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include confidentiality, use, non-disclosure and safeguards obligations that are at least as restrictive as those provisions to which the receiving party is subject hereunder. 
(iii) Notwithstanding any other obligations either First Data or Western Union may have under applicable law, each of First Data and Western Union agrees to promptly notify the other party upon such party’s discovery of a potential or actual Personal Information Incident. Each of First Data and Western Union will also provide feedback as described below to the disclosing party about any impact such potential or actual Personal Information Incident may or will have on the disclosing party, its Subsidiaries, Affiliates and/or affected individuals ( e.g ., consumers, customers or employees). The party discovering the Personal Information Incident will provide the following information during such notification phone call: (A) problem statement; (B) expected resolution time (if known); provided, however, that if the resolution path is unknown at the time of the phone call, such party will advise the disclosing party that the path is unknown; and (C) the name and phone number of the receiving party representative(s) who may be contacted to obtain incident updates.
(iv) Each of First Data and Western Union understands and agrees that the disclosing party or its Affiliates may be required to report Personal Information Incidents to affected individuals and/or any governmental authority or agency having supervisory or oversight authority over the disclosing party and the disclosing party may provide such reports.
(v) In addition to any other obligations a receiving party may have under this Agreement, in the event of a Personal Information Incident, at the request of the disclosing party, a receiving party shall: (i) assist in the identification of affected persons and relevant jurisdictions; (ii) allocate call center resources and training to manage inquiries; (iii) provide affected persons with such assistance (credit monitoring, etc.) as the disclosing party deems reasonable; (iv) assist with the delivery of electronic, hard copy and/or telephonic notifications to affected individuals, as provided to the receiving party by the disclosing party; and (v) undertake a procedural review/audit to determine any appropriate corrective measures to avoid a similar situation recurring, and report to the disclosing party the corrective measures undertaken. If the Personal Information Incident results from a receiving party’s acts or omissions that are not otherwise excused pursuant to this Agreement or an applicable Operating Agreement, the receiving party will provide the notification assistance described above at no cost to the disclosing party. In all other cases, the disclosing party will be responsible for any costs associated with the receiving party’s provision of the requested notification assistance described above.
(h) This Section 14.8 shall not apply with respect to Confidential Information furnished to the receiving party or accessed by the receiving party pursuant to a Commercial Agreement, except to the extent that such Commercial Agreement incorporates the provisions of this Section 14.8 by reference.
(i) Notwithstanding the limitations set forth in this Section 14.8 , with respect to financial and other information related to the Western Union Parties for the periods during which such Western Union Parties were Subsidiaries of First Data, in addition to fulfilling its periodic reporting obligations with the SEC as required by applicable law, First Data shall be permitted to disclose such information in its earnings releases, investor calls, rating agency presentations and
 
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other similar disclosures to the extent such information has customarily been included by First Data in such disclosures.
SECTION 14.9 Privileged Matters . (a) Each of First Data and Western Union agrees to maintain, preserve and assert all privileges, including privileges arising under or relating to the attorney-client relationship (which shall include the attorney-client and work product privileges), not heretofore waived, that relate to the Western Union Business or the First Data Business for any period prior to the Distribution Date (each a “ Privilege ”). Each Party hereto acknowledges and agrees that any costs associated with asserting any Privilege shall be borne by the Party requesting that such Privilege be asserted. Each Party agrees that it shall not waive any Privilege that could be asserted under applicable law without the prior written consent of the other Party. The rights and obligations created by this Section 14.9 shall apply to all information relating to the First Data Business or the Western Union Business as to which, but for the Distribution, either Party would have been entitled to assert or did assert the protection of a Privilege (“ Privileged Information ”), including (i) any and all information generated prior to the Distribution Date but which, after the Distribution, is in the possession of either Party and (ii) all information generated, received or arising after the Distribution Date that refers to or relates to Privileged Information generated, received or arising prior to the Distribution Date.
(b) Upon receipt by either Party of any subpoena, discovery or other request that may call for the production or disclosure of Privileged Information or if either Party obtains knowledge that any current or former employee of First Data or Western Union has received any subpoena, discovery or other request that may call for the production or disclosure of Privileged Information of the other Party, such Party shall notify promptly the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it may have under this Section 14.9 or otherwise to prevent the production or disclosure of Privileged Information. Each Party agrees that it will not produce or disclose any information that may be covered by a Privilege of the Party under this Section 14.9 unless (i) the other Party has provided its written consent to such production or disclosure (which consent shall not be unreasonably withheld) or (ii) a court of competent jurisdiction has entered a final, nonappealable order finding that the information is not entitled to protection under any applicable Privilege.
(c) First Data’s transfer of books and records and other information to Western Union, and First Data’s agreement to permit Western Union to possess Privileged Information existing or generated prior to the Distribution Date, are made in reliance on Western Union’s agreement, as set forth in Sections 14.8 and 14.9 , to maintain the confidentiality of Privileged Information and to assert and maintain all applicable Privileges. The access to information being granted pursuant to Section 14.1 , the agreement to provide witnesses and individuals pursuant to Section 14.6 and the transfer of Privileged Information to Western Union pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Section 14.9 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to First Data in, or the obligations imposed upon Western Union by, this Section 14.9 . Western Union’s transfer of books and records and other information to First Data, and Western Union’s agreement to permit First Data to possess Privileged Information existing or generated prior to the Distribution Date, are made in reliance on First Data’s agreement, as set forth in Sections 14.8 and 14.9 , to maintain the confidentiality of Privileged
 
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Information and to assert and maintain all applicable Privileges. The access to information being granted pursuant to Section 14.1 , the agreement to provide witnesses and individuals pursuant to Section 14.6 and the transfer of Privileged Information to First Data pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Section 14.9 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Western Union in, or the obligations imposed upon First Data by, this Section 14.9 .
SECTION 14.10 Attorney Representation . First Data, on behalf of itself and the other First Data Parties, hereby waives any conflict of interest with respect to any attorney who is or becomes an employee of Western Union resulting from such person being an employee of First Data or any of its Subsidiaries (including the Western Union Parties) at any time prior to the Distribution and agrees to allow such attorney to represent the Western Union Parties in any transaction or dispute with respect to this Agreement, the Operating Agreements, the transactions contemplated hereby and thereby and transactions between the Parties which commence following the Distribution Date. Western Union, on behalf of itself and the other Western Union Parties, hereby waives any conflict of interest with respect to any attorney who is or becomes an employee of First Data resulting from such person being an employee of Western Union or any of its Subsidiaries (including the First Data Parties) at any time prior to the Distribution and agrees to allow such attorney to represent the First Data Parties in any transaction or dispute with respect to this Agreement, the Operating Agreements and the transactions contemplated hereby and thereby and transactions between the Parties which commence following the Distribution Date. In furtherance of the foregoing, each First Data Party and each Western Union Party will, upon request, execute and deliver a specific waiver as may be required in connection with a particular transaction or dispute under the applicable rules of professional conduct in order to effectuate the general waiver set forth above.
SECTION 14.11 Financial Information Certifications . (a) In order to enable the principal executive officer or officers, principal financial officer or officers and controller or controllers of First Data to make the certifications required of them under the Sarbanes-Oxley Act of 2002, §302, within 30 days following the end of any fiscal quarter during which Western Union is a Subsidiary of First Data, Western Union shall provide a certification statement with respect to such quarter or portion thereof to those certifying officers and employees of First Data, which certification shall be in substantially the same form as had been provided by officers or employees of Western Union in certifications delivered prior to the Distribution Date (provided that such certification shall be made by Western Union rather than individual officers or employees), or as otherwise agreed upon between the Parties. Such certification statements shall also reflect any changes in certification statements necessitated by the transactions contemplated by this Agreement.
(b) In order to enable the principal executive officer or officers, principal financial officer or officers and controller or controllers of Western Union to make the certifications required of them under the Sarbanese-Oxley Act of 2002, §302, within 30 days following the end of any fiscal quarter during which Western Union is a Subsidiary of First Data, First Data shall provide a certification statement with respect to testing of internal controls for corporate and shared services processes for such quarter or portion thereof to those certifying officers and employees of Western Union, which certification shall be in substantially the same form as had
 
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been provided by officers or employees of First Data in certifications delivered to its principal executive officer, principal financial officer and controller prior to the Distribution Date (provided that such certification shall be made by First Data rather than individual officers or employees,) or as otherwise agreed upon between the Parties. Such certification statements shall also reflect any changes in certification statements necessitated by the transactions contemplated by this Agreement.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Entire Agreement . This Agreement and the Operating Agreements, including the Schedules and Exhibits referred to herein and therein and the documents delivered pursuant hereto and thereto, constitute the entire agreement between the Parties hereto with respect to the subject matter contained herein or therein, and supersede all prior agreements, negotiations, discussions, understandings, writings and commitments between the Parties with respect to such subject matter.
SECTION 15.2 Choice of Law . This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware and the federal laws of the United States of America applicable therein, as though all acts and omissions related hereto occurred in Delaware.
SECTION 15.3 Amendment . This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of First Data and Western Union.
SECTION 15.4 Waiver . Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently given for the purposes of this Agreement if, as to either Party, it is in writing signed by an authorized representative of such Party. The failure of either Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, or in any way to affect the validity of this Agreement or any part hereof or the right of either Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
SECTION 15.5 Partial Invalidity . Wherever possible, each provision hereof shall be interpreted in such a manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision or provisions shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.
SECTION 15.6 Execution in Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original instrument, but both of which shall be
 
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considered one and the same agreement, and shall become binding when the counterparts have been signed by and delivered to each of the Parties hereto.
SECTION 15.7 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns; provided , however , that the rights and obligations of either Party under this Agreement shall not be assignable by such Party without the prior written consent of the other Party. The successors and permitted assigns hereunder shall include any permitted assignee as well as the successors in interest to such permitted assignee (whether by merger, liquidation (including successive mergers or liquidations) or otherwise).
SECTION 15.8 Third Party Beneficiaries . Except to the extent otherwise provided in Article X (solely with respect to the directors and officers insurance policy), Article XII and Section 14.10 , the provisions of this Agreement are solely for the benefit of the Parties and their respective Subsidiaries, Affiliates, successors and permitted assigns and shall not confer upon any third Person any remedy, claim, liability, reimbursement or other right in excess of those existing without reference to this Agreement or any Operating Agreement.
SECTION 15.9 Notices . All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (i) when delivered personally, (ii) if transmitted by facsimile when confirmation of transmission is received, (iii) if sent by registered or certified mail, postage prepaid, return receipt requested, on the third business day after mailing or (iv) if sent by private courier when received; and shall be addressed as follows:
If to First Data, to:
First Data Corporation
6855 Pacific Street, AK-31
Omaha, Nebraska 68106
Attention: General Counsel
Facsimile: (402) 222-5256
If to Western Union, to:
The Western Union Company
100 Summit Avenue
Montvale, New Jersey 07645
Attention: General Counsel
Facsimile: (201) 263-6384
or to such other address as such Party may indicate by a notice delivered to the other Party.
SECTION 15.10 Performance . Each Party shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party.
 
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SECTION 15.11 Force Majeure . No Party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations under this Agreement results from any cause beyond its reasonable control and without its fault or negligence, including acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems or unavailability of parts, or, in the case of computer systems, any failure in electrical or air conditioning equipment. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay.
SECTION 15.12 No Public Announcement . Neither First Data nor Western Union shall, without the approval of the other, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that any such Party shall be so obligated by law or the rules of any regulatory body, stock exchange or quotation system, in which case the other Party shall be advised and the Parties shall use their respective commercially reasonable efforts to cause a mutually agreeable release or announcement to be issued; provided , however , that the foregoing shall not preclude communications or disclosures necessary to implement the provisions of this Agreement or to comply with the accounting and SEC disclosure obligations or the rules of any stock exchange.
SECTION 15.13 Termination . Notwithstanding any provisions hereof, this Agreement may be terminated and the Distribution abandoned at any time prior to the Distribution by and in the sole discretion of the Board of Directors of First Data without the prior approval of any Person. In the event of such termination, this Agreement shall forthwith become void and no Party shall have any liability to any Person by reason of this Agreement.
SECTION 15.14 Limited Liability . Notwithstanding any other provision of this Agreement, no individual who is a stockholder, director, employee, officer, agent or representative of Western Union or First Data, in such individual’s capacity as such, shall have any liability in respect of or relating to the covenants or obligations of Western Union or First Data, as applicable, under this Agreement or any Operating Agreement or in respect of any certificate delivered with respect hereto or thereto and, to the fullest extent legally permissible, each of Western Union and First Data, for itself and its stockholders, directors, employees, officers and Affiliates, waives and agrees not to seek to assert or enforce any such liability that any such individual otherwise might have pursuant to applicable law.
SECTION 15.15 Mutual Drafting . This Agreement and the Operating Agreements shall be deemed to be the joint work product of First Data and Western Union and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.
 
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their authorized representatives as of the date first above written.

FIRST DATA CORPORATION	
		
By:	 	/s/ Henry C. Duques	
	 	Name:    Henry C. Duques	
	 	Title:      Chief Executive Officer and Chairman of the Board	

THE WESTERN UNION COMPANY	
		
By:	 	/s/ Christina A. Gold	
	 	Name:    Christina A. Gold	
	 	Title:      Chief Executive Officer and President	

SCHEDULES
[Omitted]
 
Exhibit 10.1
TAX ALLOCATION AGREEMENT
Dated as of September 29, 2006
by and between
FIRST DATA CORPORATION
and
THE WESTERN UNION COMPANY

TAX ALLOCATION AGREEMENT
TAX ALLOCATION AGREEMENT, dated as of September 29, 2006, by and between First Data Corporation, a Delaware corporation (“ FDC ”), and The Western Union Company, a Delaware corporation (“ Western Union ”) and, as of the date hereof, a wholly-owned subsidiary of FDC.
RECITALS
WHEREAS, FDC is the common parent of an affiliated group of corporations within the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), which currently files consolidated federal income Tax Returns;
WHEREAS, FDC, through its subsidiaries, currently provides electronic commerce and payment services throughout the world;
WHEREAS, as described in that certain Separation and Distribution Agreement dated as of the date hereof between FDC and Western Union (the “ Separation Agreement ”), FDC is effecting the separation of certain of its assets and businesses (as defined more fully below, the “ Western Union Businesses ”) on September 29, 2006 (the “ Distribution Date ”) through a series of related transactions (as defined more fully below, the “ Western Union Spin-Off Transactions ”);
WHEREAS, FDC has obtained a private letter ruling from the Internal Revenue Service (the “ IRS ”) dated September 1, 2006 (the “ Tax Ruling ”) and an opinion of Sidley Austin LLP, dated the date hereof (the “ Tax Opinion ”), in each case generally to the effect that, among other things, the Western Union Spin-Off Transactions generally will qualify as tax-free to FDC, FDC stockholders and Western Union under Sections 355, 368 and related provisions of the Code;
WHEREAS, after the Distribution Date, none of the Western Union Parties (as hereinafter defined) will be a member of any federal affiliated group, as defined in Section 1504(a) of the Code, of which FDC or any of its Affiliates is the common parent, or any successor group thereto;
WHEREAS, FDC and Western Union desire, on behalf of themselves, and the FDC Parties (as hereinafter defined) and the Western Union Parties, respectively, and their successors to set forth their rights and obligations with respect to Taxes due for periods before, on and after the Distribution Date; and
WHEREAS, capitalized terms used but not defined herein have the meanings set forth in the Separation Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I
DEFINITIONS
For the purposes of this Agreement:
“ Affiliate ” means, with respect to any Person, any person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person.
“ Agreement ” means this Tax Allocation Agreement as the same may be amended from time to time.
“ Anticipated Tax Consequences ” means the federal income tax consequences described in (1) the enumerated rulings of the IRS set forth in the Tax Ruling and (2) the opinions of counsel set forth in the Tax Opinion.
“ Applicable Federal Rate ” means the federal short-term rate set forth in Section 1274(d) of the Code, compounded quarterly.
“ CESI Holdings ” means CESI Holdings, Inc., a Delaware corporation.
“ Claim ” has the meaning set forth in Section 5.03(a) of this Agreement.
“ Code ” has the meaning set forth in the first recital to this Agreement.
“ Control ” (and with correlative meaning, “ Controlled ”) means the power to direct the management of an entity, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise. Notwithstanding the foregoing, Western Union and FDC shall not be deemed to be under common Control for purposes hereof solely due to the fact that Western Union and FDC indirectly or directly have stockholders in common.
“ Controlling Party ” has the meaning set forth in Section 5.01 of this Agreement.
“ Distributed Companies ” means FDCS Holdings, CESI Holdings, TeleCheck, EBP Re, Ltd., IPS Holdings, Inc., Virtual Financial Services, LLC, First Data Canada Limited and their respective Subsidiaries (including those formed or acquired after the date hereof).
“ Distribution Date ” has the meaning set forth in the third recital to this Agreement.
“ ECG ” means E Commerce Group, Inc., a New York corporation.
“ Effective Time ” has the meaning set forth in the Separation Agreement.
“ FDC ” has the meaning set forth in the preamble to this Agreement.
“ FDC Businesses ” means (a) all businesses and operations of the FDC Parties, and (b) the FDC Former Businesses.
 
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“ FDC Former Businesses ” has the meaning set forth in the Separation Agreement.
“ FDC Parties ” means FDC and its Subsidiaries (including those formed or acquired after the date hereof), other than the Western Union Parties.
“ FDC Tainting Act ” means, without duplication:
(a) any inaccuracy or breach of any representation, warranty, or covenant that is made by FDC pursuant to Article II of this Agreement; or
(b) any action (or failure to take any reasonably available action) by any of the FDC Parties, their officers, employees or agents, after the Distribution Date (other than an action contemplated by the Separation Agreement).
“ FDC Tax Certificate ” means the “First Data Tax Certificate”, dated as of the date hereof, delivered by FDC to Sidley Austin LLP in connection with the Tax Opinion.
“ FDC Taxes ” has the meaning set forth in Section 3.03(b) of this Agreement.
“ FDCS Holdings ” means First Data Commercial Services Holdings, Inc., a Delaware corporation.
“ FFMC ” means First Financial Management Corporation, a Georgia corporation.
“ Filing Party ” has the meaning set forth in Section 4.01 of this Agreement.
“ Final Determination ” means with respect to any issue (i) a decision, judgment, decree or other order by any court of competent jurisdiction, which decision, judgment, decree or other order has become final and not subject to further appeal, (ii) a closing agreement (whether or not entered into under Section 7121 of the Code) or any other binding settlement agreement (whether or not with the IRS) entered into in connection with or in contemplation of an administrative or judicial proceeding, or (iii) the completion of the highest level of administrative proceedings if a judicial contest is not or is no longer available.
“ Former Business ” means any corporation, partnership, entity, division, business unit or business within the definition of Rule 11-01(d) of Regulation S-X (in each case, including any assets and liabilities comprising the same) that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part) or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated (in whole or in part).
“ GMT ” means GMT Group, Inc., a Delaware corporation.
“ Governmental Authority ” means any foreign, federal, state, local or other government, governmental, statutory or administrative authority, regulatory body or commission or any court, tribunal or judicial or arbitral body.
 
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“ Inconsistent Action ” means any action (or failure to take any action contemplated by the Ruling Request) that is inconsistent with (i) the facts and representations described in, or the representations or other statements made in connection with, the Ruling Request, the Tax Ruling, the FDC Tax Certificate (in the case of FDC) or Western Union Tax Certificate (in the case of Western Union) or the Tax Opinion or (ii) the representations, warranties or covenants in the Transaction Agreements. 
“ Indemnitor ” has the meaning set forth in Section 5.02 of this Agreement.
“ Independent Firm ” has the meaning set forth in Section 7.01 of this Agreement.
“ IRS ” has the meaning set forth in the fourth recital to this Agreement.
“ Liable Party ” has the meaning set forth in Section 4.01 of this Agreement.
“ Participation ” (and, with correlative meaning, “ Participate ” ) means, with respect to a Tax Contest and without limitation, (i) receiving timely notice of and attending all material meetings, depositions, hearings and trials (either in person or telephonically) relating to such Tax Contest; (ii) receiving copies of all material correspondence from the relevant Governmental Authority relating to such Tax Contest and (iii) being offered the opportunity to review and comment on all material correspondence to the relevant Governmental Authority relating to such Tax Contest.
“ Paymap ” means Paymap Inc., a Delaware corporation.
“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, entity, association, joint-stock company, trust, unincorporated organization or Governmental Authority.
“ Post-Distribution Period ” means any taxable year or other taxable period beginning after the Distribution Date and, in the case of any taxable year or other taxable period that begins on or before and ends after the Distribution Date, that part of the taxable year or other taxable period that begins at the beginning of the day after the Distribution Date.
“ Pre-Distribution Period ” means any taxable year or other taxable period that ends on or before the Distribution Date and, in the case of any taxable year or other taxable period that begins on or before and ends after the Distribution Date, that part of the taxable year or other taxable period through the close of the Distribution Date.
“ Restructuring Taxes ” means any Taxes (and other liabilities, including, without limitation, liability for Taxes of stockholders for which Western Union or FDC is determined to be liable and the costs of defending against the imposition of such Taxes and other liabilities) imposed as a result a Final Determination inconsistent with the Anticipated Tax Consequences.
 
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“ Ruling Request ” means that certain ruling request of FDC submitted to the IRS on May 12, 2006 (including the exhibits thereto) and any supplements thereto (including exhibits).
“ Separation Agreement ” has the meaning set forth in the third recital to this Agreement.
“ Subsidiary ” means, when used with reference to any Person, any corporation or other organization, whether incorporated or unincorporated, of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or Controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided , however , that no Person that is not directly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person Controls, or has the right, power or ability to Control, that Person. After the Distribution, FDC and Western Union shall not be deemed to be under common Control for purposes hereof due solely to the fact that FDC and Western Union have common stockholders.
“ Tax ” (and, with correlative meaning, “ Taxes ” and “ Taxable ”) means any federal, state, local or foreign net income, gross income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value-added, transfer, stamp, or environmental tax, or any other tax, custom, duty, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or penalty, addition to tax or additional amount imposed by  any Governmental Authority.
“ Tax Contest ” has the meaning set forth in Section 5.01 of this Agreement.
“ Tax Opinion ” has the meaning set forth in the fourth recital to this Agreement.
“ Tax Return ” means any return, report or similar statement required to be filed with respect to any Tax (including any attached schedules), including, without limitation, any information return, claim for refund, amended return or declaration of estimated Tax.
“ Tax Ruling ” has the meaning set forth in the fourth recital to this Agreement.
“ TeleCheck ” means TeleCheck International, Inc., a Georgia corporation.
“ Transaction Agreements ” has the meaning set forth in the Separation Agreement.
“ Transaction Taxes ” has the meaning set forth in Section 3.04(b) of this Agreement.
“ Western Union ” has the meaning set forth in the preamble to this Agreement.
 
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“ Western Union Businesses ” means (a) all businesses and operations of the Western Union Parties and (b) the Western Union Former Businesses.
“ Western Union Former Businesses ” has the meaning set forth in the Separation Agreement.
“ Western Union Parties ” means Western Union, the Western Union Subsidiaries and any other Subsidiary of Western Union (including those formed or acquired after the date hereof), in each case, other than the Distributed Companies.
“ Western Union Spin-Off Transactions ” means the transactions described in the initial Ruling Request under the heading “General Information—Overview of Proposed Transactions—Detailed Description of Transaction—Transaction Steps” (as may have been modified in supplemental submissions to the IRS).
“ Western Union Subsidiaries ” means, collectively, ECG, FFMC, GMT, Paymap, WUSI and each Subsidiary of any of the foregoing, in each case, other than the Distributed Companies.
“ Western Union Tainting Act ” means, without duplication:
(a) any inaccuracy or breach of any representation, warranty, or covenant that is made by Western Union pursuant to Article II of this Agreement; or
(b) any action (or failure to take any reasonably available action) by any of the Western Union Parties, their officers, employees or agents, after the Distribution Date (other than an action contemplated by the Separation Agreement).
“ Western Union Tax Certificate ” means the “Western Union Tax Certificate”, dated as of the date hereof, delivered by Western Union to Sidley Austin LLP in connection with the Tax Opinion. 
“ Western Union Taxes ” has the meaning set forth in Section 3.03(a) of this Agreement.
“ WUFSI ” means Western Union Financial Services, Inc., a Colorado corporation.
“ WUSI ” means Western Union Services Inc., a Maryland corporation.
 
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ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS
2.01 Representations .
(a) Western Union hereby represents and warrants that (i) as of the Effective Time, none of the Western Union Parties or their officers, employees or agents, (A) knows of any fact (other than a fact set forth in the Ruling Request or the Transaction Agreements) that would jeopardize the Anticipated Tax Consequences; (B) has taken, or has any plan or intention to take, any Inconsistent Action; or (C) has entered into any agreement, understanding, arrangement or substantial negotiation with respect to any direct or indirect acquisition of stock (including, without limitation, stock issuances, option grants, capital contributions, acquisitions, and changes in voting power of any of its stock), or has had any discussions with an investment banker with respect to any public offering of stock, in any case that could reasonably be expected to be part of a “plan (or series of related transactions)” (within the meaning of Section 355(e) of the Code and the Treasury regulations thereunder) that includes the Western Union Spin-Off Transactions, (ii) it has examined (A) the Tax Ruling; (B) the Tax Opinion; (C) all materials relating to the Tax Ruling that were submitted to the IRS; and (D) the Western Union Tax Certificate and any other materials delivered or deliverable by any of the Western Union Parties or their officers, employees or agents in connection with the issuance of the Tax Opinion and the Tax Ruling, and (iii) all facts stated and representations made in the documents referred to in clause (ii), to the extent delivered by, or descriptive of or otherwise relating to, any Western Union Party, were and will be from the time delivered, presented or made through and including the Distribution Date true, correct and complete in all material respects.
(b) FDC hereby represents and warrants that (i) as of the Effective Time, none of the FDC Parties or their officers, employees or agents, (A) knows of any fact (other than a fact set forth in the Ruling Request or the Transaction Agreements) that would jeopardize the Anticipated Tax Consequences; (B) has taken, or has any plan or intention to take, any Inconsistent Action; or (C) has entered into any agreement, understanding, arrangement or substantial negotiation with respect to, or has effected, any direct or indirect acquisition of stock (including, without limitation, stock issuances, option grants, capital contributions, acquisitions, and changes in voting power of any of its stock), or has had any discussions with an investment banker with respect to any public offering of stock, in any case that could reasonably be expected to be part of a “plan (or series of related transactions)” (within the meaning of Section 355(e) of the Code and the Treasury regulations thereunder) that includes the Western Union Spin-Off Transactions, (ii) it has examined (A) the Tax Ruling; (B) the Tax Opinion; (C) all materials relating to the Tax Ruling that were submitted to the IRS; and (D) the FDC Tax Certificate and any other materials delivered or deliverable by any of the FDC Parties or their officers, employees or agents in connection with issuance of the Tax Opinion and the Tax Ruling, and (iii) all facts stated and representations made in the documents referred to in clause (ii), to the extent delivered by, or descriptive of or otherwise relating
 
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to, any FDC Party, were and will be from the time delivered, presented or made through and including the Distribution Date true, correct and complete in all material respects.
2.02 Covenants .
(a) Each of FDC and Western Union covenants and agrees that, following the Distribution Date, none of the Western Union Parties or the FDC Parties, as the case may be, or their officers, employees or agents, will (i) take any Inconsistent Action (including, without limitation, repurchasing any shares of common stock of FDC or Western Union, respectively, except to the extent consistent with the requirements of Revenue Procedure 96-30, failing to continue any active business on which the Anticipated Tax Consequences were based, and voluntarily dissolving, liquidating, merging or consolidating with any other person); (ii) enter into any agreement, understanding, arrangement or substantial negotiations with respect to any direct or indirect acquisition of stock (including, without limitation, stock issuances, option grants, capital contributions, acquisitions, and changes in voting power of any of its stock), or any discussions with an investment bank with respect to any public offering of its stock, in any case that could reasonably be expected to be part of a “plan (or series of related transactions)” (within the meaning of Section 355(e) of the Code and the Treasury regulations thereunder) that includes the Western Union Spin-Off Transactions; (iii) file any request for amendment or supplement to the Tax Ruling without the consent of the other, which consent shall not be unreasonably withheld; or (iv) take any position on a Tax Return that is inconsistent with the Anticipated Tax Consequences.
(b) Notwithstanding the foregoing, either party shall be permitted to take an action inconsistent with Section 2.02(a) if, prior to taking such action, such party (i) provides written notification to the other party of its plans with respect to such action, (ii) promptly responds to any inquiries by the other party following such notification and (iii) unless the other party agrees otherwise in writing, (A) obtains a ruling from the IRS that is reasonably satisfactory to the other party to the effect that, on the basis of facts and representations consistent with the facts at the time of such action, such action will not affect the Anticipated Tax Consequences and (B) obtains an opinion, reasonably satisfactory to the other party, from an independent nationally recognized tax counsel reasonably acceptable to the other party to the effect that, on the basis of facts and representations consistent with the facts at the time of such action, such action will not affect the Anticipated Tax Consequences; provided , that in the case of an action specified in clause (ii) of Section 2.02(a) , if the IRS will not issue a ruling on the grounds that such a ruling is not available under a “no rule”, “comfort ruling” or similar policy, and if such opinion of tax counsel is to the effect that such action will satisfy one or more of the “safe harbors” set forth in Treas. Reg. § 1.355-7(d), as in effect and applicable with respect to such action, the party that delivers such opinion shall be permitted to take such action without obtaining a ruling from the IRS regarding such action, notwithstanding the preceding clause (A) of this Section 2.02(b) .
 
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ARTICLE III
TAX RETURNS, TAX PAYMENTS AND TAX SHARING OBLIGATIONS
3.01 Obligations to File Tax Returns .
(a) FDC shall timely file or cause to be timely filed all Tax Returns with respect to (i) any of the FDC Parties or in respect of any FDC Business and (ii) any of the Western Union Parties or in respect of any Western Union Business that (A) are due on or prior to the Distribution Date or (B) are due after the Distribution Date and (x) relate to any period beginning on or prior to the Distribution Date and (y) are filed on a consolidated, combined or unitary basis with any FDC Party. Western Union shall timely file or cause to be timely filed any other Tax Returns with respect to any Western Union Party or in respect of any Western Union Business. Notwithstanding the foregoing and for the avoidance of doubt, Western Union shall be required to file any IRS Forms 1099 not yet due as of the Distribution Date that report payments made to persons providing services to any Western Union Party, regardless of when such services were provided.
(b) Unless otherwise required by law, any Tax Return that is filed on a consolidated, combined or unitary basis and includes any Western Union Party that is filed by FDC on or after the Distribution Date with respect to a Pre-Distribution Period shall be prepared in a manner consistent with the elections, methods of accounting, positions, conventions and principles of taxation and the manner in which any Tax item or other information is reported as reflected in comparable Tax Returns filed before the date of this Agreement.
(c) Promptly after either FDC or Western Union files a Tax Return after the Distribution Date pursuant to Section 3.01(a) that, in whole or in part, relates to Taxes for which a Western Union Party or a FDC Party, respectively, is liable under this Agreement, FDC or Western Union, as the case may be, shall provide the other with a copy of such Tax Return (including, in the case of a consolidated Tax Return, a copy of the complete Tax Return).
3.02 Obligation To Remit Taxes . Each of FDC and Western Union shall remit or cause to be remitted any Taxes due in respect of any Tax Return that it is required to file or cause to be filed pursuant to Section 3.01 , and shall be entitled to reimbursement for such payments to the extent provided in Section 3.03 .
3.03 Tax Sharing Obligations And Prior Agreements .
(a) From and after the Distribution Date, Western Union shall be liable for and pay, and shall indemnify, defend, and hold harmless FDC and each of the FDC Parties from and against, any and all Losses and Expenses incurred or suffered by FDC or one or more of the FDC Parties in connection with or arising from (i) any Taxes (excluding Restructuring Taxes) that are attributable to or imposed in respect of any of the Western Union Parties, the Western Union Businesses or any employees, assets or transactions of the Western Union Businesses (including any Pre-Distribution Period or
 
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Post-Distribution Period and taking into account the allocation principles of Sections 3.05 and 3.09 ) (“ Western Union Taxes ”) and (ii) any Restructuring Taxes for which Western Union is liable pursuant to Section 3.04 . Any liability of Western Union with respect to any Tax pursuant to this Section 3.03(a) shall be reduced by estimated payments with respect to such Tax previously made to FDC. Western Union shall be entitled to any refund of or credit for Taxes for which Western Union is responsible under this Section 3.03(a) .
(b) From and after the Distribution Date, FDC shall be liable for and pay, and shall indemnify, defend, and hold harmless Western Union and each of the Western Union Parties from and against, any and all Losses and Expenses incurred or suffered by Western Union or one or more of the Western Union Parties in connection with or arising from (i) any Taxes (excluding Restructuring Taxes) that are attributable to or imposed in respect of any of the FDC Parties, the FDC Businesses or any employees, assets or transactions of the FDC Businesses (including any Pre-Distribution Period or Post-Distribution Period and taking into account the allocation principles of Sections 3.05 and 3.09 ) (“ FDC Taxes ”) and (ii) any Restructuring Taxes for which FDC is liable pursuant to Section 3.04 . FDC shall be entitled to any refund of or credit for Taxes for which FDC is liable under this Section 3.03(b) .
(c) To the extent that any fees, costs or expenses paid by one party pursuant to Section 11.1 of the Separation Agreement provide a Tax benefit to the other party during any Post-Distribution Period, the party receiving such Tax benefit shall remit to the paying party the amount of such benefit, net of any reasonable third-party out-of-pocket costs incurred to determine the amount of such benefit, for all affected taxable years or periods, with the amount of such benefit mutually determined by the parties using reasonable assumptions (for example, as to the timing of the benefits and the federal and state income tax rates applicable in determining the amount of such benefits) and present value concepts. For the avoidance of doubt, no amount shall be due or owing by any of the FDC Parties to any Western Union Party with respect to any Tax benefit recognized by any of the FDC Parties relating to, or arising from, the exercise of Western Union options (or vesting of Western Union restricted stock) by any current or former employee of, or other party providing services to, any FDC Party.
(d) This Agreement and the Separation Agreement (and, to the extent relevant, the other Transaction Agreements) shall, from and after the Distribution Date, constitute the sole agreements governing tax matters among the FDC Parties and the Western Union Parties, and except as set forth in such Agreements any and all prior Tax sharing agreements or practices between any of the FDC Parties, on the one hand, and any of the Western Union Parties, on the other hand, shall be terminated as of the Distribution Date.
 
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3.04 Restructuring Taxes; Other Taxes Relating To The Western Union Spin-Off Transactions .
(a) Subject to Section 3.04(b) , FDC shall be liable for all Restructuring Taxes other than Restructuring Taxes that are imposed solely as a result of a Western Union Tainting Act, for which Western Union shall be liable.
(b) Notwithstanding Section 3.04(a) , each of Western Union and FDC shall be liable for fifty percent (50%) of Restructuring Taxes (i) that would not have been imposed but for the existence of both a Western Union Tainting Act and an FDC Tainting Act, or (ii) where both a Western Union Tainting Act and an FDC Tainting Act occur, and each of the Western Union Tainting Act and the FDC Tainting Act, standing alone, would have resulted in the imposition of such Restructuring Taxes.
(c) FDC shall determine the amount of sales, transfer, value added or other similar taxes or fees (including, without limitation, all real estate, patent, copyright and trademark transfer taxes and real estate recording fees but excluding patent, copyright, and trademark recording fees and Restructuring Taxes) payable in connection with the Western Union Spin-Off Transactions (the “ Transaction Taxes ”). Each of FDC and Western Union shall timely file (or cause to be timely filed) with the appropriate taxing authorities the Tax Returns relating to such Transaction Taxes required under applicable Tax law to be filed by it, and shall remit (or cause to be remitted) payment of the Transaction Taxes due in respect of any such Tax Return. Transaction Taxes shall be the liability of the party that is primarily liable therefor under applicable Tax law.
3.05 Period That Includes The Distribution Date .
(a) To the extent permitted by law or administrative practice, the taxable year of the Western Union Parties shall be treated for all federal, state and local tax purposes as closing at the close of the Distribution Date, and all Tax computations resulting therefrom shall be made pursuant to the principles of Treasury Regulation Section 1.1502-76(b) or a corresponding provision under the laws of an applicable state, local or foreign jurisdiction.
(b) If it is necessary for purposes of this Agreement to determine the liability for Taxes for a taxable year that begins on or before and ends after the Distribution Date and is not treated under Section 3.05(a) as closing at the close of the Distribution Date, the determination shall be made by assuming that such taxable year ended on a “closing of the books” basis at the close of the Distribution Date pursuant to the principles of Treasury Regulation Section 1.1502-76(b), except that exemptions, allowances or deductions that are calculated on an annual basis (such as property taxes) shall be apportioned on a daily basis.
3.06 Allocation Of Tax Items . In completing any Tax Returns to be filed or caused to be filed by FDC or Western Union under Section 3.01 , Tax items (including, but not limited to, net operating losses and net capital losses) shall be allocated to the entity the operations of which produced such Tax items, in each case unless otherwise prohibited by the
 
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relevant Governmental Authority. Except as provided in Section 3.07 , it is agreed and understood that neither FDC nor Western Union shall be obligated to make any compensating payments for the use of Tax attributes of the other party (or any Affiliate thereof) in any Pre-Distribution Period, including, for the avoidance of doubt, the use of foreign tax credits, net operating losses, net capital losses or the limitation described in Section 904(a) of the Code, whether in an originally filed Tax Return, an amended Tax Return or by reason of a carryback of any such item to a Pre-Distribution Period.
3.07 Carryback Provisions . Without the consent of FDC (such consent not to be unreasonably withheld), no Western Union Party shall carry back a loss, credit, or similar Tax attribute (unless required to carry back such Tax attribute by law) from a Post-Distribution Period to a Pre-Distribution Period during which any of the Western Union Parties joined in filing a Tax Return on a consolidated, combined, or unitary basis with one or more of the FDC Parties. If FDC consents to the carryback or if the carryback is required by law, FDC shall, at Western Union’s expense, file appropriate refund claims within a reasonable period after being requested by Western Union and promptly remit to Western Union any refunds received with respect to any Tax attribute so carried back.
3.08 Amended Returns . Western Union shall not, and shall not permit any Western Union Party to, amend any Pre-Distribution Period Tax Return originally filed on a consolidated, combined, or unitary basis with one or more of the FDC Parties without first obtaining the consent of FDC, which consent shall not be unreasonably withheld.
3.09 Allocation of Tax Liability . The portion of any Tax liability for any Pre-Distribution Period (other than Restructuring Taxes) determined on a combined, consolidated or unitary basis with respect to a group of corporations including one or more Western Union Parties, on the one hand, and one or more FDC Parties, on the other hand, that constitutes Western Union Taxes shall be determined on a separate company basis for all Western Union Parties consistent with the methodology previously used in making such determination for purposes of the pro forma Tax Returns and separate audited financial statements of WUFSI.
ARTICLE IV
PAYMENTS
4.01 General Tax Payments . With respect to any Taxes for which one party (the “ Liable Party ”) is liable under Section 3.03 and that are to be remitted in connection with Tax Returns to be filed by the other party (the “ Filing Party ”) after the Distribution Date pursuant to Sections 3.01 and 3.02 , (i) upon the request of the Filing Party, the other party shall promptly provide to the Filing Party all information within the possession of the Liable Party and necessary to enable the Filing Party to file such Tax Returns and (ii) assuming compliance by the Liable Party with the Liable Party’s obligations under clause (i) (or written waiver by the Filing Party of such compliance), the Filing Party shall, not later than seven (7) days prior to the due date for remitting such Taxes (or, if the due date is within seven (7) days after the Distribution Date, as promptly following the Distribution Date as possible) provide the Liable Party with a written request showing in reasonable detail the calculation of the amount of Taxes
 
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(and any other amounts) owing by the Liable Party to the Filing Party pursuant to this Agreement. The Liable Party shall have the right to object in writing to such calculation on or before three (3) days after the date on which such request is provided to the Liable Party, on the grounds that there is “substantial authority” (within the meaning of Section 6662 of the Code and the Treasury regulations thereunder) for the position that the Liable Party is claiming to be the correct position and, if the Liable Party provides the Filing Party with an opinion to such effect within two (2) days after such written objection, reasonably satisfactory to the Filing Party, from an independent nationally recognized tax counsel reasonably acceptable to the Filing Party, the relevant Tax Return and the amount owing by the Liable Party shall be adjusted in a manner consistent with such opinion. Absent an objection pursuant to the preceding sentence (or absent such an opinion), the Liable Party shall pay to the Filing Party any amount not in dispute on or before the day preceding the date such Tax is due (or, if earlier, the date identified in a notice delivered by the Filing Party on which the Filing Party intends to pay, and does pay, such tax) with additional amounts to be paid by the Liable Party (together with interest at the Applicable Federal Rate accruing from the date on which such Tax Return is filed) promptly upon resolution of any objection.
4.02 Other Payments . Other payments due to a party under Section 3.03 shall be paid by the Liable Party not later than thirty (30) days after the receipt or crediting of a refund or the receipt of notice of a Final Determination to the effect that the indemnified party is liable for an indemnified cost, together with interest at a rate equal to the Applicable Federal Rate from the date on which the indemnifying party receives such receipt, credit or notice.
4.03 Notice . FDC and Western Union shall give each other prompt written notice of any payment that may be due under this Agreement.
ARTICLE V
TAX AUDITS
5.01 General . Except as otherwise provided in this Agreement, each of Western Union and FDC (as the case may be, the “ Controlling Party ”) shall have sole responsibility for and control over all Tax inquiries, audits, examinations, investigations, disputes, litigation or other proceedings (each, a “ Tax Contest ”) involving a Tax for which it is liable pursuant to Article III of this Agreement (in all cases, at its own expense); provided , that FDC and Western Union shall each have the right to Participate (at its own expense) in any Tax Contest to the extent it relates to Taxes determined on a consolidated, combined or unitary basis if any FDC Party or Western Union Party, respectively, is a member of the consolidated, combined or unitary group to which such Taxes relate. In the case of a Tax Contest involving Taxes for which each of FDC and Western Union would be liable pursuant to Article III of this Agreement, the parties agree to use reasonable best efforts to separate the issues for resolution, in which case the party that would be liable for any Tax relating to each issue will be the Controlling Party with respect to that issue. To the extent the issues cannot be separated, the party that would bear the majority of the liability if all issues were resolved unfavorably shall be the Controlling Party. If the Controlling Party relinquishes in writing its responsibility for and control over a Tax Contest or, in the reasonable opinion of the non-Controlling Party, is not
 
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prosecuting a Tax Contest in a manner reasonably satisfactory to the non-Controlling Party, then the non-Controlling Party may (at its own expense) elect to take over the prosecution and resolution of such Tax Contest, it being understood that the election by a non-Controlling Party to take over the prosecution and resolution of a Tax Contest shall not limit in any way any rights to indemnification that the non-Controlling Party may have under the terms of this Agreement with respect to any Taxes imposed in connection with such Tax Contest.
5.02 Indemnified Claims In General . FDC or Western Union shall promptly notify the other in writing upon the receipt of a notice of assessment by the relevant Government Authority of an adjustment to a Tax Return that (i) may result in liability of the other party (the “ Indemnitor ”) under this Agreement or (ii) could reasonably be expected to have a material effect on the Tax Liability of the other party for any Post-Distribution Period. If the Indemnitor (or such other party) is not also the Controlling Party (as determined under Section 5.01 ), the Controlling Party shall provide the Indemnitor (or such other party) with all information within the possession of the Controlling Party about the nature and amounts of the proposed adjustments and, subject to additional rights of the Indemnitor (or such other party) in certain circumstances under Section 5.03 or Section 5.04 of this Agreement, shall permit the Indemnitor (or such other party) to Participate in the Tax Contest at the Indemnitor’s (or such other party’s) own expense. The Controlling Party shall not be required to indemnify the Indemnitor (or such other party) if the Controlling Party fails to notify or provide such information to the Indemnitor (or such other party) unless the Indemnitor (or such other party) is materially prejudiced by such failure and, in any such case, the Controlling Party shall be required to indemnify only to the extent of such prejudice.
5.03 Certain Tax Claims .
(a) Any issue raised by a Governmental Authority in any Tax Contest with respect to which the Indemnitor is not the Controlling Party that could result in liability to the Indemnitor under this Agreement is defined as a Claim (a “ Claim” ). The Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 of any such Claim. Except as provided in Section 5.03(d) and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without prior written consent of the Indemnitor, if within thirty (30) days after the notice described in Section 5.02 is received by the Indemnitor, (i) the Indemnitor requests in writing that such Claim be contested and (ii) the Indemnitor agrees in writing to pay on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim. The Controlling Party, after reasonable consultation with the Indemnitor, shall determine in the Controlling Party’s sole discretion the nature of all actions to be taken to contest such Claim, including, without limitation, (x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor does not Participate in the Tax Contest, the
 
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Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel) informed as to the progress of the Tax Contest with respect to any Claim.
(b) If the Indemnitor requests that the Controlling Party accept a settlement of a Claim offered by the relevant Governmental Authority and if such Claim may, in the reasonable discretion of the Controlling Party, be settled without prejudicing any claims the relevant Governmental Authority may have with respect to matters unrelated to the Claim, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that the Indemnitor’s liability with respect to such Claim shall be limited to the lesser of (i) an amount related to such Claim calculated on the basis of such settlement offer plus (without duplication) interest and any penalties owed to the relevant Governmental Authority on the date of eventual payment or (ii) the amount related to such Claim calculated on the basis of a Final Determination.
(c) If, after consultation with the Indemnitor, the Controlling Party shall elect to pay the Tax claimed pursuant to a Claim and seek a refund, the Indemnitor shall provide sufficient funds to the Controlling Party (with no net after-Tax cost to the Controlling Party) to cover any applicable indemnity obligations of the Indemnitor. To the extent such refund claim is ultimately disallowed, the amount provided by the Indemnitor or portion thereof equal to the amount of the refund claim so disallowed shall be applied against the Indemnitor’s obligation to make indemnity payments pursuant to this Agreement. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor all amounts provided to the Controlling Party with respect to the indemnity obligation within ten (10) days of the receipt of such refund (or if the Controlling Party would have received such refund but for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within ten (10) days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the relevant Governmental Authority that is properly attributable to such amount.
(d) Except as provided below, the Controlling Party shall not settle a Claim that the Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the prior written consent of the Indemnitor, which consent may not be unreasonably withheld. At any time, whether before or after commencing to take any action pursuant to this Section 5.03 with respect to any Claim, the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b) , at that point in the contest) and with respect to any Claim related to such Claim or based on the outcome of such Claim. If the Controlling Party settles any Claim or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall pay to the Indemnitor any amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in
 
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connection with a settlement offer pursuant to Section 5.03(b) ), plus interest attributable to such amounts.
5.04 Certain Other Tax Claims .
(a) Notwithstanding anything herein to the contrary, the Controlling Party with respect to any issue arising in a Tax Contest agrees not to settle (or take any other action with respect to) such Tax Contest, to the extent such settlement (or other action) could reasonably be expected to have a material adverse effect on the Tax liability of the non-Controlling Party for any Post-Distribution Period, without the consent of the non-Controlling Party, which consent shall not be unreasonably withheld.
(b) Without limiting the foregoing, in the event that Western Union is the Controlling Party with respect to a Tax Contest involving a Tax Return for any Pre-Distribution Period filed on a consolidated, combined or unitary basis with one or more of the FDC Parties, then Western Union must consult in good faith with FDC before taking any course of action with respect to such Tax Contest that could reasonably be expected to have a material adverse effect on any FDC Party, including, without limitation, any course of action that would result in a material extension of the period during which the taxable year or period to which such Tax Contest relates remains subject to further audit or examination by any Governmental Authority. If any such material adverse effect on any FDC Party could reasonably be expected to occur, Western Union agrees to take all reasonable steps, as requested by FDC, to mitigate the adverse effect, including, without limitation, (i) severing the issue with respect to which Western Union is the Controlling Party from any remaining issues in the Tax Contest to the extent administratively or legally possible or (ii) requesting “fast track” or similar administrative appeals.
(c) Without limiting the foregoing, in the event that FDC is the Controlling Party with respect to a Tax Contest involving a Tax Return for any Pre-Distribution Period filed on a consolidated, combined or unitary basis with one or more of the Western Union Parties, then FDC must consult in good faith with Western Union before taking course of action with respect to such Tax Contest that could reasonably be expected to have a material adverse effect on any Western Union Party, including, without limitation, any course of action that would result in a material extension of the period during which the taxable year or period to which such Tax Contest relates remains subject to further audit or examination by any Governmental Authority. If any such material adverse effect on any Western Union Party could reasonably be expected to occur, FDC agrees to take all reasonable steps, as requested by Western Union, to mitigate the adverse effect, including, without limitation, (i) severing the issue with respect to which FDC is the Controlling Party from any remaining issues in the Tax Contest to the extent administratively or legally possible or (ii) requesting “fast track” or similar administrative appeals.
 
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ARTICLE VI
COOPERATION; RECORD RETENTION
6.01 General . In addition to any obligations imposed pursuant to the Separation Agreement (including, without limitation, those specified in Section 14.7 of the Separation Agreement), FDC and Western Union shall cooperate with each other in the filing of any Tax Returns and the conduct of any Tax Contest and each shall execute and deliver such powers of attorney and make available such other documents as are reasonably necessary to carry out the intent of this Agreement. Each party agrees to notify the other party in writing of any audit adjustments that do not result in Tax liability but could reasonably be expected to affect Tax Returns of the other party or its Affiliates for a Post-Distribution Period.
6.02 Cooperation With Respect To Tax Return Filings, Examinations And Tax Related Controversies . In addition to any obligations imposed pursuant to the Separation Agreement (including, without limitation, those specified in Section 14.7 of the Separation Agreement), each party shall fully cooperate (and shall cause its Affiliates to fully cooperate) with the other party (or its Affiliates) and its representatives, in a prompt and timely manner, in connection with (i) the preparation and filing of any Tax Return required to be filed by such other party pursuant to Article III and (ii) any Tax Contest with respect to which such other party is the Controlling Party or a Participant. Such cooperation shall include, but shall not be limited to, (x) the execution and delivery to such other party any reasonably requested powers of attorney, (y) making available to such other party, during normal business hours, and within fifteen (15) days of any written request therefor, (A) all relevant books, records and information, (B) the assistance of all officers and employees and (C) access to any software, files or other data necessary to complete any Tax Return, in each case, to the extent reasonably requested. Specifically in regard to clause (B) of the preceding sentence (and without limiting the foregoing), it is the mutual intent of both parties that the income tax compliance personnel of Western Union shall continue after the Distribution Date, to the extent reasonably requested by FDC, to perform their Pre-Distribution Period duties and responsibilities associated with the preparation and filing of all federal, state or local income Tax Returns that (i) relate to any period beginning on or prior to the Distribution Date, (ii) are due after the Distribution Date, and (iii) are filed on a consolidated, combined or unitary basis involving one or more Western Union Parties and one or more FDC Parties.
6.03 Record Retention; Data Access . In addition to any obligations imposed pursuant to the Separation Agreement (including, without limitation, those specified in Section 14.7 of the Separation Agreement), FDC and Western Union shall (i) in accordance with their then current record retention policy, retain records, documents, accounting data and other information (including, without limitation, computer data) necessary for the preparation and filing of all Tax Returns in respect of Taxes of any FDC Party or any Western Union Party for any Pre-Distribution Period or any Post-Distribution Period or for the audit of such Tax Returns; and (ii) give to the other reasonable access to such records, documents, accounting data and other information (including, without limitation, computer data) and to its personnel (insuring their cooperation) and premises, for the purpose of the review or audit of such Tax Returns to the extent relevant to an obligation or liability of a party under this Agreement or for purposes
 
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of the preparation or filing of any such Tax Return, the conduct of any Tax Contest or any other matter reasonably and in good faith related to the Tax affairs of the requesting party. If at any time after the Distribution Date a Western Union Party proposes to destroy such material or information relating to an FDC Party, it shall first notify FDC in writing and FDC shall be entitled to receive such materials or information proposed to be destroyed. If at any time after the Distribution Date an FDC Party proposes to destroy such material or information relating to a Western Union Party, it shall first notify Western Union in writing and Western Union shall be entitled to receive such materials or information proposed to be destroyed.
6.04 Confidentiality . For the avoidance of doubt, to the extent applicable, the obligations imposed pursuant to the Separation Agreement (including, without limitation, those specified in Section 14.8 of the Separation Agreement) with respect to confidentiality shall apply with respect to any information relating to Tax matters.
ARTICLE VII
DISPUTES
If FDC and Western Union cannot agree on the calculation of any liability under this Agreement, or the interpretation or application of any provision under this Agreement, either party may provide to the other party written notice of intent to invoke the dispute resolution procedures of this Article VII . Within ten (10) days following the receipt of such written notice, FDC and Western Union shall jointly retain a nationally recognized law firm or “big four” accounting firm, which firm is independent of both parties (the “ Independent Firm ”), to resolve the dispute. If the parties cannot jointly agree on an Independent Firm to resolve the dispute within the ten (10) day period, then within a period of an additional ten (10) days, each party shall select a nationally recognized law firm or “big four” accounting firm, which firm is independent of both parties, and those firms shall jointly select an Independent Firm which shall make the determination under this Article VII . The Independent Firm shall act as an arbitrator to resolve all points of disagreement and its decision shall be final and binding upon all parties involved. The Independent Firm shall determine the appropriate outcome based upon this Agreement with respect to each disputed item. The Independent Firm shall make such determinations by the earlier of (i) ninety (90) days from the date that it is selected and (ii) ten (10) days prior to the date on which response with respect to a disputed item is due to the relevant Governmental Authority, unless FDC and Western Union mutually agree on an extension of such period or the Independent Firm, in its discretion, determines that an extension of such period is warranted by exceptional circumstances; provided , that in all events, such determination shall be made no later than five (5) days prior to the date on which response with respect to a disputed item is due to the relevant Governmental Authority. FDC and Western Union shall provide the Independent Firm with such information or documentation as the Independent Firm deems in its discretion to be necessary for it to make the determinations requested of it. Any determination by the Independent Firm shall be in writing. Following the decision of the Independent Firm, FDC and Western Union shall each take or cause to be taken any action necessary to implement the decision of the Independent Firm. The fees and expenses relating to the Independent Firm shall be borne by the party that such Independent Firm determines has lost the dispute. In all other events, the fees and expenses relating to the
 
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Independent Firm shall be shared based on the difference between the FDC’s position, on the one hand, and Western Union’s position, on the other hand, initially presented to the Independent Firm (based on the aggregate of all differences taken as a whole) and the final resolution as determined by the Independent Firm in proportion to the total difference between FDC’s and the Western Union’s initial positions.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01 Entire Agreement . This Agreement embodies the entire understanding between the parties relating to its subject matter and supersedes and terminates all prior agreements and understandings, if any, among the parties with respect to such subject matter. No promises, covenants or representations of any kind, other than those expressly stated herein, have been made to induce any party to enter into this Agreement. This Agreement shall not be modified or terminated except by a writing duly signed by each of the parties hereto, and no waiver of any provisions of this Agreement shall be effective unless in a writing duly signed by the party sought to be bound. If, and to the extent that, the provisions of this Agreement conflict with the Separation Agreement, or any other agreement entered into in connection with the Western Union Spin-Off Transactions, the provisions of this Agreement shall control.
8.02 Survival . Notwithstanding any provision in this Agreement to the contrary, the provisions of this Agreement shall survive until the expiration of any applicable statute of limitations; provided , that any liabilities determined under this Agreement shall survive indefinitely.
8.03 Headings . All headings contained in this Agreement are for convenience only and shall not be deemed a part of this Agreement.
8.04 Severability . If any provision of this Agreement or the application of any such provision to any person or circumstances shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof.
8.05 Counterparts . This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
8.06 Governing Law . This Agreement shall be governed by and construed in accordance with the internal laws (as opposed to the conflicts of law provisions) of the State of Delaware.
8.07 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
8.08 Notices . Any payment, notice or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (i) when
 
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delivered personally, (ii) if transmitted by facsimile (or other electronic means), when confirmation of transmission is received, or (iii) if sent by registered or certified mail, return receipt requested, or by private courier, when received. Any notice shall be addressed as follows:
If to FDC, to it at:
First Data Corporation
6200 South Quebec Street, Suite 430
Greenwood Village, Colorado 80111
Attention: Senior Vice President, Tax
Facsimile: (303) 967-7303
If to Western Union, to it at:
The Western Union Company
12500 East Belford Avenue, Mailstop M23B7
Englewood, Colorado 80112
Attention: Senior Vice President, Tax
Facsimile: (720) 332-0609
8.09 No Third-Party Beneficiaries . Nothing in this document shall be deemed to create any right in any person not a party hereto and this instrument shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party except as aforesaid.
8.10 Mutual Drafting . This Agreement shall be deemed to be the joint work product of FDC and Western Union and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.
 
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their authorized representatives as of the date first above written.

FIRST DATA CORPORATION	
		
By:	 	/s/ Kimberly S. Patmore	
	 	Name:	 	Kimberly S. Patmore	
	 	Title:	 	Executive Vice President and Chief Financial Officer	

THE WESTERN UNION COMPANY	
		
By:	 	/s/ David G. Barnes	
	 	Name:	 	David G. Barnes	
	 	Title:	 	Executive Vice President Finance and Strategic Development	
 
Exhibit 10.2
EMPLOYEE MATTERS AGREEMENT
THIS EMPLOYEE MATTERS AGREEMENT is made as of September 29, 2006 between First Data Corporation, a Delaware corporation (“ First Data ”), and The Western Union Company, a Delaware corporation (“ Western Union ”) and, as of the date hereof, a wholly-owned subsidiary of First Data.
RECITALS
A. First Data and Western Union have entered into a Separation and Distribution Agreement dated as of September 29, 2006 (the “ Distribution Agreement ”) pursuant to which First Data will distribute on a pro rata basis to the holders of First Data’s Common Stock, $0.01 par value per share (“ First Data Common Stock ”), without any consideration being paid by the holders of such First Data Common Stock, all of the outstanding shares of Western Union’s Common Stock, $0.01 par value per share (“ Western Union Common Stock ”) then owned by First Data (the “ Distribution ”).
B. In connection with the Distribution, First Data and Western Union desire to enter into this Employee Matters Agreement.
In consideration of the mutual promises contained herein and in the Distribution Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Unless otherwise defined herein, each capitalized term shall have the meaning specified for such term in the Distribution Agreement. As used in this Agreement:
“ Agreement ” means this Employee Matters Agreement together with those parts of the Distribution Agreement referenced herein and all Schedules hereto and all amendments, modifications and changes hereto and thereto.
“ Business Employee ” means a Transferred Employee or any other individual employed at any time on or prior to the Distribution Date by Western Union or any of its Subsidiaries or Affiliates who has, as of the Distribution Date, or who, immediately prior to his or her termination of employment with all of First Data, its Subsidiaries and their respective Affiliates, had employment duties primarily related to the Transferred Business.
“ COBRA ” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as codified at Part 6 of Subtitle B of Title I of ERISA and at Section 4980B of the Code, as amended.
“ Code ” means the U.S. Internal Revenue Code of 1986, as amended.
“ Domestic Business Employee ” means a Business Employee who is located in the United States or who is an expatriate Business Employee employed by a Western Union U.S.

entity but who is performing services outside of the United States for a temporary period of time at the request of his employer.
“ ERISA ” means the U.S. Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §1001, et . seq .
“ First Data Non-ERISA Benefit Arrangement ” means any Non-ERISA Benefit Arrangement sponsored or maintained by First Data.
“ First Data Plan ” means any Pension Plan or Welfare Plan sponsored or maintained by First Data.
“ IRS ” means the U.S. Internal Revenue Service.
“ Non-Domestic Business Employee ” means a Business Employee who is located outside the United States or who is an inpatriate Business Employee in the U.S. employed by a Western Union Non-U.S. entity but who is performing services in the United States for a temporary period of time at the request of his employer.
“ Non-ERISA Benefit Arrangement ” means any contract, agreement, policy, practice, program, plan, trust or arrangement, other than a Pension Plan or Welfare Plan, providing for benefits, perquisites or compensation of any nature to any Business Employee, or to any family member, dependent or beneficiary of any such Business Employee, including, without limitation, disability, severance, health, dental, life, accidental death and dismemberment, travel and accident, tuition reimbursement, supplemental unemployment, vacation, sick, personal or bereavement days, holidays, retirement, deferred compensation, profit sharing, bonus, stock-based compensation or other forms of incentive compensation.
“ Pension Plan ” means any pension plan as defined in Section 3(2) of ERISA, without regard to Section 4(b)(4) or 4(b)(5) of ERISA.
“ Transferred Employee ” means an employee of First Data or any First Data Subsidiary (other than Western Union or any Western Union Subsidiary) whose employment is transferred to Western Union immediately prior to the Distribution Date.
“ Welfare Plan ” means any employee welfare plan as defined in Section 3(1) of ERISA, without regard to Section 4(b)(4) or 4(b)(5) of ERISA.
1.02 In this Agreement, unless the context clearly indicates otherwise:
(a) words used in the singular include the plural and words used in the plural include the singular;
(b) references to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and a reference to such Person’s “Affiliates” shall be deemed to mean such Person’s Affiliates following the Distribution;
(c) references to any gender includes the other gender;

(d) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”;
(e) references to any Article, Section or Schedules means such Article or Section of, or such Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;
(f) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;
(g) references to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;
(h) references to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;
(i) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”;
(j) accounting terms used herein shall have the meanings historically ascribed to them by First Data and its Subsidiaries, including Western Union, in its and their internal accounting and financial policies and procedures in effect prior to the date of this Agreement;
(k) if there is any conflict between the provisions of the Distribution Agreement and this Agreement, the provisions of this Agreement shall control with respect to the subject matter hereof; if there is any conflict between the provisions of the body of this Agreement and the Schedule hereto, the provisions of the body of this Agreement shall control unless explicitly stated otherwise in such Schedule;
(l) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement;
(m) any portion of this Agreement obligating a Party to take any action or refrain from taking any action, as the case may be, shall mean that such Party shall also be obligated to cause its relevant Affiliates to take such action or refrain from taking such action, as the case may be; and
(n) unless otherwise specified in this Agreement, all references to dollar amounts herein shall be in respect of lawful currency of the United States.

ARTICLE II
ASSIGNMENT OF EMPLOYEES
Effective immediately prior to the Distribution Date, the employment of the Transferred Employees by First Data shall be terminated and thereupon shall commence with and shall be assigned and transferred to Western Union or a Western Union Subsidiary. Notwithstanding anything set forth below or herein to the contrary, nothing in this Agreement shall create any obligation on the part of any Western Union Party to continue the employment of any employee for any definite period following the Distribution Date or to change the employment status of any employee from “at will.” Notwithstanding the foregoing, if and only to the extent necessary to preserve payroll, benefits, or other legal entitlements with respect to employees outside the United States, a Western Union Party and a First Data Party may enter into one or more agreements whereby such Party may lease employees from the other company or its Subsidiary for a period of not more than three calendar months following the Distribution Date. Any such agreement(s) shall require the company benefiting from the services of such employee(s) to fully reimburse the leasing company for the full cost of the employee(s) remuneration and shall contain other terms and conditions consistent with an arm’s length commercial relationship between the leasing entity and the service recipient.
ARTICLE III
PENSION PLANS
3.01 U.S. Defined Contribution Plans.
(a) Western Union ISP.
(1) Establishment of Western Union Company Incentive Savings Plan. On or before, but effective as of the close of business on the Distribution Date, Western Union shall adopt, establish and maintain a 401(k) profit sharing Pension Plan and trust intended to be qualified under Section 401(a) of the Code and exempt from federal income tax under Section 501(a) of the Code (the “ Western Union ISP ”). As soon as practicable after the adoption of the Western Union ISP, Western Union shall submit an application for determination to the IRS for a determination that the Western Union ISP is qualified under Section 401(a) of the Code and that the related trust is exempt from federal income tax under Section 501(a) of the Code, and shall take any actions not inconsistent with Western Union’s other general commitments contained in this Agreement and make any amendments necessary to receive such determination.
(2) Transfer of Account Balances and Unallocated Amounts. As soon as administratively practicable after the Distribution Date, there shall be transferred from the First Data Corporation Master Trust for Defined Contribution Plans (“ DC Master Trust ”) to the trust established by Western Union for the Western Union ISP assets having a value as of the applicable valuation date that are equal to the value of the account balances of, and liabilities with respect to, all Business Employees (other than Business Employees whose employment has

terminated prior to the Distribution Date and other than Business Employees located in Puerto Rico) with an account balance under the First Data Corporation Incentive Savings Plan (“ First Data ISP ”) as of such valuation date. In addition, as soon as administratively practicable after the Distribution Date, there shall be transferred from the DC Master Trust to the trust established by Western Union to hold Western Union ISP assets a pro rata share of all unallocated amounts held in the DC Master Trust (other than unallocated forfeitures attributable to the Western Union Financial Services, Inc. Retirement Savings Plan for Bargaining Unit Employees), determined based upon the ratio of the sum of the account balances of the Business Employees described in the immediately preceding sentence as of the applicable valuation date to the sum of all account balances held in the DC Master Trust as of such valuation date. Such transferred assets shall be in cash, shares of securities, promissory notes evidencing outstanding plan loans of such Business Employees, and shares of First Data Common Stock and Western Union Common Stock, and such transfer shall be made in accordance with Section 414(l) of the Code. Liabilities under any qualified domestic relations orders (as defined in Section 414(p) of the Code) received with respect to any accounts transferred to the Western Union ISP shall be transferred to and assumed by the Western Union ISP at the time such assets attributable to such accounts are transferred. Western Union shall assume and thereafter be solely responsible for all then existing and future employer liabilities related to such Business Employees under the Western Union ISP and the administration thereof, and the First Data Parties shall have no liability therefor.
(b) Western Union Financial Services, Inc. Retirement Savings Plan for Bargaining Unit Employees. Following the Distribution Date, Western Union Financial Services, Inc. shall continue to be the plan sponsor of the Western Union Financial Services, Inc. Retirement Savings Plan for Bargaining Unit Employees (the “ RSP ”). As soon as administratively practicable after the Distribution Date, there shall be transferred from the DC Master Trust to the trust established by Western Union Financial Services, Inc. (or its designee) for the RSP assets (the “ RSP Trust ”) having a value as of the applicable valuation date that are equal to the value of the account balances of, and liabilities with respect to, the RSP as of such valuation date. In addition, as soon as administratively practicable after the Distribution Date, there shall be transferred from the DC Master Trust to the RSP Trust all unallocated forfeitures attributable to the RSP as well as a pro rata share of all other unallocated amounts held in the DC Master Trust, determined based upon the ratio of the sum of the account balances of the RSP as of the applicable valuation date to the sum of all account balances held in the DC Master Trust as of such valuation date. Following the date of such asset transfer, the First Data Parties shall have no liability relating to the RSP.
(c) Western Union Pension Plan and Western Union Financial Services, Inc. Pension Plan. Following the Distribution Date, Western Union Financial Services, Inc. shall continue to be the plan sponsor of the Western Union Pension Plan and the Western Union Financial Services, Inc. Pension Plan. As soon as administratively practicable after the Distribution Date, there shall be retitled in the name of the Western Union Master Pension Trust as established by Western Union Financial Services, Inc. (or its designee) assets having a value as of the applicable valuation date that are equal to the

value of the accrued benefits of, and liabilities with respect to, the Western Union Pension Plan and the Western Union Financial Services, Inc. Pension Plan as of such valuation date, as determined by First Data and Western Union. Following the date of the transaction contemplated in the immediately preceding sentence, the First Data Parties shall have no liability arising out of or otherwise with respect to the Western Union Pension Plan or the Western Union Financial Services, Inc. Pension Plan.
3.02 Supplemental Non-Qualified Deferred Compensation Plan. On or before, but effective as of the close of business on Distribution Date, Western Union shall adopt a non-qualified deferred compensation plan (the “ Western Union Supplemental Incentive Savings Plan ”). Western Union shall assume, and shall cause the Western Union Supplemental Incentive Savings Plan to assume, responsibility for all liabilities and fully perform, pay and discharge all obligations, when such obligations become due, to the Business Employees under the First Data Corporation Supplemental Incentive Savings Plan (“ SISP-1 and SISP-2 ”) immediately prior to the Distribution Date. Following such date, the First Data Parties shall have no liability arising out of or otherwise with respect to the SISP-1 and SISP-2.
3.03 Non-U.S. Retirement Plans. Following the Distribution Date, Western Union shall cause its Non-U.S. Subsidiaries to continue to maintain in full force and effect retirement plans as were sponsored and maintained by such Subsidiaries immediately prior to the Distribution Date, and neither First Data nor any First Data Subsidiary shall have any liability or obligation with respect to such plans or any participants or former participants in such plans with respect to their participation therein. In addition, effective either prior to or as of the Distribution Date, Western Union shall cause its Non-U.S. Subsidiaries in the United Kingdom, Japan, Canada, and Australia to adopt retirement plans with appropriate eligibility and benefits terms to ensure that Non-Domestic Business Employees in such countries are either (1) eligible to participate in the same type of plan and enjoy the same level of benefits for which such Non-Domestic Business Employees were eligible immediately prior to the Distribution Date (or date of plan adoption, if earlier), or (2) eligible to participate in a plan intended to provide a comparable level of benefits for which such Non-Domestic Business Employees were eligible immediately prior to the Distribution Date (or date of plan adoption, if earlier).
ARTICLE IV
WELFARE PLANS
4.01 Western Union Financial Services, Inc. Health and Welfare Benefit Plan. Following the Distribution Date, Western Union Financial Services, Inc. shall continue to be the plan sponsor of the Western Union Financial Services, Inc. Health and Welfare Benefit Plan, and the First Data Parties shall have no liability relating to such plan. The Western Union Financial Services, Inc. Health and Welfare Benefit Plan covers only collectively bargained employees. As of the date of this Agreement, all eligible non-union Domestic Business Employees participate in the First Data Corporation Health and Welfare Benefit Plan.

4.02 Continued Participation in First Data U.S. Welfare Plans; Establishment of Separate U.S. Welfare Plan Contracts. For the period beginning at the close of business on the Distribution Date and ending as of 11:59 p.m. on December 31, 2006, all eligible non-union Domestic Business Employees shall continue to be eligible to participate in the First Data Corporation Health and Welfare Benefit Plan. First Data and Western Union shall take reasonable steps to have separate provider contracts established under the terms of the First Data Corporation Health and Welfare Benefit Plan to provide coverage to Domestic Business Employees during such period. In consideration for the continued participation of the eligible non-union Domestic Business Employees in the First Data Corporation Health and Welfare Benefit Plan through December 31, 2006, Western Union shall pay to First Data, or reimburse it for, such amounts as are set forth in the Health and Life Benefits Schedule to the Transition Services Agreement.
4.03 Western Union’s Welfare Plans. (a) On or before, but effective as of January 1, 2007, Western Union shall have adopted for the benefit of eligible Domestic Business Employees and their respective eligible dependents, health (including medical, vision and dental), life, accidental death and dismemberment, disability and other Welfare Plans as determined by Western Union (the “ Western Union Welfare Plans ”). Domestic Business Employees shall be eligible to participate in the Western Union Welfare Plans as of January 1, 2007 on the terms established by Western Union.
(b) Following the Distribution Date, Western Union shall cause its Non-U.S. Subsidiaries to continue to maintain in full force and effect Welfare Plans as were sponsored and maintained at such Subsidiaries immediately prior to the Distribution Date, and neither First Data nor any First Data Subsidiary shall have any liability or obligation with respect to such plans or any participants or former participants in such plans with respect to their participation therein. First Data and Western Union shall have separate provider contracts established for employees of First Data and Western Union Non-U.S. Subsidiaries effective on or prior to the Distribution Date. In addition, effective either prior to or as of the Distribution Date, Western Union shall cause its Non-U.S. Subsidiaries in the United Kingdom, Japan, Canada, and Australia to adopt Welfare Plans with appropriate eligibility and benefits terms, to ensure that Non-Domestic Business Employees in such countries are either (1) eligible to participate in the same type of plan and enjoy the same level of benefits for which such Non-Domestic Business Employees were eligible immediately prior to the Distribution Date (or date of plan adoption, if earlier), or (2) eligible to participate in a plan intended to provide a comparable level of benefits for which such Non-Domestic Business Employees were eligible immediately prior to the Distribution Date (or date of plan adoption, if earlier), and neither First Data nor any First Data Subsidiary shall have any liability or obligation with respect to such plans or any participants in such plans.
4.04 Welfare Plan Liabilities.
(a) Western Union Liabilities. Except as otherwise provided in this Agreement, Western Union shall assume, and be solely responsible for all First Data and Western Union Welfare Plan liabilities incurred by any Business Employee on or after the Distribution Date.

(b) First Data Liabilities. First Data shall continue to be responsible after the Distribution Date for employer liabilities under the First Data Corporation Health and Welfare Benefit Plan and any Non-U.S Welfare Benefit Plan incurred with respect to Business Employees and their eligible dependents only with respect to the following (except as otherwise provided in this Agreement):
(1) Continuation Coverage for Terminated Domestic Business Employees and their Dependents. Any Domestic Business Employee whose employment terminates prior to January 1, 2007 for any reason, including a Domestic Business Employee currently receiving First Data Corporation Health and Welfare Plan benefits pursuant to a termination agreement or an “Agreement and Release” under the applicable First Data severance policy, and any dependent of such Domestic Business Employee, who elected or is eligible to elect, pursuant to rights under COBRA or any comparable state law, to continue participation in the First Data Corporation Health and Welfare Benefit Plan on the applicable date of termination;
(2) Disabled Persons. First Data shall continue to be responsible after the Distribution Date for all claims for long-term disability incurred prior to the Distribution Date by any non-union Domestic Business Employee who is absent from active employment due to a total disability, as defined in the First Data Corporation Health and Welfare Benefit Plan, on or prior to the Distribution Date to the extent that such long-term disability benefits are provided under an insurance contract. First Data shall also be responsible for long-term disability benefits for any Domestic Business Employee who is receiving weekly short-term disability benefits as of the Distribution Date and who becomes eligible for long-term disability benefits thereafter, provided that the total disability relates to the same condition for which weekly short-term disability benefits were paid and, provided further, that such long-term disability benefits are payable under an insurance contract. Western Union shall assume and be solely responsible for all other claims for long-term disability payable on or after the Distribution Date with respect to any Business Employee and shall continue to be responsible for all claims for short-term disability benefits for any Domestic Business Employee, without regard to when the disability occurred.
4.05 Flexible Spending Accounts. For the period beginning at the close of business on the Distribution Date and ending as of 11:59 p.m. on December 31, 2006, all eligible non-union Domestic Business Employees shall continue to be eligible to participate in the First Data Flexible Spending Account Plan (the “ First Data FSA ”). Payflex, the current First Data FSA vendor, shall maintain the flexible spending account balances for all Domestic Business Employees under the First Data FSA as of December 31, 2006. All 2006 Claims made by Domestic Business Employees shall be submitted to Payflex. Any forfeitures attributable to Domestic Business Employees under the First Data FSA which occur after all 2006 Claims have been processed by Payflex shall be used by First Data as permitted under applicable regulations and an equivalent amount reimbursed to Western Union. For purposes of this Section 4.05, the term “ 2006 Claims ” means: (i) any claims by Domestic Business Employees incurred on or prior to December 31, 2006, and (ii) any claims by Domestic Business Employees incurred through

March 15, 2007 and which are designated by the Domestic Business Employees to be offset against their respective December 31, 2006 balances under the First Data FSA. Effective January 1, 2007, Western Union shall adopt and maintain a flexible spending account plan (the “ Western Union FSA ”) with a new FSA vendor. All claims incurred under the Western Union FSA by Domestic Business Employees shall be made to the new Western Union FSA vendor.
4.06 First Data Assets. First Data shall retain all claim reserves, bank accounts, trust funds or other balances maintained by or on behalf of the First Data Corporation Health and Welfare Benefit Plan.
ARTICLE V
EQUITY COMPENSATION PLANS
5.01 Stock Options.
(a) First Data and Western Union shall take any and all action as shall be necessary or appropriate, including without limitation, approval of the provisions of this Article V by the Western Union Board of Directors and the Compensation Committee of the First Data Board of Directors, so that options issued under the First Data Corporation 1992 Long Term Incentive Plan, the 2002 First Data Corporation Long Term Incentive Plan, the First Data Corporation 1993 Director’s Stock Option Plan, the Concord EFS, Inc. 1993 Incentive Stock Option Plan, the Concord EFS, Inc. 2002 Stock Option Plan, and the Star Systems, Inc. 2000 Equity Incentive Plan (collectively, the “ First Data LTIPs ”) to purchase First Data Common Stock (“ First Data Stock Options ”) held at the close of business on the Distribution Date by current and former employees and directors of First Data and its Subsidiaries and Affiliates who will not be Transferred Employees and Business Employees whose employment terminated prior to the Distribution Date (or their respective transferees) shall be replaced pursuant to the terms of the First Data LTIPs with an adjusted First Data Stock Option with an adjusted exercise price and a substitute option issued under The Western Union Company 2006 Long Term Incentive Plan or The Western Union Company 2006 Non-Employee Director Equity Compensation Plan (collectively the “ Western Union LTIP s”) to purchase Western Union Common Stock (a “ Western Union Stock Option ”). Such replacement will be implemented in a manner such that immediately following the Distribution (i) the number of shares relating to the adjusted First Data Stock Option will be equal to the number of shares of First Data Common Stock subject to such option immediately prior to the Distribution, (ii) the number of shares subject to the substitute Western Union Stock Option will be equal to the number of shares of Western Union Common Stock that the option holder would have received in the Distribution had the First Data Common Stock subject to the option represented outstanding shares of First Data Common Stock, and (iii) the per share option exercise price of the original First Data Stock Option will be proportionally allocated between such separate stock options based upon the relative per share trading prices of First Data Common Stock and Western Union Common Stock immediately after the Distribution (determined as described below), with the intention that such adjustment and substitution satisfy the requirements of Section 424 of the Code

and avoid treatment as non-qualified deferred compensation subject to Section 409A of the Code. For purposes of this Agreement, the per share price of First Data Common Stock immediately after the Distribution shall be the per share closing price on the Distribution Date of such stock trading “with due bills” less the per share closing price of Western Union Common Stock trading on a “when issued” basis, and the per share price of Western Union Common Stock immediately after the Distribution shall be the closing price per share of such stock on the Distribution Date trading on a “when issued” basis. Each adjusted First Data Option and substituted Western Union Option adjusted from or substituted for an original First Data Option described in this Section 5.01(a) , when combined, will in the exclusive and sole discretion of the Compensation Committee of the First Data Board of Directors preserve the intrinsic value of such original First Data Option, and each will preserve the ratio from the original option of the exercise price to the fair market value of the stock subject to the option. Fractional shares shall be adjusted or compensated by First Data as appropriate in the sole discretion of the Compensation Committee of the First Data Board of Directors.
(b) First Data and Western Union shall take any and all action as shall be necessary or appropriate, including without limitation, approval of the provisions of this Article V by the Western Union Board of Directors and the Compensation Committee of the First Data Board of Directors, so that First Data Stock Options held at the close of business on the Distribution Date by a Business Employee, other than a Business Employee whose employment terminated prior to the Distribution Date, and each First Data Stock Option held by a director of First Data who will become a director of Western Union on or before the Distribution Date (or their respective transferees) will, pursuant to the terms of the applicable First Data LTIP and the applicable Western Union LTIP and this Agreement, be replaced with a substitute Western Union Stock Option issued under the Western Union LTIPs, with the intention that such substitution satisfy the requirements of Section 424 of the Code and avoid treatment as non-qualified deferred compensation subject to Section 409A of the Code. Each such substitute option will in the absolute discretion of the Compensation Committee of the First Data Board of Directors preserve the intrinsic value of the original First Data Stock Option for which it is substituted and the ratio in the original option of the exercise price to the fair market value of the stock by adjusting the number of shares purchasable and the exercise price, based on a comparison of the per share trading price of First Data Common Stock immediately prior to the Distribution (determined as described below), which includes the value of Western Union, and the per share trading price of Western Union Common Stock immediately after the Distribution (determined as described in Section 5.01(a)). For purposes of this Agreement, the per share trading price of First Data Common Stock immediately prior to the Distribution shall be the per share closing price on the Distribution Date of such stock trading “with due bills.” Fractional shares shall be adjusted or compensated by First Data as appropriate in the sole discretion of the Compensation Committee of the First Data Board of Directors.
(c) With respect to substituted Western Union Stock Options held by current and former employees and directors of First Data and its Subsidiaries and Affiliates (and their respective transferees), Western Union shall engage Salomon Smith Barney or such other entity as shall be designated by Western Union (with the consent of First Data, which consent shall not unreasonably be withheld) to act as recordkeeper for such

substituted Western Union Stock Options (including the responsibility to take customary actions with respect to broker-assisted cashless exercise thereof). If the exercise of such substituted Western Union Stock Options is made pursuant to a broker-assisted cashless exercise through the recordkeeper in accordance with the regulations of the Federal Reserve Board, then immediately after such exercise, the recordkeeper shall sell the number of shares necessary for the following payments to be remitted (which may be all the shares): (i) to the issuer of the option, the exercise price, and (ii) to the employer of the option holder, the employee’s share of income and payroll taxes. Thereafter, there shall be remitted to the option holder: (i) the balance of the proceeds from the sale of all shares or (ii) the remaining whole shares and cash for any fractional shares, as applicable.
5.02 Restricted Stock. First Data and Western Union shall take any and all action as shall be necessary or appropriate, including without limitation, approval of the provisions of this Article V by the Western Union Board of Directors and the Compensation Committee of the First Data Board of Directors pursuant to the terms of the applicable First Data LTIP and the applicable Western Union LTIP and this Agreement, so that current and former employees and directors of First Data and its Subsidiaries and Affiliates who will not be Transferred Employees, and Business Employees whose employment terminated prior to the Distribution Date, (or their respective transferees) and who on the Distribution Date hold shares of First Data Common Stock issued under one or more First Data LTIPs that are subject to restrictions on sale and transfer (“ First Data Restricted Stock ”) receive shares of Western Union Common Stock that are subject to restrictions on sale and transfer (“ Western Union Restricted Stock ”) in connection with the Distribution under the applicable Western Union LTIP based upon the number of shares of First Data Restricted Stock they hold. In the case of any outstanding First Data Restricted Stock awards which vest based on attainment of a specified share price of First Data Common Stock, such price targets shall be adjusted based on the relative per share trading prices of First Data Common Stock and Western Union Common Stock immediately after the Distribution (determined as described in Section 5.01(a)). First Data and Western Union shall take any and all action as shall be necessary or appropriate, including without limitation, approval of the provisions of this Article V by the Western Union Board of Directors and the Compensation Committee of the First Data Board of Directors pursuant to the terms of the applicable First Data LTIP and the applicable Western Union LTIP and this Agreement, so that the shares of First Data Restricted Stock held by Business Employees, other than Business Employees whose employment terminated prior to the Distribution Date, and any First Data director who will become a director of Western Union on or before the Distribution Date, (or their respective transferees) will be replaced with substitute shares of Western Union Restricted Stock issued under the applicable Western Union LTIP. Each such substitute Western Union Restricted Stock award will in the absolute discretion of the Compensation Committee of the First Data Board of Directors preserve the intrinsic value of the original First Data Restricted Stock award for which it was substituted by adjusting the number of restricted shares based on a comparison of the per share trading price of First Data Common Stock immediately prior to the Distribution (determined as described in Section 5.01(b)), which includes the value of Western Union, and the per share trading price of Western Union Common Stock immediately after the Distribution (determined as described in Section 5.01(a)). In the case of any outstanding First Data Restricted Stock awards which vest based on attainment of a specified share price of First Data Common Stock, such price

targets of the replaced Western Union Restricted Stock shall also be adjusted based on a comparison of the per share trading price of First Data Common Stock immediately prior to the Distribution (determined as described in Section 5.01(b)), which includes the value of Western Union, and the per share trading price of Western Union Common Stock immediately after the Distribution (determined as described in Section 5.01(a)). All employment with both First Data and Western Union shall be taken into account for purposes of determining when the restrictions on the sale and transfer of such shares lapse. Such substitution and replacement shall be intended to satisfy the requirements of Section 424 of the Code and avoid treatment as non-qualified deferred compensation subject to Section 409A of the Code. Fractional shares shall be adjusted or compensated by First Data as appropriate in the sole discretion of the Compensation Committee of the First Data Board of Directors.
5.03 Restricted Stock Units. First Data and Western Union shall take any and all action as shall be necessary or appropriate, including without limitation, approval of the provisions of this Article V by the Western Union Board of Directors and the Compensation Committee of the First Data Board of Directors pursuant to the terms of the applicable First Data LTIP and the applicable Western Union LTIP and this Agreement, so that current and former employees and directors of First Data and its Subsidiaries and Affiliates who will not be Transferred Employees and Business Employees whose employment terminated prior to the Distribution Date (or their respective transferees) will have each of their First Data Restricted Stock Units (as defined in the First Data LTIPs) replaced with an adjusted First Data Restricted Stock Unit and a substitute Western Union restricted stock unit issued under the Western Union LTIPs (“ Western Union Restricted Stock Unit ”). The number of Western Union Restricted Stock Units issued in replacement for such First Data Restricted Stock Units shall be calculated so that immediately following the Distribution (i) the number of First Data Restricted Stock Units will be equal to the number of First Data Restricted Stock Units held by the participant immediately prior to the Distribution, and (ii) the number of Western Union Restricted Stock Units will be equal to the number of shares of Western Union Common Stock that the holder of the restricted stock unit would have received in the Distribution had the First Data Restricted Stock Unit represented outstanding shares of First Data Common Stock. First Data and Western Union shall take any and all action as shall be necessary or appropriate, including without limitation, approval of the provisions of this Article V by the Western Union Board of Directors and the Compensation Committee of the First Data Board of Directors pursuant to the terms of the applicable First Data LTIP and the applicable Western Union LTIP and this Agreement, so that each First Data Restricted Stock Unit held by a Business Employee (or their respective transferees), other than a Business Employee whose employment terminated prior to the Distribution Date, will be replaced with a substitute Western Union Restricted Stock Unit issued under the applicable Western Union LTIP. It is intended that each substitute restricted stock unit will in the sole and absolute judgment of the Compensation Committee of the First Data Board of Directors preserve the intrinsic value of the original First Data Restricted Stock Unit for which it was substituted by representing a number of Western Union Restricted Stock Units based on a comparison of the per share trading price of First Data Common Stock immediately prior to the Distribution (determined as described in Section 5.01(b)), which includes the value of Western Union, and the per share trading price of Western Union Common Stock immediately after the Distribution (determined as described in Section 5.01(a)). Such

substitute Western Union Restricted Stock Units will take into account all employment with both First Data and Western Union, and their respective Subsidiaries and Affiliates, for purposes of determining when the restricted stock unit vests. Such substitution and replacement shall be intended to satisfy the requirements of Section 424 of the Code and avoid treatment as non-qualified deferred compensation subject to Section 409A of the Code. Fractional shares shall be adjusted or compensated by First Data as appropriate in the sole discretion of the Compensation Committee of the First Data Board of Directors.
5.04 Approval and Terms of Equity Awards. By its approval of this Article V , the Board of Directors of Western Union, as issuer of substitute and replacement awards provided hereunder, and the Compensation Committee of the Board of Directors of First Data, as sole shareholder of Western Union, hereby adopt and approve, respectively, the issuance of the substitute and replacement options and awards provided for herein. Except as set forth above, the terms of the First Data LTIPs and of the outstanding equity compensation awards held by participants under the First Data LTIPs and this Agreement and the substitute Western Union equity awards shall be subject to the terms of such plans and applicable award agreements (including but not limited to, the First Data LTIP provisions which require full vesting upon a change of control of First Data), except that references in such outstanding substitute and replacement Western Union awards to “Board” and “Compensation Committee” shall mean the Board and Compensation Committee of Western Union and references to the “Company” as issuer of securities thereunder and as the holder and transferee of unvested shares of Western Union Restricted Stock shall mean Western Union. Notwithstanding the foregoing, substitute awards made under the Western Union LTIPs pursuant to Western Union’s obligations under this Agreement shall take into account all employment with both First Data and Western Union, and their respective Subsidiaries and Affiliates, for purposes of determining when such awards vest and terminate. Such substitution shall be intended to satisfy the requirements of Section 424 of the Code and avoid treatment as non-qualified deferred compensation subject to Section 409A of the Code.
5.05 Responsibility for Tax Withholding, Reporting, and Social Insurance Contributions. First Data and Western Union agree that, unless prohibited by applicable law, (a) First Data shall be responsible for all tax withholding and reporting obligations and shall pay the employer’s share of any social insurance tax obligations that arise in connection with the grant, vesting, exercise, transfer or other settlement of the substitute and replacement awards held by current and former employees and directors of First Data and its Subsidiaries and Affiliates who will not be Transferred Employees (or their respective transferees), (b) Western Union shall be responsible for all tax withholding and reporting obligations and shall pay the employer’s share of any social insurance tax obligations that arise in connection with the grant, vesting, exercise, transfer or other settlement of the substitute and replacement awards held by Business Employees (or their transferees). First Data and Western Union agree to enter into any necessary agreements regarding the subject matter of this Section 5.05 to enable First Data and Western Union to fulfill their respective obligations hereunder, including but not limited to compliance with all applicable laws and regulations regarding the reporting, withholding or remitting of income and social insurance taxes.

5.06 No Change of Control. The Distribution will not constitute a “change of control” for purposes of First Data equity awards which are outstanding as of the Distribution Date.
5.07 Establishment of Western Union Equity Plans. Effective as of the Distribution Date, Western Union shall establish the Western Union LTIPs to provide for awards which may include the following: (i) stock options (both qualified and nonqualified), (ii) stock appreciation rights, (iii) restricted stock awards, (iv) restricted stock unit awards, (v) phantom stock units, (vi) performance grants and (vii) bonus awards, including, without limitation, the awards provided for herein. In exercising its power and authority hereunder with respect to replacement and substitute stock-based awards held by current and former employees (other than Transferred Employees) and directors of First Data, its Subsidiaries and Affiliates (and their respective transferees), Western Union shall (i) act in good faith and (ii) cooperate with and give due regard to any information provided by First Data. In addition, with respect to such replacement and substitute stock-based awards, Western Union shall not, without the prior written consent of the First Data Compensation Committee, take any discretionary action to accelerate vesting of any such awards.
ARTICLE VI
COMPENSATION MATTERS
AND GENERAL BENEFIT MATTERS
6.01 Cessation of Participation in First Data Plans and Non-ERISA U.S. Benefit Arrangements. Except as otherwise provided in this Agreement or as required by the terms of any First Data Plan or First Data Non-ERISA Benefit Arrangement, or by applicable law, First Data and Western Union shall take any and all action as shall be necessary or appropriate so that participation in First Data Plans and First Data Non-ERISA Benefit Arrangements by all Business Employees shall terminate as of the close of business on the Distribution Date and Western Union shall cease to be a participating employer under the terms of such First Data Plans and First Data Non-ERISA Benefit Arrangements as of such time.
6.02 Assumption of Certain Employee Related Obligations. Except as otherwise provided in this Agreement, effective as of the close of business on the Distribution Date, Western Union shall assume, and none of First Data or any of its Subsidiaries or Affiliates shall have any further liability for, the following agreements, obligations and liabilities and Western Union shall indemnify First Data and its Subsidiaries and Affiliates, and the officers, directors, and employees of each, and hold them harmless with respect to such agreements, obligations or liabilities:
(a) Agreements entered into between First Data, its Subsidiaries or Affiliates and Business Employees.
(b) Agreements entered into between First Data, its Subsidiaries or Affiliates and independent contractors providing services solely to the Transferred Business.

(c) All collective bargaining agreements, collective agreements, trade union, or works council agreements entered into between First Data, its Subsidiaries or Affiliates and any union, works council, or other body representing only Business Employees.
(d) All wages, salary, incentive compensation, commissions and bonuses payable to Business Employees on or after the Distribution Date, without regard to when such wages, salary, incentive compensation, commissions and bonuses are or may have been earned.
(e) All moving expenses and obligations related to relocation, repatriation, transfers, or similar items incurred by or owed to Business Employees.
(f) All immigration-related, visa, work application, or similar rights, obligations and liabilities related to Business Employees.
(g) All liabilities and obligations whatsoever of the Transferred Business with respect to claims made by or with respect to Business Employees or any other persons who at any time prior to the Distribution Date had employment duties primarily related to the Transferred Business relating to any employee benefit plan, program or policy not otherwise retained or assumed by First Data pursuant to this Agreement, including such liabilities relating to actions or omissions of or by Western Union or any officer, director, employee or agent thereof prior to the Distribution Date.
6.03 Restrictive Covenants in Employment and Other Agreements. To the extent permitted under applicable law, following the Distribution, Western Union and its Subsidiaries and Affiliates shall be considered to be successors to First Data and its Subsidiaries and Affiliates for purposes of all agreements containing restrictive covenants (including but not limited to confidentiality and non-competition provisions) between First Data (or a First Data Subsidiary or Affiliate) and Business Employees, employees of First Data (or a First Data Subsidiary or Affiliate) as of the Distribution Date that Western Union reasonably determines have substantial knowledge of the Transferred Business, former employees and independent contractors executed prior to the Distribution Date such that each of First Data, Western Union and their respective Subsidiaries and Affiliates shall all enjoy the rights and benefits under such agreements, with respect to such party’s and their respective Subsidiaries” and Affiliates’ business operations; provided , however , that (a) in no event shall First Data be permitted to enforce the restrictive covenant agreements against Business Employees in their capacity as employees of Western Union or its Subsidiaries, and (b) in no event shall Western Union be permitted to enforce the restrictive covenants agreements of First Data employees in their capacity as employees of First Data or its Subsidiaries.
6.04 Severance. Effective as of the Distribution Date, Western Union may establish one or more severance plans and policies with respect to Business Employees as Western Union deems appropriate in its discretion. First Data shall have no liability or obligation under any First Data severance plan or policy with respect to Business Employees whose employment terminates on or after the Distribution Date. Following the Distribution Date, First Data shall continue to be responsible for administering all

payments and benefits under the applicable First Data severance policies or any termination agreements with Business Employees, with respect to Business Employees whose employment has terminated prior to the Distribution Date for an eligible reason under such policies or in accordance with such agreements; provided that Western Union shall reimburse, and shall indemnify First Data, and its Subsidiaries and Affiliates, for any amounts payable to Business Employees under such policies and that Western Union shall be charged for the continuation of Welfare Plan benefits to such terminated Business Employees and their dependents on and after the Distribution Date on terms consistent with the methodology specified in the Health and Life Benefits Schedule to the Transition Services Agreement. First Data agrees to indemnify Western Union against any loss or liability resulting from First Data’s gross negligence, willful misconduct or bad faith in the administration of its severance policies or any termination agreement with a Business Employee. It is not intended that any Business Employee will be eligible for termination or severance payments or benefits from First Data or its Subsidiaries or Affiliates as a result of the transfer or change of employment from First Data to Western Union or their respective Subsidiaries or Affiliates. Notwithstanding the preceding sentence, in the event that any such termination or severance payments or benefits become payable on account of such transfer, change or the refusal of a Business Employee to accept employment with Western Union, Western Union shall indemnify First Data, and its Subsidiaries and Affiliates, for the amount of such termination or severance payments or benefits.
6.05 Past Service Credit. With respect to all Domestic Business Employees, Western Union shall recognize all service recognized under the comparable First Data Plans and First Data Non-ERISA Benefit Arrangements for purposes of determining eligibility, participation, vesting, and calculation of benefits under Western Union’s comparable plans and programs, provided that there shall be no duplication of benefits for Business Employees under Western Union’s plans and programs. First Data will provide to Western Union copies of any records available to First Data to document such service, plan participation and membership and cooperate with Western Union to resolve any discrepancies or obtain any missing data for purposes of determining benefit eligibility, participation, vesting and calculation of benefits with respect to such Domestic Business Employees. With respect to retaining, destroying, transferring, sharing, copying and permitting access to all such information, First Data and Western Union shall each comply with all applicable laws, regulations and internal policies and each party shall indemnify and hold harmless the other party from and against any and all liability, claims, actions, and damages that arise from a failure (by the indemnifying party) to so comply with all applicable laws, regulations and internal policies applicable to such information.
6.06 Accrued Vacation Days Off. Western Union shall recognize and assume all liability for all vacation, holiday, sick leave, flex days and personal days off, including banked vacation, accrued by Business Employees as of the Distribution Date and Western Union shall credit each Business Employee with such days off accrual.
6.07 Leaves of Absence. Western Union will continue to apply the leave of absence policies maintained by First Data to inactive Business Employees who are on an approved leave of absence as of the Distribution Date. Leaves of absence taken by Business Employees prior to the Distribution Date shall be deemed to have been taken as employees of Western Union.

6.08 First Data Assets. Except as otherwise set forth herein, First Data shall retain all reserves, bank accounts, trust funds or other balances maintained with respect to First Data’s Non-ERISA Benefit Arrangements.
6.09 Further Cooperation/Personnel Records/Data Sharing. The parties shall provide each other such records and information only as necessary or appropriate to carry out their obligations under law, this Agreement, or for the purposes of administering the Western Union plans and policies. The parties shall take commercially reasonable actions so that after the Distribution, all ministerial matters relating to Western Union equity awards issued to individuals who immediately after the Distribution remain employees and directors of First Data or its Subsidiaries or Affiliates can be administered by First Data. First Data shall provide information requested by Western Union relating to First Data employee status changes (such as terminations, retirements, etc.) and exercised options during the ten-year period beginning on the Distribution Date. Subject to applicable law, all information and records regarding employment and personnel matters of Business Employees shall be accessed, retained, held, used, copied and transmitted after the Distribution Date by Western Union in accordance with all laws and policies relating to the collection, storage, retention, use, transmittal, disclosure and destruction of such records. Access to such records after the Distribution Date will be provided to First Data in accordance with Article XIV of the Distribution Agreement. Notwithstanding the foregoing, First Data shall retain reasonable access to those records necessary for First Data’s continued administration of any plans or programs on behalf of Business Employees after the Distribution Date, provided that such access shall be limited to individuals who have a job-related need to access such records. First Data shall also retain copies of all confidentiality and non-compete agreements with any Business Employee in which First Data has a valid business interest. With respect to retaining, destroying, transferring, sharing, copying and permitting access to all such information, First Data and Western Union shall each comply with all applicable laws, regulations and internal policies, and each party shall indemnify and hold harmless the other party from and against any and all liability, claims, actions, and damages that arise from a failure (by the indemnifying party) to so comply with all applicable laws, regulations and internal policies applicable to such information.
ARTICLE VII
GENERAL PROVISIONS
7.01 Preservation of Rights to Amend. The rights of First Data or Western Union to amend or terminate any plan, program, or policy referred to herein shall not be limited in any way by this Agreement.
7.02 Confidentiality. Each Party agrees that the specific terms and conditions of this Agreement and any information conveyed or otherwise received by or on behalf of a Party in conjunction herewith are confidential and are subject to the terms of the confidentiality provisions set forth in Section 14.8 of the Distribution Agreement.
7.03 Administrative Complaints/Litigation. Except as otherwise provided in this Agreement, as of and after the Distribution Date, Western Union shall assume, and be

solely liable for, the handling, administration, investigation, and defense of actions, including, without limitation, ERISA, occupational safety and health, employment standards, union grievances, wrongful dismissal, discrimination or human rights and unemployment compensation claims, asserted at any time against First Data or Western Union by any Business Employee (including any dependent or beneficiary of a Business Employee), or any other person to the extent such actions or claims arise out of or relate to employment or the provision of services (whether as an employee, contractor, consultant, or otherwise) to or with the Transferred Business. Any Losses arising from such actions shall be deemed Assumed Liabilities under the Distribution Agreement.
7.04 Reimbursement and Indemnification. The parties hereto agree to reimburse each other, within 30 days of receipt from the other party of appropriate verification, for all costs and expenses which each may incur on behalf of the other as a result of any of the Welfare Plans, Pension Plans and Non-ERISA Benefit Arrangements and, as contemplated by Section 6.04, any termination or severance payments or benefits. All liabilities retained, assumed or indemnified against by Western Union pursuant to this Agreement, and all liabilities retained, assumed or indemnified against by First Data pursuant to this Agreement, shall in each case shall be subject to the indemnification provisions of Article XII of the Distribution Agreement.
7.05 Entire Agreement. This Agreement, including the Schedules hereto and the sections of the Distribution Agreement referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior agreements, negotiations, discussions, understandings, writings and commitments between the Parties with respect to such subject matter.
7.06 Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware, as though all acts and omissions related hereto occurred in Delaware.
7.07 Amendment. This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of First Data and Western Union.
7.08 Waiver. Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently given for the purposes of this Agreement if, as to any Party, it is in writing signed by an authorized representative of such Party. The failure of any Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, or in any way to affect the validity of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
7.09 Partial Invalidity. Wherever possible, each provision hereof shall be interpreted in such a manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision or provisions shall be

ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.
7.10 Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by and delivered to each of the Parties.
7.11 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns; provided, however, that the rights and obligations of either Party under this Agreement shall not be assignable by such Party without the prior written consent of the other Party. The successors and permitted assigns hereunder shall include any permitted assignee as well as the successors in interest to such permitted assignee (whether by merger, liquidation (including successive mergers or liquidations) or otherwise).
7.12 Notices. All notices or other communications under this Agreement shall be in writing and shall be deemed to be duly given when delivered or mailed in accordance with the terms of Section 15.9 of the Distribution Agreement.
7.13 Performance. Each Party shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Affiliate of such Party.
7.14 No Public Announcement. Neither First Data nor Western Union shall, without the approval of the other, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that either Party shall be so obligated by law or the rules of any regulatory body, stock exchange or quotation system, in which case the other Party shall be advised and the Parties shall use commercially reasonable efforts to cause a mutually agreeable release or announcement to be issued; provided, however, that the foregoing shall not preclude communications or disclosures necessary to implement the provisions of this Agreement or to comply with applicable law, accounting and SEC disclosure obligations or the rules of any stock exchange.
7.15 Limited Liability. Notwithstanding any other provision of this Agreement, no individual who is a stockholder, director, employee, officer, agent or representative of Western Union or First Data, in its capacity as such, shall have any liability in respect of or relating to the covenants or obligations of such Party under this Agreement and, to the fullest extent legally permissible, each of Western Union and First Data, for itself and its respective stockholders, directors, employees, officers and Affiliates, waives and agrees not to seek to assert or enforce any such liability that any such Person otherwise might have pursuant to applicable law.
7.16 Mutual Drafting. This Agreement shall be deemed to be the joint work product of First Data and Western Union and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.

7.17 Dispute Resolution. The Parties agree that any dispute, controversy or claim between them with respect to the matters covered hereby shall be governed by and resolved in accordance with the procedures set forth in Article XIII of the Distribution Agreement.
7.18 No Third Party Beneficiaries. No Business Employee or other current or former employee of First Data or Western Union or any Subsidiary or Affiliate of either (or his/her spouse, dependent or beneficiary), or any other person not a party to this Agreement, shall be entitled to assert any claim hereunder. The provisions of this Agreement are solely for the benefit of the Parties and their respective Affiliates, successors and permitted assigns and shall not confer upon any third Person any remedy, claim, liability, reimbursement or other right in excess of those existing without reference to this Agreement.
7.19 Effect if Distribution Does Not Occur. Notwithstanding anything in this Agreement to the contrary, if the Distribution Agreement is terminated prior to the Distribution Date, this Agreement shall be of no further force and effect.
7.20 Corporate Authorization. The officers of First Data and Western Union are hereby authorized, empowered and directed, in the name and on behalf of each of First Data and Western Union, respectively, to take or cause to be taken all such further action, to execute and deliver or cause to be executed and delivered all such further agreements, certificates, instruments and documents, to make or cause to be made all such filings with governmental or regulatory authorities, and to pay or cause to be paid all such fees and expenses, in each case which shall in such officers’ judgment be deemed necessary, proper or advisable to effect and carry out the intent of this Agreement, such determination to be evidenced conclusively by such officers’ execution and delivery thereof or taking of action in respect thereto.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their names by a duly authorized officer as of the date first written above.

FIRST DATA CORPORATION	
		
By:	 	/s/ Kimberly S. Patmore	
	 	Name:	 	Kimberly S. Patmore	
	 	Title:	 	Executive Vice President and	
	 		 	Chief Financial Officer	
	
THE WESTERN UNION COMPANY	
		
By:	 	/s/ David G. Barnes	
	 	Name:	 	David G. Barnes	
	 	Title:	 	Executive Vice President	
	 		 	Finance and Strategic Development	
 
Exhibit 10.3
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT is made as of September 29, 2006 by and between First Data Corporation, a Delaware corporation ( “ First Data ” ), and The Western Union Company, a Delaware corporation ( “ Western Union ” ).
WHEREAS, First Data, through certain of its Subsidiaries, is, among other things, engaged in the business of providing money transfer, consumer to biller payment services, retail money orders and certain prepaid services (the “ Western Union Business ” );
WHEREAS, the Board of Directors of First Data has determined that it would be advisable and in the best interests of First Data and its stockholders for First Data to transfer to Western Union those Subsidiaries of First Data that are engaged in the Western Union Business and certain other assets related thereto;
WHEREAS, First Data has agreed to transfer, or cause to be transferred, to Western Union such Subsidiaries;
WHEREAS, the Board of Directors of First Data has determined that it would be advisable and in the best interests of First Data and its stockholders for First Data to distribute on a pro rata basis to the holders of First Data’s common stock, $0.01 par value, without any consideration being paid by the holders of such common stock, all of the outstanding shares of Western Union common stock, $0.01 par value, then owned by First Data;
WHEREAS, First Data and Western Union have entered into a Separation and Distribution dated as of the date hereof (the “ Distribution Agreement ” ) in order to carry out, effect and consummate the foregoing transactions; and
WHEREAS, to facilitate the transactions described above, First Data and Western Union deem it to be appropriate and in the best interests of First Data and Western Union that First Data provide certain Services to Western Union and Western Union provide certain Services to First Data, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . Unless otherwise defined herein, each capitalized term shall have the meaning specified for such term in the Distribution Agreement. As used in this Agreement:
(a) “ Action ” means any action, claim, demand, suit, arbitration, inquiry, subpoena, discovery request, proceeding or investigation by or before any court or grand jury, any Governmental Authority.

(b) “ Additional Services ” means the Additional First Data Services or the Additional Western Union Services, individually, or the Additional First Data Services and the Additional Western Union Services, collectively, as the context may indicate. Any Additional Services provided pursuant to this Agreement shall be deemed to be “ Services ” under this Agreement.
(c) “ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by or is under common Control with such Person. After the Distribution, Western Union and First Data shall not be deemed to be under common Control for purposes hereof due solely to the fact that Western Union and First Data have common stockholders.
(d) “ Agreement ” means this Transition Services Agreement together with those portions of the Distribution Agreement referenced herein and all Annexes attached hereto and incorporated herein by this reference and all amendments, modifications and changes hereto and thereto.
(e) “ Authorized Representative ” means any of the individuals listed on Annex A .
(f) “ Consent ” means a Governmental Consent or a Third Party Consent.
(g) “ Control ” means the power to direct the management of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled by” and “under common Control” have meanings correlative to the foregoing.
(h) “ Distributed Companies ” means FDCS Holdings, CESI Holdings, TeleCheck EBP RE, Ltd., IPS Holdings, Inc., Virtual Financial Services, LLC, First Data Canada Limited and their respective Subsidiaries (including those formed or acquired after the date hereof).
(i) “ Expenses ” means any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals).
(j) “ Fees ” for a particular Service shall be as set forth on Annex B or Annex C , as the case may be.
(k) “ First Data Indemnified Parties ” means the First Data Parties (for so long as such Person is a First Data Party) and each of their Affiliates, directors, officers, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing.
(l) “ First Data Parties ” means First Data and its Subsidiaries (including those formed or acquired after the date hereof), other than the Western Union Parties.
(m) “ First Data Services ” means the Services generally described on Annex B and any other Service provided by First Data or its Affiliates pursuant to this Agreement.
 
2

(n) “ First Data Systems ” means any computer software program or routine or part thereof owned, licensed or provided by or for any First Data Party which is used by any Western Union Party or its suppliers on any First Data Party’s behalf pursuant to this Agreement, and any other computer software program or routine so designated in Annex B or Annex C, each as modified, maintained or enhanced from time to time by any First Data Party, any Western Union Party or any Third Party.
(o) “ Governmental Authority” means any foreign, federal, state, local or other government, governmental, statutory or administrative authority, regulatory body or commission or any court, tribunal or judicial or arbitral body.
(p) “ Governmental Consents ” means any material notices, reports or other filings to be made with or to, or any material consents, registrations, approvals, permits, clearances or authorizations to be obtained from, any Governmental Authority.
(q) “ Losses ” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, fees, expenses, deficiencies, claims or other charges.
(r) “ Party ” means a First Data Party or a Western Union Party, as applicable.
(s) “ Person ” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization or Governmental Authority.
(t) “ Services ” means the First Data Services or the Western Union Services, individually, or the First Data Services and the Western Union Services, collectively, as the context may indicate. “ Services ” shall also include those First Data and Western Union functions described in Sections 7.2(a) through 7.2(f) .
(u) “ Subsidiary ” means, when used with reference to any Person, any corporation or other organization whether incorporated or unincorporated of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or Controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided , however , that no Person that is not directly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person Controls, or has the right, power or ability to Control, that Person. After the Distribution, First Data and Western Union shall not be deemed to be under common Control for purposes hereof due solely to the fact that First Data and Western Union have common stockholders.
(v) Systems ” means the First Data Systems or the Western Union Systems, individually, or the First Data Systems and the Western Union Systems, collectively, as the context may indicate.
(w) “ Third Party ” means a Person that is not an Affiliate of any Party hereto.
 
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(x) “ Third Party Consents ” means any material consent, approval or authorization to be obtained from any Third Party that is not a Governmental Authority.
(y) “ Western Union Indemnified Parties ” means the Western Union Parties (for so long as such Person is a Western Union Party) and each of their Affiliates, directors, officers, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing.
(z) “ Western Union Parties ” means Western Union, the Western Union Subsidiaries and any other Subsidiary of Western Union (including those formed or acquired after the date hereof), in each case, other than the Distributed Companies.
(aa) “ Western Union Services ” means the Services generally described on Annex C and any other Service provided by Western Union or its Affiliates pursuant to this Agreement.
(bb) “ Western Union Subsidiaries ” means, collectively, ECG, FFMC, GMT, Paymap, WUSI and each Subsidiary of any of the foregoing other than the Distributed Companies.
(cc) “ Western Union Systems ” means any computer software program or routine or part thereof owned, licensed or provided by or for any Western Union Party which is used by any First Data Party or its suppliers on any Western Union Party’s behalf pursuant to this Agreement, and any other computer software program or routine so designated on Annex B or Annex C, each as modified, maintained or enhanced from time to time by any Western Union Party, any First Data Party or any Third Party.
Section 1.2 Interpretation . (a) In this Agreement, unless the context clearly indicates otherwise:
(i) words used in the singular include the plural and words used in the plural include the singular;
(ii) references to any Person include such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and a reference to such Person’s “Affiliates” shall be deemed to mean such Person’s Affiliates following the Distribution;
(iii) references to any gender includes the other gender;
(iv) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”;
(v) references to any Article, Section or Annex means such Article or Section of, or such Annex to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;
(vi) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;
 
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(vii) references to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;
(viii) references to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;
(ix) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”;
(x) accounting terms used herein shall have the meanings historically ascribed to them by First Data and its Subsidiaries, including Western Union, in its and their internal accounting and financial policies and procedures in effect prior to the date of this Agreement;
(xi) if there is any conflict between the provisions of the Distribution Agreement and this Agreement, the provisions of this Agreement shall control with respect to the subject matter hereof; if there is any conflict between the provisions of the body of this Agreement and the Annexes hereto, the provisions of the body of this Agreement shall control unless explicitly stated otherwise in such Annex;
(xii) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement;
(xiii) any portion of this Agreement obligating a Party to take any action or refrain from taking any action, as the case may be, shall mean that such Party shall also be obligated to cause its relevant Affiliates to take such action or refrain from taking such action, as the case may be (and, accordingly, if Services are provided by Affiliates of First Data, references to “First Data” shall be deemed to be references to such Affiliate which shall provide the Services under this Agreement; if Services are provided by Affiliates of Western Union, references to “Western Union” shall be deemed to be references to such Affiliate which shall provide the Services under this Agreement); and
(xiv) unless otherwise specified in this Agreement, all references to dollar amounts herein shall be in respect of lawful currency of the United States.
 
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ARTICLE II
TERM
Section 2.1 Term . The term of this Agreement shall commence on the Distribution Date and end on the first anniversary of the Distribution Date (the “ Term ” ).
ARTICLE III
PERFORMANCE OF SERVICES
Section 3.1 General . (a) During the Term, and subject to the terms and conditions of this Agreement, First Data will provide, or will cause to be provided, the First Data Services to Western Union and its Affiliates. Unless specifically provided to the contrary on Annex B (including any performance standards set forth therein) or Annex D , all First Data Services provided pursuant to this Agreement shall be performed or provided, as applicable: (i) with the use of reasonable care; (ii) consistent with this Agreement and in substantially the same manner (including as to level, quality and timeliness) as such Services have been provided to the Western Union Business by the First Data Parties on or prior to the Distribution Date; (iii) in material compliance with applicable laws, rules and regulations; (iv) in a manner substantially consistent with the First Data Parties’ usual and customary practices with respect to the Western Union Business on or prior to the Distribution Date; and (v) with substantially the same priority under comparable circumstances as it provides such services to itself and its Subsidiaries.
(b) During the Term, and subject to the terms and conditions of this Agreement, Western Union will provide, or will cause to be provided, the Western Union Services to First Data and its Affiliates. Unless specifically provided to the contrary on Annex C (including any performance standards set forth therein) or Annex D , all Western Union Services provided pursuant to this Agreement shall be performed or provided, as applicable: (i) with the use of reasonable care; (ii) consistent with this Agreement and in substantially the same manner (including as to level, quality and timeliness) as such Services have been provided to the First Data Business by the Western Union Parties on or prior to the Distribution Date; (iii) in material compliance with applicable laws, rules and regulations; (iv) in a manner substantially consistent with the Western Union Parties’ usual and customary practices with respect to the First Data Business on or prior to the Distribution Date; and (v) with substantially the same priority under comparable circumstances as it provides such services to itself and its Subsidiaries.
Section 3.2 Additional Services . (a) If Western Union reasonably determines that additional transition services of the type previously provided by the First Data Parties to the Western Union Business are necessary to conduct the Western Union Business and Western Union or its Affiliates are not able to provide such services to the Western Union Business (each such service an “ Additional First Data Service ” ), then Western Union may provide written notice thereof to First Data. Upon receipt of such notice by First Data, if First Data is willing, in its sole discretion, to provide such Additional First Data Service during the Term, the Parties will negotiate in good faith an amendment to Annex B setting forth the Additional First Data Service, the terms and conditions for the provision of such Additional First Data Service and the Fees payable by Western Union for such Additional First Data Service, such Fees to be determined on an arm’s-length basis.
 
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(b) If First Data reasonably determines that additional transition Services of the type previously provided by the Western Union Parties to the First Data Business are necessary to conduct the First Data Business and First Data or its Affiliates are not able to provide such services to the First Data Business (each such service an “ Additional Western Union Service ” ), then First Data may provide written notice thereof to Western Union. Upon receipt of such notice by Western Union, if Western Union is willing, in its sole discretion, to provide such Additional Western Union Service during the Term, the Parties will negotiate in good faith an amendment to Annex C setting forth the Additional Western Union Service, the terms and conditions for the provision of such Additional Western Union Service and the Fees payable by First Data for such Additional Western Union Service, such Fees to be determined on an arm’s-length basis.
Section 3.3 Procedure . (a) Any requests by a Party to the other Party regarding (i) the Services or (ii) any modification or alteration to the provision of the Services must be made by an Authorized Representative (it being understood that the receiving Party shall not be obligated to agree to any modification or alteration requested thereby). A Party receiving Services shall provide no less than 30 days written notice (unless a shorter time is mutually agreed upon by the Parties) to the other Party of any Services that, prior to the expiration of the Term, are no longer needed from the other Party, in which case this Agreement shall terminate as to such Services, provided that the Party providing such Services must consent to such early termination, such consent not to be unreasonably withheld, conditioned or delayed (a “ Partial Termination ” ). The parties shall mutually agree as to the effective date of any Partial Termination. In the event of any termination prior to the expiration of the Term or of any Partial Termination hereunder, (x) with respect to any terminated Services in which the Fee for such terminated Services is charged as a flat monthly rate, the Fee for the month in which the termination occurs shall be 0% of the monthly rate for such terminated Service, in the event that the effective date of termination occurs on or prior to the 10 th calendar day of such month, or 100% of the monthly rate for such Service, in the event that the effective date of termination occurs on or after the 11 th calendar day of such month, and (y) with respect to any other terminated Services, all amounts due pursuant to the terms hereof with respect to the terminated Services shall be appropriately pro rated and reduced to reflect such shortened period during which such Services are actually provided hereunder, and each Party shall refund to the other Party an appropriate pro rated amount for any such Services that have been paid for in advance. Notwithstanding the preceding sentence, to the extent any amounts due or advances made hereunder related to costs or expenses that have been or will be incurred and that cannot be recovered by a Party providing Services, such amounts due or advances made shall not be pro rated or reduced and such Party shall not be required to refund to the other Party any pro rated amount for such costs or expenses; and the terminating Party shall reimburse the Party providing such Service for any Third Party cancellation or similar charges incurred as a result of such early termination. Notwithstanding anything to the contrary hereunder, each Party may avail itself of the remedies set forth in Sections 3.4(b) and 10.2 without fulfilling the notice requirements of this Section 3.3(a) .
(b) In the event of a Partial Termination, this Agreement shall remain in full force and effect with respect to the Services which have not been terminated by the Parties as provided herein.
 
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(c) Each Party acknowledges and agrees that certain of the Services to be provided under this Agreement have been, and will continue to be provided (in accordance with this Agreement) to the First Data Business or the Western Union Business, as applicable, by Third Parties designated by the Party responsible for providing such Services. To the extent so provided, the Party responsible for providing such Services shall use commercially reasonable efforts to (a) cause such Third Parties to provide such Services under this Agreement and/or (b) enable the Party seeking the benefit of such Services and its Affiliates to avail itself of such Services; provided , however , that if any such Third Party is unable or unwilling to provide any such Services, the Parties agree to use their commercially reasonable efforts to determine the manner in which such Services can best be provided (it being acknowledged and agreed that any costs or expenses to be incurred in connection with obtaining a Third Party to provide any such Services shall be paid by the Party to which such Services are provided; provided that the Party responsible for providing such Services shall use commercially reasonable efforts to communicate the costs or expenses expected to be incurred in advance of incurring such costs or expenses).
Section 3.4 Disclaimer of Warranties; Force Majure .
(a) Except as expressly set forth in this Agreement: (i) each Party acknowledges and agrees that the other Party makes no warranties with respect to the Services to be provided hereunder; and (ii) each Party hereby expressly disclaims all warranties, expressed or implied, of any kind with respect to the Services to be provided hereunder, including, without limitation, any warranty of merchantability or fitness for a particular purpose as to the Services provided hereunder. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES TO BE PURCHASED UNDER THIS AGREEMENT ARE PROVIDED AS IS, WHERE IS, WITH ALL FAULTS, AND WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY WHATSOEVER.
(b) If either Party, any of its Affiliates or any Third Party service provider is prevented from or delayed in complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, strike, walkout, lockout or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of fuel, power, raw materials or components, any law, order, proclamation, regulation, ordinance, demand, seizure or requirement of any Governmental Authority, riot, civil commotion, war, rebellion, acts of terrorism, nuclear accident or other acts of God, or acts, omissions or delays in acting by any governmental or military authority or the other Party or other causes beyond the reasonable control and without the fault or negligence of such Party, then upon notice to the other Party, the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability and, unless otherwise set forth herein to the contrary, the affected Party shall have no liability to the other Party, its Affiliates or any other Person in connection therewith. Each Party shall use commercially reasonable efforts to promptly remove such disability as soon as possible, but in any event no later than 30 days after giving notice of such disability; provided , however , that nothing in this Section 3.4(b) will be construed to require the settlement of any strike, walkout, lockout or other labor dispute on terms which, in the
 
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reasonable judgment of the affected Party, are contrary to its interest. It is understood that the settlement of a strike, walkout, lockout or other labor dispute will be entirely within the discretion of the affected Party. If a Party is unable to provide any of the Services due to such a disability, each Party shall use commercially reasonable efforts to cooperatively seek a solution that is mutually satisfactory. In addition, upon becoming aware of a disability causing a delay in performance or preventing performance of any obligations of a Party under this Agreement, the otherwise defaulting Party shall promptly notify the other Party in writing of the existence of such disability and the anticipated duration of the disability. The Party entitled to the benefit of the Services shall have the right, but not the obligation, to engage subcontractors to perform such obligations for the duration of the period during which such disability delays or prevents the performance of such obligation by the affected Party, it being agreed that the Fees paid or payable under this Agreement with respect to the Service affected by the disability shall be reduced (or refunded, if applicable) on a dollar for dollar basis for all amounts paid by the affected Party to such subcontractors, provided that the affected Party shall not be responsible for the amount of excess fees charged by the subcontractor to perform such Services to the extent they exceed the Fees for the applicable period of disability. Notwithstanding anything to the contrary hereunder, each Party shall make the mitigation and resolution of any disability affecting its ability to perform hereunder a high priority and shall use efforts of a type, intensity and duration which, taking into account the type of Services and the significance of such Services to the other Party’s business, represent a good and professional response to such disability, but in any event no less than commercially reasonable efforts. In addition, and notwithstanding anything hereunder to the contrary, the Parties agree that this Section 3.4(d) shall not be construed so as to excuse a Party of its obligations to perform in accordance with Article VII and Article VIII at all times during the Term.
Section 3.5 Transition of Responsibilities . Each Party agrees to use commercially reasonable efforts to reduce or eliminate its and its Affiliates’ dependency on each Service as soon as is reasonably practicable. Each Party agrees to cooperate with the other Party to facilitate the smooth transition of the Services being provided to such Party by the other Party.
ARTICLE IV
COOPERATION
Section 4.1 Cooperation . Each Party shall, and shall cause its Affiliates to, use good faith efforts to cooperate with the other Party in all matters relating to the provision and receipt of the Services, including providing information and documentation sufficient for the other Party to provide the Services and making available, as reasonably requested by the other Party, timely decisions, approvals and acceptances in order that the other Party and its Affiliates may perform their respective obligations under this Agreement in a timely manner.
Section 4.2 Consents . (a) Each Party shall, and shall cause its Affiliates to, cooperate to obtain all Consents for any Third Party software or other Third Party intellectual property related to the provision of the Services sufficient to enable the Parties to perform the Services in accordance with this Agreement; provided , however , that neither Party shall be obligated under this Agreement to pay any consideration, grant any concession or incur any Liability to any third Person to obtain any such Consent. Lists that identify all Third Party software or other Third Party intellectual property the Parties reasonably believe will be used to provide the Services
 
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(other than Additional Services), whether any Consent is believed to be required and whether such Consent has been obtained as of the date hereof are set forth on Annex D .
(b) In the event that any Consent is not obtained, then, unless and until such Consent is obtained, the Parties shall cooperate with each other in achieving a reasonable alternative arrangement for the Party entitled to the benefit of the Services to continue to process its work and for the Party providing the Services to perform such Services.
Section 4.3 Informal Dispute Resolution . The Authorized Representatives of First Data and Western Union (each of whom shall have the authority to legally bind the Party it represents) shall meet as often as shall reasonably be requested by either Party to review the performance of the other Party under this Agreement. Written minutes of such meetings may be kept. In the event of any dispute or disagreement between the Parties either with respect to the interpretation of any provision of this Agreement, or with respect to the performance by First Data or Western Union hereunder, then upon the written request of First Data or Western Union each Party shall appoint within 14 calendar days a designated officer whose task it shall be to meet for the purpose of endeavoring to resolve such dispute or to negotiate for an adjustment to such provision of the Agreement. The Parties shall use commercially reasonable efforts to cause their respective designated officers to meet within 15 days following identification of the designated officers. The designated officers shall meet as often as the Parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the Parties believe to be appropriate and germane in connection with its resolution. Such officers shall discuss the problem and/or negotiate in good faith in an effort to resolve the dispute or renegotiate the applicable provision without the necessity of any formal proceeding relating thereto. During the course of such negotiation, subject to the Parties’ respective confidentiality obligations, all reasonable requests made by either Party to the other for information shall be honored in order that each of the Parties may be fully advised in the matter. The specific format for such discussions shall be left to the discretion of the designated officers but may include the preparation of agreed upon statements of fact or written statements of position furnished to the other Party. Except for claims arising under Articles VII or VIII , the Parties agree to follow the dispute resolution process set forth in this Section 4.3 prior to the commencement of any Action under Section 12.14 .
ARTICLE V
FEES
Section 5.1 Fees . Each Party shall pay the other Party the Fees for the Services provided by such other Party under this Agreement. The Fees for the First Data Services are set forth on Annex B and the Fees for the Western Union Services are set forth on Annex C .
Section 5.2 Taxes . To the extent required or permitted by applicable law, there shall be added to any Fees due under this Agreement, and each Party agrees to pay to the other, amounts equal to any taxes, however designated or levied, based upon such Fees, or upon this Agreement or the Systems, Services or materials provided under the Agreement, or their use, including state and local privilege or excise taxes based on gross revenue and any taxes or amounts in lieu thereof paid or payable by the Party providing Services hereunder. In the event taxes are not added to an invoice from the Party providing Services hereunder, the Party purchasing such
 
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Services is responsible to remit to the appropriate tax jurisdiction any additional amounts due including tax, interest and penalty. If additional amounts are determined to be due on the Services provided hereunder as a result of an audit by a tax jurisdiction, the Party purchasing the Services hereunder agrees to reimburse the Party providing the Services for the additional amounts due including tax, interest and penalty. The Party providing Services hereunder will be responsible for penalty or interest associated with its failure to remit invoiced taxes. The Parties further agree that no Party to this Agreement shall be required to pay any franchise taxes, taxes based on the net income of the other Party or personal property taxes on property owned or leased by a Party and used by such Party to provide Services.
ARTICLE VI
INVOICE AND PAYMENT; AUDIT
Section 6.1 Invoices and Payment . Within 20 days following the end of each month during the Term (or within 20 days after receipt of a Third Party supplier’s invoice in the case of Services that are provided by a Third Party supplier), each Party will submit to the other Party for payment a written statement of amounts due under this Agreement for such month. For Services set forth on Annex B or Annex C , the statement will set forth the Fees, in the aggregate and itemized, set forth on Annex B or Annex C as the case may be. Each statement will specify the nature of any amounts due for any Fees as set forth on Annex B or Annex C and will contain reasonably satisfactory documentation in support of such amounts as specified therein and such other supporting detail as the other Party may reasonably require to validate such amounts due.
Section 6.2 Timing of Payment; No Offsets . Each Party will pay all undisputed amounts due pursuant to this Agreement within 30 days after the date upon which each such statement that is required to be provided hereunder is received by such Party. Neither Party shall offset any amounts owing to it by the other Party or any of its Affiliates against amounts payable by such Party hereunder or any other agreement or arrangement.
Section 6.3 Non-Payment . If either Party fails to pay the full amount of any invoice within 45 days after its receipt of the invoice, such failure shall be considered a material breach of this Agreement (except to the extent any invoiced amounts are reasonably disputed by the non-paying Party in good faith and of which dispute the non-paying Party has notified the other Party in accordance with the requirements of this Agreement). The remedies provided to each Party by this Section 6.3 and by Section 10.2 shall be without limitation of any other applicable provisions of this Agreement.
Section 6.4 Late Payments . Payments made after the date they are due shall bear interest at a rate per annum equal to the Prime Rate plus 2.0%.
Section 6.5 Audit Rights . (a) Each Party may audit (or cause an independent Third Party auditor to audit) the books, records and facilities of the other Party to the extent necessary to determine the other Party’s compliance with this Agreement with respect to Fees paid or payable pursuant to this Article VI , or the performance of its other obligations set forth in this Agreement. For any given Service, each Party shall have the right to audit the books, records and facilities of the other Party pertaining to such Service once for each twelve month period during which payment obligations are due (and at such other times as may be required by
 
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applicable law). Each Party shall also have the right to audit (or cause an independent Third Party auditor to audit) the books, records and facilities of the other Party pertaining to a particular Service within six months after the termination of such Service.
(b) Any audit shall be conducted during regular business hours and in a manner that complies with the building and security requirements of the Party being audited. Such audits shall not interfere unreasonably with the operations of the Party being audited. The Party desiring to conduct an audit shall provide notice to the Party to be audited not less than 30 days prior to the commencement of the audit and shall specify the date on which the audit will commence. The Party conducting an audit shall pay the costs of conducting such audit, unless the results of an audit reasonably indicate an overpayment by the Party conducting the audit of 10% or more (such percentage to be determined by reference to the Services which are subject to the specific audit), in which case the Party being audited shall pay the reasonable out-of-pocket costs of the Party conducting such audit. If the audit reasonably concludes that an overpayment or underpayment has occurred during the audited period, such payment shall be remitted by the Party responsible for such payment to the other Party within 30 days after notice to the Party responsible for such payment.
ARTICLE VII
INDEPENDENCE; OWNERSHIP OF ASSETS
Section 7.1 Independence . All employees and representatives of a Party and any of its Affiliates will be deemed for purposes of all compensation and employee benefits to be employees or representatives of such Party or its Affiliates (or their subcontractors) and not employees or representatives of the other Party or any of its Affiliates. In providing the Services, such employees and representatives will be under the direction, control and supervision of the Party or its Affiliates (or their subcontractors) providing such Services, and not of the Party receiving such Services. The Party or its Affiliates (or their subcontractors) providing the Services will have the sole right to exercise all authority with respect to the employment (including termination of employment), assignment and compensation of such employees and representatives.
Section 7.2 Ownership of Assets . (a)  First Data Systems . First Data Systems and any and all enhancements thereof or improvements thereto are and shall remain the sole exclusive property of the First Data Parties and their suppliers. From and after the creation of any and all such First Data Systems or enhancements thereof or improvements thereto by Western Union or by any contractor, Affiliate or other Third Party on Western Union’s behalf, in each case, pursuant to this Agreement, Western Union agrees to assign and hereby assigns to First Data or the applicable First Data Party, any and all right, title and interest that Western Union or such contractor, Affiliate or Third Party may have in such First Data Systems or enhancements thereof or improvements thereto.
(b) Western Union Systems . Western Union Systems and any and all enhancements thereof or improvements thereto are and shall remain the sole exclusive property of the Western Union Parties and their suppliers. From and after the creation of any and all such Western Union Systems or enhancements thereof or improvements thereto by First Data or by any contractor, Affiliate or Third Party on First Data’s behalf, in each case, pursuant to this Agreement, First
 
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Data agrees to assign and hereby assigns to Western Union or the applicable Western Union Party, any and all right, title and interest that First Data or such contractor, Affiliate or Third Party may have in such Western Union Systems or enhancements thereof or improvements thereto.
(c) License . During the Term, each Party grants to the other and its respective suppliers a non-exclusive, royalty-free right and license to use the First Data Systems or the Western Union Systems, as applicable, solely to provide the Services contemplated hereunder. Notwithstanding anything to the contrary hereunder, each Party agrees to cooperate with the other (and shall cause its suppliers to so cooperate) to cause the orderly return of the other Party’s Systems and property upon the expiration of the Term or upon written request, whichever is earlier.
(d) Maintenance . With respect to any Systems that a First Data Party or a Western Union Party, as applicable, is required to maintain or enhance hereunder, such First Data Party or Western Union Party shall maintain the existing documentation and make any revisions to such documentation resulting from such enhancements. All right, title and interest in and to such enhancements and such documentation, whether created by the Party that provides the Service or any contractor, Affiliate or supplier on such Party’s behalf, shall be owned exclusively by and vested exclusively in the Party which owns the applicable System.
(e) Data Ownership . As between any First Data Party, on the one hand, and any Western Union Party, on the other hand, all right, title and interest in and to all data processed hereunder shall be owned exclusively by the First Data Party or Western Union Party that originally supplied it to the other. First Data and Western Union hereby assign to the other, and shall cause any of its or their contractors, Affiliates or suppliers to assign to the other, as applicable, all right, title and interest that First Data or Western Union, as applicable, may have in the other’s data.
(f) Third Party Suppliers . Each Party shall have written agreements with its employees consistent with past practices, and shall cause any contractor, Affiliate or Third Party performing Services on its behalf pursuant to this Agreement to also have written agreements with its employees that are consistent with its obligations hereunder, including the obligations to disclose and assign all right, title and interest in intellectual property rights as contemplated in this Section 7.2 and Article VIII . Each Party agrees not to voluntarily terminate or to amend or modify such agreements with respect to the provisions described above without providing at least 30 days prior written notice thereof and further agrees that any such amendments or modifications to such agreements shall be prospective only.
Section 7.3 Other Assets . Except as otherwise noted in Sections 7.1 and 7.2 , all procedures, methods, systems, strategies, tools, equipment, facilities and other resources used by a Party, any of its Affiliates or any Third Party service provider in connection with the provision of the Services hereunder shall remain the property of such Party, its Affiliates or such service providers and, except as otherwise provided herein, shall at all times be under the sole direction and control of such Party, its Affiliates or such Third Party service provider.
 
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ARTICLE VIII
CONFIDENTIALITY
Section 8.1 Confidentiality . Each Party agrees that the specific terms and conditions of this Agreement and any information conveyed or otherwise received by or on behalf of a Party in conjunction herewith are confidential and are subject to the terms of the confidentiality provisions set forth in Section 14.8 of the Distribution Agreement.
ARTICLE IX
NO AGENCY RELATIONSHIP
Section 9.1 No Agency Relationship . Nothing in this Agreement shall be deemed to make either Party or its Affiliates the agent of the other Party or its Affiliates.
ARTICLE X
TERMINATION
Section 10.1 General . This Agreement shall terminate, and the obligation of each Party to provide all Services shall cease, on the earliest to occur of (i) the date on which the provision of all Services has been terminated by the Parties pursuant to Section 3.3 , subject to the terms of Section 3.3 , or (ii) the date on which the Term of this Agreement has ended pursuant to Section 2.1 or 10.2 .
Section 10.2 Termination of Entire Agreement . A Party shall have the right to terminate this Agreement or effect a partial termination effective upon delivery of written notice to the other Party if the other Party: (a) makes an assignment for the benefit of creditors, or becomes bankrupt or insolvent, or is petitioned into bankruptcy, or takes advantage of any state, federal or foreign bankruptcy or insolvency act, or if a receiver or receiver/manager is appointed for all or any substantial part of its property and business and such receiver or receiver/manager remains undischarged for a period of 30 days; or (b) materially defaults in the performance of any of its covenants or obligations contained in this Agreement (or, in the case of a partial termination, with respect to the Services being terminated) and such default is not remedied to the nondefaulting Party’s reasonable satisfaction within 45 days after receipt of written notice by the defaulting Party informing such Party of such default, or if such default is not capable of being cured within 45 days, if the defaulting Party has not promptly begun to cure the default within such 45 day period and thereafter proceeded with all diligence to cure the same.
Section 10.3 Procedures on Termination . Following any termination of this Agreement in whole or in part, each Party will cooperate with the other Party as reasonably necessary to avoid disruption of the ordinary course of the other Party’s and its Affiliates’ business. Termination shall not affect any right to payment for Services provided prior to termination.
Section 10.4 Effect of Termination . Sections 3.4(c) , 4.3 , Article V (with respect to Fees and Taxes attributable to periods prior to termination), 6.1 , 6.2 , 6.4 , 6.5 , 10.3 , this Section 10.4 and Articles I , VII , VIII , XI and XII shall survive any termination of this Agreement. For the avoidance of doubt, neither (a) termination of a particular Service hereunder nor (b)
 
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termination of this Agreement with respect to the Services provided under one Annex, but not the other Annex, shall be a termination of this Agreement.
ARTICLE XI
INDEMNIFICATION
Section 11.1 Indemnification by Western Union . Western Union shall indemnify, defend and hold harmless the First Data Indemnified Parties for any Losses and Expenses incurred by them in connection with or arising out of any (i) material breach of this Agreement by Western Union, its Affiliates, employees, suppliers or contractors, (ii) Western Union’s, its Affiliates’, employees’, suppliers’ or contractors’ gross negligence, willful misconduct or bad faith in the provision of the Western Union Services by Western Union, its Affiliates, employees, suppliers or contractors pursuant to this Agreement, (iii) any Action that determines that the provision by any Western Union Party and/or the receipt by the First Data Indemnified Parties of any Western Union Services infringes upon or misappropriates the intellectual property of any Third Party, to the extent that any such Losses and Expenses are determined to have resulted from Western Union’s, its Affiliates’, employees’, suppliers’ or contractors’ gross negligence, willful misconduct or bad faith, and (iv) Third Party claims arising out of the provision of the First Data Services, except to the extent that such third Person claims for Losses and Expenses are finally determined by a final non-appealable decision of a court having jurisdiction over Western Union and First Data or pursuant to Article XIII of the Distribution Agreement to have arisen out of the material breach of this Agreement, gross negligence, bad faith or willful misconduct of First Data, its Affiliates, employees, suppliers or contractors in providing the First Data Services.
Section 11.2 Indemnification by First Data . First Data shall indemnify, defend and hold harmless the Western Union Indemnified Parties for any Losses and Expenses incurred by them in connection with or arising out of (i) any material breach of this Agreement by First Data, its Affiliates, employees, suppliers or contractors, (ii) First Data’s, its Affiliates’, employees’, suppliers’ or contractors’ gross negligence, willful misconduct or bad faith in the provision of the First Data Services by First Data, its Affiliates, employees, suppliers or contractors pursuant to this Agreement, (iii) any Action that determines that the provision by any First Data Party and/or the receipt by the Western Union Indemnified Parties of any First Data Services infringes upon or misappropriates the intellectual property of any Third Party to the extent that any such Losses and Expenses are determined to have resulted from First Data’s, its Affiliates’, employees’, suppliers’ or contractors’ gross negligence, willful misconduct or bad faith, and (iv) Third Party claims arising out of the provision of the Western Union Services, except to the extent that such Losses and Expenses are finally determined by a final non-appealable decision of a court having jurisdiction over First Data and Western Union or pursuant to Article XIII of the Distribution Agreement to have arisen out of the material breach of this Agreement, gross negligence, bad faith or willful misconduct of Western Union, its Affiliates, employees, suppliers or contractors in providing the Western Union Services.
Section 11.3 Limitations and Liability . Each Party shall have a duty to mitigate the Losses and Expenses for which the other is responsible hereunder. Except for Losses or Expenses arising out of or related to the gross negligence or willful misconduct of the defaulting Party or in respect of Article VIII , in no event shall a Party’s (including its Affiliates’,
 
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employees’, contractors’ or suppliers’) cumulative aggregate liability arising under or in connection with this Agreement (or the provision of Services hereunder) exceed the greater of $10,000,000 and the amount of payments received by such Party from the other Party pursuant to this Agreement. EXCEPT FOR CLAIMS ARISING OUT OF OR RELATING TO ARTICLE VIII, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF REVENUES OR PROFITS), EXEMPLARY OR PUNITIVE DAMAGES OR THE LIKE ARISING UNDER ANY LEGAL OR EQUITABLE THEORY OR ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR THE PROVISION OF SERVICES HEREUNDER), ALL OF WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT ANY PARTY TO THIS AGREEMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 11.4 Indemnification Is Exclusive Remedy . Except for equitable relief and rights pursuant to Section 6.3 or Article X , the indemnification provisions of this Article XI shall be the exclusive remedy for breach of this Agreement.
Section 11.5 Risk Allocation . Each Party agrees that the Fees charged under this Agreement reflect the allocation of risk between the Parties, including the disclaimer of warranties in Section 3.4(a) and the limitations on liability in Section 11.3 . Modifying the allocation of risk from what is stated here would affect the Fees that each Party charges, and in consideration of those Fees, each Party agrees to the stated allocation of risk.
Section 11.6 Indemnification Procedures . All claims for indemnification pursuant to this Article XI shall be made in accordance with the provisions set forth in Sections 12.6 and 12.7 of the Distribution Agreement. Notwithstanding anything to the contrary hereunder, no cause of action, dispute or claim for indemnification may be asserted against either Party or submitted to arbitration or legal proceedings which accrued more than two years after the later of (a) the occurrence of the act or event giving rise to the underlying cause of action, dispute or claim and (b) the date on which such act or event was, or should have been, in the exercise of reasonable due diligence, discovered by the Party asserting the cause of action, dispute or claim.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Entire Agreement . This Agreement, including the Annexes hereto and the sections of the Distribution Agreement referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior agreements, negotiations, discussions, understandings, writings and commitments between the Parties with respect to such subject matter.
Section 12.2 Choice of Law . This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware, as though all acts and omissions related hereto occurred in Delaware.
 
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Section 12.3 Amendment . This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of First Data and Western Union.
Section 12.4 Waiver . Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently given for the purposes of this Agreement if, as to any Party, it is in writing signed by an authorized representative of such Party. The failure of any Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, or in any way to affect the validity of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
Section 12.5 Partial Invalidity . Wherever possible, each provision hereof shall be interpreted in such a manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision or provisions shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.
Section 12.6 Execution in Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by and delivered to each of the Parties.
Section 12.7 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns; provided , however , that the rights and obligations of either Party under this Agreement shall not be assignable by such Party without the prior written consent of the other Party. The successors and permitted assigns hereunder shall include any permitted assignee as well as the successors in interest to such permitted assignee (whether by merger, liquidation (including successive mergers or liquidations) or otherwise).
Section 12.8 Third Party Beneficiaries . Except to the extent otherwise provided in Article XI, the provisions of this Agreement are solely for the benefit of the Parties and their respective Affiliates, successors and permitted assigns and shall not confer upon any third Person any remedy, claim, liability, reimbursement or other right in excess of those existing without reference to this Agreement.
Section 12.9 Notices . All notices or other communications under this Agreement shall be in writing and shall be deemed to be duly given when delivered or mailed in accordance with the terms of Section 15.9 of the Distribution Agreement.
 
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Section 12.10 Performance . Each Party shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Affiliate of such Party.
Section 12.11 No Public Announcement . Neither First Data nor Western Union shall, without the approval of the other, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that either Party shall be so obligated by law or the rules of any regulatory body, stock exchange or quotation system, in which case the other Party shall be advised and the Parties shall use commercially reasonable efforts to cause a mutually agreeable release or announcement to be issued; provided , however , that the foregoing shall not preclude communications or disclosures necessary to implement the provisions of this Agreement or to comply with applicable law, accounting and SEC disclosure obligations or the rules of any stock exchange.
Section 12.12 Limited Liability . Notwithstanding any other provision of this Agreement, no individual who is a stockholder, director, employee, officer, agent or representative of Western Union or First Data, in its capacity as such, shall have any liability in respect of or relating to the covenants or obligations of such Party under this Agreement and, to the fullest extent legally permissible, each of Western Union and First Data, for itself and its respective stockholders, directors, employees, officers and Affiliates, waives and agrees not to seek to assert or enforce any such liability that any such Person otherwise might have pursuant to applicable law.
Section 12.13 Mutual Drafting . This Agreement shall be deemed to be the joint work product of First Data and Western Union and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.
Section 12.14 Dispute Resolution . The Parties agree that any dispute, controversy or claim between them with respect to the matters covered hereby shall be governed by and resolved in accordance with the procedures set forth in Section 4.3 hereof and in Article XIII of the Distribution Agreement.
 
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their authorized representatives as of the date first above written.

FIRST DATA CORPORATION	
		
By:	 	/s/ Kimberly S. Patmore	
	 	Name:	 	Kimberly S. Patmore	
	 	Title:	 	Executive Vice President and Chief Financial Officer	

THE WESTERN UNION COMPANY	
		
By:	 	/s/ David G. Barnes	
	 	Name:	 	David G. Barnes	
	 	Title:	 	Executive Vice President Finance and Strategic Development	

Annex A
AUTHORIZED REPRESENTATIVES
[Omitted]

Annex B
FIRST DATA SERVICES AND FEES
[Omitted]

Annex C
WESTERN UNION SERVICES AND FEES
[Omitted]

Annex D
THIRD PARTY SOFTWARE
[Omitted]
 
Exhibit 10.4
PATENT OWNERSHIP AGREEMENT AND COVENANT NOT TO SUE
This Agreement is entered into and made effective as of the 29th day of September, 2006, by and between First Data Corporation, a Delaware corporation, having a principal place of business at 6200 S. Quebec Street, Greenwood Village, CO 80111 (hereinafter “First Data”) and The Western Union Company, a Delaware corporation having a principal place of business at 12500 E. Belford Ave., Englewood, CO 80112 (hereinafter “Western Union”).
1.0 BACKGROUND
The parties have entered into the Separation Agreement, under which they have agreed to their separation into two separately traded public companies (the “Separation”). The parties desire to provide for ownership and other rights to patents that have previously been owned by the parent company prior to the Separation. Accordingly, the parties agree as follows:
2.0 DEFINITIONS
The following capitalized terms, whether in singular of plural form, shall have the meanings set forth below for all purposes of this Agreement:
“ Affiliate ” shall mean, when used with reference to a specific Person, any Person that, directly or indirectly, or through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or common control with, such specific Person. As used herein, “control” means the power to direct the management or affairs of a Person and “ownership” means the beneficial ownership of more than 50% of the voting equity securities of the Person.
“ Business Unit ” shall mean assets, liabilities and employees of a party that while not necessarily organized as a separate corporation or other legal entity is regarded by the party as a distinct unit for purposes of profit and loss management, or which is designated for the specific purpose of disposition as an operating entity by a party.
“ Contribution” shall have the same meaning as in the Separation Agreement.
“ Control ” shall mean the power to direct the management of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled by” and “under common Control” have meanings correlative to the foregoing.
“ First Data Patents ” shall mean (a) those U. S. patents (and any non-U.S. patents corresponding thereto) identified in Exhibit A attached hereto, (b) any U.S. or non-U.S. patents corresponding to and issuing from those patent applications and invention disclosures identified in Exhibit A, and (c) divisions, continuations, continuations-in-part, re-examinations, reissues, extensions or renewals of any such U.S. or non-U.S. patents.
“ First Data Controlled Patents ” shall mean (a) those U. S. patents (and any non-U.S. patents corresponding thereto) identified in Exhibit B attached hereto, (b) any U.S. or non-U.S. patents corresponding to and issuing from those patent applications and invention

disclosures identified in Exhibit B, and (c) divisions, continuations, continuations-in-part (but only to the extent claims are supported by the specifications of those patents), re-examinations, reissues, extensions or renewals of any such U.S. or non-U.S. patents.
“ Separation Agreement ” shall mean the Separation and Distribution Agreement dated September 29, 2006 between the parties.
“ Subsidiary ” shall mean (a) a corporation or other legal entity Controlled by a party or (b) a Business Unit. Any such corporation, other legal entity or Business Unit shall be deemed a Subsidiary of a party only so long as it is Controlled by that party.
“ Western Union Patents ” shall mean (a) those U. S. patents (and any non-U.S. patents corresponding thereto) identified in Exhibit C attached hereto, (b) any U.S. or non-U.S. patents corresponding to and issuing from those patent applications and invention disclosures identified in Exhibit C, and (c) divisions, continuations, continuations-in-part, re-examinations, reissues, extensions or renewals of any such U.S. or non-U.S. patents.
“ Western Union Controlled Patents ” shall mean (a) those U. S. patents (and any non-U.S. patents corresponding thereto) identified in Exhibit D attached hereto, (b) any U.S. or non-U.S. patents corresponding to and issuing from those patent applications and invention disclosures identified in Exhibit D, and (c) divisions, continuations, continuations-in-part (but only to the extent claims are supported by the specifications of those patents), re-examinations, reissues, extensions or renewals of any such U.S. or non-U.S. patents.
3.0 OWNERSHIP OF WESTERN UNION PATENTS AND FIRST DATA PATENTS
3.1 At the time of The Contribution, Western Union shall become the sole and exclusive owner of all right, title and interest in the Western Union Patents, including the right to sue for past infringement.
3.2 At the time of The Contribution, First Data shall continue as the sole and exclusive owner of all right, title and interest in the First Data Patents, including the right to sue for past infringement.
3.3 The parties agree to file appropriate assignment documents with the U. S. Patent and Trademark Office (and at appropriate non-U. S. patent offices for corresponding non-U. S. patents) and reasonably cooperate with each other in order to effect and record the ownership of the Western Union Patents and the First Data Patents as provided under this Section 3.0. The cost of such assignment documents and their filing shall be born by Western Union for the Western Union Patents, and shall be born by First Data for the First Data Patents.
 
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4.0 OWNERSHIP OF WESTERN UNION CONTROLLED PATENTS AND FIRST DATA CONTROLLED PATENTS
4.1 At the time of The Contribution, Western Union and First Data shall each have, as joint owners, an undivided interest in and to all right, title and interest in both the Western Union Controlled Patents and the First Data Controlled Patents.
4.2 The parties agree to file appropriate assignment documents with the U. S. Patent and Trademark Office (and at appropriate non-U. S. patent offices for corresponding non-U.S. patents) and reasonably cooperate with each other in order to effect and record the joint ownership of the Western Union Controlled Patents and the First Data Controlled Patents as provided under this Section 4.0. The cost of such assignment documents and their filing shall be born by Western Union for the Western Union Controlled Patents, and shall be born by First Data for the First Data Controlled Patents. It is understood that the parties may delay the recording of assignment documents in jurisdictions outside of the U.S. for cost, administrative convenience or other reasons, but any such delay in recording shall not operate as a waiver or otherwise affect the ownership of patents as provided herein. In the event of such delay and if a prompt recording should thereafter become necessary for carrying out any purpose of this Agreement, the parties agree to proceed with such recording in a reasonably expeditious manner.
4.3 Western Union and First Data shall each have, as joint owners, full right to practice the inventions claimed in the Western Union Controlled Patents and the First Data Controlled Patents. The scope of such rights shall be comparable to the scope of rights granted under Section 5.0 below (and subject to Sections 6.0 and 7.0 below).
4.4 Western Union shall have the right (in its sole discretion) to transfer its joint ownership interest in the Western Union Controlled Patents, but not the First Data Controlled Patents (subject to Paragraph 9.3). First Data shall have the right (in its sole discretion) to transfer its joint ownership interest in the First Data Controlled Patents, but not the Western Union Controlled Patents (subject to Paragraph 8.3).
4.5 Western Union hereby agrees to provide all commercially reasonable cooperation to First Data regarding notification of significant events in the process of prosecuting the Western Union Controlled Patents. First Data hereby agrees to provide all commercially reasonable cooperation to Western Union regarding notification of significant events in the process of prosecuting the First Data Controlled Patents. Such commercially reasonable cooperation includes but is not limited to, making inventors who are employed by a party available for review of amendments and signature of documents and providing copies of documents.
 
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5.0 IMMUNITY AS TO WESTERN UNION PATENTS AND FIRST DATA PATENTS
5.1 Western Union (on behalf of itself and its Subsidiaries) hereby grants to First Data and its Subsidiaries:
(a) an immunity from patent infringement claims, actions and suits based on any act which, if not licensed hereunder, would infringe, contributorily infringe or induce the infringement of any Western Union Patent, and
(b) pursuant to such immunity, a worldwide, royalty-free, non-exclusive license under the Western Union Patents to (i) make, have made (including authorizing others to provide to First Data for its own use), use (on behalf of First Data or for the benefit of its customers), have used, sell, offer to sell, lease, import and otherwise transfer any machine, system, process or product, or any component thereof, (ii) provide and have provided any service, (iii) provide and have provided any software to third parties, and (iv) practice and have practiced any process or method.
5.2 First Data (on behalf of itself and its Subsidiaries) hereby grants to Western Union and its Subsidiaries:
(a) an immunity from patent infringement claims, actions and suits based on any act which, if not licensed hereunder, would infringe, contributorily infringe or induce the infringement of any First Data Patent, and
(b) pursuant to such immunity, a worldwide, royalty-free, non-exclusive license under the First Data Patents to (i) make, have made (including authorizing others to provide to Western Union for its own use), use (on behalf of First Data or for the benefit of its customers), have used, sell, offer to sell, lease, import and otherwise transfer any machine, system, process or product, or any component thereof, (ii) provide and have provided any service, (iii) provide and have provided any software to third parties, and (iv) practice and have practiced any process or method.
5.3 Except as specifically provided otherwise in this Agreement, the immunity and licenses granted under this Section 5.0 are personal, non-transferable and non-assignable (other than to a successor resulting from an internal corporate reorganization and not related to acquisition of the assigning party by a third party), and do not include the right to sublicense any other party unless such sublicense is granted to a third party for the exclusive purpose of having products, processes, services, etc. provided to a Party.
5.4 The immunity and licenses granted under this Section 5.0 extend to and from Subsidiaries of the parties. Each Subsidiary shall be bound by the terms and conditions of this Agreement as if it were a named party hereto. If at any time a Subsidiary of a party ceases to be a Subsidiary, then (a) any immunity and licenses to such Subsidiary under the patents of the
 
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other party shall continue, but only to the business operations of the Subsidiary (and its products and services) existing at the time it ceased to be a Subsidiary, and (b) any immunity and licenses on behalf of such Subsidiary to the other party shall continue, notwithstanding its ceasing to be a Subsidiary.
5.5 Nothing in this Section 5.0 shall be deemed an obligation on the part of either party to provide trade secrets, know-how or any technical information to the other, nor shall be construed as granting by implication, estoppel or otherwise any rights or licenses other than those expressly stated. Subject to either Party’s rights in patents, either Party shall be free to use any ideas, concepts, or know-how that may be or was learned, exchanged, or developed while Western Union was a subsidiary of First Data without compensation to the other Party insofar as such ideas, concepts and know-how are retained in the unaided memory of the employees of either Western Union or First Data.
5.6 Nothing in this Section 5.0 shall be deemed a grant of immunity from any claim, action, or suit other than as specifically provided herein.
6.0 LICENSING OF WESTERN UNION CONTROLLED PATENTS
6.1 Western Union shall have the exclusive right (as between itself and First Data) to grant licenses under the Western Union Controlled Patents. The grant of any such license, and the terms thereof, shall be within the sole discretion of Western Union, but subject to the rights granted to First Data under Sections 4.0 and 8.0. First Data shall have no right to an accounting by Western Union or to otherwise share in any royalties received by Western Union under any such license.
6.2 Upon written request of First Data, such request identifying a specific Western Union Controlled Patent and a third party, Western Union shall notify First Data in writing whether such third party has been granted a license under that Western Union Controlled Patent.
7.0 LICENSING OF FIRST DATA CONTROLLED PATENTS
7.1 First Data shall have the exclusive right (as between itself and Western Union) to grant licenses under the First Data Controlled Patents. The grant of any such license, and the terms thereof, shall be within the sole discretion of First Data, but subject to the rights granted to Western Union under Sections 4.0 and 9.0. Western Union shall have no right to an accounting by First Data or to otherwise share in any royalties received by First Data under any such license.
7.2 Upon written request of Western Union, such request identifying a specific First Data Controlled Patent and a third party, First Data shall notify Western Union in writing whether such third party has been granted a license under that First Data Controlled Patent.
 
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8.0 ASSERTION OF WESTERN UNION CONTROLLED PATENTS
8.1 Western Union, and not First Data, shall have the sole and exclusive right (in its sole discretion) to assert and bring legal action against others for infringement (including past infringement) of the Western Union Controlled Patents, except under the limited circumstances provided in Paragraph 8.2 below. First Data agrees to be bound by any decision in such action as to the affected Western Union Controlled Patents. If, notwithstanding the foregoing, First Data is required by law or by the court to be a party to such action, First Data shall waive venue and permit itself to be joined as a party; however, in this instance, First Data shall not incur any expenses as a joined party. Settlement decisions shall be made, with respect to the Western Union Controlled Patents, by Western Union, unless First Data has been joined voluntarily as a party. If First Data joined voluntarily as a party, settlement decisions shall be made jointly with the cost of settlement and any benefits being shared between the Parties pursuant to Section 8.2.
8.2 As the only exception to the sole and exclusive right of Western Union to assert the Western Union Controlled Patents, should legal action be brought against First Data in any jurisdiction claiming infringement by First Data of a patent of a third party issued in the U. S. or any other country, then First Data may assert any one or more of the Western Union Controlled Patents against such third party for infringement (including past infringement) thereof, by bringing legal action for monetary and equitable relief against such third party with Western Union’s written consent, which shall not be unreasonably withheld. In determining whether Western Union is acting reasonably, it may take into account all appropriate factors including i) value of the suit; ii) value of the Western Union Controlled Patent; iii) the presence of a good faith belief of infringement of the patent by the third party’s methods, systems or processes, iv) likelihood of success on the merits; v) the potential harm to Western Union if the Western Union Controlled Patent were to be invalidated or its claims limited; and vi) the effort and/or expense that First Data would have to incur in order to modify its product or service to avoid infringement. First Data may not grant a license under the Western Union Controlled Patents in settlement of such action, without the prior written approval and authorization of (and agreed compensation to) Western Union. Under the limited circumstances provided under this Paragraph 8.2, First Data shall provide written notice of its intent to assert such patents. Such notice shall include (a) the name of the third party, (b) the circumstances (including relevant dates) leading to such assertion, and (c) a summary of all information known to First Data relating to the infringement by the third party, and shall be delivered to Western Union at least thirty (30) days prior to First Data’s proposed commencement of an infringement action. Any such assertion shall have a good faith and reasonable basis for claiming infringement by the third party. Western Union shall have the right (to be exercised within ten (10) days after receiving the assertion notice) to have both parties jointly retain counsel (skilled in patent law and selected by mutual agreement) to assist in determining whether to grant or withhold its consent as provided in this paragraph, with such advice and related discussions to be maintained as privileged and confidential. Such determination shall be made within thirty (30) days after delivery of the assertion notice from First Data. If Western Union does not respond to the notice within thirty (30) days, First Data may commence the action.
 
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Western Union may, at its option, elect to join as a voluntary party to such legal action prior to its commencement, in which event Western Union shall (a) share equally in the cost (including attorney fees) of such action, (b) have the right to participate (in good faith) in such action with counsel of its own choosing and at its own expense, (c) be entitled to share equally in all damages that may be awarded (or made in settlement) against the third party on account of the Western Union Controlled Patents after deduction of both parties’ costs (including attorney fees), and (d) have control over any matters that affect or are likely to affect the validity or enforceability (including future economic value) of the Western Union Controlled Patents, including the future enforceability against such third party. First Data shall have control over all other matters arising in such action or its settlement (provided any settlement relating to the Western Union share of damages is agreed to by Western Union).
If Western Union declines to join as a voluntary party to such action prior to its commencement, it agrees to be bound by any decision in or settlement of such action as to the affected Western Union Controlled Patents. In such event, all costs and expenses of such action shall be borne by First Data, and First Data shall be entitled to receive all damages that may be awarded (or made in settlement). If notwithstanding the foregoing, Western Union is required by law or by the court to be a party to such action, Western Union shall waive venue and permit itself to be joined as a party.
8.3 The rights granted to First Data under Section 8.2 are personal, non-transferable and non-assignable (other than to a successor resulting from an internal corporate reorganization not related to the acquisition of First Data by a third party).
9.0 ASSERTION OF FIRST DATA CONTROLLED PATENTS
9.1 First Data, and not Western Union, shall have the sole and exclusive right (in its sole discretion) to assert and bring legal action against others for infringement (including past infringement) of the First Data Controlled Patents, except under the limited circumstances provided in Paragraph 9.2 below. Western Union agrees to be bound by any decision in such action as to the affected First Data Controlled Patents. If, notwithstanding the foregoing, Western Union is required by law or by the court to be a party to such action, Western Union shall waive venue and permit itself to be joined as a party; however, in this instance Western Union shall not incur any expenses as a joined party. Settlement decisions shall be made, with respect to the First Data Controlled Patents, by First Data, unless Western Union has been joined as a party. If Western Union joined voluntarily as a party, settlement decisions shall be made jointly, with cost of settlement and any benefits being shared between the Parties pursuant to Section 9.2.
9.2 As the only exception to the sole and exclusive right of First Data to assert the First Data Controlled Patents, should legal action be brought against Western Union in any jurisdiction claiming infringement by Western Union of a patent of a third party issued in the U. S. or any other country, then Western Union may assert any one or more of the First Data Controlled Patents against such third party for infringement (including past infringement) thereof, by bringing legal action for monetary and equitable relief against such third party with First Data’s written consent, which shall not be unreasonably withheld. In determining whether
 
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First Data is acting reasonably, it may take into account all appropriate factors including i) value of the suit; ii) value of the First Data Controlled Patent; iii) the presence of a good faith belief of infringement of the patent by the third party’s methods, systems or processes, iv) likelihood of success on the merits; v) the potential harm to First Data if the First Data Controlled Patent were to be invalidated or its claims limited; and vi) the effort and/or expense that Western Union would have to incur in order to modify its product or service to avoid infringement Western Union may not grant a license under the First Data Controlled Patents in settlement of such action, without the prior written approval and authorization of (and agreed compensation to) First Data. Under the limited circumstances provided under this Paragraph 9.2, Western Union shall provide written notice of its intent to assert such patents. Such notice shall include (a) the name of the third party, (b) the circumstances (including relevant dates) leading to such assertion, and (c) a summary of all information known to Western Union relating to the infringement by the third party, and shall be delivered to First Data at least thirty (30) days prior to Western Union’s commencement of an infringement action. Any such assertion shall have a good faith and reasonable basis for claiming infringement by the third party. First Data shall have the right (to be exercised within ten (10) days after receiving the assertion notice) to have both parties jointly retain counsel (skilled in patent law and selected by mutual agreement) to assist in determining whether to grant or withhold its consent as provided in this paragraph, with such advice and related discussions to be maintained as privileged and confidential. Such determination shall be made within thirty (30) days after delivery of the assertion notice from Western Union. If First Data does not respond to the notice within thirty (30) days, Western Union may commence the action.
First Data may, at its option, elect to join as a voluntary party to such legal action prior to its commencement, in which event First Data shall (a) share equally in the cost (including attorney fees) of such action, (b) have the right to participate (in good faith) in such action with counsel of its own choosing and at its own expense, (c) be entitled to share equally in all damages that may be awarded (or made in settlement) against the third party on account of the First Data Controlled Patents after deduction of both parties’ costs (including attorney fees) and (d) have control over any matters that affect or are likely to affect the validity or enforceability (including future economic value) of the First Data Controlled Patents, including the future enforceability against such third party. Western Union shall have control over all other matters arising in such action or its settlement (provided any settlement relating to the First Data share of damages is agreed to by First Data).
If First Data declines to join as a voluntary party to such action prior to its commencement, it agrees to be bound by any decision in or settlement of such action as to the affected First Data Controlled Patents. In such event, all costs and expenses of such action shall be borne by Western Union, and Western Union shall be entitled to receive all damages that may be awarded (or made in settlement). If notwithstanding the foregoing, First Data is required by law or by the court to be a party to such action, First Data shall waive venue and permit itself to be joined as a party.
9.3 The rights granted to Western Union under Section 9.2 are personal, non-transferable and non-assignable (other than to a successor resulting from an internal corporate reorganization not related to acquisition of Western Union by a third party).
 
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10.0 JOINTLY OWNED PATENTS — PROSECUTION AND MAINTENANCE
10.1 Western Union shall have sole control over and be responsible for the prosecution and maintenance of the Western Union Controlled Patents (including all costs and expenses in connection therewith). In the event Western Union decides to abandon any Western Union Controlled Patent, it shall use reasonable efforts to notify First Data in writing at least thirty (30) days prior to such abandonment. Upon such notification, First Data may, at its option, elect to assume full and complete control over and bear all costs in connection with such patent. Upon such election, Western Union agrees to promptly transfer all of its ownership interest in such patent to First Data, and thereafter such patent shall be deemed a First Data Patent for purposes of this Agreement (with immunity and licenses under such patent conveyed to Western Union pursuant to Section 5.0 above).
10.2 First Data shall have sole control over and be responsible for the prosecution and maintenance of the First Data Controlled Patents (including all costs and expenses in connection therewith). In the event First Data decides to abandon any First Data Controlled Patent, it shall use reasonable efforts to notify Western Union in writing at least thirty (30) days prior to such abandonment. Upon such notification, Western Union may, at its option, elect to assume full and complete control over and bear all costs in connection with such patent. Upon such election, First Data agrees to promptly transfer all of its ownership interest in such patent to Western Union, and thereafter such patent shall be deemed a Western Union Patent for purposes of this Agreement (with immunity and licenses under such patent conveyed to First Data pursuant to Section 5.0 above).
10.3 Upon request, each party will provide to the other a copy of any patent issuing after the date of this Agreement, for which such party has the responsibility for prosecution and maintenance under this Section 10. Such party shall also permit the other, at its expense, to inspect and make copies of the content of its file wrapper (as it customarily maintains such file, but excluding any attorney-client privileged material) for any such patent at any time prior to or after issuance.
10.4 The party having responsibility for prosecution and maintenance under this Section 10.0 shall have sole discretion as to all matters pertaining to such prosecution and maintenance, and shall have no liability to the other for any action, failure to take action or decision in connection therewith, including for abandonment or for failure to notify the other of abandonment as required in Paragraphs 10.1 or 10.2. Notwithstanding any other provision in this Agreement, the party not having responsibility for prosecution and maintenance can request in writing the ability to file any divisions, continuations, continuations-in-part, re-examinations, reissues, extensions or renewals of any such patents controlled by the other party, provided that any such divisions, continuations, continuations-in-part, re-examinations, reissues, extensions or renewals shall meet applicable laws and regulations governing the filing of such patents.
10.5 Each party shall provide, upon request of the other, reasonable cooperation (including making inventor-employees reasonably available) to the other as may be required in
 
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the course of prosecution and enforcement of the Western Union Controlled Patents or the First Data Controlled Patents, at the requesting party’s expense.
11.0 LICENSING AND ENFORCEMENT DISCUSSIONS; THIRD PARTY INFRINGEMENT; INDEMNIFICATION
11.1 If either party becomes aware of infringement by a third party of any jointly owned patent controlled by the other party, it shall notify the other party in writing of such infringement.
11.2 If one party is required by law or by a court to be a party to an action (by virtue of being a joint owner, and after having elected not to be a party to the action) against a third party brought by the other, such party shall appear as a party to such action and be indemnified by the other party against any costs and expenses (including reasonable attorney fees) in connection with such action. If one party enforces a patent (and the other party is not a party to such enforcement action), the other party shall be indemnified by the first party against any costs and expenses (including reasonable attorney fees) in connection with such action.
12.0 TERM
The term of this Agreement shall be from the date hereof until the expiration of the last to expire of the Western Union Patents, First Data Patents, Western Union Controlled Patents, and First Data Controlled Patents, with the term as respects each individual Patent expiring on the date that the patent expires or otherwise becomes abandoned, unenforceable, or invalid.
13.0 ACQUISITION OF A PARTY
13.1 In the event either party is Acquired by a third party (“Buyer”) at any time during the term of this Agreement, then:
(a) the immunity and licenses granted under Section 5.0 shall continue for both parties, but as to the Acquired party such immunity and licenses shall extend only to the business operations of the Acquired party (and its products and services) existing at the time of acquisition, and shall not extend to the Buyer as a whole;
(b) if Western Union is the Acquired party, it shall transfer, effective upon the date of its acquisition, all of its ownership rights in the First Data Controlled Patents to First Data and such patents shall thereafter be deemed First Data Patents for purposes of this Agreement (including Section 5.0 above); and
(c) if First Data is the Acquired party, it shall transfer, effective upon the date of its acquisition, all of its ownership rights in the Western Union Controlled Patents to Western Union and such patents shall thereafter be deemed Western Union Patents for purposes of this Agreement (including Section 5.0 above).
 
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13.2 Any transfer of ownership pursuant to Paragraph 13.1(b) and 13.1(c) above shall be subject to any prior licenses granted by the transferor, and such transfer shall not operate to release the transferor from any obligations it has under such prior license or to impose any such obligations on the transferee.
13.3 For purposes of this Agreement, an entity shall be “Acquired” if (i) any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) becomes a beneficial owner (or otherwise has the authority to vote), directly or indirectly, securities representing more than 50% of the total voting power of such entity’s then outstanding voting securities, or (ii) such entity becomes a party to a merger, consolidation or share exchange (other than a re-incorporation or the establishment of a holding company involving no change in ownership of the entity) and either (x) such entity is not in substance the surviving corporation or (y) as a result of such transaction, such entity’s board of directors is reconstituted so that a majority of such board of directors consists of individuals who were not directors prior to such transaction. Notwithstanding the foregoing, an entity shall not be deemed “Acquired” in the event of an internal corporate reorganization not involving a third party.
14.0 ALLOCATION OF PATENTS
It is acknowledged by both parties that reasonable efforts have been undertaken prior to the Separation to allocate the patents previously owned by their combined businesses, with the allocation based on the overall relevance of individual patents to one party or the other. If, after the date of this Agreement, either party notifies the other of a reasonable basis for believing that a patent has been improperly allocated to one party (solely owned or controlled by that party) when it should have been allocated to the other, both parties agree to negotiate in good faith to determine the proper allocation of such patent and to establish any other terms as may be equitable in connection with such patent or its allocation to the proper party.
15.0 MISCELLANEOUS
15.1 Confidentiality . Information concerning the First Data Patents and the Western Union Patents, to the extent it meets the definition of Confidential Information under the Separation Agreement, shall be the Confidential Information of First Data and Western Union, respectively, under the Separation Agreement. However, nothing herein shall preclude either party from responding to a third party inquiry as to the scope of its licensing or enforcement rights under any patent which is the subject of this Agreement.
15.2 Headings and Interpretation . Regardless of which Party may have drafted this Agreement or any part thereof, no rule of strict construction shall be applied against either Party or any of its Affiliates. If any provision of this Agreement is determined by a court of law to be invalid, illegal, or unenforceable pursuant to a judicial decree or decision, the Parties shall deem the provision to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be so modified, the provision will be severed and deleted from this Agreement, and the remainder of this Agreement shall continue to be binding and enforceable according to its terms. In this Agreement:
(a) references to the singular include references to the plural and words denoting any gender shall include all genders;
 
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(b) the headings in this Agreement do not affect its interpretation;
(c) references to a party to this Agreement include references to its successors or assigns (immediate or otherwise of that party) as such are appointed in accordance with the terms of this Agreement;
(d) references to a clause, section, paragraph or Exhibit are to a clause, section, paragraph or Exhibit to this Agreement and references to this Agreement include the Exhibits;
(e) any reference to a document being “ in writing ” includes any communication made by letter, facsimile transmission or email provided neither party may exercise any rights to terminate this Agreement or any of the services in it or make any notifications under clause 24 (termination) by email;
(f) in the event of any conflict or inconsistency between these Terms and Conditions and any of the other Exhibits or other Agreements as referenced herein, these Terms and Conditions shall prevail to the extent of that conflict or inconsistency unless expressly stated otherwise or agreed by the parties in writing; and,
(g) any reference, express or implied, to an enactment (which includes any legislation in any jurisdiction) includes references to (i) that enactment as re-enacted, amended, extended or applied by or under any other enactment (before or after the signature of this Agreement); or (ii) any subordinate legislation made (before or after the signature of this Agreement) under such enactment.
(h) Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.
(i) Terms other than those defined within this Agreement and its exhibits will be given their plain English meaning, and those terms, acronyms, and phrases known in the information technology industry will be interpreted in accordance with their generally accepted meanings.
(j) Defined terms appearing in this Agreement and its Schedules in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning, and shall, unless the context otherwise requires, include the terms as defined.
(k) Reference to months or years shall be construed as calendar months (i.e. one or more of the twelve periods into which a conventional year is divided) or conventional years (i.e. 1 January to 31 December). Reference to “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” shall be any day other than a Saturday, Sunday
 
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or public holiday. Any reference to “business hours” shall be construed as being the hours between 08h00 (eight hours) and 17h00 (seventeen hours) on any business day. Any reference to time shall be based upon Eastern Standard Time.
(l) Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or public holiday, the next succeeding business day.
(m) Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
(n) The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it: the application of the eiusdem generis rule is excluded.
15.3 Severability . If any provision of this Agreement or any document referred to in it is held to be illegal, invalid or unenforceable by any court of competent jurisdiction or Governmental Authority in whole or in part this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision. The parties shall negotiate in good faith to agree to a substitute provision for any such provision held to be invalid. Any invalidity in one legal jurisdiction shall not affect the validity of any of the provisions of this Agreement in any other legal jurisdiction in which this Agreement may apply or otherwise take effect.
15.4 Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware and the federal laws of the United States of America applicable therein, as though all acts and omissions related hereto occurred in Delaware.
15.5 Notices . All notices or other communications required to be given hereunder shall be in writing and delivered either personally or by United States Postal Service, facsimile, or electronic mail, and addressed as provided in this Agreement or as otherwise requested by the receiving party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed. The appropriate addressees are:

For Western Union :	  	For First Data :	
Intellectual Property Counsel	  	Intellectual Property Counsel	
12500 E. Belford Ave.	  	6200 S. Quebec Street	
Englewood, CO 80112	  	Greenwood Village, CO 80111	
Fax: (720) 332-0519	  	Fax: (303) 967-5258	
(ii) Dispute Resolution . If the disputing Parties are unable to resolve any Dispute, then such Dispute shall be governed by the Dispute Resolution procedures contained in Article XIII of the Separation Agreement.
 
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15.6 Assignment . This Agreement is personal to the Parties and their Affiliates. Neither this Agreement nor any right or obligation under this Agreement shall be assignable or assumable, without the prior written consent of other Party, which consent may be withheld at the sole discretion of such other Party.
15.7 Survival . The following provisions of this Agreement will survive the expiration or any termination of this Agreement: Sections 3 and 11, and any other provision that by its terms or implication is intended to survive.
15.8 Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
15.9 Entire Agreement . This Agreement (together with any documents referred to herein) contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement. Each of the parties acknowledges and agrees that:
 
 	(i)	it does not enter into this Agreement on the basis of and does not rely, and has not relied, upon any statement, representation, warranty, forecast or other information (in any case whether oral, written, express or implied) made, given or agreed to by any person (whether negligently or innocently and whether or not made by a party to this Agreement) which is not expressly contained or referred to in this Agreement (a “ Representation ”);	
 
 	(ii)	nothing in this Agreement is intended to provide any representations or warranties, including any relating to ownership or freedom from infringement, as to any of the First Data Patents, Western Union Patents, First Data Controlled Patents, or Western Union Controlled Patents, or to create any exception to the exclusion of representations and warranties contained in Section 7.1 and 7.2 of the Separation Agreement;	
 
 	(iii)	it shall have no remedy (including any rights to damages or rescission in an action for misrepresentation) for any Representation which was, is or becomes false or misleading;	
 
 	(iv)	the only remedy available in respect of any misleading or false warranty or other term contained in this Agreement shall be a claim for breach of contract under this Agreement	
save that nothing in this Agreement shall exclude or restrict a party’s rights, remedies or liability under the law governing this Agreement in respect of any fraud or fraudulent misrepresentation.
 
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf by its officers thereunto duly authorized, as of the date and year first written above.

FIRST DATA CORPORATION	
		
By:	 	/s/ Kimberly S. Patmore	
	 	Name:	 	Kimberly S. Patmore	
	 	Title:	 	Executive Vice President and
Chief Financial Officer	

THE WESTERN UNION COMPANY	
		
By:	 	/s/ David G. Barnes	
	 	Name:	 	David G. Barnes	
	 	Title:	 	Executive Vice President
Finance and Strategic Development	

EXHIBIT A
FIRST DATA PATENTS
[Omitted]

EXHIBIT B
FIRST DATA CONTROLLED PATENTS
[Omitted]

EXHIBIT C
WESTERN UNION PATENTS
[Omitted]

EXHIBIT D
WESTERN UNION CONTROLLED PATENTS
[Omitted]
 
Exhibit 10.5
RETAIL MONEY ORDER ISSUANCE AND MANAGEMENT AGREEMENT
By and between
INTEGRATED PAYMENT SYSTEMS INC.
and
WESTERN UNION FINANCIAL SERVICES, INC.
 
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SCHEDULES

Schedule 2.1(A)	  	WU Services	
Schedule 2.1(B)	  	Contract Schedule	
Schedule 2.2	  	Payment for WU Services	
Schedule 5.5	  	IPS Services	
Schedule 7.4	  	Equipment	
 
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AGREEMENT
THIS RETAIL MONEY ORDER ISSUANCE AND MANAGEMENT AGREEMENT (this “ Agreement ”), dated as of August 14, 2006, by and between Western Union Financial Services, Inc., a Colorado corporation (“ WU ”) and Integrated Payment Systems Inc., a Delaware corporation (“ IPS ”).
RECITALS
WHEREAS , IPS desires to retain WU to manage IPS’ agents that currently issue and sell money orders at retail locations specified herein and to perform certain data processing and other related services (collectively the “ Services ”); and
WHEREAS , WU desires to perform the Services for IPS, all on the terms and conditions and for the consideration set forth herein.
NOW, THEREFORE , for and in consideration of the mutual covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WU and IPS hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions . In this Agreement, the following terms have the meanings specified or referred to in this Section 1.1 :
“ Account Manager ” has the meaning specified in Section 2.4(a) .
“ Additional Term ” has the meaning specified in Section 9.1(b) .
“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such Person; provided, however, IPS and WU shall not be considered Affiliates of each other for purposes of this Agreement.
“ Agreement ” has the meaning specified in the Preamble.
“ Business ” means sale of Money Orders at locations covered by IPS Agreements.
“ Business Day ” means any day other than Saturday, Sunday and those legal public holidays specified in 5 U.S.C. §6103(a), as it may be amended from time to time, or any successor provision, on which banking institutions in the city of Denver, Colorado are open for business. If a payment date under this Agreement is not a Business Day, payment shall be made on the next succeeding Business Day.
 
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“ Claim Notice ” has the meaning specified in Section 10.4(a) .
“ Closing Date ” has the meaning specified in Article IV .
“ COBRA ” means the provisions set forth in Sections 601 to 608 of ERISA or Section 4980B of the Code.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Confidential Information ” has the meaning specified in Section 8.2(d).
“ Contract Schedule ” means Schedule 2.1 (B).
“ Counterfeit Item” means a paper payment instrument that is a counterfeit of an Item and the MICR line specifications for that counterfeit item match the MICR line specifications for a Money Order.
“ Court Order ” means any judgment, order, award or decree of any foreign, federal, state, local or other court or tribunal and any award in any arbitration proceeding.
“ Distant Executive ” has the meaning specified in Section 11.13(b) .
“ Employee ” has the meaning specified in Section 8.3 .
“ Event of Default ” has the meaning specified in Section 9.3(a) .
“ Expenses ” means any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including, without limitation, court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals).
“ Force Majeure ” means any cause beyond the control of a party that such party is unable to overcome by the exercise of reasonable diligence, which may include fire; flood; explosion; war; strike; embargo; government regulation; civil or military authority; act of God; acts or omissions of carriers; or other similar causes.
“ Governmental Body ” means any foreign, federal, state, local or other governmental authority or regulatory body.
“ Governmental Permits ” has the meaning specified in Section 5.4 .
“ Indemnified Party ” has the meaning specified in Section 10.4(a) .
“ Indemnifying Party ” has the meaning specified in Section 10.4(a) .
 
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“ Initial Term ” has the meaning specified in Section 9.1(a) .
“ IPS ” has the meaning specified in the Preamble. In addition, with respect to business conducted in Canada, the term “IPS” shall include the Integrated Payment Systems Canada Inc., a Canadian corporation, which is a wholly-owned subsidiary of Integrated Payment Systems Inc.
“ IPS Agreements ” means the contracts listed on Schedule 2.1 (B) , including any renewals thereof, and the contracts executed pursuant to Schedule 2.1 (A), Section 1 (b)  hereof.
“ IPS Client ” means, in the case of each IPS Agreement, the party other than IPS and WU to such IPS Agreement.
“ IPS Group Member ” means IPS and its Affiliates and their respective successors and assigns.
“ Issue Statements ” has the meaning specified in Section 11.13(a) .
“ Item ” means a Money Order.
“ Legal Requirements ” means all federal, state and local laws, regulations and judicial and administrative decisions and interpretations applicable to the Business.
“ Losses ” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, expenses, deficiencies or other charges.
“ Money Order ” means a paper payment instrument that is named and denominated as a money order and that is sold pursuant to an IPS Agreement to a purchaser for the purpose of the purchaser’s effecting a payment to a third party. The term “Money Order” also includes a paper payment instrument that is issued directly by IPS, provided that the issuance of such instrument falls within one of the product codes listed on Schedule 2.1 (B) . The term “Money Order” also includes refund checks issued by WU for IPS as further described on Schedule 2.1 (A) .
“ Notice of Default ” has the meaning specified in Section 9.3(b) .
“ Party ” means IPS or WU.
“ Patent License” has the meaning specified in Section 8.6 .
“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization or Governmental Body.
“ POS Equipment ” has the meaning specified in Section 7.4 .
“ Service Fees ” has the meaning specified in Section 2.2(a) .
 
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“ Senior Executives ” has the meaning specified in Section 11.13(a) .
“ Tax ” (and with correlative meaning, “ Taxes ”) means: (i) any federal, state, local or foreign net income, gross income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value-added, transfer, stamp or environmental (including taxes under Code Section 59A) tax, or any other tax custom, duty or other like assessment or charge of any kind whatsoever, together with any interest or any penalty; and (ii) any liability for the payment of amounts with respect to payments of a type described in clause (i) as a result of being a member of an affiliated, consolidated, combined or unitary group, or as a result of any obligation under any Tax sharing arrangement or Tax indemnity arrangement.
“ Term ” has the meaning specified in Section 9.1(b) .
“ Trade Secrets ” means confidential ideas, trade secrets, know-how, concepts, methods, processes, practices, formulae, reports, data, customer lists, mailing lists, business plans or other proprietary information.
“ Transaction Tax ” has the meaning specified in Section 8.1 .
“ User Manual has the meaning specified in Schedule 5.5 .
“ WU ” has the meaning specified in the Preamble. In addition, with respect to business conducted in Canada, the term “WU” shall include the Western Union Financial Services (Canada), Inc., an Ontario corporation, which is a wholly-owned subsidiary of Western Union Financial Services, Inc.
“ WU Agreement ” has the meaning specified in Section 7.3 .
“ WU Group Member ” means WU and its Affiliates and their respective successors and assigns.
“ WU Services ” has the meaning specified in Section 2.1(a) .
“ WU Statement ” has the meaning specified in Section 2.2 (b) .
“ WU Service Location ” means 12500 East Belford Avenue, Englewood, Colorado 80112, or as otherwise permitted in accordance with Section 2.6 .
1.2. Interpretation . (a) In this Agreement, unless the context clearly indicates otherwise:
(i) words used in the singular include the plural and words in the plural include the singular;
(ii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement;
 
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(iii) reference to any gender includes the other gender;
(iv) the word “including” means “including but not limited to” or “including without limitation”;
(v) reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;
(vi) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;
(vii) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;
(viii) reference to any statute means such statute (including all rules and regulations promulgated thereunder) as amended from time to time and includes any successor legislation thereto;
(ix) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”;
(x) in the event of any conflict between the provisions of the body of this Agreement and the Exhibits or Schedules hereto, the provisions of the body of this Agreement shall control; and
(xi) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement.
(b) This Agreement was negotiated by the Parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against either Party shall not apply to any construction or interpretation hereof. Subject to Section 11.10 , this Agreement shall be interpreted and construed to the maximum extent possible so as to uphold the enforceability of each of the terms and provisions hereof, it being understood and acknowledged that this Agreement was entered into by the Parties after substantial negotiations and with full awareness by the Parties of the terms and provisions hereof and the consequences thereof.
 
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ARTICLE II
SERVICES
2.1. WU Services . (a) Subject to the terms and conditions stated herein, commencing on the Closing Date and continuing throughout the Term, WU shall provide (or cause one of its Affiliates to provide) the services set forth on Schedule 2.1(A ) (collectively, the “ WU Services ”), in accordance with the procedures and standards set forth on Schedule 2.1(A) and in the User Manuals, for each Money Order issued during the Term hereof.
(b) In the event that WU wishes to designate a WU Affiliate or a third party to perform any of the WU Services, WU shall be permitted to do so so long as the transferred WU Services are performed in compliance with this Agreement. WU shall remain responsible and liable for all WU Services provided hereunder, whether performed by WU, by a WU Affiliate or by a third party.
(c) Except as expressly provided herein, no interest whatsoever in any IPS Agreement is or will be transferred to WU under this Agreement. All payments to be made to IPS under the IPS Agreements, whether by IPS Clients or otherwise, shall continue to be for the account of IPS, and the only remuneration of, or financial benefit to WU with respect to the IPS Agreements shall be the fees for the WU Services as set forth on Schedule 2.2 .
(d) In performing the WU Services, WU may make no use of the names or trademarks of IPS or any of its Affiliates, except as is essential in order to perform the WU Services in accordance with Schedule 2.1(A) .
2.2. Payment for WU Services . In consideration for providing the WU Services to IPS, IPS shall pay WU the fees (the “ Service Fees ”) set forth on Schedule 2.2 .
2.3. Quality of WU Services . (a) WU shall provide the WU Services to IPS in accordance with the User Manuals, in substantially the same manner as WU performs such aspect for itself and in compliance with all Legal Requirements applicable to the Business and to WU as the provider of the WU Services.
(b) The data and information submitted by WU to IPS shall be accurate and complete, and WU shall be responsible for any errors in and with respect to the data and information submitted to IPS; provided , however , WU shall not be responsible for, and shall not be required to indemnify IPS with respect to, incomplete, inaccurate or erroneous data or information to the extent such inaccuracy, incompleteness or error results from any inaccuracy, incompleteness or error in the data received by WU from IPS. To the extent WU is responsible for the inaccuracy, incompleteness or error, WU shall promptly correct such errors or inaccuracies in the data or information prepared by WU and submitted to IPS, but such correction shall not limit WU’s indemnification obligations under Article X .
(c) WU shall provide access to the WU Service Locations to such auditors, internal and external, and inspectors as IPS or any regulatory authority may designate. Audits by regulatory authorities will occur on such occasions as the regulatory authority requires and with
 
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such notice as the regulatory authority permits. Such auditors and inspectors will be required to sign appropriate confidentiality agreements and will be escorted by WU personnel while performing any audits or inspections (to the extent permitted by the regulatory authority, in the case of audits required by regulatory authorities). All audits or inspections of the WU Service Locations and the WU Services that are required by IPS or by a regulatory authority having jurisdiction over IPS will be at the expense of IPS. WU shall provide such auditors and inspectors any assistance that they may reasonably require. IPS shall not be required to reimburse WU for the costs or time of the WU employees providing such assistance or related overhead. If any audit by an auditor designated by IPS or a regulatory authority having jurisdiction over IPS or WU results in WU being notified that it is not in compliance with any relevant and generally accepted accounting principle or other audit requirement relating to the WU Services, then:
(i) if the non-compliance was in existence prior to the date of this Agreement, WU will make such change at WU’s own expense; or
(ii) if the non-compliance arose after the date of this Agreement and the change is requested by IPS in order to comply with its auditors or regulators, WU shall make the change at IPS’ expense and any incremental recurring costs related to such change shall be at IPS’ expense; provided , however , that if WU would otherwise be required to make such change if it were the issuer of Money Orders hereunder, WU shall make the change at its own expense and WU shall bear any incremental recurring costs related to such change.
In the event of a dispute between WU and IPS relating to a notification of non-compliance received by WU from an auditor or regulatory authority, WU and IPS shall resolve such dispute in accordance with the procedures described in Section 11.13 .
2.4. WU Personnel . WU shall designate an individual who shall be responsible for implementing the WU Services (“ Account Manager ”).
2.5. Location of WU Services . The WU Services shall be performed by WU at the WU Service Locations. WU may change any WU Service Location to a location where WU performs the same services for a majority of money orders processed by WU (including, but not limited to, Items). If a location is to be changed, WU will provide IPS thirty (30) calendar days’ prior notice. If required by law or IPS’ regulators, WU must obtain IPS’ prior written consent to change any WU Service location, which consent will not be unreasonably withheld.
2.6. Safety and Security Standards . As part of the WU Services, WU shall maintain and enforce at the WU Service Locations such safety and security procedures as are required to meet the applicable regulatory standards. The safety and security procedures shall protect the data and information of IPS and its customers from unauthorized access. In the event WU suffers a data security breach with respect to any of IPS’ data, WU shall promptly notify IPS of such event.
 
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2.7. Effect of Non-Performance of Either Party . In the event that either Party fails to timely perform any task assigned to it pursuant to this Agreement, the other Party shall be excused from performing any subsequent task therein that is dependent upon, and cannot be performed in the ordinary course of the provision of the WU Services without, the performance of the non-performed task, until the non-performed task is performed, and the time period for performing such subsequent task shall commence only when the non-performed task is completed in accordance therewith. The excuse from performance provided in this Section 2.7 does not limit any remedy otherwise available to the Party so excused, including the right of the Party so excused to perform the non-performed task if practicable.
ARTICLE III
MANAGEMENT OF THE IPS CLIENTS
3.1 IPS Agreements . Certain provisions relating to IPS Agreements are set forth in Schedule 2.1 (A).
3.2 Limitations on WU’s Obligations . Certain limitations on WU’s obligations as manager of the Business are set forth in Schedule 2.1 (A) .
ARTICLE IV
CLOSING
The closing shall occur by mutual agreement of the Parties as evidenced by the execution of a certificate specifying the date of the closing (sometimes referred to herein as the “ Closing Date ”) by each of the Parties.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF IPS
As an inducement to WU to enter into this Agreement and to consummate the transactions contemplated hereby, IPS represents and warrants to WU and agrees as follows:
5.1. Organization of IPS . IPS is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. IPS has full corporate power and authority to own, operate and use the assets used in connection with the Business and to carry on the Business as now conducted.
5.2. Authority of IPS . IPS has full corporate power and authority to execute, deliver and perform this Agreement. The execution, delivery and performance of this Agreement by IPS have been duly authorized and approved by IPS and do not require any further authorization or consent of IPS or its stockholder. This Agreement has been duly executed and delivered by IPS and is the legal, valid and binding obligation of IPS enforceable in accordance with its terms.
 
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5.3. Contract Schedule . The IPS Agreements referenced on the Contract Schedule are all of the agreements, contracts or understandings that have been entered into by IPS and are currently in force with sellers of Money Orders or pursuant to which Money Orders are sold.
5.4 Governmental Permits. IPS owns, holds or possesses all licenses, franchises, permits, privileges, immunities, approvals and other authorizations from a Governmental Body that are necessary to entitle it to own or lease, operate and use the assets used in connection with the Business and to carry on and conduct the Business substantially as currently conducted (collectively, the “ Governmental Permits ”), except for such Governmental Permits as to which the failure to so own, hold or possess would not have a material adverse effect on the Business.
5.5 Capacity . IPS has, and will maintain throughout the Term, the operational capacity and resources necessary to perform the services as set forth on Schedule 5.5 .
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF WU
As an inducement to IPS to enter into this Agreement and to consummate the transactions contemplated hereby, WU hereby represents and warrants to IPS and agrees as follows:
6.1. Organization of WU . WU is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado. WU has full corporate power and authority to provide the WU Services and to own, operate and use its properties and assets and to carry on its business as now conducted.
6.2. Authority of WU . WU has full corporate power and authority to execute, deliver and perform this Agreement. The execution, delivery and performance of this Agreement by WU have been duly authorized and approved by WU and do not require any further authorization or consent of WU or its stockholder. This Agreement has been duly executed and delivered by WU and is the legal, valid and binding agreement of WU enforceable in accordance with its terms.
6.3. Capacity and Governmental Permits . WU has, and will maintain throughout the Term, the operational capacity and resources necessary to perform the WU Services in accordance with this Agreement. WU owns, holds or possesses all licenses, franchises, permits, privileges, immunities, approvals and other authorizations from Governmental Bodies that are necessary for it to perform the WU Services in accordance with this Agreement.
 
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ARTICLE VII
CERTAIN CONTRACT AND TRANSITION RELATED PROVISIONS
7.1 Contract Provisions . Certain provisions relating to agreements with selling agents are set forth in Schedule 2.1 (A).
7.2 Termination of Certain IPS Contractual Provisions. Certain provisions relating to agreements with IPS Clients are set forth in Schedule 2.1 (A).
7.3 Transition Efforts . (a) If WU decides to issue WU branded money orders under its own licenses or to issue money orders under another third party’s licenses, IPS agrees that it will, in good faith, negotiate with WU a transition services agreement to provide WU with the types of services that IPS is providing under this Agreement as listed in Schedule 5.5 for a reasonable period of time in order to allow WU to make a smooth transition to the sale of such other money order service.
(b) After the third anniversary of the Closing Date, IPS shall have the right to require WU to agree to either (i) issue Money Orders under its own licenses (or make arrangements with another third party to issue Money Orders) and perform the obligations of the issuer of Money Orders under any IPS Agreements after the last day of the Initial Term; or (ii) cease entering into IPS Agreements that extend beyond the last day of the Initial Term.
7.4 Equipment. Point of Sale equipment, software and other equipment used in connection with the Business (collectively, all such items are referred to herein as “POS Equipment”) shall be maintained by WU. POS Equipment shall be provided to WU and the IPS Client in accordance with Schedule 7.4 .
7.5 Abandoned Property Software, Documentation and System. The abandoned property software, documentation and system utilized in the Business shall be provided to WU in accordance with Schedule 5.5 .
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1. Taxes . For purposes of this Section 8.1 , “Transaction Tax” shall mean any federal, state or local gross receipts, sales or use tax or other like assessment or charge. The recipient of any services rendered pursuant to this Agreement shall be responsible for any Transaction Taxes levied or imposed on the provision of such services.
8.2. Proprietary and Confidential Information . (a) Except as specifically provided in this Agreement, neither Party shall use or disclose to any third party any Confidential Information of the other Party; provided , however , that information shall not be regarded as
 
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Confidential Information if it (i) is or becomes generally available to the public other than as a result of a disclosure by one of the Parties or any of its Affiliates, as the case may be; (ii) is or becomes known or available to one of the Parties or its respective Affiliates, as the case may be, on a non-confidential basis from a source who, insofar as is known to such Party, is not prohibited from transmitting the information to such Party or its Affiliates by a contractual, legal or fiduciary obligation; or (iii) is or was developed by a Party or any of its Affiliates without the use of any Confidential Information from the other Party or any of its Affiliates. All Confidential Information shall be held in confidence by the Parties to the same extent and in at least the same manner as the Parties protect their own confidential or proprietary information.
(b) Each Party shall be permitted to disclose relevant aspects of the other Party’s Confidential Information to its officers, agents and employees and to the officers, agents and employees of its Affiliates to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under this Agreement; provided , that such Party shall take all reasonable measures to ensure that Confidential Information of the other Party is not disclosed or duplicated in contravention of this Agreement by such officers, agents and employees. In addition, WU may use IPS’ Confidential Information regarding IPS Clients for the purposes contemplated by Schedule 2.1 (A), Section 1 (b) ; provided, that such use is not in contravention of any agreement between IPS and the applicable IPS Client or such use is not prohibited by law.
(c) The obligations in this Section 8.2 shall not restrict any disclosure by either Party pursuant to any applicable law or by order of any court or government agency (provided that the disclosing Party shall give prompt notice to the non-disclosing Party of such order).
(d) As used in this Agreement, the term “ Confidential Information ” shall mean (i) with respect to IPS, all information, data and materials relating to the customers, business and affairs of IPS provided to, disclosed or received by WU from any source in connection with this Agreement or WU’s performance of the WU Services, including any Trade Secrets and the terms of any IPS Agreement, (ii) with respect to WU, all information, data and materials relating to the customers, business and affairs of WU provided to, disclosed or received by IPS from any source in connection with this Agreement, including any Trade Secrets and the terms of any WU Agreement and (iii) the terms of this Agreement.
(e) Notwithstanding the foregoing, WU shall be entitled to use Confidential Information of IPS after the termination of this Agreement to the extent use of such information is necessary in connection with its continuation of the Business after the termination of this Agreement.
8.3. Employees and Employee Benefit Plans . (a) Other than as WU may otherwise agree in its discretion by separate agreement in connection with its spin off from First Data Corp., no person who is or who has been an employee of IPS (an “ Employee ”) shall transfer employment to WU or any of its Affiliates in connection with WU’s provision of WU Services pursuant to this Agreement. Nothing contained in this Agreement shall obligate WU to employ any persons who are or who have been Employees. IPS shall retain the sole
 
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responsibility, in connection with the Employees’ employment by IPS and its Affiliates, for all matters relating to the maintenance of personnel and payroll records, the withholding and payment of federal, state and local income and payroll Taxes, the payment of workers’ compensation and unemployment compensation insurance, salaries, wages and pension, welfare and other fringe benefits, including any severance and/or pay-out of accrued vacation pay which may be triggered as a result of any termination of employment (including all severance and vacation pay liabilities incurred on or prior to the Closing Date) and the conduct of all other matters relating to labor relations, including compliance with IPS’ obligations under any applicable collective bargaining agreements and all negotiations and communications with any union. IPS shall retain liability for compliance with all applicable labor and employment laws relating to the Employees in connection with their employment by IPS or any of its Affiliates. IPS shall retain the obligation and liability for any workers’ compensation or similar workers’ protection claims with respect to any Employee in connection with the Employee’s employment by IPS or its Affiliates.
(b) IPS shall retain all liabilities under its employee benefits plans, programs, agreements and arrangements, in connection with each Employee’s employment by IPS and its Affiliates, including (a) any liabilities relating to any noncompliance with applicable laws, including COBRA, and (b) any liabilities which arise as a result of IPS’ joint and several liability through its relationship with an Affiliate. IPS shall be solely responsible to provide continuation coverage under COBRA and other any applicable law to any Employee or beneficiary of any Employee who is entitled to such continuation coverage in connection with the Employee’s employment by IPS and its Affiliates.
8.4. Insurance . During the Term, WU shall maintain the adequate and customary insurance coverages for the conduct of the Business. WU shall add IPS to the Commercial General Liability policy as an additional insured. WU shall provide IPS with a certificate of such coverage prior to the date of this Agreement. WU shall provide to IPS at least thirty (30) days prior written notice of any cancellation, modification or alteration affecting the coverage.
8.5. Independent Contractor Status . Nothing in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between the Parties. WU shall render and perform the WU Services as an independent contractor in accordance with its own standards, subject to its compliance with the provisions of this Agreement and with all applicable laws, ordinances and regulations.
8.6. License to Use IPS Patent License. As further described in Schedule 2.1 (A) , IPS has granted WU a license to use an IPS patent license.
8.7. Legal Requirements . During the Term, (i) IPS agrees to conduct the Business in compliance with the Legal Requirements (but such agreement shall not limit WU’s obligation to perform the WU Services in accordance herewith), and (ii) WU agrees to perform the WU Services in compliance with all Legal Requirements applicable to the Business and to WU as the provider of the WU Services.
 
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ARTICLE IX
TERM AND TERMINATION
9.1. Term . (a) Subject to any early termination provided for in this Agreement, the term of the provision of WU Services under this Agreement begin on the effective date hereof and shall continue for a period of 5 years (the “ Initial Term ”).
(b) At any time after the first anniversary of the Closing Date, WU may request any extension of this Agreement for an additional term. If the parties are able to mutually agree to the terms of such extension (including without limitation, the length of the extension and pricing), the provision of WU Services under this Agreement may be extended for an additional term (the “ Additional Term ” and, together with the Initial Term, the “ Term ”).
(c) The provisions related to IPS’ payment for WU Services shall survive the termination of this Agreement and IPS shall continue to pay WU for the WU Services until all Money Orders have either been paid or escheated. In the event a Money Order is not subject to escheatment, the provisions related to IPS’ payment for WU Services with respect to such Money Order shall survive the termination of this Agreement and IPS shall continue to pay WU for the WU Services until such Money Order is either paid or, if not paid, until seven years after the date of issuance of such Money Order.
(d) If on the last day of the Initial Term, IPS continues to have obligations under the IPS Agreements that have not been assumed by WU, then IPS and WU agree to extend the term of this Agreement until all such obligations have been satisfied; provided, however, that during such extended Term, WU shall not be authorized to further extend the term of any IPS Agreement without the written consent of IPS.
9.2. Termination . The provision of WU Services under this Agreement may be terminated pursuant to Section 9.3 or at any time by the mutual written consent of WU and IPS.
9.3. Events of Default . (a) The occurrence of any of the following events (each, an “ Event of Default ”) shall constitute an Event of Default under this Agreement:
(i) Payment of Obligations under this Agreement . The failure by either Party to make any payment to the other when such payment is due and owing pursuant to the terms and conditions of this Agreement.
(ii) Failure to Perform . The failure of either Party to perform any material term, covenant, or agreement contained in this Agreement.
(iii) Breach of Representation or Warranty . Any representation or warranty of either Party made in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made.
 
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(iv) Insolvency, Bankruptcy, Etc .
(A) If either Party shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay or shall generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of such Party or of any substantial part of the assets of such Party or shall commence any case or other proceeding relating to such Party under any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or any such petition or application shall be filed or any such case or other proceeding shall be commenced against such Party and such Party shall indicate its approval thereof, consent thereto, or acquiescence therein.
(B) If a decree or order shall be entered appointing any such trustee, custodian, liquidator or receiver, or adjudicating either Party bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief shall be entered in respect of such Party in an involuntary case under Federal bankruptcy laws as now or hereafter in effect.
(b) If any Event of Default shall have occurred, the non-defaulting Party shall notify the defaulting Party in writing (the “ Notice of Default ”) of such Event of Default. If such Event of Default has not been cured or waived in writing within thirty (30) calendar days of the date of the Notice of Default, the non-defaulting Party may, in its discretion, immediately terminate the provision of WU Services under this Agreement; provided , however , that if the Event of Default is a payment default pursuant to Section 9.3(a)(i) , the period for curing such default shall be reduced to ten (10) calendar days. The foregoing right to terminate is not intended to be exclusive of any other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law.
9.4. Effect of Termination . Except as expressly provided herein, the termination of the provision of WU Services under this Agreement shall not affect any other provisions of this Agreement. Termination of the provision of WU Services under this Agreement shall not limit either Party’s obligations for breach of this Agreement prior to termination or for the payment of amounts due that were incurred prior to such termination.
ARTICLE X
INDEMNIFICATION AND LIMITATION ON LIABILITY
10.1. Indemnification by IPS . (a) IPS agrees to indemnify and hold harmless each WU Group Member from and against any and all Losses and Expenses incurred by such WU Group Member in connection with or arising from:
(i) any breach by IPS of any of its covenants in this Agreement;
 
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(ii) any failure of IPS to perform any of its obligations in this Agreement;
(iii) any breach of any warranty or the inaccuracy of any representation of IPS contained or referred to in this Agreement; or
(iv) the grossly negligent, intentionally wrongful or fraudulent acts of IPS or its employees, agents or representatives.
(b) Limitation on Indemnification by IPS . Subject to Section 10.4(b) , the indemnification by IPS provided for in Section 10.1(a) shall terminate one (1) year after the expiration of the Initial Term (and no claims shall be made by a WU Group Member thereafter); provided , however , indemnification by IPS shall continue as to:
(i) the covenants of IPS set forth in Sections 8.1 , 8.2 and 8.3 , as to all of which no time limitation shall apply;
(ii) any Losses or Expenses of which any WU Group Member has notified IPS in accordance with the requirements of Section 10.4 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 10.1(b) , as to which the obligation of IPS shall continue until the liability of IPS shall have been determined pursuant to this Article X , and IPS shall have reimbursed all WU Group Members for the full amount of such Losses and Expenses for which IPS is liable in accordance with this Article X ;
(iii) claims relating to or arising out of the WU Services provided in the Additional Term or during the term of any extension of the term of this Agreement pursuant to Section 9.1 (d) ; provided , however , that the indemnification provided for in this subsection (iii)  shall terminate one (1) year after the expiration of the Additional Term or the expiration of the term of any extension of the term of this Agreement pursuant to Section 9.1 (d) , as the case may be;
(iv) claims relating to or arising out of the failure of IPS to pay WU for the WU Services; and
(v) claims related to payment for WU Services as set forth in Section 9.1 .
IPS’ indemnification obligations provided for in this Agreement shall be further limited as follows:
(A) No Consequential Damages . In no event shall IPS or any of its Affiliates be liable for any consequential damages under or in connection with this Agreement, which are hereby excluded by agreement of the Parties regardless of whether IPS or any of its Affiliates has been advised, or could have foreseen, of the possibility of such damages; provided , however , that the foregoing exclusion shall not apply to (1) consequential damages incurred by any WU Group Member as a result of the violation by IPS of the covenants in Section 8.2 , or (2) in the case of consequential damages recovered from a WU Group Member by a third party. The foregoing represents an express allocation of risk between the Parties.
 
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(B) Notwithstanding anything in this Agreement to the contrary, IPS shall in no event be liable or responsible for its failure to carry out any of its obligations under this Agreement, if and to the extent such failure is caused by Force Majeure. If performance by IPS is delayed by more than thirty (30) days by Force Majeure, WU may terminate this Agreement by notice to IPS which termination right, if exercised by WU, shall be WU’s sole remedy for IPS’ failure to provide IPS Services by reason of any Force Majeure. Notwithstanding anything in this paragraph, nothing shall limit any claims by WU unrelated to the Force Majeure event.
(C) Disclaimer of Warranties . Except as expressly set forth in this Agreement, IPS does not make any representation or warranty whatsoever, express or implied, including, but not limited to, any representation or warranty as to IPS Services (including with respect to the nature, quantity or quality thereof) to be provided hereunder.
(D) Notwithstanding anything contained in this Agreement to the contrary, IPS’ aggregate liability for indemnification pursuant to this Section 10.1 shall in no event exceed $5 million.
10.2. Indemnification by WU . (a) WU agrees to indemnify and hold harmless each IPS Group Member from and against any and all Losses and Expenses incurred by such IPS Group Member in connection with or arising from:
(i) any breach by WU of any of its covenants or agreements in this Agreement;
(ii) any failure by WU to perform any of its obligations in this Agreement including its obligations to perform the WU Services in accordance with Schedule 2.1(A) ;
(iii) any breach of any warranty or the inaccuracy of any representation of WU contained or referred to in this Agreement;
(iv) the grossly negligent, intentionally wrongful or fraudulent acts of WU or its employees, agents or representatives;
(v) any Counterfeit Item that is presented to IPS for payment during the Term with respect to which action was required to be taken by WU pursuant to Schedule 2.1(A) and WU failed to take such action; or
(vi) any acts of IPS Clients.
 
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(b) Limitation on Indemnification by WU . Subject to Section 10.4(b) , the indemnification by WU provided for in Section 10.2(a) shall terminate one (1) year after the expiration of the Initial Term (and no claims shall be made by an IPS Group Member thereafter), provided , however , indemnification by WU shall continue as to:
(i) the covenants of WU set forth in Sections 8.1 , 8.2 , and 8.3 , as to all of which no time limitation shall apply;
(ii) any Losses or Expenses of which IPS has notified WU in accordance with the requirements of Section 10.4 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 10.2(b) , as to which the obligation of WU shall continue until the liability of WU shall have been determined pursuant to this Article X , and WU shall have reimbursed all IPS Group Members for the full amount of such Losses and Expenses for which WU is liable in accordance with this Article X ; and
(iii) claims relating to or arising out of the WU Services provided in the Additional Term or during the term of any extension of the term of this Agreement pursuant to Section 9.1 (d) ; provided , however , that the indemnification provided for in this subsection (iii)  shall terminate one (1) year after the expiration of the Additional Term or the expiration of the term of any extension of the term of this Agreement pursuant to Section 9.1 (d ), as the case may be.
WU’s indemnification obligations provided for in this Agreement shall be further limited as follows:
(A) Notwithstanding anything in this Agreement to the contrary, WU shall in no event be liable or responsible for its failure to carry out any of its obligations under this Agreement, if and to the extent such failure is caused by Force Majeure. If performance by WU is delayed by more than thirty (30) days by Force Majeure, IPS may terminate this Agreement by notice to WU, which termination right, if exercised by IPS, shall be IPS’ sole remedy for WU’s failure to provide WU Services by reason of any Force Majeure. Notwithstanding anything in this paragraph, nothing shall limit any claims by IPS unrelated to the Force Majeure event.
(B) Disclaimer of Warranties . Except as expressly set forth in this Agreement, WU does not make any representation or warranty whatsoever, express or implied, including, but not limited to, any representation or warranty as to WU Services (including with respect to the nature, quantity or quality thereof) to be provided hereunder.
(C) No Consequential Damages . In no event shall WU or any of its Affiliates be liable for any consequential damages under or in connection with this Agreement, which are hereby excluded by agreement of the Parties regardless of whether WU or any of its Affiliates has been advised, or could have foreseen, of the possibility of such damages; provided , however , that the foregoing
 
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exclusion shall not apply (1) to consequential damages incurred by any IPS Group Member as a result of violations by WU of the covenants in Section 8.2 , or (2) in the case of consequential damages recovered from an IPS Group Member by a third party. The foregoing represents an express allocation of risk between the Parties.
(D) Counterfeit Items . In the case of any Counterfeit Item which is presented to IPS for payment during the Term with respect to which either no action was required to be taken by WU pursuant to Schedule 2.1(A) or all action that was required to be taken by WU pursuant to S chedule 2.1(A) was taken, WU will have no obligation to indemnify and hold harmless each IPS Group Member and any and all Losses and Expenses incurred in connection with or arising from such Counterfeit Item shall be the sole responsibility of IPS.
(E) Notwithstanding anything contained in this Agreement to the contrary and except for the indemnification obligations of WU set forth in Section 10.2(a)(v) , WU’s annual aggregate liability for indemnification pursuant to this Section 10.2 shall in no event exceed $5 million, provided , however , that such limit shall not apply to:
(i) Losses and Expenses related to a failure of either WU or an IPS Client to remit proceeds from the sale of Money Orders to IPS .
(ii) Losses and Expenses caused by WU’s failure to instruct IPS to return, by the applicable deadline specified in the User Manuals, a Counterfeit Item when such failure to make a timely return was not caused by IPS’s failure to follow the procedure set in the User Manuals;
(iii) Losses and Expenses caused by WU’s failure to instruct IPS to return (including all such failures caused by IPS’s failure to enter stop payment orders in accordance with User Manuals), by the applicable deadline specified in the User Manuals, an Item on which a stop payment has been requested in accordance the procedure set forth in the User Manuals, when such failure to make a timely return was not caused by IPS’s failure to follow the procedure set forth in the User Manuals;
(iv) Losses and Expenses caused by WU’s failure to instruct IPS to return, by the applicable deadline specified in the User Manuals, a payment instrument that does not bear a serial number assigned to an IPS Client or does bear a serial number assigned to an IPS Client but its face amount does not correspond to the issue amount reported by the IPS Client when such failure to make a timely return was not caused by IPS’s failure to follow the procedure set forth on in the User Manuals; or
(v) Losses and Expenses caused by WU’s failure to instruct IPS to return, by the applicable deadline specified in the User Manuals, a
 
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payment instrument or Item that bears the same valid serial number and face amount as an Item (or Counterfeit Item) previously paid when such failure to make a timely return was not caused by IPS’s failure to follow the procedure set forth in the User Manuals .
(vi) Regulatory fines, assessment and penalties arising from WU’s non-compliance with the terms and conditions of this Agreement.
For purposes of subparagraphs (i) through (iv) above, the terms “Losses and Expenses” shall not include losses or expenses incurred by IPS that are related to adjustments to the average investable balance of an IPS Client that will be required when the items described above are properly recorded or adjusted as the case may be.
(c) In the event that IPS makes a claim against WU for indemnification under this Agreement, IPS shall assist and cooperate fully with WU, in all such lawful manners as WU shall request, in asserting in the name of WU any claims or rights against any third party or any defenses to claims asserted by third parties that IPS may have, or have the right to assert, including, without limitation, any rights under any agreement with IPS’ depository banks, the IPS Clients or other third party, by law or in equity. Such assistance and cooperation shall include, but not be limited to, the assignment of claims, rights or defenses held by IPS, but excludes the right to assert or defend any action in the name of IPS. As part of such assistance, IPS will make available IPS employees knowledgeable with respect to such claim or defense. WU shall bear any material costs and expenses incurred by IPS to third parties, such as IPS’ out-of-pocket costs and outside attorneys’ fees, in providing such assistance and cooperation, but WU shall not be required to reimburse IPS for the costs or time of IPS employees or related overhead. Upon reasonable request, WU shall provide IPS with non-confidential information regarding the status of any such actions.
(d) In the event that WU is required by law, regulation or court order to bring a formal legal action against an IPS Client, an IPS depository bank or other third party, under IPS’ name (whether as a claimant or co-claimant), then WU and IPS shall utilize the following procedures:
(A) WU will notify IPS of its intent to bring a formal legal action against the third party, and will include in such notification a copy of the law, regulation, court order or written opinion of outside counsel on letterhead, demonstrating that IPS is a necessary party to the legal proceedings contemplated.
(B) IPS shall determine within ten (10) Business Days of the receipt of the notice and documentation whether it will permit WU to proceed in IPS’ name. If IPS will permit WU to proceed in IPS’ name, WU shall proceed with the proposed formal legal action and/or any other action WU has the right to pursue pursuant to Section 10.2(c) . If IPS will not permit WU to proceed in IPS’ name, (1) IPS shall promptly reimburse WU for the amount of the claim that is attributable to the actions or failures of the third party (and that WU has previously paid to IPS), and (2) IPS shall have no further right to seek
 
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indemnification from WU for such that portion of such claim under this Agreement. In the event IPS and WU do not agree as to the amount of the claim attributable to the actions or failures of the third party, such dispute will be resolved in accordance with Section 11.13 .
(C) In the event any formal proceedings are commenced hereunder under IPS’ name, WU will update IPS regularly on the status of such proceedings and provide information as reasonably requested by IPS regarding such proceedings.
10.3. Specific Performance . (a) I n the event IPS or any of its Affiliates violates any of its obligations under Section 8.2 , WU may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. IPS acknowledges that a violation of Section 8.2 may cause WU irreparable harm which may not be adequately compensated for by money damages. IPS therefore agrees that in the event of any actual or threatened violation of Section 8.2 , WU shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against IPS or such Affiliate of IPS to prevent any violations of Section 8.2 , without the necessity of posting a bond.
(b) In the event WU or any of its Affiliates violates any of its obligations under Section 8.2 , IPS may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. WU acknowledges that a violation of Section 8.2 may cause IPS irreparable harm which may not be adequately compensated for by money damages. WU therefore agrees that in the event of any actual or threatened violation of Section 8.2 , IPS shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against WU or such Affiliate of WU to prevent any violations of Section 8.2 , without the necessity of posting a bond.
(c) The prevailing Party in any action commenced under this Section 10.3 shall also be entitled to receive reasonable attorneys’ fees and court costs.
10.4. Notice of Claims .
(a) General Procedures . The following procedures shall apply to any claim for indemnification under this Agreement:
(i) Any Person (the “ Indemnified Party ”) seeking indemnification hereunder shall give to the Party obligated to provide indemnification to such Indemnified Party (the “ Indemnifying Party ”) a notice (a “ Claim Notice ”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided , that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be
 
22

given promptly after the action or suit is commenced; provided further that failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(ii) In calculating any Losses or Expenses (i) there shall be deducted (x) any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and (y) the amount of any Tax benefit to the Indemnified Party (or any of its Affiliates) with respect to such Losses or Expenses (after giving effect to the tax effect of receipt of the indemnification payments), and (ii) there shall be added the amount of any Tax detriment to the Indemnified Party (or any of its Affiliates) with respect to such Losses or Expenses (after giving effect to the tax effect of receipt of the indemnification payments).
(iii) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article X shall be determined (i) by the written agreement between the Indemnified Party and the Indemnifying Party; (ii) pursuant to Section 11.13 ; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses and Expenses suffered by it.
(b) Limitation on Notice Period Relating to WU Services . No cause of action, dispute or claim for indemnification relating to the WU Services may be asserted or made against any Party on a date later than: (i) two (2) years after the date in which facts giving rise to such cause of action, dispute or claim are discovered or, with the exercise of due diligence, should reasonably have been discovered, or if such event for which indemnification is claimed is an action or proceeding brought against the Indemnified Party, the end of the related notification period provided in Section 10.4(a) or (ii) one year after the earlier of the termination of the provision of WU Services under this Agreement or the expiration of the Additional Term.
10.5. Third Person Claims . The following procedures shall apply to any claim for indemnification under this Agreement:
(a) Subject to Section 10.5(b) , the Indemnified Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnifying Party hereunder, and in any such case the Indemnifying Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided , that the Indemnifying Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided , further , that the Indemnified Party shall not, without the written consent of the Indemnifying
 
23

Party (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnifying Party shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnifying Party has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any Indemnified Party is solely for money damages, then the Indemnifying Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnifying Party hereunder if the Indemnifying Party has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided , that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnifying Party has so elected to conduct and control the defense thereof. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnifying Party to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived.
ARTICLE XI
GENERAL PROVISIONS
11.1. Survival of Obligations . All representations, warranties, covenants and obligations contained in this Agreement shall survive the consummation of the transactions contemplated by this Agreement.
11.2. No Public Announcement . Neither WU nor IPS shall, without the approval of the other, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that any such Party shall be so obligated by law or the rules of any stock exchange, in which case the other Party shall be advised and the Parties shall use their best efforts to cause a mutually agreeable release or announcement to be issued; provided , however , that the foregoing shall not preclude communications or disclosures necessary to implement the provisions of this Agreement or to comply with the accounting and Securities and Exchange Commission disclosure obligations.
 
24

11.3. Notices . All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (i) when delivered personally, (ii) if transmitted by facsimile, when confirmation of transmission is received, (iii) if sent by registered or certified mail, postage prepaid, return receipt requested, on the third Business Day after mailing, or (iv) if sent by reputable overnight courier services, when received, and shall be addressed as follows:
If to WU, to:
Western Union Financial Services, Inc.
12510 East Belford Avenue
Englewood, Colorado 80112
Telephone: (720) 332-3190
Facsimile: (720) 332-0501
Attention: General Manager- Retail Money Order
with a copy to:
General Counsel
If to IPS, to:
Integrated Payment Systems Inc.
12500 East Belford Avenue, Mail Stop M18U
Englewood, Colorado 80112
Telephone: (720) 332-3101
Facsimile: (720) 332-0096
Attention: President
with a copy to:
General Counsel
or to such other address as such Party may indicate by a notice delivered to the other Party.
11.4. Successors and Assigns; Third Party Beneficiaries . (a) The rights and obligations of either Party under this Agreement shall not be assigned by such Party without the written consent of the other Party.
(b) This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Except for Article X , which is intended to benefit, and to be enforceable by, the parties specified therein, nothing in this
 
25

Agreement, expressed or implied, is intended or shall be construed to confer upon any Person other than the Parties and their respective successors and assigns permitted by this Section 11.4 any right, remedy or claim under or by reason of this Agreement.
11.5. Access to Records after Closing Date . For a period of eight (8) years after the expiration or termination of the Term or the expiration of the term of any extension of the term of this Agreement pursuant to Section 9.1 (c)  or Section 9.1(d) , as applicable, each Party and its representatives shall have reasonable access to all of the books and records related to this Agreement to the extent necessary for such Party to meet its regulatory and contractual responsibilities. Such access shall be afforded to such Party and its Affiliates upon receipt of reasonable advance notice and during normal business hours. The requesting Party shall be solely responsible for any costs and expenses incurred by it pursuant to this Section 11.5 in seeking access to books and records in the control of the other Party. The non-requesting Party shall be solely responsible for any costs and expenses incurred by it in complying with this Section 11.5 . If either Party or any of its Affiliates shall desire to dispose of any of such books and records prior to the expiration of such eight-year period, such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at the non-disposing Party’s expense, to segregate and remove such books and records as the non-disposing Party may select.
11.6. Entire Agreement; Amendments . This Agreement and the Exhibits and Schedules referred to herein and the documents delivered pursuant hereto contain the entire understanding of the Parties with regard to the subject matter contained herein or therein, and supersede all prior agreements, understandings or letters of intent between the Parties. This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of the Parties.
11.7. Interpretation . Article titles and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
11.8. Waivers . Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently authorized for the purposes of this Agreement only if, as to any Party, it is in writing signed by an authorized representative of such Party. The failure of any Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
11.9. Expenses . Each Party will pay all costs and expenses incident to its negotiation and preparation of this Agreement and to its performance and compliance with all agreements and conditions contained herein on its part to be performed or complied with, including the fees, expenses and disbursements of its counsel and accountants.
 
26

11.10. Severability . Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.
11.11. Execution in Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be considered an original instrument, but all of which together shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed and delivered to each of the Parties.
11.12. Governing Law . This Agreement shall be governed by and construed in accordance with the internal laws (without regard to the conflicts of law provisions) of the State of New York.
11.13. Dispute Resolution . IPS and WU agree to utilize the following procedures to resolve any disputes between them that arise under this Agreement (other than those governed by Section 10.2(d) ):
(a) Level One . If IPS identifies an issue, or issues, that requires resolution, it will give the Account Manager written notice thereof; and if WU identifies an issue, or issues, that require resolution, it will give IPS written notice thereof. The Account Manager and an IPS designee will then negotiate in good faith on a regular basis to resolve the issue(s) as expeditiously as feasible. If they are unable to resolve the issue(s) within ten (10) Business Days of such notice, either may state in writing to the other that they will not be able to resolve the remaining issue(s) through continued negotiation. Promptly thereafter, they will refer the issue(s) to the IPS executive with management responsibility for the WU relationship and the executive of WU with management responsibility for the IPS relationship (collectively, the “ Senior Executives” ) and will each provide to the Senior Executives a written statement describing in detail their respective positions related to the issue(s) (the “ Issue Statements” ).
(b) Level Two . Promptly after receiving the Issue Statements, the Senior Executives will negotiate in good faith on a regular basis to resolve the issue(s) as expeditiously as feasible. If the Senior Executives are unable to resolve the issue(s) within ten (10) Business Days of receipt of such Issue Statements, either Senior Executive may state in writing to the other that they will not be able to resolve the remaining issue(s) through continued negotiation. Promptly thereafter, each Senior Executive will refer the issue(s) to a senior level executive from a separate business unit, division, subsidiary or Affiliate of their respective Party (the “ Distant Executive ”) and each Party’s respective management team will prepare any revisions to their respective Issue Statements. The Issue Statements, as revised, will be submitted to the Distant Executives.
(c) Level Three . Promptly after receiving the Issue Statements, the Distant Executives will negotiate in good faith on a regular basis to resolve the issue(s) as expeditiously
 
27

as feasible. Thereafter, the Distant Executives will submit a joint written recommendation for any issue(s) the Distant Executives agreed upon and separate written recommendations for any issue(s) the Distant Executives disagreed upon or which remain unresolved. IPS and WU agree to be bound by such joint written recommendation. In the event, the Distant Executives are unable to resolve the dispute, then, at the request of either Party, the dispute shall be settled by binding arbitration by a single arbitrator. Such arbitration shall occur in Denver, Colorado, and shall be administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(d) Continuity of WU Services . WU acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of IPS. Accordingly, in the event of a dispute between IPS and WU, WU shall continue to so perform its obligations under this Agreement in good faith during the resolution of such dispute unless and until this Agreement is terminated in accordance with the provisions hereof.
IN WITNESS WHEREOF , the Parties have caused this Agreement to be executed the day and year first above written.

INTEGRATED PAYMENT SYSTEMS INC.	
		
By:	 	/s/ Rodney J. Esch	
Name:	 	Rodney J. Esch	
Title:	 	President	
	
WESTERN UNION FINANCIAL SERVICES, INC.	
		
By:	 	/s/ Royal Cole	
Name:	 	Royal Cole	
Title:	 	Executive Vice President - Payment Services	
 
28

[Schedules Intentionally Omitted]
 
29
 
Exhibit 10.6

EXECUTION COPY
$1,500,000,000
CREDIT AGREEMENT
among
THE WESTERN UNION COMPANY,
as the Company,
THE BANKS, ISSUING LENDERS AND SWING LINE BANK PARTIES HERETO,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent
and
BARCLAYS BANK PLC
JPMORGAN CHASE BANK, N.A.
MORGAN STANLEY BANK
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agents
and
CITIBANK, N.A.,
as Administrative Agent
Dated as of September 27, 2006
CITIGROUP GLOBAL MARKETS INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Book Runners

TABLE OF CONTENTS

SECTION 1 DEFINITIONS	  	1	
1.1	  	Defined Terms	  	1	
1.2	  	Other Definitional Provisions	  	18	
1.3	  	Accounting Terms	  	18	
1.4	  	Exchange Rates; Currency Equivalents	  	18	
1.5	  	Computation of Dollar Amounts	  	19	
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS	  	19	
2.1	  	Commitments	  	19	
2.2	  	Revolving Credit Notes	  	19	
2.3	  	Procedure for Borrowing	  	20	
2.4	  	Fees	  	21	
2.5	  	Termination or Reduction of Commitments	  	22	
2.6	  	Prepayments	  	22	
2.7	  	Conversion and Continuation Options	  	22	
2.8	  	Minimum Amounts of Tranches	  	23	
2.9	  	Interest Rates and Payment Dates	  	24	
2.10	  	Computation of Interest and Fees	  	24	
2.11	  	Inability to Determine Interest Rate	  	24	
2.12	  	Pro Rata Treatment and Payments	  	25	
2.13	  	Illegality	  	28	
2.14	  	Requirements of Law	  	28	
2.15	  	Taxes	  	30	
2.16	  	Indemnity	  	31	
2.17	  	Action of Affected Banks	  	31	
2.18	  	Bid Loans	  	32	
2.19	  	Swing Line Commitments	  	35	
2.20	  	Increase of Commitments	  	38	
2.21	  	Payment in Full at Maturity	  	38	
2.22	  	Letter of Credit Subfacility	  	38	
2.23	  	Indemnification; Nature of Issuing Lender’s Duties	  	42	
2.24	  	Defaulting Banks	  	44	
SECTION 3 REPRESENTATIONS AND WARRANTIES	  	45	
3.1	  	Financial Condition	  	45	
3.2	  	No Change	  	46	
3.3	  	Corporate Existence; Compliance with Law	  	46	
3.4	  	Corporate Power; Authorization; Enforceable Obligations	  	46	
3.5	  	No Legal Bar	  	46	
3.6	  	No Material Litigation	  	47	
3.7	  	No Default	  	47	
3.8	  	Taxes	  	47	
3.9	  	Federal Regulations	  	47	
3.10	  	ERISA	  	47	
3.11	  	Investment Company Act	  	48	
3.12	  	Purpose of Loans	  	48	
 
i

					
3.13	  	Disclosure	  	48	
3.14	  	Ranking	  	48	
3.15	  	Compliance with OFAC, FCPA	  	48	
3.16	  	Closing Date Representations and Warranties	  	48	
SECTION 4 CONDITIONS PRECEDENT	  	49	
4.1	  	Conditions to Effectiveness	  	49	
4.2	  	Conditions to Each Loan	  	50	
SECTION 5 AFFIRMATIVE COVENANTS	  	51	
5.1	  	Financial Statements	  	51	
5.2	  	Certificates; Other Information	  	52	
5.3	  	Conduct of Business and Maintenance of Existence	  	52	
5.4	  	Inspection of Property; Books, Records and Discussions	  	52	
5.5	  	Notices	  	53	
5.6	  	Covenant to Deliver Guaranty	  	53	
SECTION 6 NEGATIVE COVENANTS	  	54	
6.1	  	Limitation on Significant Subsidiary Indebtedness	  	54	
6.2	  	Limitation on Liens	  	55	
6.3	  	Limitation on Sales and Leasebacks	  	57	
6.4	  	Limitations on Fundamental Changes	  	57	
6.5	  	Limitations on Restrictions on Dividends	  	57	
6.6	  	Financial Covenant	  	57	
SECTION 7 EVENTS OF DEFAULT	  	58	
SECTION 8 THE ADMINISTRATIVE AGENT	  	60	
8.1	  	Appointment	  	60	
8.2	  	Delegation of Duties	  	61	
8.3	  	Exculpatory Provisions	  	61	
8.4	  	Reliance by Administrative Agent	  	61	
8.5	  	Notice of Default	  	62	
8.6	  	Non-Reliance on Administrative Agent and Other Banks	  	62	
8.7	  	Indemnification	  	63	
8.8	  	Administrative Agent in Its Individual Capacity	  	63	
8.9	  	Successor Administrative Agent	  	63	
8.10	  	Syndication Agent, etc.	  	64	
SECTION 9 MISCELLANEOUS	  	64	
9.1	  	Amendments and Waivers	  	64	
9.2	  	Notices	  	65	
9.3	  	No Waiver; Cumulative Remedies	  	67	
9.4	  	Survival of Representations and Warranties	  	67	
9.5	  	Payment of Expenses and Taxes	  	67	
9.6	  	Successors and Assigns; Participations; Purchasing Banks	  	68	
9.7	  	Adjustments; Set-off	  	71	
9.8	  	Table of Contents and Section Headings	  	72	
9.9	  	Confidentiality	  	72	
9.10	  	Patriot Act Notice	  	73	
9.11	  	Counterparts	  	73	
9.12	  	Severability	  	73	
 
ii

					
9.13	  	Integration	  	73	
9.14	  	GOVERNING LAW	  	73	
9.15	  	Submission To Jurisdiction; Waivers	  	73	
9.16	  	Acknowledgements	  	74	
9.17	  	WAIVERS OF JURY TRIAL	  	74	
9.18	  	Effectiveness	  	74	
9.19	  	Judgment Currency	  	75	
 
iii

			
Schedules	  		
Schedule 1.1	  	Banks and Commitments	
Schedule 3.6	  	Material Litigation	
		
Exhibits	  		
Exhibit A	  	Revolving Credit Note	
Exhibit B	  	Borrowing Certificate	
Exhibit C	  	Opinion of Counsel	
Exhibit D	  	Commitment Transfer Supplement	
Exhibit E	  	Bid Note	
Exhibit F	  	Bid Quote	
Exhibit G	  	Bid Loan Confirmation	
Exhibit H	  	Bid Loan Request	
Exhibit I	  	Form of Swing Line Note	
Exhibit J	  	Form of Commitment Increase Supplement	

CREDIT AGREEMENT , dated as of September 27, 2006, among THE WESTERN UNION COMPANY , a Delaware corporation (the “ Company ”), the several banks and other financial institutions from time to time parties to this Agreement (the “ Banks ”), CITIBANK, N.A. , in its capacity as the Swing Line Bank (in such capacity, together with its successors in such capacity, the “ Swing Line Bank ”), CITIBANK, N.A. AND WELLS FARGO BANK, NATIONAL ASSOCIATION, in their capacity as Issuing Lenders (in such capacity, together with their successors in such capacity, the “ Issuing Lenders ”), WELLS FARGO BANK, NATIONAL ASSOCIATION , as syndication agent (in such capacity, the “ Syndication Agent ”), BARCLAYS BANK PLC , JPMORGAN CHASE BANK, N.A. , MORGAN STANLEY BANK and WACHOVIA BANK, NATIONAL ASSOCIATION , as Documentation Agents, and CITIBANK, N.A. , as administrative agent for the Banks hereunder (in such capacity, the “ Administrative Agent ”).
WITNESSETH:
WHEREAS , the Company has requested the Banks to make Loans and issue Letters of Credit to the Company, and the Banks are willing to make Loans and issue Letters of Credit to the Company, subject to the terms and conditions hereof;
NOW, THEREFORE , in consideration of the premises, and of the mutual covenants and agreements herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“ ABR ”: for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: “ Prime Rate ” shall mean, at any time, the rate of interest per annum publicly announced from time to time by Citibank at its principal office in New York, New York as its base rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in the Prime Rate occurs. The parties hereto acknowledge that the rate announced publicly by Citibank as its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks; and “ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published on the next succeeding Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest error) that it is unable to ascertain the Federal Funds Effective Rate, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms above, the ABR shall be determined without regard to clause (b) of the first sentence of this definition until the circumstances giving rise to such inability no longer

exist. Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the opening of business on the date of such change.
“ ABR Loans ”: Loans the rate of interest applicable to which is based upon the ABR.
“ Affiliate ”: as to any Person, any other Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons per forming similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“ Agreement ”: this Credit Agreement, as amended, supplemented or otherwise modified from time to time.
“ Applicable Margin ”: with respect to each day for each Type of Loan and for the Letter of Credit Fee, the rate per annum based on the Ratings in effect on such day, as set forth under the relevant column heading below:

Rating	  	Eurodollar
Loans and
Letter of
Credit Fee	 	
Rating I	  	0.150	%	
Rating II	  	0.190	%	
Rating III	  	0.270	%	
Rating IV	  	0.350	%	
Rating V	  	0.525	%	
“ Applicable Time ”: with respect to any borrowings and payments in Foreign Currencies, the local times in the place of settlement for such Foreign Currencies as may be determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“ Available Commitment ”: as to any Bank at any time, an amount equal to the excess, if any, of (a) the amount of such Bank’s Commitment over (b) the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of all Loans made by such Bank then outstanding plus the Bank’s Commitment Percentage of outstanding Swing Line Loans and LOC Obligations at such time.
“ Bankruptcy Code ”: the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.
“ Bid Loan ”: each advance made to the Company pursuant to subsection 2.18.
 
2

“ Bid Loan Confirmation ”: a bid loan confirmation, substantially in the form of Exhibit G, to be delivered by the Company to the Administrative Agent in accordance with subsection 2.18(b)(iv).
“ Bid Loan Request ”: a bid loan request, substantially in the form of Exhibit H, to be delivered by the Company to the Administrative Agent in accordance with subsection 2.18(b)(i) in writing, by facsimile transmission, or by telephone immediately confirmed by facsimile transmission.
“ Bid Note ”: as defined in subsection 2.18.
“ Bid Quote ”: a bid quote substantially in the form of Exhibit F, to be delivered by a Bank to the Administrative Agent in accordance with subsection 2.18(b) in writing, by facsimile transmission, or by telephone immediately confirmed by facsimile transmission.
“ Borrowing Certificate ”: a notice of borrowing and certificate of the Company substantially in the form of Exhibit B.
“ Borrowing Date ”: any Business Day specified in a notice furnished pursuant to subsection 2.3, 2.18 or 2.19 as a date on which the Company requests the Banks or the Swing Line Bank, as the case may be, to make Loans hereunder.
“ Business Day ”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, however, that (a) when used to describe the date of any borrowing of, or any payment or interest rate determination in respect of, a Eurodollar Loan, the term “Business Day” shall also exclude any day on which commercial banks are not open for dealings in Dollar deposits in the London interbank market and (b) when used in connection with a Foreign Currency Loan, the term “Business Day” shall also exclude any day on which banks are not open for foreign exchange dealings between banks in the exchange of the home country of such Foreign Currency (or, in the case of a Foreign Currency Loan denominated in Euro, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open).
“ Capital Stock ”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.
“ Change of Control ”: any acquisition by any Person or Group of Persons, either directly or indirectly, of (a) the power to elect, appoint or cause the election or appointment of at least a majority of the members of the Board of Directors of the Company (or any other Person to which all or substantially all of the properties and assets of the Company have been transferred), through beneficial ownership of the Capital Stock of the Company (or such other Person) or through contract, agreement, arrangement or proxy, or (b) all or substantially all of the properties and assets of the Company.
“ Citibank ”: Citibank, N.A., together with its successors and/or assigns.
 
3

“ Closing Date ”: the date on which this Agreement becomes effective in accordance with subsection 4.1.
“ Code ”: the Internal Revenue Code of 1986, as amended from time to time.
“ Commitment ”: as to any Bank, the obligation of such Bank (a) to make Revolving Credit Loans to the Company hereunder, (b) to participate in Swing Line Loans made to the Company hereunder and (c) to purchase participation interests in the Letters of Credit, in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) at any one time outstanding not to exceed the amount set forth opposite such Bank’s name on Schedule 1.1 or in the Commitment Transfer Supplement pursuant to which it became a Bank, as such amount may be reduced pursuant to subsection 2.5 or subsection 9.6 or increased pursuant to subsection 2.20 or subsection 9.6.
“ Commitment Percentage ”: as to any Bank at any time, the percentage of the aggregate Commitments then constituted by such Bank’s Commitment.
“ Commitment Period ”: the period from and including the Closing Date to but not including the Termination Date or such earlier date on which the Commitments shall terminate as provided herein.
“ Committed Swing Line Loan ”: as defined in subsection 2.19(a).
“ Commonly Controlled Entity ”: an entity, whether or not incorporated, which is under common control with the Company within the meaning of Section 4001 of ERISA or is part of a group which includes the Company and which is treated as a single employer under Section 414 of the Code.
“ Competitor ”: any Person significantly and directly engaged in the business of payment instruments or consumer funds transfers.
“ Consolidated Net Assets ”: the gross book value of the assets of the Company and its Subsidiaries (which under GAAP would appear on the consolidated balance sheet of the Company and its Subsidiaries) less all reserves (including, without limitation, depreciation, depletion and amortization) applicable thereto and less (i) minority interests and (ii) liabilities (determined in accordance with GAAP) which, in accordance with their terms, will be settled within one year after the date of determination.
“ Consolidated Net Income ”: the net income of the Company and its Subsidiaries (which under GAAP would appear on the consolidated income statement of the Company and its Subsidiaries), excluding, however, (i) any equity of the Company or a Subsidiary in the unremitted earnings of any corporation which is not a Subsidiary, (ii) gains from the write-up in the book value of any asset and (iii) in the case of an acquisition of any Person which is accounted for on a purchase basis, earnings of such Person prior to its becoming a Subsidiary.
“ Consolidated Net Worth ”: the sum of (i) the par value (or value stated on the books of such corporation) of the capital stock of all classes of the Company and its Subsidiaries, plus (or minus in the case of a deficit) (ii) the amount of the consolidated surplus, whether capital or
 
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earned, of the Company and its Subsidiaries, and plus (or minus in the case of a deficit) (iii) retained earnings of the Company and its Subsidiaries, all as determined in accordance with GAAP; provided, however, that Consolidated Net Worth shall exclude the effects of currency translation adjustments and the application of FAS 115.
“ Contractual Obligation ”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Default ”: any of the events specified in Section 7, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“ Defaulted Amount ”: with respect to any Bank at any time, any amount required to be paid by such Bank to the Administrative Agent or any other Bank hereunder at or prior to such time that has not been so paid as of such time. In the event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.24(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally required to be paid hereunder on the same date as the Defaulted Amount so deemed paid in part.
“ Defaulting Bank ”: at any time, a Bank that, at such time, owes a Defaulted Loan or a Defaulted Amount.
“ Defaulted Loan ”: with respect to any Bank at any time, the portion of any Loan required to be made by such Bank to the Company pursuant to Section 2.1, 2.18, 2.19 or 2.22(e) at or prior to such time that has not been made by such Bank. In the event that a portion of a Defaulted Loan shall be deemed paid pursuant to Section 2.12(c), the remaining portion of such Defaulted Loan shall be considered a Defaulted Loan originally required to be paid hereunder on the same date as the Defaulted Loan so deemed paid in part.
“ Dollar Amount ”: at any time, (a) with respect to Dollars or an amount denominated in Dollars, such amount and (b) with respect to an amount of any Foreign Currency or an amount denominated in such Foreign Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) applicable to such Foreign Currency.
“ Dollars ” and “ $ ”: dollars in lawful currency of the United States of America.
“ Domestic Dollar Loans ”: the collective reference to Fixed Rate Bid Loans and ABR Loans.
“ EBITDA” : for any period, net income (or net loss) plus the sum of (a) interest expense, (b) income tax expense, (c) depreciation expense, (d) amortization expense, (e) any other non-cash deductions, losses or charges made in determining net income for such period (f) extraordinary losses or charges and (g) one-time transaction fees and expenses incurred in connection with the spin-off of the Company from First Data Corporation, or the issuance of (or refinancing of) Indebtedness incurred in connection with such spin-off, and minus extraordinary gains, in each case determined in accordance with GAAP for such period.
 
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“ EMU ”: Economic and Monetary Union as contemplated in the Treaty on European Union.
“ EMU Legislation ”: legislative measures of the European Council (including without limitation European Council regulations) for the introduction of, changeover to or operation of a single or unified European currency (whether known as the Euro or otherwise), being in part the implementation of the third stage of EMU.
“ Environmental Laws ”: any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority regulating, relating to or imposing liability or standards of conduct concerning environmental protection matters.
“ ERISA ”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ Euro ” shall mean the single currency of Participating Member States of the European Union.
“ Eurodollar Loans ”: Loans the rate of interest applicable to which is based on the Eurodollar Rate.
“ Eurodollar Rate ”: a rate per annum determined by the Administrative Agent pursuant to the following formula:

	 	Eurodollar Rate =	  	LIBOR	  		
	 		  	1.00 - Eurodollar Reserve Percentage	  		
“ Eurodollar Reserve Percentage ”: for any day, (A) for any Eurodollar Loan with respect to which the Mandatory Cost Rate does not apply, the maximum rate (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) at which any bank subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against Eurocurrency Liabilities (as that term is used in Regulation D), if such liabilities were outstanding and (B) for any Eurodollar Loan with respect to which the Mandatory Cost Rate does apply, zero (0). The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.
“ Event of Default ”: any of the events specified in Section 7, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“ Excluded Individuals ”: with respect to any Person, the officers, directors, employees, agents and representatives of such Person involved, directly or indirectly, in the payment instruments and consumer funds transfer business of such Person.
“ Extension of Credit ”: as to any Bank, the making of a Loan or a Swing Line Loan by such Bank or the issuance of, or participation in, a Letter of Credit by such Bank.
 
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“ Facility Fee Rate ”: for each day during each calculation period, a rate per annum based on the Ratings in effect on such day, as set forth below:

Rating	  	Facility
Fee Rate	 	
Rating I	  	0.050	%	
Rating II	  	0.060	%	
Rating III	  	0.080	%	
Rating IV	  	0.100	%	
Rating V	  	0.125	%	
“ Federal Funds Effective Rate ”: as defined in the definition of “ABR”.
“ Federal Reserve Board ”: the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.
“ Fee Letters ”: collectively, (a) the letter agreement dated September 7, 2006 addressed to the Company from the Administrative Agent and the Lead Arranger, as amended, modified or otherwise supplemented and (b) the letter agreement dated September __, 2006 addressed to the Company from the Syndication Agent, as amended, modified or otherwise supplemented.
“ Financing Lease ”: any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee.
“ Fixed Rate Bid Loan ”: any Bid Loan made at a fixed rate (as opposed to a rate based upon the Eurodollar Rate).
“ Fixed Rate Bid Loan Request ”: any Bid Loan Request requesting the Banks to offer to make Fixed Rate Bid Loans.
“ Foreign Currency ”: (a) Euros and (b) British Pound Sterling.
“ Foreign Currency Equivalent ”: with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) applicable to such Foreign Currency.
“ Foreign Currency Loan ”: any Loan denominated in a Foreign Currency.
“ Funded Indebtedness ”: any indebtedness for money borrowed, created, issued, incurred, assumed or guaranteed which would, in accordance with GAAP, be classified as long-term debt, but in any event including all indebtedness for money borrowed, whether secured or unsecured, maturing more than one year, or extendible at the option of the obligor to a date more than one year, after the date of determination thereof (excluding any amount thereof included in current liabilities).
 
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“ GAAP ”: as to a particular Person, such accounting principles as, in the opinion of the independent public accountants regularly retained by such Person, conform at the time to United States generally accepted accounting principles.
“ Governmental Authority ”: any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“ Group of Persons ” means any related Persons that would constitute a “group” for purposes of Section 13(d) and Rule 13d-5 under the Securities Exchange Act of 1934, as amended (as such Section and Rule are in effect as of the date of this Agreement).
“ Guarantee Obligation ”: as to any Person (the “guaranteeing person”), and without duplication, any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing the payment or in effect guaranteeing the payment of any Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; provided, however, that the term Guarantee Obligation shall not include (x) endorsements of instruments for deposit or collection in the ordinary course of business or (y) any bond or guarantee given by the Company or any Subsidiary on behalf of any Subsidiary solely for the performance of contractual obligations with customers or on behalf of customers in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary payment obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith.
“ Indebtedness ”: of any Person at any date and without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than trade liabilities not more than 60 days past due incurred in the ordinary course of business and payable in accordance with customary practices or endorsements for the purpose of collection in the ordinary course of business and excluding the deferred purchase price of property or services to be repaid through earnings of the purchaser to the extent such amount is not characterized as indebtedness in accordance with GAAP), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of
 
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such Person under Financing Leases, (d) all payment obligations of such Person in respect of acceptances issued or created for the account of such Person and (e) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof; provided that, if such Person has not assumed or otherwise become liable in respect of such indebtedness, such obligations shall be deemed to be in an amount equal to the lesser of (i) the amount of such indebtedness and (ii) the book value of the property subject to such Lien at the time of determination. For the purposes of this definition, the following shall not constitute Indebtedness: the issuance of payment instruments, consumer funds transfers, or other amounts paid to or received by the Company, any of its Subsidiaries or any agent thereof in the ordinary course of business in order for the Company or such Subsidiary to make further distribution to a third party, to the extent payment in respect thereof has been received by the Company, such Subsidiary or any agent thereof.
“ Information Materials ”: the Confidential Information Memorandum dated September 2006 in respect of the transactions contemplated hereby sent by Citibank to each of the Banks, including all supplements and amendments thereto.
“ Insolvency ”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“ Insolvent ”: pertaining to a condition of Insolvency.
“ Interest Payment Date ”: (a) as to any ABR Loan other than a Swing Line Loan, the last day of each March, June, September and December and the Termination Date, (b) as to any Eurodollar Loan having an Interest Period of three months or less or any Fixed Rate Bid Loan having an Interest Period of 90 days or less, the last day of such Interest Period, (c) as to any Eurodollar Loan or Fixed Rate Bid Loan having an Interest Period longer than three months or 90 days, respectively, each day which is three months or 90 days, respectively, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Swing Line Loan, each of the dates occurring at thirty day intervals after the Borrowing Date of such Swing Line Loan and the date of payment of principal thereof.
“ Interest Period ”:
(a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three, six, or, subject to clause (G) of this definition, two weeks or nine or twelve months thereafter, as selected by the Company in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three, six, or, subject to clause (G) of this definition, two weeks or nine or twelve months, thereafter, as selected by the Company by irrevocable notice to the Administrative Agent not less than (x) with respect to Eurodollar Loans denominated in Dollars, three Business Days prior to the last day of the then
 
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current Interest Period with respect thereto and (y) with respect to Eurodollar Loans denominated in Foreign Currency, four Business Days prior to the last day of the then current Interest Period with respect thereto; and
(b) with respect to any Bid Loan, the period specified in the Bid Loan Confirmation with respect to such Bid Loan;
provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(B) if any Interest Period pertaining to a Fixed Rate Bid Loan would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day;
(C) any Interest Period that would otherwise extend beyond the Termination Date shall end on the Termination Date;
(D) if the Company shall fail to give notice as provided in clause (a)(ii) above, the Company shall be deemed to have selected (A) in the case of Loans denominated in Dollars, an ABR Loan to replace the affected Eurodollar Loan and (B) in the case of Loans denominated in Foreign Currencies, an Interest Period of one month;
(E) any Interest Period pertaining to a Eurodollar Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;
(F) no more than eight (8) Eurodollar Loans may be in effect at any time. For purposes hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar Loans, even if they shall begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new Eurodollar Loan with a single Interest Period; and
(G) in the case of any such Eurodollar Loans, the Company and shall not be entitled to select an Interest Period having a duration of two weeks, nine or twelve months unless, by 2:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, each Bank notifies the Administrative Agent that such Bank will be providing funding for such Eurodollar Loans with such Interest Period (the failure of any Bank to so respond by such time being deemed for all purposes of this Agreement as an objection by such Bank to the requested duration of such Interest Period); provided that, if any or all of the Banks object to the requested duration of such
 
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Interest Period, the duration of the Interest Period for such Eurodollar Loans shall be one, two, three or six months, as specified by the Company in the applicable Borrowing Certificate as the desired alternative to an Interest Period of two weeks or nine or twelve months, provided, that the Company shall not be entitled to select an Interest Period having duration of two weeks for any Interest Period commencing later than December 29, 2006.
“ Issuing Lender ”: with respect to any Letter of Credit, Citibank, N.A., Wells Fargo Bank, National Association or any other Lender that has a LOC Commitment, as chosen by the Company.
“ Issuing Lender Fees ”: as defined in subsection 2.4.
“ Lead Arrangers ”: Citigroup Global Markets Inc. and Wells Fargo Bank, National Association.
“ Letter of Credit ” any letter of credit issued by an Issuing Lender pursuant to the terms hereof, as such Letter of Credit may be amended, modified, extended, renewed or replaced from time to time.
“ Letter of Credit Facing Fee ”: as defined in subsection 2.4.
“ Letter of Credit Fee ”: as defined in subsection 2.4.
“ LIBOR ”: for any Eurodollar Loan for any Interest Period therefor, either (a) the rate of interest per annum determined by the Administrative Agent appearing on (x) in the case of Dollars, the Telerate Page 3750 (or any successor page), (y) in the case of a Foreign Currency other than Euros, the appropriate page of the Telerate screen which displays British Bankers Association Interest Settlement Rates for deposits in such Foreign Currency and (z) in the case of Euros, Page 248 of the Moneyline Telerate Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in Euro by reference to the Banking Federation of the European Union Settlement Rates for deposits in Euro) (or, in each case, (i) such other page or service as may replace such page on such system or service for the purpose of displaying such rates and (ii) if more than one rate appears on such screen, the arithmetic mean for all such rates) as the London interbank offered rate for deposits in the applicable currency at approximately 11:00 A.M. (London time), on the second full Business Day preceding the first day of such Interest Period, and in an amount approximately equal to the amount of the Eurodollar Loan and for a period approximately equal to such Interest Period or (b) if such rate is for any reason not available, the rate per annum equal to the rate at which the Administrative Agent or its designee is offered deposits in such currency at or about 11:00 A.M. (London time), two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where the eurodollar and foreign currency and exchange operations in respect of its Eurodollar Loans are then being conducted for settlement in immediately available funds, for delivery on the first day of such Interest Period for the number of days comprised therein, and in an amount comparable to the
 
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amount of the Eurodollar Loan to be outstanding during such Interest Period. With respect to any Eurodollar Loan denominated in British Pounds Sterling, for any Interest Period, “LIBOR” shall mean the rate equal to the sum of (A) the rate determined in accordance with the foregoing terms of this definition plus (B) the Mandatory Cost Rate for such Interest Period.
“ LIBOR Bid Loan ”: any Bid Loan made and/or being maintained at a rate of interest based upon the Eurodollar Rate.
“ LIBOR Bid Loan Request ”: any Bid Loan Request requesting the Banks to offer to make LIBOR Bid Loans.
“ Lien ”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Financing Lease having substantially the same economic effect as any of the foregoing), it being understood that the holding of money or investments for the purpose of honoring payment instruments or consumer funds transfers, or other amounts paid to or received by the Company, any of its Subsidiaries or any agent thereof in the ordinary course of business in order for the Company or such Subsidiary to make further distribution to a third party, shall not be considered a “Lien” for the purposes of this definition.
“ Loan Documents ”: this Agreement, the LOC Documents and the Notes.
“ Loans ”: Revolving Credit Loans, Swing Line Loans and Bid Loans.
“ LOC Commitment ”: (a) the commitment of each Issuing Lender to issue Letters of Credit in an aggregate available Dollar Amount (determined as of the most recent Revaluation Date) of Letters of Credit issued by such Issuing Lender at any one time outstanding not to exceed the amount set forth opposite such Issuing Lender’s name on Schedule 1.1 as such amount may be reduced pursuant to subsection 2.5 or subsection 9.6 or increased pursuant to subsection 2.20 or subsection 9.6 and (b) with respect to each Bank, the commitment of such Bank to purchase participation interests in the Letters of Credit up to such Bank’s Commitment Percentage of all LOC Obligations.
“ LOC Committed Amount ”: collectively, the aggregate amount of all of the LOC Commitments of the Banks to issue and participate in Letters of Credit as referenced in subsection 2.22 and, individually, the amount of each Bank’s LOC Commitment.
“ LOC Documents ”: with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or (b) any collateral security for such obligations.
“ LOC Mandatory Borrowing ”: as defined in subsection 2.22(f).
 
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“ LOC Obligations ”: at any time, the sum of (a) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (b) the aggregate amount of all drawings under Letters of Credit honored by the Issuing Lenders but not theretofore reimbursed.
“ Majority Banks ”: at any time, the Banks holding (or under subsection 2.19(e) participating in) more than 50% of the aggregate unpaid principal amount of the Revolving Credit Loans and Participation Interests or, if no Loans and Participation Interests are then outstanding, the Banks holding more than 50% of the aggregate amount of the Commitments.
“ Mandatory Cost Rate ”: with respect to any Loan or other Obligation booked outside the United States for any Interest Period, a rate per annum reflecting the cost to the Banks of complying with all reserve, special deposit, capital adequacy, solvency, liquidity ratios, fees or other requirements of or imposed by the Bank of England, the Financial Services Authority, the European Central Bank or any other governmental or regulatory authority for such Interest Period attributable to such Loan or Obligation (rounded up if necessary to 4 decimal places) as conclusively determined by the Administrative Agent.
“ Material Adverse Effect ”: a material adverse effect on the ability of the Company to perform its obligations under this Agreement or the Notes.
“ Moody’s ”: Moody’s Investors Service, Inc.
“ Multiemployer Plan ”: a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ Notes ”: the collective reference to the Revolving Credit Notes, the Swing Line Notes and Bid Notes.
“ Obligations ”: all of the obligations, indebtedness and liabilities of the Company to the Banks (including the Issuing Lenders and the Swing Line Bank) and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Loan Documents including principal, interest, fees, reimbursements and indemnification obligations and other amounts (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to the Company, regardless of whether such interest is an allowed claim under the Bankruptcy Code).
“ PBGC ”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
“ Participant ”: as defined in subsection 9.6(b).
“ Participating Member State ”: each country so described in any EMU Legislation.
“ Participation Interest ”: the purchase by a Bank of a participation interest in Letters of Credit as provided in subsection 2.22 and in Swing Line Loans as provided in Section 2.19.
 
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“ Person ”: an individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, Governmental Authority or other entity of whatever nature.
“ Plan ”: at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Company or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Pounds Sterling ”: British pounds sterling, the lawful currency of the United Kingdom.
“ Prime Rate ”: as defined in the definition of ABR.
“ Principal Facility ”: the real property, fixtures, machinery and equipment relating to any facility owned by the Company or any Subsidiary, except for any facility that, in the opinion of the Board of Directors of the Company, is not of material importance to the business conducted by the Company and its Subsidiaries, taken as a whole.
“ Purchased Receivables ”: accounts receivable purchased by the Company or any of its Subsidiaries from third parties and not originally created by the sale of goods or services by the Company or any of its Subsidiaries.
“ Purchased Receivables Financing ”: any financing transaction pursuant to which Purchased Receivables are sold, transferred, securitized or otherwise financed by any Receivables Subsidiary and as to which there is no recourse to the Company or any of its other Subsidiaries (other than customary representations and warranties made in connection with the sale or transfer of Purchased Receivables).
“ Purchasing Banks ”: as defined in subsection 9.6(c).
“ Rating ”: the respective rating of each of the Rating Agencies applicable to the long-term senior unsecured non-credit enhanced debt of the Company, as announced by the Rating Agencies from time to time.
“ Rating Agencies ”: collectively, S&P and Moody’s.
“ Rating Category ”: each of Rating I, Rating II, Rating III, Rating IV and Rating V.
 
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“ Rating I ”, “ Rating II ”, “ Rating III ”, “ Rating IV ” and “ Rating V ”: the respective Ratings set forth below:

Rating Category	 	S&P	 	Moody’s	
Rating I	 	greater than or equal to A	 	greater than or equal to A2	
Rating II	 	equal to A-	 	equal to A3	
Rating III	 	equal to BBB+	 	equal to Baa1	
Rating IV	 	equal to BBB	 	equal to Baa2•	
Rating V	 	less than BBB	 	less than Baa2	
provided, that (i) if on any day the Ratings of the Rating Agencies do not fall in the same Rating Category, and the lower of such Ratings (i.e., the Rating Category designated by a numerically higher Roman numeral) is one Rating Category lower than the higher of such Ratings, then the Rating Category of the higher of such Ratings shall be applicable for such day, (ii) if on any day the Ratings of the Rating Agencies do not fall in the same Rating Category, and the lower of such Ratings is more than one Rating Category lower than the higher of such Ratings, then the Rating Category next lower from that of the higher of such Ratings shall be applicable for such day, (iii) if on any day the Rating of only one of the Rating Agencies is available, then the Rating Category determined by such Rating shall be applicable for such day and (iv) if on any day a Rating is available from neither of the Rating Agencies, then Rating V shall be applicable for such day. Any change in the applicable Rating Category resulting from a change in the Rating of a Rating Agency shall become effective on the date such change is publicly announced by such Rating Agency.
“ Receivables Subsidiary ”: any Subsidiary of the Company which purchases Purchased Receivables directly or to which Purchased Receivables are transferred by the Company or any of its Subsidiaries, in either case with the intention of engaging in a Purchased Receivables Financing.
“ Regulation U ”: Regulation U of the Board of Governors of the Federal Reserve System.
“ Regulation X ”: Regulation X of the Board of Governors of the Federal Reserve System.
“ Reimbursement Obligation ”: the obligation of the Company to reimburse the Issuing Lenders pursuant to subsection 2.22(d) for amounts drawn under Letters of Credit.
“ Related Financings ”: the $2,400,000,000 credit facility among First Financial Management Corporation, a wholly owned Subsidiary of the Company, the lenders parties thereto and Citicorp North America, Inc., as administrative agent, and any refinancings thereof.
“ Reorganization ”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
“ Reportable Event ”: any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice period is waived by the PBGC.
“ Requirement of Law ”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law (including, without limitation, Environmental Laws), treaty, rule or regulation or determination of an arbitrator or a
 
15

court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Responsible Officer ”: the chairman and the chief executive officer of the Company, the chief financial officer of the Company, the treasurer of the Company or the senior vice president-finance of the Company.
“ Revaluation Date ”: with respect to any Extension of Credit, each of the following: (a) in connection with the origination of any new Extension of Credit, the Business Day which is the earliest of the date such credit is extended or the date the rate is set; (b) in connection with any extension or conversion or continuation of an existing Loan, the Business Day that is the earlier of the date such advance is extended, converted or continued, or the date the rate is set, as applicable, in connection with any extension, conversion or continuation; (c) each date a Letter of Credit is issued or renewed or amended in such a way as to modify the LOC Obligations; (d) the date of any reduction of the Commitments; and (e) such additional dates as the Administrative Agent or the Majority Banks shall deem necessary. For purposes of determining availability hereunder, the rate of exchange for any Foreign Currency shall be the Spot Rate.
“ Revolving Credit Loan ”: as defined in subsection 2.1.
“ Revolving Credit Note ”: as defined in subsection 2.2.
“ S&P ”: Standard & Poor’s Ratings Services.
“ Short-Term Ratings ”: with respect to any Person, the short-term debt ratings of such Person issued by the Rating Agencies.
“ Significant Subsidiary ”: at any date, any Subsidiary of the Company which, together with its Subsidiaries, (i) has a proportionate share of Consolidated Net Assets that exceeds 10% at the time of determination or (ii) has equity in the Consolidated Net Income that exceeds 10% for the period of the four most recently completed fiscal quarters preceding the time of determination.
“ Single Employer Plan ”: any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“ Spin-Off Financial Statements ”: as defined in subsection 3.1.
“ Spot Rate ”: with respect to any Foreign Currency, the rate quoted by Citibank as the spot rate for the purchase by Citibank of such Foreign Currency with Dollars through its principal foreign exchange trading office at approximately 11:00 A.M. New York City time, on the date two Business Days prior to the date as of which the foreign exchange computation is made.
“ Subsidiary ”: as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or
 
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other entity are at the time owned, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
“ Swing Line Commitment ”: the obligation of the Swing Line Bank to make Committed Swing Line Loans pursuant to subsection 2.19 in an aggregate amount at any one time outstanding up to $150,000,000.
“ Swing Line Loan ”: as defined in subsection 2.19(a).
“ Swing Line Note ”: as defined in subsection 2.19(b).
“ Termination Date ”: September 27, 2011.
“ Tranche ”: the reference to Eurodollar Loans the Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day); Tranches may be identified as “Eurodollar Tranches”.
“ Transferee ”: as defined in subsection 9.6(f).
“ Treaty on European Union ”: the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht on February 1, 1992 and came into force on November 1, 1993), as amended from time to time.
“ Type ”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
“ Unrefunded Swing Line Loans ”: as defined in subsection 2.19(d).
“ Utilization Fee Rate ”: for each day during each calculation period, a rate per annum based on the Ratings in effect on such day, as set forth below:

Rating	  	Utilization
Fee Rate	 	
Rating I	  	0.050	%	
Rating II	  	0.050	%	
Rating III	  	0.100	%	
Rating IV	  	0.100	%	
Rating V	  	0.100	%	
“ Western Union Form 10 ”: the Form 10 of the Company, filed with the Securities Exchange Commission on June 6, 2006, as amended prior to the Closing Date.
 
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1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Notes or any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Company and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein shall be interpreted, and all accounting determinations hereunder shall be made, in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of the Company delivered to the Banks; provided that, if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in this Agreement, and the Company, the Majority Banks or the Administrative Agent shall so request, the Administrative Agent, the Banks and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Banks); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
1.4 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating the Dollar Amounts of Extensions of Credit and amounts outstanding hereunder denominated in Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Company hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency for purposes of the Loan Documents shall be such Dollar Amount as so determined by the Administrative Agent.
 
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(b) Wherever in this Agreement in connection with an Extension of Credit, conversion, continuation or prepayment of a Loan, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Extension of Credit or Loan is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar Amount (rounded upwards to the nearest 1,000 units of such Foreign Currency), as determined by the Administrative Agent.
1.5 Computation of Dollar Amounts.
References herein to minimum Dollar Amounts and integral multiples stated in Dollars, where they shall also be applicable to Foreign Currency, shall be deemed to refer to approximate Foreign Currency Equivalents.
SECTION 2
AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.
(a) Subject to the terms and conditions hereof, each Bank severally agrees to make revolving credit loans (each, a “Revolving Credit Loan”; collectively, the “Revolving Credit Loans”) in Dollars and in Foreign Currencies to the Company from time to time during the Commitment Period in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) at any one time outstanding which, when added to the amount of such Bank’s Commitment Percentage of the aggregate principal amount of all Swing Line Loans and LOC Obligations then outstanding, shall not exceed the amount of such Bank’s Commitment; provided that, (i) after giving effect to the use of proceeds of Revolving Credit Loans to repay any Swing Line Loans or LOC Obligations, the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of Revolving Credit Loans, Swing Line Loans, Bid Loans and LOC Obligations outstanding at any one time shall not exceed the aggregate amount of the Commitments at such time; and (ii) the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of Revolving Credit Loans that are Foreign Currency Loans outstanding to the Company shall not exceed $250,000,000. During the Commitment Period the Company may use the Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans, or (iii) a combination thereof, as determined by the Company and notified to the Administrative Agent in accordance with subsections 2.3 and 2.7, provided that (1) no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is one month prior to the Termination Date and (2) all Foreign Currency Loans must be Eurodollar Loans.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each Bank shall be evidenced by a promissory note of the Company, substantially in the form of Exhibit A with
 
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appropriate insertions as to payee, date and principal amount (a “Revolving Credit Note”), payable to the order of such Bank and in a principal Dollar Amount equal to such Bank’s Commitment. Each Bank is hereby authorized to record the date, Type, currency and amount of each Revolving Credit Loan made by such Bank, each continuation thereof, each conversion of all or a portion thereof to another Type, the date and amount of each payment or prepayment of principal thereof and, in the case of Eurodollar Loans, the length of each Interest Period with respect thereto, on the schedule annexed to and constituting a part of its Revolving Credit Note, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure of any Bank to make any such recordation (or any error in such recordation) shall not affect the obligations of the Company hereunder or under any Revolving Credit Note in respect of the Revolving Credit Loans. Each Revolving Credit Note shall (x) be dated the Closing Date, (y) be stated to mature on the Termination Date and (z) provide for the payment of interest in accordance with subsection 2.9.
2.3 Procedure for Borrowing. The Company may borrow under the Commitments during the Commitment Period on any Business Day, provided that the Company shall deliver to the Administrative Agent a Borrowing Certificate (which certificate to be effective on the requested Borrowing Date must be received by the Administrative Agent (a) prior to 12:00 noon, New York City time, three Business Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Credit Loans are to be initially Eurodollar Loans, (b) prior to 10:00 A.M., London, England time, four Business Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Credit Loans are to be Foreign Currency Loans and (c) prior to 12:00 noon, New York City time, on the requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed, (ii) the currency to be borrowed, (iii) the requested Borrowing Date, (iv) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof (if the borrowing is to be denominated in a Foreign Currency, the borrowing must be comprised entirely of Eurodollar Loans) and (v) if the borrowing is to be entirely or partly of Eurodollar Loans, the aggregate amount of such Eurodollar Loans and the amounts of each such Eurodollar Loan and the respective length of the initial Interest Period therefor. Each borrowing under the Commitments shall be in a Dollar Amount equal to (x) in the case of ABR Loans other than a Swing Line Loan, $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then Available Commitments are less than $5,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of a Borrowing Certificate, the Administrative Agent shall promptly notify each Bank thereof.
Each Bank will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified in subsection 9.2 or such other office specified by the Administrative Agent from time to time prior to (a) 2:00 P.M., New York City time in the case of ABR Loans and 11:00 A.M., New York City time in the case of Eurodollar Loans denominated in Dollars and (b) the Applicable Time specified by the Administrative Agent in the case of any Foreign Currency Loan, on the Borrowing Date requested by the Company in Dollars or the applicable Foreign Currency and in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Company by the Administrative Agent crediting the account of the Company on the books of such office with the aggregate of
 
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the amounts made available to the Administrative Agent by the Banks and in like funds as received by the Administrative Agent.
2.4 Fees.
(a) The Company agrees to pay to the Administrative Agent, for the account of each Bank, a facility fee for the period from and including the Closing Date through the Termination Date, calculated as an amount equal to the product of (i) the Facility Fee Rate and (ii) the average daily amount of the Commitment of such Bank (regardless of usage) during the period for which such facility fee is calculated, payable in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date) and on the Termination Date or such earlier date on which the Commitments shall terminate as provided herein (for the period from the last quarterly payment date to the Termination Date or such other date, as applicable). Such payments shall commence on December 31, 2006, and such first payment shall be for the period from the Closing Date through December 31, 2006.
(b) The Company agrees to pay to the Administrative Agent, the Syndication Agent and the Lead Arranger for their own account, as the case may be, the fees in the respective amounts and at the respective times set forth in the Fee Letters.
(c) If on any date the aggregate outstanding principal Dollar Amount (determined as of the most recent Revaluation Date) of Loans and LOC Obligations hereunder exceeds 50% of the aggregate Commitments of all Banks hereunder, the Company will pay to the Administrative Agent for the ratable benefit of the Banks a utilization fee (the “Utilization Fee”) at a per annum rate equal to the Utilization Fee Rate in effect on such date on the outstanding principal Dollar Amount (determined as of the most recent Revaluation Date) of Loans and LOC Obligations, payable in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date) and on the Termination Date.
(d) In consideration of the LOC Commitments, the Company agrees to pay to the Administrative Agent a fee (the “Letter of Credit Fee”) equal to the Applicable Margin per annum on the average daily maximum amount available to be drawn under each Letter of Credit from the date of issuance to the date of expiration. The Letter of Credit Fee shall be for the ratable benefit of the Banks (including the Issuing Lenders).
(e) In addition to the Letter of Credit Fees payable pursuant to subsection (d) hereof, the Company shall pay to each Issuing Lender for its own account without sharing by the other Banks the reasonable and customary charges from time to time of such Issuing Lender with respect to the amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the “Issuing Lender Fees”). Each Issuing Lender may charge, and retain for its own account without sharing by the other Banks, an additional facing fee (the “Letter of Credit Facing Fee”) in an amount per annum to be agreed between the applicable Issuing Lender and the Company on the average daily maximum amount available to be drawn under each such Letter of Credit issued by it. The Letter of Credit Facing Fee shall be payable quarterly
 
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in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date) and on the Termination Date.
2.5 Termination or Reduction of Commitments. The Company shall have the right, upon not less than five Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments, provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of the Loans and LOC Obligations then outstanding would exceed the Commitments then in effect. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently the Commitments then in effect. Any reduction or termination of the Commitment of the Swing Line Bank shall automatically result in a termination or reduction of the Swing Line Commitment of the Swing Line Bank such that, after giving effect thereto, the Swing Line Commitment of the Swing Line Bank is equal to or less than the Commitment of the Swing Line Bank.
2.6 Prepayments. (a) Subject to subsection 2.16, the Company may at any time and from time to time prepay the Revolving Credit Loans, in whole or in part, without premium or penalty, upon irrevocable notice to the Administrative Agent given prior to 10:00 A.M., New York City time, at least three Business Days in advance in the case of Eurodollar Loans and on the requested prepayment date in the case of ABR Loans, specifying the date and amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company shall not have the right to prepay any principal amount of any Bid Loan without the prior written consent of the applicable Bank then making such Bid Loan.
(b) If at any time after the Closing Date, (i) the sum of the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of outstanding Revolving Credit Loans, Swing Line Loans, Bid Loans and LOC Obligations shall exceed the aggregate amount of the Commitments at such time or (ii) the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of Revolving Credit Loans that are Foreign Currency Loans outstanding to the Company exceeds $250,000,000, in each case, the Loans shall immediately be prepaid in an amount sufficient to eliminate such excess.
2.7 Conversion and Continuation Options.
(a) The Company may elect from time to time to convert Revolving Credit Loans that are Eurodollar Loans denominated in Dollars to ABR Loans, by giving the Administrative Agent at least two Business Days’ prior irrevocable notice of such election, provided that any such conversion of Eurodollar Loans may only be made on
 
22

the last day of an Interest Period with respect thereto. The Company may elect from time to time to convert ABR Loans to Eurodollar Loans denominated in Dollars by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. All or any part of outstanding Eurodollar Loans denominated in Dollars and ABR Loans may be converted as provided herein, provided that (i) no Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Banks have determined that such a conversion is not appropriate, (ii) any such conversion may only be made if, after giving effect thereto, subsection 2.8 shall not have been contravened and (iii) no Loan may be converted into a Eurodollar Loan after the date that is one month prior to the Termination Date. For purposes of this subsection, any reference to an ABR Loan shall be deemed to exclude any Swing Line Loan.
(b) Any Revolving Credit Loans that are Eurodollar Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Company giving notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in subsection 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no Eurodollar Loan may be continued as such (i) when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Banks have determined that such a continuation is not appropriate, (ii) if, after giving effect thereto, subsection 2.8 would be contravened or (iii) after the date that is one month prior to the Termination Date. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof.
(c) Unless otherwise agreed to by the Majority Banks, upon the occurrence and during the continuance of any Event of Default, all Foreign Currency Loans then outstanding shall be exchanged into Dollars (based on the Dollar Amount (determined as of the most recent Revaluation Date) of such Foreign Currency Loans on the date of redenomination) on the last day of the then current Interest Periods of such Foreign Currency Loans; provided that in each case the Company shall be liable for any currency exchange loss related to such payments and shall promptly pay to each Bank upon receipt of notice thereof by the Company from such Bank the amount of any such loss incurred by such Bank.
2.8 Minimum Amounts of Tranches. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising each Eurodollar Tranche shall be equal to a Dollar Amount (determined as of the most recent Revaluation Date) of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
 
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2.9 Interest Rates and Payment Dates.
(a) Each ABR Loan shall bear interest at a rate per annum equal to the ABR.
(b) Each Revolving Credit Loan that is a Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such Interest Period plus the Applicable Margin.
(c) Each Bid Loan shall bear interest as provided in subsection 2.18.
(d) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum which is (x) in the case of overdue principal, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection plus 2% or (y) in the case of overdue interest, the rate described in paragraph (a) of this subsection plus 2%, in each case from the date of such non-payment until such amount is paid in full (as well after as before judgment).
(e) Interest on each Revolving Credit Loan and each Swing Line Loan shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (d) of this subsection shall be payable on demand. Interest on each Bid Loan shall be payable as set forth in the applicable Bid Note.
2.10 Computation of Interest and Fees.
(a) Facility fees and, whenever it is calculated on the basis of the Prime Rate, interest on ABR Loans and Foreign Currency Loans denominated in Pounds Sterling, shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed; otherwise, interest and fees shall be calculated on the basis of a 360-day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Banks of each determination of a Eurodollar Rate. The Administrative Agent shall as soon as practicable notify the Company and the Banks of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Company and the Banks in the absence of manifest error. The Administrative Agent shall, at the request of the Company, deliver to the Company a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to subsection 2.9(b) or (c).
2.11 Inability to Determine Interest Rate. In the event that prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Company) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or
 
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(b) the Administrative Agent shall have received notice from the Majority Banks that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Banks (as conclusively certified by such Banks) of making or maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic (confirmed in writing) notice thereof to the Company and the Banks as soon as practicable thereafter. If such notice is given (w) any affected Foreign Currency Loans requested to be made on the first day of such Interest Period shall be made, at the sole option of the Company, in Dollars as ABR Loans or such request shall be cancelled, (x) any Eurodollar Loans denominated in Dollars requested to be made on the first day of such Interest Period shall be made as ABR Loans or Fixed Rate Bid Loans based upon the ABR, (y) any Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be converted to or continued as ABR Loans in Dollars and (z) any Loans that pursuant to subsection 2.7(b) were to have been continued on the first day of such Interest Period as Eurodollar Loans shall be converted to ABR Loans in Dollars. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Company have the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing of Revolving Credit Loans and any reduction of the Commitments shall be made pro rata according to the respective Commitment Percentages of the Banks. Unless otherwise required by the terms of this Agreement, each payment under this Agreement or any Note shall be applied, first, to any fees then due and owing by the Company pursuant to subsection 2.4, second, to interest then due and owing in respect of the Notes of the Company and, third, to principal then due and owing hereunder and under the Notes of the Company. Each payment on account of any fees pursuant to subsection 2.4 for the account of Banks shall be made pro rata in accordance with the respective amounts due and owing (except as to the Letter of Credit Facing Fee and the Issuing Lender Fees). Each payment (other than prepayments) by the Company on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective amounts due and owing. Without limiting the terms of the preceding sentence, accrued interest on any Loans denominated in a Foreign Currency shall be payable in the same Foreign Currency as such Loan. Payments made pursuant to subsection 2.13 shall be applied in accordance with such section. All payments (including prepayments) to be made by the Company on account of principal, interest and fees shall be made without defense, set-off or counterclaim (except as provided in subsection 2.15(b)) and shall be made to the Administrative Agent for the account of the Banks at the Administrative Agent’s office specified in subsection 9.2 or such other office specified by the Administrative Agent in immediately available funds and (i) in the case of Loans or other amounts denominated in Dollars, shall be made in Dollars not later than 12:00 noon New York City time on the date when due and (ii) in the case of Loans or other amounts denominated in a Foreign Currency, unless otherwise specified herein, shall be made in such Foreign Currency not later than the Applicable Time specified by the Administrative Agent on the date when due. Any payment
 
25

received after the foregoing deadlines shall be deemed received on the next Business Day. The Administrative Agent shall distribute such payments to the Banks entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.
(b) Notwithstanding any other provisions of this Agreement to the contrary, after the exercise of remedies by the Administrative Agent or the Banks pursuant to Section 7 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Loan Documents (including without limitation the maximum amount of all contingent liabilities under Letters of Credit) shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Bank on account of the Obligations or any other amounts outstanding under any of the Loan Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable attorneys’ fees) of the Administrative Agent in connection with enforcing the rights of the Banks under the Loan Documents;
SECOND, to the payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation, reasonable attorneys’ fees) of each of the Banks in connection with enforcing its rights under the Loan Documents or otherwise with respect to the Obligations owing to such Bank;
FOURTH, to the payment of all of the Obligations consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the Obligations and the payment or cash collateralization of the outstanding LOC Obligations;
SIXTH, to all other Obligations and other obligations which shall have become due and payable under the Loan Documents or otherwise and not repaid pursuant to clauses ”FIRST” through “FIFTH” above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding
 
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category; (ii) each of the Banks shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Bank bears to the aggregate then outstanding Loans and LOC Obligations) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (A) first, to reimburse the Issuing Lenders from time to time for any drawings under such Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided in this subsection 2.12(b).
(c) Unless the Administrative Agent shall have been notified in writing by any Bank prior to a Borrowing Date that such Bank will not make the amount that would constitute its Commitment Percentage of the borrowing of a Revolving Credit Loan on such date available to the Administrative Agent, the Administrative Agent may assume that such Bank has made such amount available to the Administrative Agent on such Borrowing Date, and the Administrative Agent may, in reliance upon such assumption, make available to the Company a corresponding amount. If such amount is made available to the Administrative Agent on a date after such Borrowing Date, such Bank shall pay to the Administrative Agent on demand an amount equal to the product of (i) the daily average Federal Funds Effective Rate (as defined in the definition of “ABR”) during such period as quoted by the Administrative Agent, (ii) the amount of such Bank’s Commitment Percentage of such borrowing, and (iii) a fraction the numerator of which is the number of days that elapse from and including such Borrowing Date to the date on which such Bank’s Commitment Percentage of such borrowing shall have become immediately available to the Administrative Agent and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Bank with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Bank’s Commitment Percentage of such borrowing is not in fact made available to the Administrative Agent by such Bank within three Business Days of such Borrowing Date, the Administrative Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from the Company.
(d) Unless the Administrative Agent shall have been notified in writing by the Company, prior to the date on which any payment is due from the Company hereunder (which notice shall be effective upon receipt) that the Company does not intend to make such payment, the Administrative Agent may assume that the Company has made such payment when due, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to each Bank on such payment date an amount equal to the portion of such assumed payment to which such Bank is entitled hereunder, and if the Company has not in fact made such payment to the Administrative Agent, such Bank shall, on demand, repay to the Administrative Agent the amount made available to such Bank. If such amount is repaid to the Administrative Agent on a date after the date such amount was made available to such Bank, such Bank shall pay to the Administrative Agent on demand interest on such amount in respect of each day from the
 
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date such amount was made available by the Administrative Agent to such Bank to the date such amount is recovered by the Administrative Agent at a per annum rate equal to the Federal Funds Effective Rate. A certificate of the Administrative Agent submitted to the Company with respect to any amount owing under this subsection shall be conclusive in the absence of manifest error.
2.13 Illegality.
(a) Notwithstanding any other provision herein, if any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Bank to make or maintain Eurodollar Loans as contemplated by this Agreement, (i) the commitment of such Bank hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert Domestic Dollar Loans to Eurodollar Loans shall forthwith be cancelled and (ii) such Bank’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR Loans or Fixed Rate Bid Loans denominated in Dollars based upon the ABR on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall pay to such Bank such amounts, if any, as may be required pursuant to subsection 2.16.
(b) Notwithstanding any other provision herein, if there shall have occurred any change in national or international financial, political or economic conditions (including the imposition of or any change in exchange controls) or currency exchange rates which would make it unlawful or impossible for any Bank to make Loans denominated in any Foreign Currency to the Company, as contemplated by this Agreement, (i) the commitment of such Bank hereunder to make Foreign Currency Loans shall forthwith be cancelled and (ii) such Bank’s Loans then outstanding as Foreign Currency Loans, if any, shall be converted automatically to ABR Loans denominated in Dollars. If any conversion of a Foreign Currency Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall pay to such Bank such amounts, if any, as may be required pursuant to subsection 2.16.
2.14 Requirements of Law.
(a) In the event that Eurodollar Reserve Percentage or any change in any Requirement of Law or in the interpretation or application thereof after the date of this Agreement or compliance by any Bank with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever with respect to this Agreement, any Note, any Letter of Credit or any application related thereto, or any Eurodollar Loan made by it, or change the basis of taxation of payments to such Bank in respect thereof (except for taxes covered by subsection 2.15 and changes in franchise taxes or the rate of tax on the overall net income of such Bank);
 
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(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank which is not otherwise included in the determination of the Eurodollar Rate or the interest rate applicable to any Bid Loan hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by an amount which such Bank deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or Bid Loans or the Letters of Credit (or the Participation Interests therein), or to reduce any amount receivable hereunder in respect thereof then, in any such case, the Company shall promptly pay such Bank, upon its demand, any additional amounts necessary to compensate such Bank for such increased cost or reduced amount receivable as provided in this Section 2.14(a). If any Bank becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify the Company, through the Administrative Agent, of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by such Bank, through the Administrative Agent, to the Company in good faith and setting forth in reasonable detail the calculation of such amounts shall be conclusive in the absence of manifest error; provided that the Company’s obligations under this Section 2.14(a) shall be limited to amounts accruing not more than 180 days prior to the invoice thereof by such Bank (such time period to be extended as necessary to take into account any retroactive application of a change in law giving rise to such obligations). This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder until the second anniversary of such payment and termination.
(b) In the event that any Bank or corporation controlling such Bank shall have determined that any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Bank or such corporation with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on such Bank’s capital as a consequence of its obligations hereunder to a level below that which such Bank could have achieved but for such change or compliance (taking into consideration such Bank’s policies with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time, after submission by such Bank in good faith to the Company (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the calculation of such amount (which request shall be conclusive in the absence of manifest error), the Company shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction; provided that the Company’s obligations under this Section 2.14(b) shall be limited to amounts accruing not more than 180 days prior to the invoice thereof by such Bank (such time period to be extended as necessary to take into account any retroactive application of a change in law giving rise to such obligations). This covenant shall survive the
 
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termination of this Agreement and the payment of the Notes and all other amounts payable hereunder until the second anniversary of such payment and termination.
2.15 Taxes.
(a) Subject to subsection 2.15(b) or 9.6(g), as appropriate, all payments made by the Company under this Agreement and the Notes shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding, in the case of the Administrative Agent and each Bank, net income taxes, branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which such Bank is located and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or such Bank, as the case may be, as a result of a present or former connection between the jurisdiction of the government or taxing authority imposing such tax and the Administrative Agent or such Bank (excluding a connection arising solely from the Administrative Agent or such Bank having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or the Notes) or any political subdivision or taxing authority thereof or therein (all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called “Taxes”). If any Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Bank hereunder or under the Notes, the amounts so payable to the Administrative Agent or such Bank (so long as such Bank is in compliance with subsection 2.15(b) or 9.6(g), as appropriate and if applicable) shall be increased to the extent necessary to yield to the Administrative Agent or such Bank (after payment of all Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement and the Notes. Whenever any Taxes are payable by the Company, as promptly as possible thereafter the Company shall send to the Administrative Agent for its own account or for the account of such Bank, as the case may be, a certified copy of an original official receipt received by the Company showing payment thereof. If the Company fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Company shall indemnify the Administrative Agent and the Banks for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Bank as a result of any such failure. The agreements in this subsection shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder.
(b) Each Bank party to this Agreement on the Closing Date that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees that, on or prior to the Closing Date, it will deliver to the Company and the Administrative Agent (i) two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be or (ii) in the case of such a Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent
 
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shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) two duly completed copies of United States Internal Revenue Service Form W-8BEN, in each case certifying such Bank’s entitlement to a complete exemption from United States withholding tax with respect to interest payments to be made under this Agreement and under any Note. Each such Bank also agrees to deliver to the Company and the Administrative Agent two further copies of such forms, or successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Company, and such extensions or renewals thereof as may reasonably be requested by the Company or the Administrative Agent, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank so advises the Company and the Administrative Agent. Each Bank party to this Agreement on the Closing Date that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees that, on or prior to the Closing Date, it will deliver to the Company and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-9, certifying that it is not subject to United States backup withholding tax.
2.16 Indemnity. The Company agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of (a) default by the Company in payment when due of the principal amount of or interest on any Eurodollar Loan or Bid Loan, (b) default by the Company in making a borrowing or conversion after the Company has given (or is deemed to have given) a notice in accordance with subsection 2.18 (so long as the Company shall have accepted a Bid Loan offered in connection with any such notice), (c) default by the Company in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Company has given a notice requesting the same in accordance with the provisions of this Agreement, (d) default by the Company in making any prepayment of Eurodollar Loans after the Company has given a notice thereof in accordance with the provisions of this Agreement or (e) the making of a prepayment or conversion, or the purchase pursuant to subsection 2.17, of Eurodollar Loans or Fixed Rate Bid Loans on a day which is not the last day of an Interest Period with respect thereto, including, without limitation, in each case, any such loss (other than non-receipt of the Applicable Margin or, without duplication, anticipated profits) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate the deposits from which such funds were obtained (it being understood that any such calculation will be made on notional amounts as the Banks are not required to show that they matched deposits specifically). A certificate as to any additional amounts payable pursuant to this subsection submitted by such Bank, through the Administrative Agent, to the Company in good faith shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder.
2.17 Action of Affected Banks. Each Bank agrees to use reasonable efforts (including reasonable efforts to change the booking office for its Loans) to avoid or minimize any illegality
 
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pursuant to subsection 2.13 or any amounts which might otherwise be payable pursuant to subsection 2.14(a) or 2.15; provided, however, that such efforts shall not cause the imposition on such Bank of any additional costs or legal or regulatory burdens deemed by such Bank to be material and shall not be deemed by such Bank to be otherwise disadvantageous or contrary to its policies. In the event that such reasonable efforts are insufficient to avoid all such illegality or all amounts that might be payable pursuant to subsection 2.14(a) or 2.15, then such Bank (the “Affected Bank”) shall use its reasonable efforts to transfer to any other Bank (which itself is not then an Affected Bank) its Loans and Commitment subject to the provisions of subsection 9.6(c); provided, however, that such transfer shall not be deemed by such Affected Bank, in its sole discretion, to be disadvantageous to it or contrary to its policies. In the event that the Affected Bank is unable, or otherwise is unwilling, so to transfer its Loans and Commitment, the Company may designate an alternate lender (reasonably acceptable to the Administrative Agent) to purchase the Affected Bank’s Loans and Commitment, at par and including accrued interest, and, subject to the provisions of subsection 9.6(c), the Affected Bank shall transfer its Commitment to such alternate lender and such alternate lender shall become a Bank hereunder. Any fee payable to the Administrative Agent pursuant to subsection 9.6(e) in connection with such transfer shall be for the account of the Company.
2.18 Bid Loans.
(a) The Company may request one or more Banks to make offers to make Bid Loans denominated in Dollars from time to time on any Business Day during the period from the Closing Date until the date seven days prior to the Termination Date in the manner set forth in this subsection 2.18, provided that the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of all Revolving Credit Loans, Swing Line Loans, LOC Obligations and Bid Loans outstanding at any one time shall not exceed the aggregate amount of the Commitments at such time. Each Bank may, but shall have no obligation to, make such offers, and the Company may, but shall have no obligation to, accept any such offers in the manner set forth herein.
(b) (i) The Company may request Bid Loans by delivering a Bid Loan Request to the Administrative Agent, not later than 10:00 A.M. (New York City time) four Business Days prior to the proposed Borrowing Date (in the case of a LIBOR Bid Loan Request), and not later than 3:00 p.m. (New York City time) one Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate Bid Loan Request). Each Bid Loan Request shall solicit Bid Quotes for Bid Loans in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and for not more than four alternative maturity dates for such Bid Loans, none of which shall be earlier than seven days from the respective requested Borrowing Date or later than the earlier of (A) the date (1) 180 days from the respective requested Borrowing Date in the case of a Fixed Rate Bid Loan Request and (2) 6 months from the respective requested Borrowing Date in the case of a LIBOR Bid Loan Request and (B) the Termination Date. Bid Loan Requests may be submitted no more frequently than once during any period of three successive Business Days. The Administrative Agent shall promptly notify
 
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each Bank by facsimile transmission of the contents of each Bid Loan Request received by it.
(ii) In the case of a LIBOR Bid Loan Request, upon receipt of notice from the Administrative Agent of the contents of such Bid Loan Request, any Bank that elects, in its sole discretion, to do so, may irrevocably offer to make one or more Bid Loans at the Eurodollar Rate plus or minus a margin for each such Bid Loan determined by such Bank in its sole discretion. Any such irrevocable offer shall be made by delivering a Bid Quote to the Administrative Agent, before 10:00 A.M. (New York City time) three Business Days before the proposed Borrowing Date, setting forth the maximum amount of Bid Loans for each maturity date which such Bank would be willing to make (which amount may, subject to subsection 2.1(a), exceed such Bank’s Commitment) and the margin above or below the Eurodollar Rate at which such Bank is willing to make each such Bid Loan; the Administrative Agent shall advise the Company before 10:30 A.M. (New York City time) three Business Days before the proposed Borrowing Date, of the contents of each such Bid Quote received by it. If the Administrative Agent in its capacity as a Bank shall, in its sole discretion, elect to make any such offer, it shall advise the Company of the contents of its Bid Quote before 9:45 A.M. (New York City time) three Business Days before the proposed Borrowing Date.
(iii) In the case of a Fixed Rate Bid Loan Request, upon receipt of notice from the Administrative Agent of the contents of such Bid Loan Request, any Bank that elects, in its sole discretion, to do so, may irrevocably offer to make one or more Bid Loans at a rate or rates of interest for each such Bid Loan determined by such Bank in its sole discretion. Any such irrevocable offer shall be made by delivering a Bid Quote to the Administrative Agent, before 9:30 A.M. (New York City time) on the proposed Borrowing Date, setting forth the maximum amount of Bid Loans for each maturity date which such Bank would be willing to make (which amount may, subject to subsection 2.1(a), exceed such Bank’s Commitment) and the rate or rates of interest therefor; the Administrative Agent shall advise the Company before 10:00 A.M. (New York City time) on the proposed Borrowing Date of the contents of each such Bid Quote received by it. If the Administrative Agent in its capacity as a Bank shall, in its sole discretion, elect to make any such offer, it shall advise the Company of the contents of its Bid Quote before 9:15 A.M. (New York City time) on the proposed Borrowing Date.
(iv) The Company shall before 11:30 A.M. (New York City time) three Business Days before the proposed Borrowing Date in the case of a LIBOR Bid Loan Request and before 10:30 A.M. (New York City time) on the proposed Borrowing Date in the case of a Fixed Rate Bid Loan Request either, in its absolute discretion:
(A) cancel such Bid Loan Request by giving the Administrative Agent telephone notice to that effect, or
 
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(B) accept one or more of the offers made by any Bank or Banks pursuant to clause (ii) or clause (iii) above, as the case may be, by giving telephone notice (immediately confirmed by execution and facsimile transmission of a Bid Loan Confirmation) to the Administrative Agent of the amount of Bid Loans to be made by each Bank (which amount shall be equal to or less than the maximum amount requested to be made, but in no event less than $5,000,000 and in integral multiples of $1,000,000 in excess thereof, notified to the Company by the Administrative Agent on behalf of such Bank for such Bid Loans pursuant to clause (ii) or clause (iii) above, as the case may be), provided that the Company may not accept offers for Bid Loans in an aggregate principal amount in excess of the maximum principal amount requested in the related Bid Loan Request.
(v) If the Company notifies the Administrative Agent that a Bid Loan Request is cancelled pursuant to clause (iv)(A) above, the Administrative Agent shall give prompt telephone notice thereof to the Banks, and the Bid Loans requested thereby shall not be made.
(vi) If the Company accepts one or more of the offers made by any Bank or Banks pursuant to clause (iv)(B) above, the Administrative Agent shall as promptly as practicable following receipt of the Company’s acceptance, three Business Days before the proposed Borrowing Date in the case of a LIBOR Bid Loan Request and on the proposed Borrowing Date in the case of a Fixed Rate Bid Loan Request, notify each Bank which has made such an offer, of the aggregate amount of such Bid Loans to be made on such Borrowing Date for each maturity date and of the acceptance of any offers for each maturity date to make such Bid Loans made by such Bank. Each Bank which is to make a Bid Loan shall, before 12:00 noon (New York City time) on the Borrowing Date specified in the Bid Loan Request applicable thereto, make available to the Administrative Agent at its office set forth in subsection 9.2 the amount of such Bank’s Bid Loans, in immediately available funds. The Administrative Agent will make such funds available to the Company as soon as practicable on such date at the Administrative Agent’s aforesaid address.
(vii) Each Bid Loan shall be evidenced by a promissory note of the Company, substantially in the form of Exhibit E, with appropriate insertions (a “ Bid Note ”), payable to the order of the applicable Bank and representing the obligation of the Company to pay the unpaid principal amount of all Bid Loans made by such Bank, and to pay interest thereon as prescribed in subsection 2.18(e). Each such Bank is hereby authorized to record the date and amount of each Bid Loan made by such Bank, the maturity date thereof, the date and amount of each payment of principal thereof and the interest rate with respect thereto on the schedule annexed to and constituting part of its Bid Note or in the books and records of such Bank in such manner as is reasonable and customary, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure to make any such
 
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recordation shall not affect the obligations of the Company hereunder or under any Bid Note. Each Bid Note shall be dated the Closing Date and each Bid Loan evidenced thereby shall bear interest for the period from and including the Borrowing Date thereof on the unpaid principal amount thereof from time to time outstanding at the applicable rate per annum determined as provided in, and such interest shall be payable as specified in, subsection 2.18(e).
(c) Within the limits and on the conditions set forth in this subsection 2.18, the Company may from time to time borrow under this subsection 2.18, repay pursuant to paragraph (d) below, and reborrow under this subsection 2.18.
(d) The Company shall repay to the Administrative Agent for the account of each Bank which has made a Bid Loan on the maturity date of each Bid Loan (such maturity date being that specified by the Company for repayment of such Bid Loan in the related Bid Loan Request) the then unpaid principal amount of such Bid Loan. The Company shall not have the right to prepay any principal amount of any Bid Loan without the prior written consent of the applicable Bank then making such Bid Loan.
(e) The Company shall pay interest on the unpaid principal amount of each Bid Loan from the date of such Bid Loan to the stated maturity date thereof, at the rate of interest for such Bid Loan determined pursuant to paragraph (b) above (calculated on the basis of a 360 day year for actual days elapsed), payable on the Interest Payment Date specified by the Company for such Bid Loan in the related Bid Loan Request as provided in the Bid Note evidencing such Bid Loan.
2.19 Swing Line Commitments.
(a) Subject to the terms and conditions hereof, the Swing Line Bank hereby agrees to make swing line loans to the Company (individually, a “Committed Swing Line Loan”; collectively the “ Committed Swing Line Loans ”; or the “ Swing Line Loans ”) from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment; provided that the aggregate unpaid principal amount of all Swing Line Loans, together with the aggregate unpaid principal amount of all Revolving Credit Loans, LOC Obligations and all Bid Loans at any one time outstanding, may not exceed the aggregate amount of the Commitments. Amounts borrowed by the Company under this subsection 2.19 may be repaid and, through but excluding the Termination Date, reborrowed. All Committed Swing Line Loans shall be made as ABR Loans and may not be converted into Eurodollar Loans. Each borrowing of Swing Line Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company shall give the Administrative Agent (which shall promptly notify the Swing Line Bank) irrevocable notice (which notice must be received by the Administrative Agent prior to 2:00 P.M., New York City time) on the requested Borrowing Date specifying the amount of the requested Committed Swing Line Loan to be made by the Swing Line Bank. The proceeds of each Committed Swing Line Loan shall be made available by the Swing Line Bank to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified prior to 4:30 p.m. on the requested Borrowing Date.
 
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(b) The Swing Line Loans made by the Swing Line Bank to the Company shall be evidenced by a promissory note of the Company substantially in the form of Exhibit I, with appropriate insertions (the “ Swing Line Note ”), payable to the order of the Swing Line Bank and representing the obligation of the Company to pay the unpaid principal amount of the Swing Line Loans made to the Company, with interest thereon as prescribed in subsection 2.9. The Swing Line Bank is hereby authorized to record the Borrowing Date, the amount of each Swing Line Loan made to the Company and the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of its Swing Line Note (or any continuation thereof) and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded. Each Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Termination Date and (c) bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, subsection 2.9.
(c) In the event that the Company has not notified the Administrative Agent of its intent to repay the Swing Line Loans made on any Borrowing Date by 12:00 noon New York City time on the Business Day immediately following such Borrowing Date and has not in fact repaid such Swing Line Loans (including accrued interest thereon) in full by such time, the Company shall be deemed to have made an irrevocable request to the Administrative Agent under subsection 2.3 (which for purposes of this subsection shall be deemed to be timely and sufficient) for a borrowing on such date of Revolving Credit Loans that are ABR Loans in an aggregate amount equal to the then unpaid aggregate principal amount of such Swing Line Loans made to the Company. The proceeds of such Revolving Credit Loans shall be immediately applied to repay such Swing Line Loans.
(d) In the event that for any reason whatsoever (including, without limitation, the occurrence of an event specified in paragraph (g) of Section 7 with respect to the Company), the procedures set forth in the foregoing paragraph (c) are not followed, each Bank shall, upon notice from the Administrative Agent, promptly purchase from the Swing Line Bank participations in (or, if and to the extent specified by the Swing Line Bank, a direct interest in) the Swing Line Loans made by the Swing Line Bank (collectively, the “Unrefunded Swing Line Loans”) in an aggregate amount equal to the amount of the Revolving Credit Loan it would have been obligated to make pursuant to the procedures set forth in the foregoing paragraph (c).
(e) Each Bank shall, not later than 4:00 P.M. New York City time on the Business Day on which such notice is received (if such notice is received by 2:15 P.M. New York City time) or 9:00 A.M. New York City time on the next succeeding Business Day (if such notice is received after 2:15 P.M. New York City time), make available the amount of the Revolving Credit Loan to be made by it (or the amount of the participations or direct interests to be purchased by it, as the case may be) to the
 
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Administrative Agent at the applicable office of the Administrative Agent specified in subsection 9.2 and the amount so received by the Administrative Agent shall promptly be made available to the Swing Line Bank by remitting the same, in immediately available funds, to the Swing Line Bank, in accordance with the provisions of paragraph (g) below.
(f) Whenever, at any time after the Swing Line Bank has received from any Bank such Bank’s participating interest in an Unrefunded Swing Line Loan pursuant to paragraph (d) above, the Swing Line Bank receives any payment on account thereof, the Swing Line Bank will distribute to such Bank its participating interest in such amount (appropriately adjusted in the case of interest payments, to reflect the period of time during which such Bank’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Bank is required to be returned, such Bank will return to the Swing Line Bank any portion thereof previously distributed by the Swing Line Bank to it.
(g) All payments (including prepayments) to be made by the Company hereunder and under the Swing Line Notes, whether on account of principal, interest, fees or otherwise, shall be made without set off, counterclaim or any other deduction whatsoever and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Swing Line Bank, at the Administrative Agent’s office specified in subsection 9.2, in Dollars and in immediately available funds, and upon receipt by the Administrative Agent of any payment made by the Company in accordance with the terms of this Agreement and the Swing Line Notes, the Company shall have satisfied its payment obligation with respect to the obligation on account of which such payment was made. Any such payment made at or after 1:00 P.M. New York City time, on any day shall be deemed made on the following Business Day. The Administrative Agent shall distribute such payments to the Swing Line Bank promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(h) Anything in this Agreement to the contrary notwithstanding (including, without limitation, in subsection 4.2), the obligation of each Bank to make its Revolving Credit Loan (or purchase its participation or direct interest in such Swing Line Loan, as the case may be) pursuant to this subsection 2.19 is unconditional under any and all circumstances whatsoever and shall not be subject to set-off, counterclaim or defense to payment that such Bank may have or have had against the Company, the Administrative Agent, the Swing Line Bank or any other Bank and, without limiting any of the foregoing, shall be unconditional irrespective of (i) occurrence of any Default or Event of Default, (ii) the financial condition of the Company, any Affiliate, the Administrative Agent, the Swing Line Bank or any other Bank or (iii) the termination or cancellation of the Commitments. The Company agrees that any Bank so purchasing a participation (or direct interest) in such Swing Line Loan may exercise all rights of set-off, bankers’ lien, counter claim or similar rights with respect to such participation as fully as if such Bank were a direct holder of a Swing Line Loan in the amount of such participation.
 
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2.20 Increase of Commitments.
(a) At the request of the Company to the Administrative Agent, the aggregate Commitments hereunder may be increased after the Closing Date on one or more occasions by not more than $500,000,000 provided that (i) each such increase is in a minimum amount of $50,000,000 and $10,000,000 increments in excess thereof, (ii) the sum of the aggregate Commitments hereunder shall not exceed $2,000,000,000 after giving effect to such increases, (iii) each Bank whose Commitment is increased consents, (iv) the consent of the Administrative Agent is obtained, (v) no Default or Event of Default shall have occurred and be continuing, (vi) each of the representations and warranties made on the Closing Date are true and correct in all material respects on and as of the date of such increase and (vii) if, after giving effect to such increase, the sum of the aggregate Commitments hereunder shall exceed $1,500,000,000, the approval of the Board of Directors of the Company, or a properly empowered committee of such Board, shall be obtained.
(b) In the event that the Company and one or more of the Banks (or other financial institutions which may elect to participate with the consent of the Administrative Agent) shall agree, in accordance with Section 2.20(a), upon such an increase in the aggregate Commitments, the Company, the Administrative Agent and each financial institution in question shall enter into a Commitment Increase Supplement (a form of which is attached hereto as Exhibit J) setting forth the amounts of the increase in Commitments and providing that the additional financial institutions participating shall be deemed to be included as Banks for all purposes of this Agreement. Upon the execution and delivery of such Commitment Increase Supplement as provided above, and upon satisfaction of such other conditions as the Administrative Agent may specify (including the delivery of certificates and legal opinions on behalf of the Company relating to the amendment and new Notes), this Agreement shall be deemed to be amended accordingly.
(c) No Bank shall have any obligation to increase its Commitment in the event of such a request by the Company hereunder.
2.21 Payment in Full at Maturity. The Company shall pay to the Administrative Agent, for the account of each Bank, the entire outstanding principal amount owing under the Agreement or under any Notes, together with accrued but unpaid interest and all other sums owing under the Agreement, on the Termination Date unless accelerated sooner pursuant to Section 7.
2.22 Letter of Credit Subfacility.
(a) Issuance . Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which the Issuing Lenders may reasonably require, during the Commitment Period the Issuing Lenders shall issue, and the Banks shall participate in, Letters of Credit for the account of the Company from time to time upon request in a form acceptable to the applicable Issuing Lender; provided , however , that (i) the aggregate amount of LOC Obligations shall not at any time exceed
 
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$250,000,000 (the “ LOC Committed Amount ”), (ii) the aggregate amount of LOC Obligations in respect of Letters of Credit issued by any Issuing Lender shall not exceed the LOC Commitment of such Issuing Lender, (iii) the Dollar Amount (determined as of the most recent Revaluation Date) of outstanding Revolving Credit Loans plus outstanding Swing Line Loans plus outstanding Bid Loans plus outstanding LOC Obligations shall not exceed the aggregate amount of the Commitments at such time, (iv) Letters of Credit shall be issued for lawful corporate purposes and may be issued as standby letters of credit and (v) all Letters of Credit shall be denominated in Dollars or Foreign Currency. Except as otherwise expressly agreed upon by all the Banks, no Letter of Credit shall have an original expiry date more than twelve (12) months from the date of issuance; provided , however , subject to the other terms and conditions to the issuance of Letters of Credit hereunder, the expiry dates of Letters of Credit may be extended annually or periodically from time to time on the request of the Company or by operation of the terms of the applicable Letter of Credit to a date not more than twelve (12) months from the date of extension; provided , further , that no Letter of Credit, as originally issued or as extended, shall have an expiry date extending beyond the date that is thirty (30) days prior to the Termination Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance and expiry date of each Letter of Credit shall be a Business Day. Any Letters of Credit issued hereunder shall be in a minimum original face amount of $50,000.
(b) Notice and Reports . The request for the issuance of a Letter of Credit shall be submitted to the applicable Issuing Lender at least five (5) Business Days prior to the requested date of issuance. Each Issuing Lender will promptly, upon the issuance, amendment or expiration of any Letter of Credit, or upon request, provide to the Administrative Agent for dissemination to the Banks a detailed report specifying the Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of any prior report, and including therein, among other things, the account party, the beneficiary, the face amount, expiry date as well as any payments or expirations which may have occurred. Each Issuing Lender will further provide to the Administrative Agent promptly upon request copies of the Letters of Credit. Each Issuing Lender will provide to the Administrative Agent promptly upon request a summary report of the nature and extent of LOC Obligations then outstanding.
(c) Participations . Each Bank, upon issuance of a Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the applicable Issuing Lender in such Letter of Credit and the obligations arising thereunder and any collateral relating thereto, in each case in an amount equal to its Commitment Percentage of the obligations under such Letter of Credit and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the applicable Issuing Lender therefor and discharge when due, its Commitment Percentage of the obligations arising under such Letter of Credit. Without limiting the scope and nature of each Bank’s participation in any Letter of Credit, to the extent that an Issuing Lender has not been reimbursed as required hereunder or under any LOC Document, each such Bank shall pay to such Issuing Lender its Commitment Percentage of such unreimbursed drawing in same day funds on the day of notification by such Issuing Lender of an unreimbursed drawing pursuant to and in accordance with the provisions of
 
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subsection (d) hereof if such notice is received at or before 2:00 P.M. (New York City time), otherwise such payment shall be made at or before 12:00 Noon (New York City time) on the Business Day next succeeding the day such notice is received. The obligation of each Bank to so reimburse the Issuing Lenders shall be absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of the Company to reimburse the Issuing Lenders under any Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement . In the event of any drawing under any Letter of Credit, the applicable Issuing Lender will promptly notify the Company and the Administrative Agent. The Company shall reimburse the applicable Issuing Lender on the day of drawing under any Letter of Credit (with the proceeds of a Revolving Credit Loan obtained hereunder or otherwise) in same day funds as provided herein or in the LOC Documents. If the Company shall fail to reimburse such Issuing Lender as provided herein, the unreimbursed Dollar Amount of such drawing shall bear interest at a per annum rate equal to the ABR plus two percent (2%) for so long as such amount shall be unreimbursed. Unless the Company shall immediately notify the applicable Issuing Lender and the Administrative Agent of its intent to otherwise reimburse such Issuing Lender, the Company shall be deemed to have requested a LOC Mandatory Borrowing in the amount of the drawing as provided in subsection (f) hereof, the proceeds of which will be used to satisfy the reimbursement obligations. Each Issuing Lender will promptly notify the other Banks of the amount of any unreimbursed drawing and each Bank shall promptly pay to the Administrative Agent for the account of the applicable Issuing Lender in Dollars and in immediately available funds, the amount of such Bank’s Commitment Percentage of such unreimbursed drawing. Such payment shall be made on the day such notice is received by such Bank from such Issuing Lender if such notice is received at or before 2:00 P.M. (New York City time), otherwise such payment shall be made at or before 12:00 Noon (New York City time) on the Business Day next succeeding the day such notice is received. If such Bank does not pay such amount to the applicable Issuing Lender in full upon such request, such Bank shall, on demand, pay to the Administrative Agent for the account of the applicable Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Bank pays such amount to such Issuing Lender in full at a rate per annum equal to, if paid within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and thereafter at a rate equal to the ABR. Each Bank’s obligation to make such payment to the Issuing Lenders, and the right of each Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the termination of this Agreement or the Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the Obligations hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Repayment Obligation Absolute . The Company’s reimbursement obligations hereunder relating to any Letter of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation, the following circumstances (it
 
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being understood that any such payment by the Company is without prejudice to, and does not constitute a waiver of, any rights the Company might have or might acquire as a result of the payment by any Issuing Lender or any Bank of any draft or the reimbursement by the Company thereof):
(i) any lack of validity or enforceability of this Agreement, any Note, any Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the “ L/C Related Documents ”);
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Company in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that the Company may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Lender, the Administrative Agent, any Bank or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Lender under a Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Obligations of the Company in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or a guarantor.
(f) Repayment with Revolving Credit Loans . On any day on which the Company shall have requested, or been deemed to have requested, a Revolving Credit Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Banks that a Revolving Credit Loan has been requested or deemed requested in connection with a drawing under a Letter of Credit, in which case a Revolving Credit Loan borrowing comprised entirely of ABR Loans (each such borrowing, a “LOC Mandatory Borrowing”) shall be immediately made (without giving effect to any termination of the Commitments pursuant to Section 7) pro rata based on each Bank’s respective Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7). The proceeds of such LOC
 
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Mandatory Borrowing shall be paid directly to the applicable Issuing Lender for application to the respective LOC Obligations. Each Bank hereby irrevocably agrees to make such Revolving Credit Loans immediately upon any such request or deemed request on account of each LOC Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date notwithstanding (i) the amount of LOC Mandatory Borrowing may not comply with the minimum amount for borrowings of Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) failure for any such request or deemed request for Revolving Credit Loan to be made by the time otherwise required in Section 2.3, (v)   the date of such LOC Mandatory Borrowing, or (vi) any reduction in the aggregate amount of the Commitments after any such Letter of Credit may have been drawn upon; provided , however , that in the event any such LOC Mandatory Borrowing should be less than the minimum amount for borrowings of Revolving Credit Loans otherwise provided in Section 2.3, the Company shall pay to the Administrative Agent for its own account an administrative fee of $500. In the event that any LOC Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code), then each such Bank hereby agrees that it shall forthwith fund (as of the date the LOC Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Company on or after such date and prior to such purchase) its Participation Interests in the outstanding LOC Obligations; provided , further , that in the event any Bank shall fail to fund its Participation Interest on the day the LOC Mandatory Borrowing would otherwise have occurred, then the amount of such Bank’s unfunded Participation Interest therein shall bear interest payable by such Bank to the applicable Issuing Lender upon demand, at the rate equal to, if paid within two (2) Business Days of such date, the Federal Funds Effective Rate, and thereafter at a rate equal to the ABR.
(g) Modification, Extension . The issuance of any supplement, modification, amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be treated in all respects the same as the issuance of a new Letter of Credit hereunder.
(h) Letter of Credit Governing Law . Unless otherwise expressly agreed by the applicable Issuing Lender and the Company when a Letter of Credit is issued, the rules of “International Standby Practices 1998,” as most recently published by the Institute of International Banking Law & Practice at the time of issuance, shall apply to each standby Letter of Credit.
2.23 Indemnification; Nature of Issuing Lender’s Duties.
(a) In addition to its other obligations under Section 2.22, the Company hereby agrees to protect, indemnify, pay and save each Issuing Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that any Issuing Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit on behalf such Company or (ii) the failure of an Issuing Lender to honor a drawing under a Letter of Credit issued on behalf of the Company as a result of any act or omission,
 
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whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “ Government Acts ”).
(b) As between the Company and the Issuing Lenders, the Company shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Issuing Lender shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions required in order to draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes beyond the control of the applicable Issuing Lender, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of the Issuing Lenders’ rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by an Issuing Lender, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in the absence of gross negligence or willful misconduct, shall not put such Issuing Lender under any resulting liability to the Company. It is the intention of the parties that this Agreement shall be construed and applied to protect and indemnify the Issuing Lenders against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Company, including, without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any Government Authority. No Issuing Lender shall, in any way, be liable for any failure by an Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of such Issuing Lender. Notwithstanding anything to the contrary herein, the Company shall have a claim against any Issuing Lender and such Issuing Lender shall be liable to the Company, to the extent of any direct, but not consequential, damages suffered by the Company that the Company proves were caused by (i) such Issuing Lender’s willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Lender’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
 
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(d) Except as provided in subsection (e) below, nothing in this Section 2.23 is intended to limit the Reimbursement Obligation of the Company contained in Section 2.22(d) hereof. The obligations of the Company under this Section 2.23 shall survive the termination of this Agreement. No act or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing Lenders to enforce any right, power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.20 the Company shall have no obligation to indemnify an Issuing Lender in respect of any liability incurred by such Issuing Lenders arising out of the gross negligence or willful misconduct of such Issuing Lender (including action not taken by such Issuing Lender), as determined by a court of competent jurisdiction.
2.24 Defaulting Banks.
(a) In the event that, at any one time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Loan to the Company and (iii) the Company shall be required to make any payment hereunder to or for the account of such Defaulting Bank, then the Company may, so long as no Event of Default shall occur or be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the obligations of the Company to make such payment to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Loan. In the event that, on any date, the Company shall so set off and otherwise apply its obligation to make any such payment against the obligation of such Defaulting Bank to make any such Defaulted Loan on or prior to such date, the amount so set off and otherwise applied by the Company shall constitute for all purposes of this Agreement a Loan by such Defaulting Bank made on the date of such setoff under the provision hereof pursuant to which such Defaulted Loan was originally required to have been made. Such Loan shall be considered, for all purposes of this Agreement, to comprise part of the Loan in connection with which such Defaulted Loan was originally required to have been made. The Company shall notify the Administrative Agent at any time the Company exercises its right of set-off pursuant to this subsection (a) and shall set forth in such notice (A) the name of the Defaulting Bank and the Defaulted Loan required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Loan pursuant to this subsection (a). Any portion of such payment otherwise required to be made by the Company to or for the account of such Defaulting Bank which is paid by the Company, after giving effect to the amount set off and otherwise applied by the Company pursuant to this subsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.24.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any of the other Banks and (iii) the Company shall make any payment hereunder to the Administrative Agent for the account of such Defaulting Bank, then the Administrative Agent may, on its behalf or on behalf of such other Bank and to the fullest extent permitted by applicable law, apply at such time the amount so paid by the Company to or for the account of such Defaulting Bank to the payment of each such Defaulted Amount
 
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to the extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement payment, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks in the following order of priority:
first , to the Administrative Agent for any Defaulted Amounts then owing to it, in its capacity as such, ratably in accordance with such Defaulted Amounts then owing to the Administrative Agent;
second , to the Issuing Banks and the Swing Line Bank for any Defaulted Amounts then owing to them, in their capacities as such, ratably in accordance with such respective Defaulted Amounts then owing to the Issuing Banks and the Swing Line Bank; and
third , to any Bank for any Defaulted Amounts then owing to such Bank, ratably in accordance with such respective Defaulted Amounts then owing to such Bank.
(c) The rights and remedies against a Defaulting Bank under this Section 2.24 are in addition to other rights and remedies that the Company may have against such Defaulting Bank with respect to any Defaulted Loan and that the Administrative Agent or any Bank may have against such Defaulting Bank with respect to any Defaulted Amount.
SECTION 3
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the Loans the Company hereby represents and warrants to the Administrative Agent and each Bank as of the Closing Date and as of the date of each Extension of Credit that:
3.1 Financial Condition. The combined financial statements of the Company and its Subsidiaries delivered to the Administrative Agent in connection with this Agreement, including the audited financial statement for the fiscal year ended December 31, 2005 and the unaudited pro forma financial statements included in the Western Union Form 10 (the “ Spin-Off Financial Statements ”), copies of which have heretofore been furnished to each Bank, present fairly the combined financial condition of the Company and its Subsidiaries as of the dates and for the periods indicated, subject to the qualifications with respect to the pro forma financial statements set forth therein. Neither the Company nor any of its Subsidiaries had, at the date of the most recent balance sheet referred to above, any guarantee obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing statements or in the notes thereto and which, to the best of the Company’s knowledge, would have a Material Adverse Effect.
 
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3.2 No Change. Except as disclosed in the Western Union Form 10 (or in any Form 10-Q, 8-K or other public filing of the Company with the Securities Exchange Commission filed after date thereof but prior to the Closing Date), during the period from date of the Spin-Off Financial Statements to and including the Closing Date, no change, or development or event involving a prospective change, has occurred which has had or could reasonably be expected to have a Material Adverse Effect; provided, however that the foregoing representation is made solely as of the Closing Date and on the date of any commitment increase pursuant to Section 2.20.
3.3 Corporate Existence; Compliance with Law. Each of the Company and its Significant Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except to the extent that, in the aggregate, the failure of any such Subsidiaries to be duly organized, validly existing or in good standing would not have a Material Adverse Effect, (b) has the corporate (or other) power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that, in the aggregate, the failure of any such Subsidiaries to have any such power, authority or legal right would not have a Material Adverse Effect, (c) is duly qualified and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent that, in the aggregate, the failure of the Company and its Subsidiaries to so qualify or be in good standing would not have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law except to the extent that, in the aggregate, the failure of the Company and its Subsidiaries to comply therewith would not have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Company has the corporate power and authority, and the legal right, to make, deliver and perform this Agreement and the Notes and to borrow hereunder and has taken all necessary corporate action to authorize its Obligations on the terms and conditions of this Agreement and the Notes and to authorize the execution, delivery and performance of this Agreement and the Notes. No consent or authorization of, filing with or other act by or in respect of, any Governmental Authority or any other Person (except as have been obtained or made) is required in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or the Notes. This Agreement has been, and each Note will be, duly executed and delivered on behalf of the Company. This Agreement constitutes, and each Note when executed and delivered will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this Agreement and the Notes, the Obligations hereunder and the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation of the Company or of any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
 
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3.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Company, threatened by or against the Company or any of its Subsidiaries or against any of its or their respective properties or revenues which (a) except as listed on Schedule 3.6 or disclosed in the Western Union Form 10 (or in any subsequent filing of the Company with the Securities and Exchange Commission made prior to the Closing Date), on the Closing Date and on the date of any commitment increase pursuant to Section 2.20, would have a Material Adverse Effect or (b) would have a material adverse effect on the validity or enforceability of this Agreement or any of the Notes or the rights or remedies of the Administrative Agent or the Banks hereunder or thereunder, provided, however that the representation in clause (a) of this Section 3.6 is made solely as of the Closing Date and on the date of any commitment increase pursuant to Section 2.20.
3.7 No Default. No Default or Event of Default has occurred and is continuing.
3.8 Taxes. Each of the Company and its Significant Subsidiaries has filed or caused to be filed all tax returns which, to the knowledge of the Company, are required to be filed and has paid all material taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all material other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Company or its Subsidiaries, as the case may be); on the Closing Date and on the date of any commitment increase pursuant to Section 2.20, no tax Lien has been filed, and, to the knowledge of the Company, no claim is being asserted, with respect to any such tax, fee or other charge.
3.9 Federal Regulations. No part of the proceeds of any Loans or Letters of Credit will be used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U or Regulation X of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect if such use would violate, or cause the Loans or the Commitments to be in violation of, the provisions of the Regulations of such Board of Governors. If requested by any Bank or the Administrative Agent at any time (and in any case prior to or concurrently with the borrowing of any Loan the proceeds of which will be used to purchase or carry margin stock), the Company will furnish to the Administrative Agent and each Bank a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in said Regulation U.
3.10 ERISA. Except to the extent that all of the following, in the aggregate, would not have a Material Adverse Effect: (i) no Reportable Event has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan, and each Plan has complied in all material respects with the applicable provisions of ERISA and the Code; (ii) the present value of all accrued benefits under each Single Employer Plan maintained by the Company or any Commonly Controlled Entity (based on those assumptions used to fund the Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits based upon the actuarial assumptions used by such Plan; (iii) neither the Company nor any Commonly Controlled Entity has or has had any liability or obligation in
 
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respect of any Multiemployer Plan; and (iv) the present value (determined using actuarial and other assumptions which are reasonable in respect of the benefits provided and the employees participating) of the liability of the Company and each Commonly Controlled Entity for post retirement benefits, if any, to be provided to their current and former employees under Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all such Plans or other funding arrangements allocable to such benefits, if any; (v) no application for a minimum funding waiver with respect to a Plan has been made; and (vi) the PBGC has not instituted proceedings to terminate a Plan pursuant to Section 4042 of ERISA, nor has any event of condition descried in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan occurred.
3.11 Investment Company Act. Neither the Company nor any of its Subsidiaries is subject to registration as an “investment company” or is “controlled” by such a company, within the meaning of the Investment Company Act of 1940, as amended.
3.12 Purpose of Loans. The proceeds of the Loans and Letters of Credit shall be used by the Company to refinance existing Indebtedness, to provide financing for the working capital needs of the Company, to provide back-up and liquidity for the short term Indebtedness of the Company and to provide funds for general corporate purposes, including, without limitation, acquisitions and cash payments to be made to First Data Corporation in connection with the spin-off of the Company from First Data Corporation as set forth in the Western Union Form 10; provided that, the Company shall not apply proceeds of the Loans and Letters of Credit, directly or indirectly, in repayment of the Related Financings.
3.13 Disclosure. On the Closing Date and on the date of any commitment increase pursuant to Section 2.20, neither this Agreement, the Notes, nor the Information Materials, taken as a whole with the Western Union Form 10 (or in any subsequent filing of the Company with the Securities and Exchange Commission made prior to the Closing Date) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances in which they were made, not materially misleading.
3.14 Ranking. The Loans shall remain at least pari passu with all other senior unsecured obligations of the Company.
3.15 Compliance with OFAC, FCPA. Company is in material compliance with all applicable United States economic and trade sanctions, including those administered by the Office of Foreign Asset Control within the United States Department of the Treasury, and the United States Foreign Corrupt Practices Act.
3.16 Closing Date Representations and Warranties. The representations and warranties of the Company made in this Agreement on or as of the Closing Date shall be deemed to be made immediately after giving effect to the spin-off of the Company described in the Western Union Form 10.
 
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SECTION 4
CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The agreements of each Bank contained herein are subject to the satisfaction of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of the Company, and (ii) for the account of each Bank, a Note conforming to the requirements hereof and executed by a duly authorized officer of the Company.
(b) Corporate Proceedings of the Company. The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the Board of Directors of the Company authorizing (i) the execution, delivery and performance of this Agreement and the Notes and (ii) the borrowings contemplated hereunder, certified by the Secretary or an Assistant Secretary of the Company as of the Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded and are in full force and effect and shall be in form and substance satisfactory to the Administrative Agent.
(c) Corporate Documents. The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by-laws of the Company, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of the Company.
(d) No Violation. The consummation of the transactions contemplated hereby shall not contravene, violate or conflict with, nor involve the Administrative Agent or any Bank in any violation of, any Requirement of Law.
(e) Fees. The Administrative Agent shall have received the fees to be received on the Closing Date referred to in subsection 2.4.
(f) Legal Opinion. The Administrative Agent shall have received the executed legal opinion of counsel of the Company, substantially in the form of Exhibit C, and the Company hereby instructs its counsel to execute and deliver such opinion to the Administrative Agent. Such legal opinion shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require.
(g) Litigation. Except as listed on Schedule 3.6 hereto, there shall exist no pending or threatened litigation, bankruptcy or insolvency, injunction, order or claim which could have a material adverse effect on this Agreement or the Company and its Subsidiaries taken as a whole.
(h) Consents and Approvals. All consents and approvals of the boards of directors, shareholders and other applicable third parties necessary in connection with this Agreement shall have been obtained.
 
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(i) Material Adverse Change. No material adverse change shall have occurred since the date of the Spin-Off Financial Statements in the business, assets, liabilities, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole.
(j) Financial Statements. The Administrative Agent shall have received copies of the financial statements referred to in Section 3.1 hereof, each in form and substance reasonably satisfactory to it.
(k) Patriot Act Certificate. The Administrative Agent shall have received a certificate reasonably satisfactory thereto, for benefit of itself and the Banks, provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of the Company, the name and address of the Company and other information that will allow the Administrative Agent or any Bank, as applicable, to identify such Company in accordance with the Patriot Act (as defined in Section 9.9 hereof).
(l) Consummation of Spin-Off. All conditions precedent to the transactions described in the Western Union Form 10 relative to the spin-off of the Company from First Data Corporation (other than any condition of payment with the proceeds of Loans made hereunder) shall have been satisfied.
4.2 Conditions to Each Loan. The agreement of each Bank and each Swing Line Bank to make any Loan (other than the conversion or continuation of any Loan pursuant to subsection 2.7) requested to be made by it on any date (including, without limitation, its initial Loan) and the agreement of the Issuing Lenders to issue Letters of Credit is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and warranties made by the Company in this Agreement shall be true and correct in all material respects on and as of such date as if made on and as of such date, both before and after giving effect to the making of such Loans or the issuance of such Letter of Credit (except any representation or warranty relating to or made expressly as of a specific date shall be true and correct in all material respects solely with respect to and as of such specific date).
(b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Loans requested to be made on such date.
(c) Borrowing Certificate. In the case of Revolving Credit Loans, the Administrative Agent shall have received, on or prior to the time required for its receipt pursuant to subsection 2.3, a Borrowing Certificate with respect to the Loans requested to be made on such date.
(d) Bid Loan Confirmation. With respect to any Bid Loan, a Bid Loan Confirmation shall have been delivered in accordance with subsection 2.18(b)(iv).
 
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(e) Bid Note. With respect to any Bid Loan, the Company shall have delivered a Bid Note to the Bank providing such Bid Loan.
Each borrowing or request for the issuance of a Letter of Credit by the Company hereunder shall constitute a representation and warranty by the Company as of the date of such Loan or such issuance that the conditions contained in subsection 4.2(a) and (b) have been satisfied.
SECTION 5
AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect, any Note or LOC Obligation remains outstanding and unpaid or any other amount is owing to any Bank or the Administrative Agent hereunder, the Company shall:
5.1 Financial Statements. Furnish to the Administrative Agent (which shall promptly make available to the Banks):
(a) as soon as available, but in any event no later than the earlier of (i) the date that is five days after the Company is required by the SEC to deliver its Form 10-K for any fiscal year of the Company and (ii) 95 days after the end of each fiscal year of the Company, a copy of the consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or any qualification arising out of the scope of the audit, provided that to the extent different components of such consolidated financial statements are separately audited by different independent public accounting firms, the audit report of any such accounting firm may contain a qualification or exception as to scope of such consolidated financial statements by Ernst & Young LLP or other independent certified public accountants of nationally recognized standing not unacceptable to the Majority Banks (it being understood that any of the following accounting firms: Deloitte & Touche, Ernst & Young LLP, KPMG and PricewaterhouseCoopers shall not be unacceptable to the Banks; and
(b) as soon as available, but in any event not later than the earlier of (i) the date that is five days after the Company is required by the SEC to deliver its Form 10-Q for each of the first three quarterly periods of each fiscal year of the Company and (ii) 50 days after the end of each of the first three quarterly periods of each fiscal year of the Company, the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and retained earnings and of cash flows of the Company and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments);
 
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all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein with a reasonable estimate of the effect on such financial statements on account of such changes in application).
5.2 Certificates; Other Information. Furnish to the Administrative Agent (which shall promptly make available to the Banks):
(a) concurrently with the delivery of the financial statements referred to in subsections 5.1(a) and 5.1(b), a certificate of a Responsible Officer stating that such Officer has obtained no knowledge of any Default or Event of Default that has occurred and is continuing except as specified in such certificate;
(b) promptly upon receipt thereof, copies of the executive summary portion of any final auditor’s letter or auditor’s report submitted to the Company’s board of directors or any committee thereof relating to internal financial controls of the Company or any Subsidiary; and
(c) promptly, such additional financial and other information as any Bank through the Administrative Agent may from time to time reasonably request.
5.3 Conduct of Business and Maintenance of Existence. Continue to engage in business of substantially the same general type as now conducted by it or any business reasonably ancillary, complementary or related thereto, taken as a whole, and preserve, renew and keep in full force and effect its corporate existence and take such reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business except as otherwise permitted pursuant to subsection 6.4; comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith would not, in the aggregate, have a Material Adverse Effect.
5.4 Inspection of Property; Books, Records and Discussions.
(a) Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law are to be made of all dealings and transactions in relation to its business and activities.
(b) Permit representatives of the Administrative Agent and the Banks (other than Excluded Individuals of the Administrative Agent and the Banks) which are not Competitors to visit and inspect at their own expense (unless a Default or Event of Default has occurred and is continuing, in which case at the Company’s expense) any of its properties and examine and make abstracts from any of its books and records at any reasonable time upon reasonable prior notice to the Company and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition of the Company and its Subsidiaries with officers and employees of the Company and its Subsidiaries and with its independent certified public accountants, provided that (i) representatives of the Company shall have the opportunity to be present at any meeting with its independent certified public accountants and (ii) the Company
 
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and its Subsidiaries shall have no obligation to provide access to information which is the subject of a confidentiality agreement between the Company or any of its Subsidiaries, on the one hand, and a customer of the Company or of any of its Subsidiaries, on the other hand. The Administrative Agent shall endeavor to coordinate such visits by the Banks in order to minimize inconvenience to the Company, and so long as no Event of Default shall be continuing, such visits shall occur not more frequently than once per fiscal quarter.
5.5 Notices. Promptly give notice to the Administrative Agent (and the Administrative Agent shall promptly notify each Bank) of:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of a Change of Control;
(c) any litigation, investigation or proceeding which would have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within ten Business Days after the Company or any Commonly Controlled Entity knows or has reason to know thereof: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, the commencement of any obligation to contribute to any Multiemployer Plan by the Company or any Commonly Controlled Entity, or any withdrawal from, or the termination, Reorganization or Insolvency of any Multiemployer Plan; (ii) the institution of proceedings or the taking of any other action by the PBGC or the Company or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan; (iii) the application for a minimum funding waiver with respect to a Plan has been made; (iv) all of the requirements for imposition of a lien under Section 302(f) of ERISA have been met with respect to any Plan; and (iv) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; and
(e) the use of the proceeds of any Loans for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Company proposes to take with respect thereto.
5.6 Covenant to Deliver Guaranty. Upon the date that is the earlier of (x) 364 days after the incurrence of Indebtedness under the Related Financings by any Subsidiary of the Company and (y) the date on which any of the Related Financings are refinanced by any Subsidiary of the Company, if the sum (the “Guarantee Triggering Amount”) of (i) the then outstanding aggregate principal amount of Indebtedness under the Related Financings, plus (ii) the then outstanding aggregate principal amount of all other Indebtedness of any Significant Subsidiary that is subject to limitation under Section 6.1, plus (iii) the aggregate amount of
 
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indebtedness secured by Liens permitted under Section 6.2(j), plus (iv) the discounted present value of all net rentals payable under leases covered by Section 6.3(a) (and not expressly excluded therefrom) exceeds the greater of $300,000,000 or 15% of Consolidated Net Worth, then at the Company’s expense, the Company shall:
(a) cause each such Subsidiary that has outstanding Indebtedness under the Related Financings (each such Subsidiary, a “Subsidiary Guarantor”) to duly execute and deliver to the Administrative Agent a guaranty, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Obligations, and
(b) within 30 days after such request, deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, (i) a certificate attesting to the solvency of such Subsidiary, (ii) a copy of the resolutions of the board of directors of such Subsidiary authorizing the execution, delivery and performance of such guaranty and (iii) a signed copy of a favorable opinion, addressed to the Administrative Agent and the Banks, Issuing Lenders and the Swing Line Bank, of counsel for such Subsidiary (which may be in-house counsel) reasonably acceptable to the Administrative Agent as to (A) the matters contained in clause (a) above, (B) such guaranty being legal, valid and binding obligations of such Subsidiary thereto enforceable in accordance with their terms (subject to customary exceptions) and (C) such other matters as the Administrative Agent may reasonably request.
Any guaranty provided pursuant to this Section 5.6 shall be automatically released upon (i) the sale or other disposition (including by way of consolidation or merger, other than a consolidation or merger into the Company) of any Subsidiary Guarantor or the sale or disposition of the assets as an entirety or substantially as an entirety of such Subsidiary Guarantor (other than to the Company) otherwise permitted by this Agreement, (ii) the Guarantee Triggering Amount being reduced to equal to or less than the greater of $300,000,000 or 15% of Consolidated Net Worth., or (iii) a consolidation or merger of such Subsidiary Guarantor with or into the Company.
SECTION 6
NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect, any Note or LOC Obligation remains outstanding and unpaid or any other amount is owing to any Bank or the Administrative Agent hereunder, the Company shall not:
6.1 Limitation on Significant Subsidiary Indebtedness. Permit any of its Significant Subsidiaries, directly or indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes of this subsection 6.1 shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Significant Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under this Agreement, (B) the Related Financings (and any Guarantee Obligations in respect thereof) and (C) Indebtedness owed to the Company or a Significant Subsidiary, including any renewal or replacement of any of the obligations under clauses (A), (B) or (C)), (y)
 
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the aggregate amount of indebtedness secured by Liens permitted under Section 6.2(j) and (z) the discounted present value of all net rentals payable under leases covered by subsection 6.3(a) (and not expressly excluded therefrom) would not exceed the greater of $300,000,000 or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Significant Subsidiary in the ordinary course of business consistent with past practice, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under this Agreement, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under this Agreement; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a Significant Subsidiary or is merged with or into the Company or a Significant Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Significant Subsidiary or otherwise deemed to be Indebtedness of a Significant Subsidiary for the purposes of this covenant.
6.2 Limitation on Liens. Directly or indirectly, create, incur, assume or suffer to exist, or permit any of its Significant Subsidiaries to create, incur, assume or suffer to exist, any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for:
(a) any Lien on any property now owned or hereafter acquired or constructed by the Company or a Subsidiary, or on which property so owned, acquired or constructed is located, which Lien (i) in the case of any property so acquired, existed on such property at the time of acquisition thereby by the Company or such Subsidiary or (ii) secures or provides for the payment of any part of the purchase or construction price or cost of improvements of such property and was created prior to, contemporaneously with or within 360 days after, such purchase, construction or improvement (and any replacements or refinancings for such Liens); provided, that (i) if a firm commitment from a bank, insurance company or other lender or investor (not including the Company, a Subsidiary or an Affiliate of the Company) for the financing of the acquisition or construction of property is made prior to, contemporaneously with or within the 360-day period hereinabove referred to, the applicable Lien shall be deemed to be permitted by this paragraph (a) whether or not created or assumed within such period, and (ii) each such Lien is not spread to cover any additional property and the amount of Indebtedness secured thereby is not increased;
(b) Liens for taxes not yet delinquent or which are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves with respect
 
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thereto are maintained on the books of the Company or its Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business;
(d) Liens of landlords or of mortgagees of landlords arising by operation of law;
(e) pledges, deposits or other Liens in connection with workers’ compensation, unemployment insurance, other social security benefits or other insurance related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements) and Liens on the proceeds of insurance policies created in connection with any of the foregoing;
(f) Liens arising by reason of any judgment, decree or order of any court or other Governmental Authority, if appropriate legal proceedings which have been duly initiated for the review of such judgment, decree or order, are being diligently prosecuted and have not been finally terminated or the period within which such proceedings may be initiated shall not have expired;
(g) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds, judgment and like bonds, replevin and similar bonds and other obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances incurred in the ordinary course of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries taken as a whole;
(i) Liens on Purchased Receivables and related assets granted in connection with one or more Purchased Receivables Financings; and
(j) any Lien not otherwise permitted under this subsection 6.2, provided that the aggregate amount of indebtedness secured by all such Liens, together with (x) the aggregate principal amount of Subsidiary Indebtedness that is subject to limitation under Section 6.1 and (y) the aggregate sale price of property involved in sale and leaseback transactions not otherwise permitted except under subsection 6.3(a), does not exceed the greater of $300,000,000 or 15% of Consolidated Net Worth.
 
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6.3 Limitation on Sales and Leasebacks. Sell or transfer, or permit any Subsidiary to sell or transfer, (except to the Company or one or more of its wholly-owned Subsidiaries, or both) any Principal Facility owned by it on the date of this Agreement with the intention of taking back a lease of such property, other than a lease relating to computer hardware with lease terms of four years or less, unless either:
(a) the sum of the aggregate sale price of property involved in sale and leaseback transactions not otherwise permitted under this subsection plus (x) the aggregate principal amount of Subsidiary Indebtedness subject to limitation under Section 6.1 and (y) the aggregate amount of indebtedness secured by all mortgages, pledges, liens and encumbrances not otherwise permitted except under subsection 6.2(j) does not exceed the greater of $300,000,000 or 15% of Consolidated Net Worth; or
(b) the Company within 120 days after the sale or transfer shall have been made by the Company or by any such Subsidiary applies an amount equal to the greater of (i) the net proceeds of the sale of the Principal Facility sold and leased back pursuant to such arrangement or (ii) the fair market value of the Principal Facility sold and leased back at the time of entering into such arrangement (which may be conclusively determined by the Board of Directors of the Company) to the retirement of Funded Indebtedness of the Company; provided, that the amount required to be applied to the retirement of Funded Indebtedness of the Company pursuant to this clause (b) shall be reduced by the principal amount of any Funded Indebtedness of the Company voluntarily retired by the Company within 120 days after such sale, whether or not any such retirement of Funded Indebtedness shall be specified as being made pursuant to this clause (b). Notwithstanding the foregoing, no retirement referred to in this clause (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.
6.4 Limitations on Fundamental Changes. Directly or indirectly, sell, assign, lease, transfer or otherwise dispose of all or substantially all of its assets or consolidate with or merge into any Person or permit any Person to merge into it, provided that the Company may enter into a consolidation or merger with any Person if (i) the survivor formed by or resulting from such consolidation or merger is the Company and (ii) at the time of such consolidation or merger and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing.
6.5 Limitations on Restrictions on Dividends. Permit any Significant Subsidiary exclusively organized under the laws of the United States of America or any state thereof to enter into any arrangement with any Person which in any way prohibits, limits the amount of or otherwise impairs the declaration or distribution by such Subsidiary of dividends on its Capital Stock (other than limitations arising under (i) any Requirement of Law, (ii) any agreement or instrument in effect at the time a Person first became a Subsidiary of the Company or the date such agreement or instrument is otherwise assumed by the Company or any of its Subsidiaries, so long as such agreement or instrument was not entered into solely in contemplation of such Person becoming a Subsidiary of the Company or such assumption, and (iii) any agreement or instrument entered into in connection with the sale of such Subsidiary) if such arrangement, together with all other similar arrangements, could reasonably be expected to have a Material Adverse Effect.
6.6 Financial Covenant. Permit the ratio of (i) combined or consolidated EBITDA of the Company and its Subsidiaries for any period of four consecutive fiscal quarters for which financial statements have most recently been delivered under Section 5.1 commencing with the fiscal period ending September 30, 2006 to (ii) interest expense during such period in respect of
 
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all Covenant Indebtedness of the Company and its Subsidiaries to be less than 2.00 : 1.00. “ Covenant Indebtedness ” means all indebtedness that, in accordance with GAAP, is required to be reflected as a liability on a consolidated balance sheet of the Company and its Subsidiaries.
SECTION 7
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Note when due in accordance with the terms thereof or hereof; or the Company shall fail to reimburse the Issuing Lenders for any LOC Obligations when due in accordance with the terms hereof; or the Company shall fail to pay any interest on any Note, or any other amount payable hereunder, within three Business Days after any such interest or other amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made, or deemed made pursuant to subsection 4.2, by the Company herein or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of the date made or deemed made or furnished; or
(c) The Company shall default in the observance or performance of any agreement contained in subsection 5.4(b), 5.5(a) or 5.5(b) or Section 6; or
(d) A Change of Control shall occur; or
(e) The Company shall default in the observance or performance of any other agreement contained in this Agreement (other than as provided in paragraphs (a) through (d) of this Section), and such default shall continue unremedied for a period of 30 days after the earlier of written notification to the Company by the Administrative Agent or any Bank or after any Responsible Officer becomes aware or, with reasonable diligence, would become aware of such default; or
(f) The Company or any of its Significant Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Notes) or in the payment of any Guarantee Obligation, beyond the period of grace (not to exceed 30 days), if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created, and such default shall be continuing; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Guarantee Obligation or contained in any instrument or agreement evidencing, securing or relating thereto beyond any applicable period of grace, and such default shall be continuing, or any other event shall occur or condition exist and be continuing, the effect of which default or other event or condition is to cause, or permit the holders of such Indebtedness or Guarantee Obligation to cause, such Indebtedness to become due or required to be purchased, redeemed or otherwise defeased prior to its stated maturity or such Guarantee Obligation to become payable, provided that the
 
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aggregate principal amount of any such Indebtedness and Guarantee Obligations outstanding at such time, when aggregated with the outstanding principal amount of all other such Indebtedness and Guarantee Obligations in respect of which the Company or any Significant Subsidiary shall have so defaulted or an event shall have occurred or a condition exists as described above, aggregates $100,000,000 or more; or
(g) (i) The Company or any of its Significant Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Company or any of its Significant Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Company or any of its Significant Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Company or any of its Significant Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Company or any of its Significant Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Company or any of its Significant Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(h) (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Banks, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Banks is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or
 
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(i) The rendering against the Company or any Significant Subsidiary of one or more final nonappealable judgments, decrees or orders for the payment of money which, either singly or in the aggregate with all other monies in respect of which a final nonappealable judgment, decree or order for payment shall have been rendered against the Company or any Significant Subsidiary, aggregates $100,000,000 or more, and the continuance of such judgments, decrees or orders unsatisfied and in effect for any period of 30 consecutive days or, in the case of a foreign judgment, decree or order the enforcement of which is not being sought in the United States, 60 consecutive days without a stay of execution; provided, however, that any such amount shall be calculated after deducting from the sum so payable any amount of such judgment or order that is covered by a valid and binding policy of insurance in favor of the Company or such Subsidiary from an insurer that is rated at least “A” by A.M. Best Company, which policy covers full payment thereof and which insurer has been notified, and has not disputed the claim made for payment, of such amount of such judgment or order;
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (g) above with respect to the Company, automatically the Commitments and Swing Line Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including without limitation the maximum amount of all contingent liabilities under Letters of Credit) and the Notes shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, by notice to the Company declare the Commitments and Swing Line Commitments to be terminated forthwith, whereupon the Commitments and Swing Line Commitments shall immediately terminate; and (ii) with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, by notice of default to the Company, (Y) declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Notes to be due and payable forthwith, whereupon the same shall immediately become due and payable and (Z) direct the Company to pay to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent drawings under then outstanding Letters of Credit in an amount equal to the maximum amount that may be drawn under Letters of Credit then outstanding, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 8
THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and appoints Citibank as the Administrative Agent of such Bank under this Agreement and the Notes and each Bank irrevocably authorizes Citibank, as the Administrative Agent for such Bank, to take such action on its behalf under the provisions of this Agreement and the Notes and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the Notes, together with such other powers as are reasonably incidental thereto. Each Bank acknowledges that the Company may rely on each action taken by the
 
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Administrative Agent on behalf of the Banks hereunder. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Bank, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the Notes or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the Notes by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care. Without limiting the foregoing, the Administrative Agent may appoint one of its affiliates as its agent to perform the functions of the Administrative Agent hereunder relating to the advancing of funds to the Company and distribution of funds to the Banks and to perform such other related functions of the Administrative Agent hereunder as are reasonably incidental to such functions.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or the Notes (except for its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Banks for any recitals, statements, representations or warranties made by the Company or any officer thereof contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement (except for the Administrative Agent’s due execution and delivery) or the Notes or for any failure of the Company to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Bank to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or the Notes or to inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or the Notes unless it shall first receive such advice or concurrence of the Majority Banks as it deems
 
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appropriate or it shall first be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the Notes in accordance with a request of the Majority Banks (or such other number of Banks as is expressly required hereby), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Banks and all future holders of the Notes.
(b) For purposes of determining compliance with the conditions specified in Section 4.1, each Bank that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Bank.
8.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Bank or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Banks. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Majority Banks; provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Banks.
8.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Company, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Bank. Each Bank represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Company and made its own decision to make its Loans hereunder and enter into this Agreement. Each Bank also represents that it will, independently and without reliance upon the Administrative Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the Notes, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Company. Except for notices, reports and other documents expressly required to be furnished to the Banks by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Bank with any credit or other information concerning the business, operations, property, condition (financial or otherwise) or creditworthiness of the Company which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
 
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8.7 Indemnification. The Banks agree to indemnify each of the Administrative Agent, the Swing Line Bank and the Issuing Lenders in their capacity as such (to the extent not reimbursed by the Company and without limiting the obligation of the Company to do so to the extent required pursuant to Section 9.5), ratably according to the respective amounts of their Commitments (or, if the Commitments have been terminated, ratably according to the respective amount of their outstanding Loans or, if no Loans are outstanding, their Commitments as of the date of such termination) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Notes) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of this Agreement, the Notes or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent, the Swing Line Bank or the Issuing Lenders under or in connection with any of the foregoing; provided that no Bank shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s, Swing Line Bank’s or any Issuing Lender’s gross negligence or willful misconduct. The agreements in this subsection shall survive the payment of the Notes and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. With respect to its Commitment, the Loans made by it and the Note issued to it, Citibank shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Administrative Agent; and the term “Bank” or “Banks” shall, unless otherwise expressly indicated, include Citibank in its individual capacity. Citibank and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, the Company, any of its Subsidiaries and any Person who may do business with or own securities of the Company or any such Subsidiary, all as if Citibank were not the Administrative Agent and without any duty to account therefor to the Banks. The Administrative Agent shall have no duty to disclose any information obtained or received by it or any of its Affiliates relating to the Company or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as Administrative Agent. In the event that Citibank or any of its Affiliates shall be or become an indenture trustee under the Trust Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of any securities issued or guaranteed by the Company, the parties hereto acknowledge and agree that any payment or property received in satisfaction of or in respect of any obligation of the Company hereunder or under any other Loan Document by or on behalf of Citibank in its capacity as the Administrative Agent for the benefit of any Bank under this Agreement or any Note (other than Citibank or an Affiliate of Citibank) and which is applied in accordance with this Agreement shall be deemed to be exempt from the requirements of Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture Act.
8.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the Banks and the Company, such resignation to become effective upon the appointment of a successor Administrative Agent as provided below. If the Administrative Agent shall resign as Administrative Agent under this Agreement, then the Majority Banks shall appoint from among the Banks a successor agent for the Banks, which successor agent shall be approved by the Company if no Default or Event of Default has
 
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occurred and is continuing (such approval not to be unreasonably withheld), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon its appointment, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Notes. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this subsection shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
8.10 Syndication Agent, etc. Neither the Syndication Agent, any Documentation Agent nor any Persons identified in this Agreement as “Lead Arranger” or “Book Runner” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Banks and the Swing Line Bank as such. Without limiting the foregoing, none of such Banks or the Swing Line Bank shall have or be deemed to have a fiduciary relationship with any Bank or the Swing Line Bank. Each Bank and the Swing Line Bank hereby makes the same acknowledgments with respect to Banks and the Swing Line Bank as it makes with respect to the Administrative Agent in Section 8.8.
SECTION 9
MISCELLANEOUS
9.1 Amendments and Waivers. None of this Agreement, any Note or any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this subsection. With the written consent of the Majority Banks, the Administrative Agent and the Company may, from time to time, enter into written amendments, supplements or modifications hereto and to the Notes for the purpose of changing any provisions of or adding any provisions to this Agreement or the Notes or changing in any manner the rights of the Banks or of the Company hereunder or thereunder or waiving, on such terms and conditions as the Administrative Agent may specify in such instrument, any of the requirements of this Agreement or the Notes or any Default or Event of Default and its consequences; provided, however, that (i) each Bank shall receive a form of any such waiver, amendment, supplement or modification prior to the execution thereof by the Majority Banks or the Administrative Agent and (ii) no such waiver and no such amendment, supplement or modification shall (a) increase or extend the Commitment of any Bank, the maturity of any Note or any installment thereof, or reduce the rate or extend the time of payment of interest thereon (other than an amendment of 2.09(d) or waiver of the obligation of the Company to pay any increased interest pursuant to 2.09(d) or 2.22(d) which may be approved by the Majority Banks or the applicable Issuing Lender), or reduce the amount or extend the time of payment of any fee payable to any Bank hereunder, or change the amount of any Bank’s Commitment or the Swing Line Bank’s Swing Line Commitment, in each case without the consent of the Bank or the Swing Line Bank, as the case may be, affected thereby, or (b) amend, modify or waive any provision of this subsection or reduce the percentage specified in the definition of Majority Banks, or consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement, or waive the conditions precedent to the making of any Loan set forth in subsection 4.2, in each case without the written consent of all the Banks, (c) amend,
 
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modify or waive any provision of Section 8 without the written consent of the then Administrative Agent, (d) amend, modify or waive any provision of the Loan Documents affecting the rights or duties of the Administrative Agent, the Issuing Lenders or the Swing Line Bank under any Loan Document without the written consent of the Administrative Agent, the Issuing Lenders and/or the Swing Line Bank, as applicable, in addition to the Banks required hereinabove to take such action. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Banks and shall be binding upon the Company, the Banks, the Administrative Agent and all future holders of the Notes. In the case of any waiver, the Company, the Banks and the Administrative Agent shall be restored to their former position and rights hereunder and under the outstanding Notes, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
9.2 Notices. (a) Except as otherwise provided in subsection (b) below, all notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy,) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or five days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Company and the Administrative Agent, and as set forth in Schedule 1.1 in the case of the other parties hereto, or to such other address as may be hereafter notified by the respective parties hereto and any future holders of the Notes:

The Company:	  	The Western Union Company	
	  	12500 E. Mt. Belford Ave. M2385	
	  	Englewood, CO 80112	
	  	Attention: Treasurer	
	  	Telecopy: (720) 332-0213	
	  	Confirmation Telephone: (720) 332-5269	
		
with a copy of
any notice to
the Company to:	  	The Western Union Company	
	  	12500 E. Mt. Belford Ave. M2385	
	  	Englewood, CO 80112	
	  	Attention: General Counsel’s Office	
	  	Telecopy: (720) 332-0515	
	  	Confirmation Telephone: (720) 332-5683	
		
The Administrative Agent:	  	Citibank, N.A., as Administrative Agent	
	  	Two Penns Way	
	  	New Castle, DE 19720	
	  	Attention: Bank Loan Syndications	
	  	Telecopier: 212-994-0961	
	  	Telephone: 302-894-6128	
 
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with a copy of
any notice to the
Administrative Agent to:	  	Citibank, N.A., as Administrative Agent	
	  	400 Perimeter Center Terrace, Suite 600	
	  	Atlanta, GA 30346	
	  	Attention: David McNeela	
	  	Telecopier: 404-921-9163	
	  	Telephone: 770-668-8613	
provided that any notice, request or demand to or upon the Administrative Agent or the Banks pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.18 or 2.19 shall not be effective until received.
(b) So long as Citibank or any of its Affiliates is the Administrative Agent, the Company shall use commercially reasonable efforts to deliver to the Administrative Agent materials required to be delivered pursuant to Section 5.1 in an electronic medium in a format acceptable to the Administrative Agent and the Company by e-mail at oploanswebadmin@citigroup.com. The Company agrees that the Administrative Agent may make such materials, and, without warranty or liability to the Company, other written information, documents, instruments and other material relating to the Company, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the “ Communications ”) available to the Banks by posting such notices on a confidential basis on Intralinks or a substantially similar electronic system (the “ Platform ”) mutually acceptable to the Administrative Agent and the Company. The Company acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform in the absence of gross negligence or willful misconduct of the Administrative Agent or its Affiliates. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent or any of its Affiliates in connection with the Platform.
(c) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address as set forth above, and each Bank agrees that notice to it (as provided in the next sentence) (a “ Notice ”) specifying that any Communications have been posted to the Platform, in each case, shall constitute effective delivery of such information, documents or other materials to the Administrative Agent and such Bank for purposes of this Agreement; provided that if requested by any Bank the Administrative Agent shall deliver a copy of the Communications to such Bank by email or telecopier. Each Bank agrees (i) to notify the Administrative Agent in writing of such Bank’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Bank becomes a party to this Agreement (and from time to time thereafter to ensure that the Administrative Agent has on record an effective e-mail address for such Bank) and (ii) that any Notice may be sent to such e-mail address.
 
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9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Bank, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the Notes.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the Notes and any other documents prepared in connection herewith, and the consummation and administration of the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent, (b) to pay or reimburse each Bank and the Administrative Agent for all its costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the Notes and any such other documents, including, without limitation, fees and disbursements of counsel to the Administrative Agent and to the several Banks, (c) to pay, and indemnify and hold harmless each Bank and the Administrative Agent from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the Notes and any such other documents, and (d) to pay, and indemnify and hold harmless each Bank and the Administrative Agent and each of their respective officers, directors, employees and affiliates from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the Notes, and any such other documents (all the foregoing, collectively, the “indemnified liabilities”), provided, that the Company shall have no obligation hereunder to the Administrative Agent or any Bank with respect to indemnified liabilities arising from (i) the gross negligence or willful misconduct of the Administrative Agent or such Bank, (ii) legal proceedings commenced or claims against the Administrative Agent or such Bank by any security holder or creditor thereof arising out of and based upon rights afforded any such security holder or creditor solely in its capacity as such, (iii) legal proceedings commenced or claims against the Administrative Agent or such Bank by any other Bank or by any Transferee or (iv) claims settled without the consent of the Company. In the case of any investigation, litigation or other proceeding or action to which the indemnity in this subsection 9.5 applies, such indemnity shall be effective whether or not such investigation, litigation or other proceeding or action is brought by the Company or any affiliate of the Company, whether or not the party seeking indemnity is otherwise a party thereto and whether or not any aspect of the transactions contemplated hereby is consummated.
 
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The agreements in this subsection shall survive repayment of the Notes and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks.
(a) This Agreement shall be binding upon and inure to the benefit of the Company, the Banks, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that the Company may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Bank.
(b) Any Bank may, in accordance with applicable law, sell to one or more banks or other entities which are not Competitors (“Participants”) participating interests in any Loan owing to such Bank, any Note held by such Bank, the Commitment of such Bank or any other interest of such Bank hereunder, provided that with respect to any such sale of a participating interest, the Bank selling such participating interest must retain the right to make all determinations under this Agreement other than requests for (i) reductions in the principal amount of the Loans, (ii) reductions in the interest rates payable on the Loans, (iii) reductions in the facility fee payable to such selling Bank pursuant to subsection 2.4 and (iv) waivers and extensions in respect of payment dates on account of principal of the Loans, Interest Payment Dates and the dates on which such facility fee is payable. In the event of any such sale by a Bank of participating interests to a Participant, such Bank’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Bank shall remain solely responsible for the performance thereof, such Bank shall remain the holder of any such Note for all purposes under this Agreement, and the Company and the Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. The Company agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Bank under this Agreement or any Note, provided that such Participant shall only be entitled to such right of setoff if it shall have agreed in the agreement pursuant to which it shall have acquired its participating interest to share with the Banks the proceeds thereof as provided in subsection 9.7. The Company also agrees that each Participant shall be entitled to the benefits of subsections 2.14, 2.15 and 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time; provided that no Participant shall be entitled to receive any greater amount pursuant to such subsections than the transferor Bank would have been entitled to receive in respect of the amount of the participation transferred by such transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in accordance with applicable law and with the consent of the Administrative Agent, the Swing Line Bank and each Issuing Lender (which shall not be unreasonably withheld) at any time sell to any Bank or any affiliate thereof (but only if
 
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such affiliate’s Short-Term Ratings equal or exceed the Short-Term Ratings of such selling Bank) and, with the consent of the Company (unless there is an Event of Default under clause (a) or (g) of Article VII occurring or continuing), the Administrative Agent, the Swing Line Bank and each Issuing Lender (which in each case shall not be unreasonably withheld), to one or more additional banks or financial institutions other than the Borrower or any of its Subsidiaries (“Purchasing Banks”) all or any part of its rights and obligations under this Agreement and its Note pursuant to a Commitment Transfer Supplement, substantially in the form of Exhibit D (a “Commitment Transfer Supplement”), executed by such Purchasing Bank, such transferor Bank (and, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the Company, the Administrative Agent, the Swing Line Bank and each Issuing Lender) and delivered to the Administrative Agent for its acceptance and recording in the Register, provided that (i) in connection with such sale, such transferor Bank must transfer all of its outstanding Commitment to such Purchasing Bank or, if no Commitments are then in effect, such transferor Bank must transfer all of the unpaid Loans and Participation Interests held by such Bank to such Purchasing Bank or (ii) after giving effect to such sale the outstanding Commitment of such transferor Bank must equal or exceed $10,000,000, provided, further, with respect to a Purchasing Bank which was not a Bank or an affiliate of a Bank prior to such sale, the outstanding Commitment of such Purchasing Bank after giving effect to such sale must equal or exceed $10,000,000, unless the Company and the Administrative Agent otherwise agree. Upon such execution, delivery, acceptance and recording, from and after the Transfer Effective Date determined pursuant to (and as defined in) such Commitment Transfer Supplement, (x) the Purchasing Bank thereunder shall be a party hereto and, to the extent provided in such Commitment Transfer Supplement, (in addition to any such rights and obligations theretofore held by it) have the rights and obligations of a Bank hereunder with a Commitment as set forth therein, and (y) the transferor Bank thereunder shall, to the extent provided in such Commitment Transfer Supplement, be released from its obligations under this Agreement (and, in the case of a Commitment Transfer Supplement covering all or the remaining portion of a transferor Bank’s rights and obligations under this Agreement, such transferor Bank shall cease to be a party hereto, provided, that it is expressly understood and agreed that such transferor Bank shall retain (x) all of such transferor Bank’s rights under subsections 2.14, 2.15, 2.16 and 9.5 of this Agreement with respect to any cost, reduction or payment incurred or made prior to the Transfer Effective Date determined pursuant to such Commitment Transfer Supplement, including, without limitation the rights to indemnification and to reimbursement for taxes, costs and expenses and (y) all of such transferor Bank’s obligations under Section 8.7 to the extent any claim thereunder relates to an event arising prior to the Transfer Effective Date determined pursuant to such Commitment Transfer Supplement). Such Commitment Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing Bank and the resulting adjustment of Commitments and Commitment Percentages arising from the purchase by such Purchasing Bank of all or a portion of the rights and obligations of such transferor Bank under this Agreement and the Notes. On or prior to the Transfer Effective Date determined pursuant to such Commitment Transfer Supplement, the Company, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the
 
69

surrendered Note a new Note to the order of such Purchasing Bank in an amount equal to the Commitment assumed by it pursuant to such Commitment Transfer Supplement and, if the transferor Bank has retained a Commitment hereunder, a new Note to the order of the transferor Bank in an amount equal to the Commitment retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. The Note surrendered by the transferor Bank shall be returned by the Administrative Agent to the Company marked “cancelled”.
(d) The Administrative Agent shall maintain at its address referred to in subsection 9.2 a copy of each Commitment Transfer Supplement delivered to it and a register (the “ Register ”) for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Company, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register as the owner of each Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Company or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by a transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the Company and the Administrative Agent) together with payment to the Administrative Agent, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, of a registration and processing fee of $3,500 by the transferor Bank, the Administrative Agent shall (i) promptly accept such Commitment Transfer Supplement and (ii) on the Transfer Effective Date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Banks and the Company.
(f) Subject to subsection 9.8, the Company authorizes each Bank to disclose to any Participant or Purchasing Bank (each, a “ Transferee ”) and any prospective Transferee any and all financial information in such Bank’s possession concerning the Company and its affiliates which has been delivered to such Bank by or on behalf of the Company pursuant to this Agreement or which has been delivered to such Bank by or on behalf of the Company in connection with such Bank’s credit evaluation of the Company and its affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this subsection, any interest in this Agreement or any Note is transferred to any Transferee which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code), the transferor Bank shall require such Transferee, concurrently with the effectiveness of such transfer, to deliver (i) two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be or (ii) in the case of such a Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign
 
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corporation” described in Section 881(c)(3)(C) of the Code and (y) two duly completed copies of United States Internal Revenue Service Form W-8BEN, in each case certifying such Bank’s entitlement to a complete exemption from United States withholding tax with respect to interest payments to be made under this Agreement and under any Note. The transferor Bank shall also require such Transferee (i) to represent to the transferor Bank (for the benefit of the transferor Bank, the Administrative Agent and the Company) that under applicable law and treaties no taxes will be required to be withheld by the Administrative Agent, the Company or the transferor Bank with respect to any payments to be made to such Transferee in respect of the Loans, (ii) to agree (for the benefit of the transferor Bank, the Administrative Agent and the Company) to provide the transferor Bank (and, in the case of any Purchasing Bank registered in the Register, the Administrative Agent and the Company) new such form or successor applicable form upon the expiration or obsolescence of any previously delivered forms and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such Transferee and (iii) to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(h) Nothing herein shall prohibit any Bank or the Swing Line Bank from pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law.
(i) The Swing Line Bank may not (except as provided in subsections 2.19 and 9.6(h)) assign or sell participations in all or any part of its Swing Line Loans, its Swing Line Note or its Swing Line Commitment.
(j) Each Issuing Lender may, with the consent of the Company (which consent shall not be unreasonably withheld or delayed), assign to one or more Banks all or a portion of its rights and obligations under the undrawn portion of its LOC Commitment at any time; provided, however, that the parties to each such assignment shall execute and deliver to the Administrative Agent appropriate documentation in respect thereof.
9.7 Adjustments; Set-off.
(a) If any Bank (a “ benefitted Bank ”) shall at any time receive any payment of all or part of its Loans then payable, or interest then payable thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 7(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Bank, if any, in respect of such other Bank’s Loans then payable, or interest then payable thereon, such benefitted Bank shall purchase for cash from the other Banks such portion of each such other Bank’s Loans or such interest thereon, or shall provide such other Banks with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such benefitted Bank to share the excess payment or benefits of such collateral or proceeds ratably with each of the Banks; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such benefitted Bank, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of
 
71

such recovery, but without interest. The Company agrees that each Bank so purchasing a portion of another Bank’s Loans or interest thereon may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by law, if an Event of Default has occurred and is continuing, each Bank and each of its Affiliates shall have the right, without prior notice to the Company, any such notice being expressly waived by the Company to the extent permitted by applicable law, upon any amount becoming due and payable by the Company hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Bank, any of its Affiliates or any branch or agency thereof to or for the credit or the account of the Company. The aforesaid right of set-off may be exercised by such Bank and each of its Affiliates against the Company or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor of the Company, or against anyone else claiming through or against the Company or any such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Bank or its Affiliates prior to the occurrence of any Event of Default. Each Bank agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Bank or its Affiliates, provided that the failure to give such notice shall not affect the validity of such set-off and application.
9.8 Table of Contents and Section Headings. The table of contents and the section and subsection headings herein are intended for convenience only and shall be ignored in construing this Agreement.
9.9 Confidentiality. Each of the Banks and the Administrative Agent agrees to keep confidential (and to cause its officers, directors, employees, agents and representatives, and its Affiliates’ officers, directors, employees, agents and representatives who gain access to Confidential Materials (as defined below), to keep confidential) any information which is or has been obtained pursuant to the terms of this Agreement (including, without limitation, subsection 5.4(b)) (collectively, the “Confidential Materials”), except that such Bank or the Administrative Agent, as the case may be, shall be permitted to disclose the Confidential Materials (a) to such of the officers, directors, employees, agents, independent auditors and representatives of the Bank or any of its Affiliates as need to know such Confidential Materials in connection with its administration of its Commitment and Loans (provided such persons are informed of the confidential nature of the Confidential Materials and the restrictions imposed by this subsection), (b) to the extent required by law (including, without limitation disclosure to bank examiners and regulatory officials) or legal process (in which event such Bank or the Administrative Agent, as the case may be, will promptly notify the Company of any such requirement), (c) to the extent such Confidential Materials become publicly available other than as a result of a breach of the provisions of this subsection, (d) to the extent the Company shall have consented to such
 
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disclosure in writing, (e) to a prospective Transferee which agrees in writing to be bound by the terms of this subsection as if it were a Bank party to this Agreement, (f) to a Governmental Authority in connection with litigation involving this Agreement or the Notes, (g) to Gold Sheets and other similar bank trade publications; such information to consist of deal terms and other information regarding the credit facilities evidenced by this Agreement customarily found in such publications and (h) in connection with any suit, action or proceeding for the purpose of defending itself, reducing its liability, or protecting or exercising any of its claims, rights, remedies or interests under or in connection with this Agreement or any other Loan Document; provided that in no event shall any such Bank or the Administrative Agent disclose any of the Confidential Materials to any of its Excluded Individuals.
9.10 Patriot Act Notice. Each Bank and the Administrative Agent (for itself and not on behalf of any other party) hereby notifies the Company that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Bank or the Administrative Agent, as applicable, to identify the Company in accordance with the Patriot Act.
9.11 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Company and the Administrative Agent.
9.12 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
9.13 Integration. This Agreement represents the entire agreement of the Company, the Administrative Agent and the Banks with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Bank relative to subject matter hereof not expressly set forth or referred to herein or in the Notes.
9.14 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.15 Submission To Jurisdiction; Waivers. Each of the Company, the Administrative Agent and the Banks hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Notes, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the State of
 
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New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Company at its address set forth in subsection 9.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection any special, exemplary, punitive or consequential damages.
9.16 Acknowledgements. Each of the Company, the Administrative Agent and the Banks hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the Notes;
(b) neither the Administrative Agent nor any Bank has any fiduciary relationship to the Company, and the relationship between the Administrative Agent and the Banks, on the one hand, and the Company, on the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the Company and the Banks.
9.17 WAIVERS OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY COUNTERCLAIM THEREIN.
9.18 Effectiveness. This Agreement shall become effective on the date on which all of the conditions set forth in Section 4.1 have been satisfied or waived by the Banks and all of the parties have signed a copy hereof (whether the same or different copies) and shall have delivered the same to the Administrative Agent pursuant to Section 9.2 or, in the case of the Banks, shall have given to the Administrative Agent written, telecopied or telex notice (actually received) at such office that the same has been signed and mailed to it.
 
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9.19 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Company in respect of any such sum due from it to the Administrative Agent or any Bank hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than currency required to be paid hereunder (the “Contract Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Bank of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Bank may in accordance with normal banking procedures purchase the Contract Currency with the Judgment Currency. If the amount of the Contract Currency so purchased is less than the sum originally due to the Administrative Agent or such Bank in such Contract Currency, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Bank or the Person to whom such obligation was owing against such loss. If the amount of the Contract Currency so purchased is greater than the sum originally due to the Administrative Agent or such Bank in such currency, the Administrative Agent and the Banks agree to apply such excess to any Loans or other amounts then due and payable hereunder.
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered in New York, New York by their proper and duly authorized officers as of the day and year first above written.

COMPANY:	 		 	THE WESTERN UNION COMPANY,
a Delaware corporation	
				
	 		 	By:	 	/s/ David G. Barnes	
	 		 		 	Name:	 	David G. Barnes	
	 		 		 	Title:	 	Executive Vice President
Finance and Strategic Development	
 
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ADMINISTRATIVE AGENT
AND BANKS:	 		 	CITIBANK, N.A.,
as Administrative Agent, Swing Line Bank, Issuing Lender and as a Bank	
				
	 		 	By:	 	/s/ Kevin Ege	
	 		 		 	Name:	 	Kevin Ege	
	 		 		 	Title:	 	Vice President	
 
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WELLS FARGO BANK, NATIONAL ASSOCIATION as Issuing Lender and as a Bank	
		
By:	 	/s/ Scott Bjelde	
Name:	 	Scott Bjelde	
Title:	 	Senior Vice President	
 
78

			
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH	
		
By:	 	/s/ Christian A. Giordano	
Name:	 	Christian A. Giordano	
Title:	 	Authorized Signatory	
 
79

			
BARCLAYS BANK PLC	
		
By:	 	/s/ Alison McGuigan	
Name:	 	Alison McGuigan	
Title:	 	Associate Director	
 
80

			
JPMORGAN CHASE BANK, N.A.	
		
By:	 	/s/ Mark M. Cisz	
Name:	 	Mark M. Cisz	
Title:	 	Vice President	
 
81

			
MORGAN STANLEY BANK	
		
By:	 	/s/ Daniel Twenge	
Name:	 	Daniel Twenge	
Title:	 	Vice President	
 
82

			
WACHOVIA BANK, NATIONAL ASSOCIATION	
		
By:	 	/s/ Mark B. Felker	
Name:	 	Mark B. Felker	
Title:	 	Managing Director	
 
83

			
BNP PARIBAS	
		
By:	 	/s/ Pierre Nicholas Rogers	
Name:	 	Pierre Nicholas Rogers	
Title:	 	Managing Director	
		
By:	 	/s/ Jamie Dillon	
Name:	 	Jamie Dillon	
Title:	 	Managing Director	
 
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DEUTSCHE BANK AG, NEW YORK BRANCH	
		
By:	 	/s/ Brett Hanmer	
Name:	 	Brett Hanmer	
Title:	 	Vice President	
		
By:	 	/s/ Ruth Leung	
Name:	 	Ruth Leung	
Title:	 	Director	
 
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FIFTH THIRD BANK	
		
By:	 	/s/ Peter Caligiuni	
Name:	 	Peter Caligiuni	
Title:	 	Vice President	
 
86

			
KEY BANK, N. A.	
		
By:	 	/s/ David A. Wild	
Name:	 	David A. Wild	
Title:	 	Vice President	
 
87

			
THE BANK OF NOVA SCOTIA	
		
By:	 	/s/ Todd Meller	
Name:	 	Todd Meller	
Title:	 	Managing Director	
 
88

			
CIBC, INC.	
		
By:	 	/s/ Dominic Sorresso	
Name:	 	Dominic Sorresso	
Title:	 	Executive Director	
	
CIBC World Markets Corp.	
Authorized Signatory	
 
89

			
LASALLE BANK NATIONAL ASSOCIATION	
		
By:	 	/s/ Doug Pogge	
Name:	 	Doug Pogge	
Title:	 	First Vice President	
 
90

			
SOCIÉTÉ GÉNÉRALE	
		
By:	 	/s/ Melissa Goeden	
Name:	 	Melissa Goeden	
Title:	 	Vice President	
 
91

			
THE BANK OF NEW YORK	
		
By:	 	/s/ Robert Besser	
Name:	 	Robert Besser	
Title:	 	Vice President	
 
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Exhibit 10.6.1
EXECUTION COPY
SUBSIDIARY GUARANTY
Dated as of September 29, 2006
From
FIRST FINANCIAL MANAGEMENT CORPORATION
as Guarantor
in favor of
THE GUARANTEED PARTIES REFERRED TO HEREIN

TABLE OF CONTENTS

Section	 	 	  	Page	
Section 1.	 	Guaranty; Limitation of Liability	  	1	
			
Section 2.	 	Guaranty Absolute	  	2	
			
Section 3.	 	Waivers and Acknowledgments	  	3	
			
Section 4.	 	Subrogation	  	3	
			
Section 5.	 	Payments Free and Clear of Taxes, Etc.	  	4	
			
Section 6.	 	Representations and Warranties	  	4	
			
Section 7.	 	Covenants	  	5	
			
Section 8.	 	Amendments, Etc.	  	5	
			
Section 9.	 	Notices, Etc.	  	5	
			
Section 10.	 	No Waiver; Remedies	  	6	
			
Section 11.	 	Right of Set-off	  	6	
			
Section 12.	 	Indemnification	  	6	
			
Section 13.	 	Continuing Guaranty; Assignments under the Credit Agreement	  	7	
			
Section 14.	 	Execution in Counterparts	  	7	
			
Section 15.	 	Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.	  	7	

SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of September 29, 2006 made by the FIRST FINANCIAL MANAGEMENT CORPORATION, a Georgia corporation (the “ Guarantor ”), in favor of Citibank, N.A., as agent for the Guaranteed Parties (as defined below).
PRELIMINARY STATEMENT. The Western Union Company, a Delaware corporation (the “ Company ”), is party to a Credit Agreement dated as of September 27, 2006 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined) with certain Banks, Issuing Lenders and the Swing Line Bank party thereto, and Citibank, N.A., as Administrative Agent. The Administrative Agent, the Banks, Issuing Lenders and the Swing Line Bank are collectively, the “ Guaranteed Parties ”. The Guarantor will derive substantial direct and indirect benefits from the transactions contemplated by the Credit Agreement. It is a condition precedent to the making of Loans and the issuance of Letters of Credit under the Credit Agreement from time to time that the Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the Guaranteed Parties to make Loans and to issue Letters of Credit under the Credit Agreement from time to time, the Guarantor, hereby agrees as follows:
Section 1.  Guaranty; Limitation of Liability . (a) The Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of the Company now or hereafter existing under or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the “ Guaranteed Obligations ”), and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by the Administrative Agent or any other Guaranteed Party in enforcing any rights under this Guaranty or any other Loan Document. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Company to any Guaranteed Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company.
(b) The Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Guaranteed Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the obligations of the Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the obligations of the Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Guaranteed Parties and the Guarantor hereby irrevocably agree that the obligations of the Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the obligations of the Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof, “ Bankruptcy Law ” means any proceeding of the type referred to in Section 6.01(f) of the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

Section 2.  Guaranty Absolute . The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Guaranteed Party with respect thereto. The obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of the Company under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Company or whether the Company is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and, to the extent permitted by applicable law, the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following (other than payment in full of the Guaranteed Obligations as qualified by the last sentence of this Section 2):
(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Obligations of the Company under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Company or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other Obligations of the Company under the Loan Documents or any other assets of the Company or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of the Company or any of its Subsidiaries;
(f) any failure of any Guaranteed Party to disclose to the Company any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Company now or hereafter known to such Guaranteed Party (the Guarantor waiving any duty on the part of the Guaranteed Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other guaranty or agreement or the release or reduction of liability of the Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Guaranteed Party that might otherwise constitute a defense available to, or a discharge of, the Company or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Guaranteed Party or any other Person upon the insolvency, bankruptcy or reorganization of the Company or otherwise, all as though such payment had not been made.
 
2

Section 3.  Waivers and Acknowledgments . To the extent permitted by applicable law: (a) The Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Guaranteed Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Guaranteed Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Guarantor or other rights of the Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of the Guarantor hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Guaranteed Party to disclose to the Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Company or any of its Subsidiaries now or hereafter known by such Guaranteed Party.
(e) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 2 and this Section 3 are knowingly made in contemplation of such benefits.
Section 4.  Subrogation . The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Company or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Guaranteed Party against the Company or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, all Letters of Credit shall have expired or been terminated and the Commitments shall have expired or been terminated. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to a Termination Event (as defined below), or if no Termination Event shall have occurred, the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Termination Date and (c) the latest date of expiration or termination of all Letters of Credit shall be received and held in trust for the benefit of the Guaranteed Parties, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any
 
3

necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) the Guarantor shall make payment to any Guaranteed Party of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) (A) the Termination Date shall have occurred and all Letters of Credit shall have expired or been terminated or (B) a Termination Event shall have occurred, the Guaranteed Parties will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Guaranty.
Section 5.  Payments Free and Clear of Taxes, Etc . (a) Any and all payments made by the Guarantor under or in respect of this Guaranty or any other Loan Document shall be made free and clear of and without deduction for any and all present or future Taxes. If the Guarantor shall be required by law to deduct any Taxes from or in respect of any sum payable under or in respect of this Guaranty or any other Loan Document to any Guaranteed Party, (i) the sum payable by the Guarantor shall be increased as may be necessary so that after the Guarantor and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 5), such Guaranteed Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Guarantor shall make all such deductions and (iii) the Guarantor shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(b) The obligations of the Guarantor under this Section are subject in all respects to the limitations, qualifications and satisfaction of conditions set forth in Section 2.15 of the Credit Agreement. Without limitation of the foregoing, the Guaranteed Parties are subject to the obligations set forth in Section 2.13 of the Credit Agreement to the same extent as if set forth herein.
Section 6.  Representations and Warranties . The Guarantor hereby makes each representation and warranty made in the Credit Agreement by the Company with respect to the Guarantor and the Guarantor hereby further represents and warrants as follows:
(a) The Guarantor has the corporate power and authority, and the legal right, to make, deliver and perform this Guaranty and has taken all necessary corporate action to authorize its obligations hereunder on the terms and conditions of this Guaranty and to authorize the execution, delivery and performance of this Guaranty. No consent or authorization of, filing with or other act by or in respect of, any Governmental Authority or any other Person (except as have been obtained or made) is required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty. This Guaranty has been duly executed and delivered on behalf of the Guarantor. This Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(b) The execution delivery and performance of this Guaranty will not violate any Requirement of Law or Contractual Obligation of the Guarantor or of any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
 
4

(c) There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.
(d) The Guarantor has, independently and without reliance upon any Guaranteed Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty, and the Guarantor has established adequate means of obtaining from the Company on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business, condition (financial or otherwise), operations, performance, properties and prospects of the Company.
Section 7.  Covenants . The Guarantor covenants and agrees that until a Termination Event occurs (or if no Termination Event shall have occurred, so long as any part of the Guaranteed Obligations shall remain unpaid, any Letter of Credit shall be outstanding or any Bank shall have any Commitment), the Guarantor will perform and observe, and cause each of its Subsidiaries to perform and observe, all of the terms, covenants and agreements set forth in the Credit Agreement on its or their part to be performed or observed or that the Company has agreed to cause the Guarantor or such Subsidiaries to perform or observe.
Section 8.  Amendments, Etc . No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent and the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all of the Banks (other than any Bank that is, at such time, a Defaulting Bank), (a) reduce or limit the obligations of the Guarantor hereunder, release the Guarantor hereunder or otherwise limit the Guarantor’s liability with respect to the Obligations owing to the Guaranteed Parties under or in respect of the Loan Documents except as provided in the next succeeding sentence, (b) postpone any date fixed for payment hereunder or (c) change the number of Guaranteed Parties or the percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of the Loans or (z) the aggregate LOC Obligations that, in each case, shall be required for the Guaranteed Parties or any of them to take any action hereunder. Upon (x) the sale or other disposition of the Guarantor to the extent permitted in accordance with the terms of the Credit Agreement, (y) the Guarantee Triggering Amount being reduced to equal to or less than the greater of $300,000,000 or 15% of Consolidated Net Worth or (z) a consolidation or merger of the Guarantor with or into the Company (any such event being a “ Termination Event ”), the Guarantor shall be automatically released from this Guaranty.
Section 9.  Notices, Etc . All notices and other communications provided for hereunder shall be in writing (including telecopy communication) and mailed, telecopied or delivered to it, if to the Guarantor, addressed to it in care of the Company at the Company’s address specified in Section 9.2 of the Credit Agreement, if to any Agent or any other Guaranteed Party, at its address specified in Section 9.2 of the Credit Agreement, or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. All such notices and other communications shall, when mailed or telecopied, be effective when deposited in the mails or transmitted by telecopier, respectively. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Guaranty to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.
 
5

Section 10.  No Waiver; Remedies . No failure on the part of any Guaranteed Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 11.  Right of Set-off . In addition to any rights and remedies of the Guaranteed Parties provided by law, if an Event of Default has occurred and is continuing, each Guaranteed Party and each of its Affiliates shall have the right, without prior notice to the Guarantor, any such notice being expressly waived by the Guarantor to the extent permitted by applicable law, upon any amount becoming due and payable by the Guarantor hereunder to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Guaranteed Party, any of its Affiliates or any branch or agency thereof to or for the credit or the account of the Guarantor. The aforesaid right of set-off may be exercised by such Guaranteed Party and each of its Affiliates against the Guarantor or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor of the Guarantor, or against anyone else claiming through or against the Guarantor or any such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Guaranteed Party or its Affiliates prior to the occurrence of any Event of Default. Each Guaranteed Party agrees promptly to notify the Guarantor and the Administrative Agent after any such set-off and application made by such Guaranteed Party or its Affiliates, provided that the failure to give such notice shall not affect the validity of such set-off and application.
Section 12.  Indemnification . (a) Without limitation on any other obligations of the Guarantor or remedies of the Guaranteed Parties under this Guaranty, the Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless each Guaranteed Party and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “ Indemnified Party ”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms.
(b) The Guarantor hereby also agrees that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any of the Guarantor or any of its Affiliates or any of their respective officers, directors, employees, agents and advisors, and the Guarantor hereby agrees not to assert any claim against any Indemnified Party on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Facilities, the actual or proposed use of the proceeds of the Loans or the Letters of Credit, the Loan Documents or any of the transactions contemplated by the Loan Documents.
(c) Without prejudice to the survival of any of the other agreements of the Guarantor under this Guaranty or any of the other Loan Documents, the agreements and obligations of the Guarantor contained in Section 1(a) (with respect to enforcement expenses), the last sentence of Section 2, Section 5 and this Section 12 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Guaranty.
 
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Section 13.  Continuing Guaranty; Assignments under the Credit Agreement . This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the occurrence of a Termination Event, or if no Termination Event shall have occurred, the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (ii) the Termination Date and (iii) the latest date of expiration or termination of all Letters of Credit, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Guaranteed Parties and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any Guaranteed Party may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Guaranteed Party herein or otherwise, in each case as and to the extent provided in Section 9.6 of the Credit Agreement. The Guarantor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Guaranteed Parties.
Section 14.  Execution in Counterparts . This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty.
Section 15.  Governing Law; Jurisdiction; Waiver of Jury Trial, Etc . (a) This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty, or for recognition or enforcement of any judgment, and the Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Guaranty in the courts of any jurisdiction.
(c) The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York State or federal court. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE ACTIONS OF ANY GUARANTEED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
 
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

FIRST FINANCIAL MANAGEMENT CORPORATION	
		
By	 	/s/ Rajesh Agrawal	
Title:	 	Senior Vice President and Treasurer	
 
8
 
Exhibit 10.7

EXECUTION COPY
$2,400,000,000
CREDIT AGREEMENT
among
FIRST FINANCIAL MANAGEMENT CORPORATION,
as the Company,
THE BANKS PARTIES HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
MORGAN STANLEY BANK,
as Documentation Agent
and
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
Dated as of September 27, 2006
CITIGROUP GLOBAL MARKETS INC.,
WACHOVIA CAPITAL MARKETS, LLC
MORGAN STANLEY BANK
as Lead Arrangers and Book Runners

TABLE OF CONTENTS

SECTION 1 DEFINITIONS	  	1	
			
1.1	  	Defined Terms	  	1	
			
1.2	  	Other Definitional Provisions	  	13	
			
1.3	  	Accounting Terms	  	13	
		
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS	  	14	
			
2.1	  	Commitments	  	14	
			
2.2	  	Notes	  	14	
			
2.3	  	Procedure for Borrowing	  	14	
			
2.4	  	Fees	  	15	
			
2.5	  	Termination or Reduction of Commitments	  	15	
			
2.6	  	Prepayments	  	15	
			
2.7	  	Conversion and Continuation Options	  	16	
			
2.8	  	Minimum Amounts of Tranches	  	17	
			
2.9	  	Interest Rates and Payment Dates	  	17	
			
2.10	  	Computation of Interest and Fees	  	17	
			
2.11	  	Inability to Determine Interest Rate	  	18	
			
2.12	  	Pro Rata Treatment and Payments	  	18	
			
2.13	  	Illegality	  	21	
			
2.14	  	Requirements of Law	  	21	
			
2.15	  	Taxes	  	22	
			
2.16	  	Indemnity	  	24	
			
2.17	  	Action of Affected Banks	  	24	
			
2.18	  	Payment in Full at Maturity	  	24	
 
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2.19	  	Defaulting Banks	  	25	
		
SECTION 3 REPRESENTATIONS AND WARRANTIES	  	26	
			
3.1	  	Financial Condition	  	26	
			
3.2	  	No Change	  	26	
			
3.3	  	Corporate Existence; Compliance with Law	  	26	
			
3.4	  	Corporate Power; Authorization; Enforceable Obligations	  	27	
			
3.5	  	No Legal Bar	  	27	
			
3.6	  	No Material Litigation	  	27	
			
3.7	  	No Default	  	27	
			
3.8	  	Taxes	  	27	
			
3.9	  	Federal Regulations	  	28	
			
3.10	  	ERISA	  	28	
			
3.11	  	Investment Company Act	  	28	
			
3.12	  	Purpose of Loans	  	28	
			
3.13	  	Disclosure	  	29	
			
3.14	  	Ranking	  	29	
			
3.15	  	Compliance with OFAC, FCPA	  	29	
			
3.16	  	Closing Date Representations and Warranties	  	29	
		
SECTION 4 CONDITIONS PRECEDENT	  	29	
			
4.1	  	Conditions to Effectiveness	  	29	
			
4.2	  	Conditions to Each Loan	  	30	
		
SECTION 5 AFFIRMATIVE COVENANTS	  	31	
			
5.1	  	Financial Statements	  	31	
			
5.2	  	Certificates; Other Information	  	32	
			
5.3	  	Conduct of Business and Maintenance of Existence	  	32	
 
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5.4	  	Inspection of Property; Books, Records and Discussions	  	33	
			
5.5	  	Notices	  	33	
		
SECTION 6 NEGATIVE COVENANTS	  	34	
			
6.1	  	Limitation on Significant Subsidiary Indebtedness	  	34	
			
6.2	  	Limitation on Liens	  	35	
			
6.3	  	Limitation on Sales and Leasebacks	  	36	
			
6.4	  	Limitations on Fundamental Changes	  	37	
			
6.5	  	Limitations on Restrictions on Dividends	  	37	
		
SECTION 7 EVENTS OF DEFAULT	  	37	
		
SECTION 8 THE ADMINISTRATIVE AGENT	  	40	
			
8.1	  	Appointment	  	40	
			
8.2	  	Delegation of Duties	  	40	
			
8.3	  	Exculpatory Provisions	  	40	
			
8.4	  	Reliance by Administrative Agent	  	40	
			
8.5	  	Notice of Default	  	41	
			
8.6	  	Non-Reliance on Administrative Agent and Other Banks	  	41	
			
8.7	  	Indemnification	  	42	
			
8.8	  	Administrative Agent in Its Individual Capacity	  	42	
			
8.9	  	Successor Administrative Agent	  	43	
			
8.10	  	Syndication Agent, etc.	  	43	
		
SECTION 9 MISCELLANEOUS	  	43	
			
9.1	  	Amendments and Waivers	  	43	
			
9.2	  	Notices	  	44	
			
9.3	  	No Waiver; Cumulative Remedies	  	46	
			
9.4	  	Survival of Representations and Warranties	  	46	
 
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9.5	  	Payment of Expenses and Taxes	  	46	
			
9.6	  	Successors and Assigns; Participations; Purchasing Banks	  	47	
			
9.7	  	Adjustments; Set-off	  	50	
			
9.8	  	Table of Contents and Section Headings	  	51	
			
9.9	  	Confidentiality	  	51	
			
9.10	  	Patriot Act Notice	  	52	
			
9.11	  	Counterparts	  	52	
			
9.12	  	Severability	  	52	
			
9.13	  	Integration	  	52	
			
9.14	  	GOVERNING LAW	  	52	
			
9.15	  	Submission To Jurisdiction; Waivers	  	52	
			
9.16	  	Acknowledgements	  	53	
			
9.17	  	WAIVERS OF JURY TRIAL	  	53	
			
9.18	  	Effectiveness	  	53	
 
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Schedules

Schedule 1.1	  	Banks and Commitments	
Schedule 3.6	  	Material Litigation	
Exhibits

Exhibit A	  	Note	
Exhibit B	  	Borrowing Certificate	
Exhibit C	  	Opinion of Counsel	
Exhibit D	  	Commitment Transfer Supplement	

CREDIT AGREEMENT , dated as of September 27, 2006, among FIRST FINANCIAL MANAGEMENT CORPORATION , a Georgia corporation (the “ Company ”), the several banks and other financial institutions from time to time parties to this Agreement (the “ Banks ”), WACHOVIA BANK, NATIONAL ASSOCIATION , as syndication agent (in such capacity, the “ Syndication Agent ”), MORGAN STANLEY BANK , as documentation agent (in such capacity, the “ Documentation Agent ”), and CITICORP NORTH AMERICA, INC. , as administrative agent for the Banks hereunder (in such capacity, the “ Administrative Agent ”).
WITNESSETH :
WHEREAS , the Company has requested the Banks to make Loans to the Company, and the Banks are willing to make Loans to the Company, subject to the terms and conditions hereof;
NOW, THEREFORE , in consideration of the premises, and of the mutual covenants and agreements herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“ ABR ”: for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: “ Prime Rate ” shall mean, at any time, the rate of interest per annum publicly announced from time to time by Citibank at its principal office in New York, New York as its base rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in the Prime Rate occurs. The parties hereto acknowledge that the rate announced publicly by Citibank as its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks; and “ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published on the next succeeding Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest error) that it is unable to ascertain the Federal Funds Effective Rate, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms above, the ABR shall be determined without regard to clause (b) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the opening of business on the date of such change.
“ ABR Loans ”: Loans the rate of interest applicable to which is based upon the ABR.

“ Affiliate ”: as to any Person, any other Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons per forming similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“ Agreement ”: this Credit Agreement, as amended, supplemented or otherwise modified from time to time.
“ Applicable Margin ”: with respect to each day for each Type of Loan, the rate per annum based on the Ratings in effect on such day, as set forth under the relevant column heading below:

Rating	  	Eurodollar
Loans	 	
Rating I	  	0.150	%	
Rating II	  	0.190	%	
Rating III	  	0.270	%	
Rating IV	  	0.350	%	
Rating V	  	0.525	%	
“ Available Commitment ”: as to any Bank at any time, an amount equal to the excess, if any, of (a) the amount of such Bank’s Commitment over (b) the aggregate principal amount of all Loans made by such Bank then outstanding.
“ Bankruptcy Code ”: the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.
“ Borrowing Certificate ”: a notice of borrowing and certificate of the Company substantially in the form of Exhibit B.
“ Borrowing Date ”: any Business Day specified in a notice furnished pursuant to subsection 2.3 as a date on which the Company requests the Banks to make Loans hereunder.
“ Business Day ”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, however, that when used to describe the date of any borrowing of, or any payment or interest rate determination in respect of, a Eurodollar Loan, the term “Business Day” shall also exclude any day on which commercial banks are not open for dealings in Dollar deposits in the London interbank market.
“ Capital Stock ”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.
 
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“ Change of Control ”: any acquisition by any Person or Group of Persons, either directly or indirectly, of (a) the power to elect, appoint or cause the election or appointment of at least a majority of the members of the Board of Directors of the Company (or any other Person to which all or substantially all of the properties and assets of the Company have been transferred), through beneficial ownership of the Capital Stock of the Company (or such other Person) or through contract, agreement, arrangement or proxy, or (b) all or substantially all of the properties and assets of the Company.
“ Citibank ”: Citibank, N.A., together with its successors and/or assigns.
“ Closing Date ”: the date on which this Agreement becomes effective in accordance with subsection 4.1.
“ CNAI ”: Citicorp North America, Inc., together with its successors and/or assigns.
“ Code ”: the Internal Revenue Code of 1986, as amended from time to time.
“ Commitment ”: as to any Bank, the obligation of such Bank to make Loans to the Company hereunder in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Bank’s name on Schedule 1.1 or in the Commitment Transfer Supplement pursuant to which it became a Bank, as such amount may be reduced pursuant to subsection 2.5 or subsection 9.6 or increased pursuant to subsection 9.6.
“ Commitment Percentage ”: as to any Bank at any time, the percentage of the aggregate Commitments then constituted by such Bank’s Commitment.
“ Commitment Period ”: the period from and including the Closing Date to but not including the Termination Date or such earlier date on which the Commitments shall terminate as provided herein.
“ Commonly Controlled Entity ”: an entity, whether or not incorporated, which is under common control with the Company within the meaning of Section 4001 of ERISA or is part of a group which includes the Company and which is treated as a single employer under Section 414 of the Code.
“ Competitor ”: any Person significantly and directly engaged in the business of payment instruments or consumer funds transfers.
“ Consolidated Net Assets ”: the gross book value of the assets of the Company and its Subsidiaries (which under GAAP would appear on the consolidated balance sheet of the Company and its Subsidiaries) less all reserves (including, without limitation, depreciation, depletion and amortization) applicable thereto and less (i) minority interests and (ii) liabilities (determined in accordance with GAAP) which, in accordance with their terms, will be settled within one year after the date of determination.
“ Consolidated Net Income ”: the net income of the Company and its Subsidiaries (which under GAAP would appear on the consolidated income statement of the Company and its Subsidiaries), excluding, however, (i) any equity of the Company or a Subsidiary in the
 
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unremitted earnings of any corporation which is not a Subsidiary, (ii) gains from the write-up in the book value of any asset and (iii) in the case of an acquisition of any Person which is accounted for on a purchase basis, earnings of such Person prior to its becoming a Subsidiary.
“ Consolidated Net Worth ”: the sum of (i) the par value (or value stated on the books of such corporation) of the capital stock of all classes of the Company and its Subsidiaries, plus (or minus in the case of a deficit) (ii) the amount of the consolidated surplus, whether capital or earned, of the Company and its Subsidiaries, and plus (or minus in the case of a deficit) (iii) retained earnings of the Company and its Subsidiaries, all as determined in accordance with GAAP; provided, however, that Consolidated Net Worth shall exclude the effects of currency translation adjustments and the application of FAS 115.
“ Contractual Obligation ”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Default ”: any of the events specified in Section 7, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“ Defaulted Amount ”: with respect to any Bank at any time, any amount required to be paid by such Bank to the Administrative Agent or any other Bank hereunder at or prior to such time that has not been so paid as of such time. In the event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.19(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally required to be paid hereunder on the same date as the Defaulted Amount so deemed paid in part.
“ Defaulting Bank ”: at any time, a Bank that, at such time, owes a Defaulted Loan or a Defaulted Amount.
“ Defaulted Loan ”: with respect to any Bank at any time, the portion of any Loan required to be made by such Bank to the Company pursuant to Section 2.1 at or prior to such time that has not been made by such Bank. In the event that a portion of a Defaulted Loan shall be deemed paid pursuant to Section 2.12(c), the remaining portion of such Defaulted Loan shall be considered a Defaulted Loan originally required to be paid hereunder on the same date as the Defaulted Loan so deemed paid in part.
“ Dollars ” and “ $ ”: dollars in lawful currency of the United States of America.
“ Domestic Dollar Loans ”: the collective reference to ABR Loans.
“ Environmental Laws ”: any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority regulating, relating to or imposing liability or standards of conduct concerning environmental protection matters.
“ ERISA ”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
 
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“ Eurodollar Loans ”: Loans the rate of interest applicable to which is based on the Eurodollar Rate.
“ Eurodollar Rate ”: a rate per annum determined by the Administrative Agent pursuant to the following formula:

	 	Eurodollar Rate =	  	LIBOR	  		
	 		  	1.00 - Eurodollar Reserve Percentage	  		
“ Eurodollar Reserve Percentage ”: for any day, the maximum rate (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) at which any bank subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against Eurocurrency Liabilities (as that term is used in Regulation D), if such liabilities were outstanding. The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.
“ Event of Default ”: any of the events specified in Section 7, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“ Excluded Individuals ”: with respect to any Person, the officers, directors, employees, agents and representatives of such Person involved, directly or indirectly, in the payment instruments and consumer funds transfer business of such Person.
“ Extension of Credit ”: as to any Bank, the making of a Loan by such Bank.
“ Facility Fee Rate ”: for each day during each calculation period, a rate per annum based on the Ratings in effect on such day, as set forth below:

Rating	  	Facility
Fee Rate	 	
Rating I	  	0.050	%	
Rating II	  	0.060	%	
Rating III	  	0.080	%	
Rating IV	  	0.100	%	
Rating V	  	0.125	%	
“ Federal Funds Effective Rate ”: as defined in the definition of “ABR”.
“ Federal Reserve Board ”: the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.
“ Financing Lease ”: any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee.
 
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“ Funded Indebtedness ”: any indebtedness for money borrowed, created, issued, incurred, assumed or guaranteed which would, in accordance with GAAP, be classified as long-term debt, but in any event including all indebtedness for money borrowed, whether secured or unsecured, maturing more than one year, or extendible at the option of the obligor to a date more than one year, after the date of determination thereof (excluding any amount thereof included in current liabilities).
“ GAAP ”: as to a particular Person, such accounting principles as, in the opinion of the independent public accountants regularly retained by such Person, conform at the time to United States generally accepted accounting principles.
“ Governmental Authority ”: any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“ Group of Persons ” means any related Persons that would constitute a “group” for purposes of Section 13(d) and Rule 13d-5 under the Securities Exchange Act of 1934, as amended (as such Section and Rule are in effect as of the date of this Agreement).
“ Guarantee Obligation ”: as to any Person (the “guaranteeing person”), and without duplication, any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing the payment or in effect guaranteeing the payment of any Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; provided, however, that the term Guarantee Obligation shall not include (x) endorsements of instruments for deposit or collection in the ordinary course of business or (y) any bond or guarantee given by the Company or any Subsidiary on behalf of any Subsidiary solely for the performance of contractual obligations with customers or on behalf of customers in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary payment obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith.
 
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“ Indebtedness ”: of any Person at any date and without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than trade liabilities not more than 60 days past due incurred in the ordinary course of business and payable in accordance with customary practices or endorsements for the purpose of collection in the ordinary course of business and excluding the deferred purchase price of property or services to be repaid through earnings of the purchaser to the extent such amount is not characterized as indebtedness in accordance with GAAP), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such Person under Financing Leases, (d) all payment obligations of such Person in respect of acceptances issued or created for the account of such Person and (e) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof; provided that, if such Person has not assumed or otherwise become liable in respect of such indebtedness, such obligations shall be deemed to be in an amount equal to the lesser of (i) the amount of such indebtedness and (ii) the book value of the property subject to such Lien at the time of determination. For the purposes of this definition, the following shall not constitute Indebtedness: the issuance of payment instruments, consumer funds transfers, or other amounts paid to or received by the Company, any of its Subsidiaries or any agent thereof in the ordinary course of business in order for the Company or such Subsidiary to make further distribution to a third party, to the extent payment in respect thereof has been received by the Company, such Subsidiary or any agent thereof.
“ Information Materials ” the Confidential Information Memorandum dated September 2006 in respect of the $1,500,000,000 credit facility to be entered into by the Parent, including all supplements and amendments thereto.
“ Insolvency ”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“ Insolvent ”: pertaining to a condition of Insolvency.
“ Interest Payment Date ”: (a) as to any ABR Loan, the last day of each March, June, September and December and the Termination Date, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest Period and (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day which is three months or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period.
“ Interest Period ”:
(a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three, six, or, subject to clause (vi) of this definition, two weeks or nine or twelve months thereafter, as selected by the Company in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three, six, or,
 
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subject to clause (vi) of this definition, two weeks or nine or twelve months thereafter, as selected by the Company by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto; and
provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the Termination Date shall end on the Termination Date;
(iii) if the Company shall fail to give notice as provided in clause (b) above, the Company shall be deemed to have selected an ABR Loan to replace the affected Eurodollar Loan;
(iv) any Interest Period pertaining to a Eurodollar Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;
(v) no more than eight (8) Eurodollar Loans may be in effect at any time. For purposes hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar Loans, even if they shall begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new Eurodollar Loan with a single Interest Period; and
(vi) in the case of any such Eurodollar Loans, the Company and shall not be entitled to select an Interest Period having a duration of two weeks, nine or twelve months unless, by 2:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, each Bank notifies the Administrative Agent that such Bank will be providing funding for such Eurodollar Loans with such Interest Period (the failure of any Bank to so respond by such time being deemed for all purposes of this Agreement as an objection by such Bank to the requested duration of such Interest Period); provided that, if any or all of the Banks object to the requested duration of such Interest Period, the duration of the Interest Period for such Eurodollar Loans shall be one, two, three or six months, as specified by the Company in the applicable Borrowing Certificate as the desired alternative to an Interest Period of two weeks or nine or twelve months, provided, that the Company shall not be entitled to select an Interest Period having duration of two weeks for any Interest Period commencing later than December 29, 2006.
 
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“ Lead Arrangers ”: Citigroup Global Markets Inc., Wachovia Capital Markets, LLC and Morgan Stanley Bank.
“ LIBOR ”: for any Eurodollar Loan for any Interest Period therefor, either (a) the rate of interest per annum determined by the Administrative Agent appearing on the Telerate Page 3750 (or any successor page) (or (i) such other page or service as may replace such page on such system or service for the purpose of displaying such rate and (ii) if more than one rate appears on such screen, the arithmetic mean for all such rates) as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time), on the second full Business Day preceding the first day of such Interest Period, and in an amount approximately equal to the amount of the Eurodollar Loan and for a period approximately equal to such Interest Period or (b) if such rate is for any reason not available, the rate per annum equal to the rate at which the Administrative Agent or its designee is offered deposits in Dollars at or about 11:00 A.M. (London time), two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where the eurodollar and exchange operations in respect of its Eurodollar Loans are then being conducted for settlement in immediately available funds, for delivery on the first day of such Interest Period for the number of days comprised therein, and in an amount comparable to the amount of the Eurodollar Loan to be outstanding during such Interest Period.
“ Lien ”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Financing Lease having substantially the same economic effect as any of the foregoing), it being understood that the holding of money or investments for the purpose of honoring payment instruments or consumer funds transfers, or other amounts paid to or received by the Company, any of its Subsidiaries or any agent thereof in the ordinary course of business in order for the Company or such Subsidiary to make further distribution to a third party, shall not be considered a “Lien” for the purposes of this definition.
“ Loan Documents ”: this Agreement and the Notes.
“ Loan ”: as defined in subsection 2.1.
“ Majority Banks ”: at any time, the Banks holding (or under subsection 2.19(e) participating in) more than 50% of the aggregate unpaid principal amount of the Loans or, if no Loans are then outstanding, the Banks holding more than 50% of the aggregate amount of the Commitments.
“ Material Adverse Effect ”: a material adverse effect on the ability of the Company to perform its obligations under this Agreement or the Notes.
“ Moody’s ”: Moody’s Investors Service, Inc.
“ Multiemployer Plan ”: a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ Note ”: as defined in subsection 2.2.
 
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“ Obligations ”: all of the obligations, indebtedness and liabilities of the Company to the Banks and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Loan Documents including principal, interest, fees, reimbursements and indemnification obligations and other amounts (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to the Company, regardless of whether such interest is an allowed claim under the Bankruptcy Code).
“ Parent ”: The Western Union Company, a Delaware corporation, and its successors and assigns.
“ Participant ”: as defined in subsection 9.6(b).
“ PBGC ”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
“ Person ”: an individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, Governmental Authority or other entity of whatever nature.
“ Plan ”: at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Company or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Prime Rate ”: as defined in the definition of ABR.
“ Principal Facility ”: the real property, fixtures, machinery and equipment relating to any facility owned by the Company or any Subsidiary, except for any facility that, in the opinion of the Board of Directors of the Company, is not of material importance to the business conducted by the Company and its Subsidiaries, taken as a whole.
“ Purchased Receivables ”: accounts receivable purchased by the Company or any of its Subsidiaries from third parties and not originally created by the sale of goods or services by the Company or any of its Subsidiaries.
“ Purchased Receivables Financing ”: any financing transaction pursuant to which Purchased Receivables are sold, transferred, securitized or otherwise financed by any Receivables Subsidiary and as to which there is no recourse to the Company or any of its other Subsidiaries (other than customary representations and warranties made in connection with the sale or transfer of Purchased Receivables).
“ Purchasing Banks ”: as defined in subsection 9.6(c).
“ Rating ”: the respective rating of each of the Rating Agencies applicable to the long-term senior unsecured non-credit enhanced debt of the Parent, as announced by the Rating Agencies from time to time.
 
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“ Rating Agencies ”: collectively, S&P and Moody’s.
“ Rating Category ”: each of Rating I, Rating II, Rating III, Rating IV and Rating V.
“ Rating I ”, “ Rating II ”, “ Rating III ”, “ Rating IV ” and “ Rating V ”: the respective Ratings set forth below:

Rating
Category	  	S&P	  	Moody’s	
			
Rating I	  	greater than or equal to A	  	greater than or equal to A2	
			
Rating II	  	equal to A-	  	equal to A3	
			
Rating III	  	equal to BBB+	  	equal to Baa1	
			
Rating IV	  	equal to BBB	  	equal to Baa2•	
			
Rating V	  	less than BBB	  	less than Baa2	
provided, that (i) if on any day the Ratings of the Rating Agencies do not fall in the same Rating Category, and the lower of such Ratings (i.e., the Rating Category designated by a numerically higher Roman numeral) is one Rating Category lower than the higher of such Ratings, then the Rating Category of the higher of such Ratings shall be applicable for such day, (ii) if on any day the Ratings of the Rating Agencies do not fall in the same Rating Category, and the lower of such Ratings is more than one Rating Category lower than the higher of such Ratings, then the Rating Category next lower from that of the higher of such Ratings shall be applicable for such day, (iii) if on any day the Rating of only one of the Rating Agencies is available, then the Rating Category determined by such Rating shall be applicable for such day and (iv) if on any day a Rating is available from neither of the Rating Agencies, then Rating V shall be applicable for such day. Any change in the applicable Rating Category resulting from a change in the Rating of a Rating Agency shall become effective on the date such change is publicly announced by such Rating Agency.
“ Receivables Subsidiary ”: any Subsidiary of the Company which purchases Purchased Receivables directly or to which Purchased Receivables are transferred by the Company or any of its Subsidiaries, in either case with the intention of engaging in a Purchased Receivables Financing.
“ Regulation U ”: Regulation U of the Board of Governors of the Federal Reserve System.
“ Regulation X ”: Regulation X of the Board of Governors of the Federal Reserve System.
“ Reorganization ”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
 
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“ Reportable Event ”: any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice period is waived by the PBGC.
“ Requirement of Law ”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law (including, without limitation, Environmental Laws), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Responsible Officer ”: the president, chief financial officer, treasurer or any vice-president of the Company.
“ S&P ”: Standard & Poor’s Ratings Services.
“ Short-Term Ratings ”: with respect to any Person, the short-term debt ratings of such Person issued by the Rating Agencies.
“ Significant Subsidiary ”: at any date, any Subsidiary of the Company which, together with its Subsidiaries, (i) has a proportionate share of Consolidated Net Assets that exceeds 10% at the time of determination or (ii) has equity in the Consolidated Net Income that exceeds 10% for the period of the four most recently completed fiscal quarters preceding the time of determination.
“ Single Employer Plan ”: any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“ Spin-Off Financial Statements ”: means combined financial statements of the Parent and its Subsidiaries delivered to the Administrative Agent in connection with this Agreement, including the audited financial statement for the fiscal year ended December 31, 2005 and the unaudited pro forma financial statements included in the Western Union Form 10.
“ Subsidiary ”: as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
“ Termination Date ”: September 26, 2007.
“ Tranche ”: the reference to Eurodollar Loans the Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day); Tranches may be identified as “Eurodollar Tranches”.
“ Transferee ”: as defined in subsection 9.6(f).
 
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“ Type ”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
“ Western Union Form 10 ”: the Form 10 of the Parent, filed with the Securities Exchange Commission on June 6, 2006, as amended prior to the Closing Date.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Notes or any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Company and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein shall be interpreted, and all accounting determinations hereunder shall be made, in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of the Company delivered to the Banks; provided that, if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in this Agreement, and the Company, the Majority Banks or the Administrative Agent shall so request, the Administrative Agent, the Banks and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Banks); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
 
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SECTION 2
AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.
(a) Subject to the terms and conditions hereof, each Bank severally agrees to make a loan (each, a “ Loan ”; collectively, the “ Loans ”) in Dollars to the Company on any single Business Day during the Commitment Period in a principal amount which shall not exceed the amount of such Bank’s Commitment. Amounts borrowed under this Section 2.1(a) and repaid or prepaid may not be reborrowed.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans, or (iii) a combination thereof, as determined by the Company and notified to the Administrative Agent in accordance with subsections 2.3 and 2.7, provided that no Loan shall be made as a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Notes. The Loans made by each Bank shall be evidenced by a promissory note of the Company, substantially in the form of Exhibit A with appropriate insertions as to payee, date and principal amount (a “ Note ”), payable to the order of such Bank and in a principal amount equal to such Bank’s Commitment. Each Bank is hereby authorized to record the date, Type and amount of each Loan made by such Bank, each continuation thereof, each conversion of all or a portion thereof to another Type, the date and amount of each payment or prepayment of principal thereof and, in the case of Eurodollar Loans, the length of each Interest Period with respect thereto, on the schedule annexed to and constituting a part of its Note, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure of any Bank to make any such recordation (or any error in such recordation) shall not affect the obligations of the Company hereunder or under any Note in respect of the Loans. Each Note shall (x) be dated the Closing Date, (y) be stated to mature on the Termination Date and (z) provide for the payment of interest in accordance with subsection 2.9.
2.3 Procedure for Borrowing. The Company may borrow under the Commitments during the Commitment Period on any Business Day, provided that the Company shall deliver to the Administrative Agent a Borrowing Certificate (which certificate to be effective on the requested Borrowing Date must be received by the Administrative Agent (a) prior to 12:00 noon, New York City time, three Business Days prior to the requested Borrowing Date, if all or any part of the requested Loans are to be initially Eurodollar Loans and (b) prior to 12:00 noon, New York City time, on the requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iiii) if the borrowing is to be entirely or partly of Eurodollar Loans, the aggregate amount of such Eurodollar Loans and the amounts of each such Eurodollar Loan and the respective length of the initial Interest Period therefor. Each borrowing under the Commitments shall be in an amount equal to (x) in the case of ABR Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then Available Commitments are less than $5,000,000, such lesser amount) and (y) in the case of Eurodollar
 
14

Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of a Borrowing Certificate, the Administrative Agent shall promptly notify each Bank thereof.
Each Bank will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified in subsection 9.2 or such other office specified by the Administrative Agent from time to time prior to 2:00 P.M., New York City time in the case of ABR Loans and 11:00 A.M., New York City time in the case of Eurodollar Loans on the Borrowing Date requested by the Company in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Company by the Administrative Agent crediting the account of the Company on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Banks and in like funds as received by the Administrative Agent.
2.4 Fees.
The Company agrees to pay to the Administrative Agent, for the account of each Bank, a facility fee for the period from and including the Closing Date through the Termination Date, calculated as an amount equal to the product of (i) the Facility Fee Rate and (ii) the average daily amount of the Commitment of such Bank (regardless of usage) during the period for which such facility fee is calculated, payable in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date) and on the Termination Date or such earlier date on which the Commitments shall terminate as provided herein (for the period from the last quarterly payment date to the Termination Date or such other date, as applicable). Such payments shall commence on December 31, 2006, and such first payment shall be for the period from the Closing Date through December 31, 2006.
2.5 Termination or Reduction of Commitments. (a)  Optional . The Company shall have the right, upon not less than five Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments, provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the aggregate principal amount of the Loans then outstanding would exceed the Commitments then in effect. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently the Commitments then in effect.
(b) Mandatory . The Commitments shall automatically and permanently terminate on the date of the initial Borrowing.
2.6 Prepayments.
(a) Optional . Subject to subsection 2.16, the Company may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice to the Administrative Agent given prior to 10:00 A.M., New York City time, at least three Business Days in advance in the case of Eurodollar Loans and on the requested prepayment date in the case of ABR Loans, specifying the date and
 
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amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) Mandatory . On the first Business Day after the Company or any of its Subsidiaries receives net cash proceeds from (i) the issuance or incurrence of indebtedness for borrowed money in the capital markets having a stated maturity of longer than 270 days, (ii) the issuance of equity interests in the capital markets or (iii) the sale of assets in a transaction or series of related transactions (other than sales of assets in the ordinary course of business or otherwise by the Company or any of its Subsidiaries to the Company or any other Subsidiary of the Company) the consideration for which is $250,000,000 or more, the Company shall ratably repay the Advances by an amount equal to such net cash proceeds.
2.7 Conversion and Continuation Options.
(a) The Company may elect from time to time to convert Loans that are Eurodollar Loans to ABR Loans, by giving the Administrative Agent at least two Business Days’ prior irrevocable notice of such election, provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Company may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be converted as provided herein, provided that (i) no Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Banks have determined that such a conversion is not appropriate, (ii) any such conversion may only be made if, after giving effect thereto, subsection 2.8 shall not have been contravened and (iii) no Loan may be converted into a Eurodollar Loan after the date that is one month prior to the Termination Date.
(b) Any Loans that are Eurodollar Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Company giving notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in subsection 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no Eurodollar Loan may be continued as such (i) when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Banks have determined that such a continuation is not appropriate, (ii) if, after giving effect thereto, subsection 2.8 would be contravened or (iii) after the date that is one month prior to the Termination Date and provided, further, that if the Company shall fail to give any required notice as described above in this paragraph or if
 
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such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof.
2.8 Minimum Amounts of Tranches. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising each Eurodollar Tranche shall be equal to an amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.9 Interest Rates and Payment Dates.
(a) Each ABR Loan shall bear interest at a rate per annum equal to the ABR.
(b) Each Loan that is a Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such Interest Period plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum which is (x) in the case of overdue principal, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection plus 2% or (y) in the case of overdue interest, the rate described in paragraph (a) of this subsection plus 2%, in each case from the date of such non-payment until such amount is paid in full (as well after as before judgment).
(d) Interest on each Loan shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this subsection shall be payable on demand.
2.10 Computation of Interest and Fees.
(a) Facility fees and, whenever it is calculated on the basis of the Prime Rate, interest on ABR Loans shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed; otherwise, interest shall be calculated on the basis of a 360-day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Banks of each determination of a Eurodollar Rate. The Administrative Agent shall as soon as practicable notify the Company and the Banks of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Company and the Banks in the absence of manifest error. The Administrative Agent shall, at the request of the Company, deliver to the Company a statement showing the
 
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quotations used by the Administrative Agent in determining any interest rate pursuant to subsection 2.9(b) or (c).
2.11 Inability to Determine Interest Rate. In the event that prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Company) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority Banks that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Banks (as conclusively certified by such Banks) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic (confirmed in writing) notice thereof to the Company and the Banks as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be converted to or continued as ABR Loans and (z) any Loans that pursuant to subsection 2.7(b) were to have been continued on the first day of such Interest Period as Eurodollar Loans shall be converted to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Company have the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing of Loans and any reduction of the Commitments shall be made pro rata according to the respective Commitment Percentages of the Banks. Unless otherwise required by the terms of this Agreement, each payment under this Agreement or any Note shall be applied, first, to any fees then due and owing by the Company pursuant to subsection 2.4, second, to interest then due and owing in respect of the Notes of the Company and, third, to principal then due and owing hereunder and under the Notes of the Company. Each payment on account of any fees pursuant to subsection 2.4 for the account of the Banks shall be made pro rata in accordance with the respective amounts due and owing. Each payment (other than prepayments) by the Company on account of principal of and interest on the Loans shall be made pro rata according to the respective amounts due and owing. Payments made pursuant to subsection 2.13 shall be applied in accordance with such section. All payments (including prepayments) to be made by the Company on account of principal, interest and fees shall be made without defense, set-off or counterclaim (except as provided in subsection 2.15(b)) and shall be made to the Administrative Agent for the account of the Banks at the Administrative Agent’s office specified in subsection 9.2 or such other office specified by the
 
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Administrative Agent in immediately available funds and shall be made in Dollars not later than 12:00 noon New York City time on the date when due. Any payment received after the foregoing deadlines shall be deemed received on the next Business Day. The Administrative Agent shall distribute such payments to the Banks entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.
(b) Notwithstanding any other provisions of this Agreement to the contrary, after the exercise of remedies by the Administrative Agent or the Banks pursuant to Section 7 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Loan Documents shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Bank on account of the Obligations or any other amounts outstanding under any of the Loan Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable attorneys’ fees) of the Administrative Agent in connection with enforcing the rights of the Banks under the Loan Documents;
SECOND, to the payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation, reasonable attorneys’ fees) of each of the Banks in connection with enforcing its rights under the Loan Documents or otherwise with respect to the Obligations owing to such Bank;
FOURTH, to the payment of all of the Obligations consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the Obligations;
SIXTH, to all other Obligations and other obligations which shall have become due and payable under the Loan Documents or otherwise and not repaid pursuant to clauses ”FIRST” through “FIFTH” above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding
 
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category; and (ii) each of the Banks shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans held by such Bank bears to the aggregate then outstanding Loans) of amounts available to be applied pursuant to clauses ”THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above.
(c) Unless the Administrative Agent shall have been notified in writing by any Bank prior to a Borrowing Date that such Bank will not make the amount that would constitute its Commitment Percentage of the borrowing of a Loan on such date available to the Administrative Agent, the Administrative Agent may assume that such Bank has made such amount available to the Administrative Agent on such Borrowing Date, and the Administrative Agent may, in reliance upon such assumption, make available to the Company a corresponding amount. If such amount is made available to the Administrative Agent on a date after such Borrowing Date, such Bank shall pay to the Administrative Agent on demand an amount equal to the product of (i) the daily average Federal Funds Effective Rate (as defined in the definition of “ABR”) during such period as quoted by the Administrative Agent, (ii) the amount of such Bank’s Commitment Percentage of such borrowing, and (iii) a fraction the numerator of which is the number of days that elapse from and including such Borrowing Date to the date on which such Bank’s Commitment Percentage of such borrowing shall have become immediately available to the Administrative Agent and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Bank with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Bank’s Commitment Percentage of such borrowing is not in fact made available to the Administrative Agent by such Bank within three Business Days of such Borrowing Date, the Administrative Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from the Company.
(d) Unless the Administrative Agent shall have been notified in writing by the Company, prior to the date on which any payment is due from the Company hereunder (which notice shall be effective upon receipt) that the Company does not intend to make such payment, the Administrative Agent may assume that the Company has made such payment when due, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to each Bank on such payment date an amount equal to the portion of such assumed payment to which such Bank is entitled hereunder, and if the Company has not in fact made such payment to the Administrative Agent, such Bank shall, on demand, repay to the Administrative Agent the amount made available to such Bank. If such amount is repaid to the Administrative Agent on a date after the date such amount was made available to such Bank, such Bank shall pay to the Administrative Agent on demand interest on such amount in respect of each day from the date such amount was made available by the Administrative Agent to such Bank to the date such amount is recovered by the Administrative Agent at a per annum rate equal to the Federal Funds Effective Rate. A certificate of the Administrative Agent submitted to the Company with respect to any amount owing under this subsection shall be conclusive in the absence of manifest error.
 
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2.13 Illegality.
Notwithstanding any other provision herein, if any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Bank to make or maintain Eurodollar Loans as contemplated by this Agreement, (i) the commitment of such Bank hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert Domestic Dollar Loans to Eurodollar Loans shall forthwith be cancelled and (ii) such Bank’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall pay to such Bank such amounts, if any, as may be required pursuant to subsection 2.16.
2.14 Requirements of Law.
(a) In the event that Eurodollar Reserve Percentage or any change in any Requirement of Law or in the interpretation or application thereof after the date of this Agreement or compliance by any Bank with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever with respect to this Agreement, any Note or any application related thereto, or any Eurodollar Loan made by it, or change the basis of taxation of payments to such Bank in respect thereof (except for taxes covered by subsection 2.15 and changes in franchise taxes or the rate of tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by an amount which such Bank deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans, or to reduce any amount receivable hereunder in respect thereof then, in any such case, the Company shall promptly pay such Bank, upon its demand, any additional amounts necessary to compensate such Bank for such increased cost or reduced amount receivable as provided in this Section 2.14(a). If any Bank becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify the Company, through the Administrative Agent, of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by such Bank, through the Administrative Agent, to the Company in good faith and setting forth in reasonable detail the calculation of such
 
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amounts shall be conclusive in the absence of manifest error; provided that the Company’s obligations under this Section 2.14(a) shall be limited to amounts accruing not more than 180 days prior to the invoice thereof by such Bank (such time period to be extended as necessary to take into account any retroactive application of a change in law giving rise to such obligations). This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder until the second anniversary of such payment and termination.
(b) In the event that any Bank or corporation controlling such Bank shall have determined that any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Bank or such corporation with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on such Bank’s capital as a consequence of its obligations hereunder to a level below that which such Bank could have achieved but for such change or compliance (taking into consideration such Bank’s policies with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time, after submission by such Bank in good faith to the Company (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the calculation of such amount (which request shall be conclusive in the absence of manifest error), the Company shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction; provided that the Company’s obligations under this Section 2.14(b) shall be limited to amounts accruing not more than 180 days prior to the invoice thereof by such Bank (such time period to be extended as necessary to take into account any retroactive application of a change in law giving rise to such obligations). This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder until the second anniversary of such payment and termination.
2.15 Taxes.
(a) Subject to subsection 2.15(b) or 9.6(g), as appropriate, all payments made by the Company under this Agreement and the Notes shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding, in the case of the Administrative Agent and each Bank, net income taxes, branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which such Bank is located and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or such Bank, as the case may be, as a result of a present or former connection between the jurisdiction of the government or taxing authority imposing such tax and the Administrative Agent or such Bank (excluding a connection arising solely from the Administrative Agent or such Bank having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or the Notes) or any political subdivision or taxing authority thereof or therein (all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called “ Taxes ”). If any Taxes are required
 
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to be withheld from any amounts payable to the Administrative Agent or any Bank hereunder or under the Notes, the amounts so payable to the Administrative Agent or such Bank (so long as such Bank is in compliance with subsection 2.15(b) or 9.6(g), as appropriate and if applicable) shall be increased to the extent necessary to yield to the Administrative Agent or such Bank (after payment of all Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement and the Notes. Whenever any Taxes are payable by the Company, as promptly as possible thereafter the Company shall send to the Administrative Agent for its own account or for the account of such Bank, as the case may be, a certified copy of an original official receipt received by the Company showing payment thereof. If the Company fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Company shall indemnify the Administrative Agent and the Banks for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Bank as a result of any such failure. The agreements in this subsection shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder.
(b) Each Bank party to this Agreement on the Closing Date that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees that, on or prior to the Closing Date, it will deliver to the Company and the Administrative Agent (i) two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be or (ii) in the case of such a Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) two duly completed copies of United States Internal Revenue Service Form W-8BEN, in each case certifying such Bank’s entitlement to a complete exemption from United States withholding tax with respect to interest payments to be made under this Agreement and under any Note. Each such Bank also agrees to deliver to the Company and the Administrative Agent two further copies of such forms, or successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Company, and such extensions or renewals thereof as may reasonably be requested by the Company or the Administrative Agent, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank so advises the Company and the Administrative Agent. Each Bank party to this Agreement on the Closing Date that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees that, on or prior to the Closing Date, it will deliver to the Company and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-9, certifying that it is not subject to United States backup withholding tax.
 
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2.16 Indemnity. The Company agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of (a) default by the Company in payment when due of the principal amount of or interest on any Eurodollar Loan, (b) default by the Company in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Company has given a notice requesting the same in accordance with the provisions of this Agreement, (c) default by the Company in making any prepayment of Eurodollar Loans after the Company has given a notice thereof in accordance with the provisions of this Agreement or (d) the making of a prepayment or conversion, or the purchase pursuant to subsection 2.17, of Eurodollar Loans on a day which is not the last day of an Interest Period with respect thereto, including, without limitation, in each case, any such loss (other than non-receipt of the Applicable Margin or, without duplication, anticipated profits) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate the deposits from which such funds were obtained (it being understood that any such calculation will be made on notional amounts as the Banks are not required to show that they matched deposits specifically). A certificate as to any additional amounts payable pursuant to this subsection submitted by such Bank, through the Administrative Agent, to the Company in good faith shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder.
2.17 Action of Affected Banks. Each Bank agrees to use reasonable efforts (including reasonable efforts to change the booking office for its Loans) to avoid or minimize any illegality pursuant to subsection 2.13 or any amounts which might otherwise be payable pursuant to subsection 2.14(a) or 2.15; provided, however, that such efforts shall not cause the imposition on such Bank of any additional costs or legal or regulatory burdens deemed by such Bank to be material and shall not be deemed by such Bank to be otherwise disadvantageous or contrary to its policies. In the event that such reasonable efforts are insufficient to avoid all such illegality or all amounts that might be payable pursuant to subsection 2.14(a) or 2.15, then such Bank (the “Affected Bank”) shall use its reasonable efforts to transfer to any other Bank (which itself is not then an Affected Bank) its Loans and Commitment subject to the provisions of subsection 9.6(c); provided, however, that such transfer shall not be deemed by such Affected Bank, in its sole discretion, to be disadvantageous to it or contrary to its policies. In the event that the Affected Bank is unable, or otherwise is unwilling, so to transfer its Loans and Commitment, the Company may designate an alternate lender (reasonably acceptable to the Administrative Agent) to purchase the Affected Bank’s Loans and Commitment, at par and including accrued interest, and, subject to the provisions of subsection 9.6(c), the Affected Bank shall transfer its Commitment to such alternate lender and such alternate lender shall become a Bank hereunder. Any fee payable to the Administrative Agent pursuant to subsection 9.6(e) in connection with such transfer shall be for the account of the Company.
2.18 Payment in Full at Maturity. The Company shall pay to the Administrative Agent, for the account of each Bank, the entire outstanding principal amount owing under the Agreement or under any Notes, together with accrued but unpaid interest and all other sums owing under the Agreement, on the Termination Date unless accelerated sooner pursuant to Section 7.
 
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2.19 Defaulting Banks.
(a) In the event that, at any one time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Loan to the Company and (iii) the Company shall be required to make any payment hereunder to or for the account of such Defaulting Bank, then the Company may, so long as no Event of Default shall occur or be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the obligations of the Company to make such payment to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Loan. In the event that, on any date, the Company shall so set off and otherwise apply its obligation to make any such payment against the obligation of such Defaulting Bank to make any such Defaulted Loan on or prior to such date, the amount so set off and otherwise applied by the Company shall constitute for all purposes of this Agreement a Loan by such Defaulting Bank made on the date of such setoff under the provision hereof pursuant to which such Defaulted Loan was originally required to have been made. Such Loan shall be considered, for all purposes of this Agreement, to comprise part of the Loan in connection with which such Defaulted Loan was originally required to have been made. The Company shall notify the Administrative Agent at any time the Company exercises its right of set-off pursuant to this subsection (a) and shall set forth in such notice (A) the name of the Defaulting Bank and the Defaulted Loan required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Loan pursuant to this subsection (a). Any portion of such payment otherwise required to be made by the Company to or for the account of such Defaulting Bank which is paid by the Company, after giving effect to the amount set off and otherwise applied by the Company pursuant to this subsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.19.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any of the other Banks and (iii) the Company shall make any payment hereunder to the Administrative Agent for the account of such Defaulting Bank, then the Administrative Agent may, on its behalf or on behalf of such other Bank and to the fullest extent permitted by applicable law, apply at such time the amount so paid by the Company to or for the account of such Defaulting Bank to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement payment, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks in the following order of priority:
first , to the Administrative Agent for any Defaulted Amounts then owing to it, in its capacity as such, ratably in accordance with such Defaulted Amounts then owing to the Administrative Agent; and
 
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second , to any Bank for any Defaulted Amounts then owing to such Bank, ratably in accordance with such respective Defaulted Amounts then owing to such Bank.
(c) The rights and remedies against a Defaulting Bank under this Section 2.19 are in addition to other rights and remedies that the Company may have against such Defaulting Bank with respect to any Defaulted Loan and that the Administrative Agent or any Bank may have against such Defaulting Bank with respect to any Defaulted Amount.
SECTION 3
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the Loans the Company hereby represents and warrants to the Administrative Agent and each Bank as of the Closing Date and as of the date of each Loan that:
3.1 Financial Condition. The combined financial statements of the Parent, the Company and their Subsidiaries delivered to the Administrative Agent in connection with this Agreement, including the audited financial statement for the fiscal year ended December 31, 2005 and the unaudited pro forma financial statements, copies of which have heretofore been furnished to each Bank, present fairly the financial condition of the Company and its investments in its Subsidiaries contained therein as of the dates and for the periods indicated, subject to the qualifications with respect to the pro forma financial statements set forth therein. Neither the Company nor any of its Subsidiaries had, at the date of the most recent balance sheet referred to above, any guarantee obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing statements or in the notes thereto and which, to the best of the Company’s knowledge, would have a Material Adverse Effect.
3.2 No Change. Except as disclosed in the Western Union Form 10 (or in any Form 10-Q, 8-K or other public filing of the Parent with the Securities Exchange Commission filed after date thereof but prior to the Closing Date), during the period from date of the Spin-Off Financial Statements to and including the Closing Date, no change, or development or event involving a prospective change, has occurred which has had or could reasonably be expected to have a Material Adverse Effect; provided, however that the foregoing representation is made solely as of the Closing Date.
3.3 Corporate Existence; Compliance with Law. Each of the Company and its Significant Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except to the extent that, in the aggregate, the failure of any such Subsidiaries to be duly organized, validly existing or in good standing would not have a Material Adverse Effect, (b) has the corporate (or other) power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that, in the aggregate, the failure of any such Subsidiaries to have any such power, authority or legal right would not have a Material Adverse Effect, (c) is duly qualified and in good standing under the laws of each
 
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jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent that, in the aggregate, the failure of the Company and its Subsidiaries to so qualify or be in good standing would not have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law except to the extent that, in the aggregate, the failure of the Company and its Subsidiaries to comply therewith would not have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Company has the corporate power and authority, and the legal right, to make, deliver and perform this Agreement and the Notes and to borrow hereunder and has taken all necessary corporate action to authorize its Obligations on the terms and conditions of this Agreement and the Notes and to authorize the execution, delivery and performance of this Agreement and the Notes. No consent or authorization of, filing with or other act by or in respect of, any Governmental Authority or any other Person (except as have been obtained or made) is required in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or the Notes. This Agreement has been, and each Note will be, duly executed and delivered on behalf of the Company. This Agreement constitutes, and each Note when executed and delivered will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this Agreement and the Notes, the Obligations hereunder and the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation of the Company or of any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Company, threatened by or against the Company or any of its Subsidiaries or against any of its or their respective properties or revenues which (a) except as listed on Schedule 3.6 or disclosed in the Western Union Form 10 (or in any subsequent filing of the Parent with the Securities and Exchange Commission made prior to the Closing Date), on the Closing Date, would have a Material Adverse Effect or (b) would have a material adverse effect on the validity or enforceability of this Agreement or any of the Notes or the rights or remedies of the Administrative Agent or the Banks hereunder or thereunder, provided, however that the representation in clause (a) of this Section 3.6 is made solely as of the Closing Date.
3.7 No Default. No Default or Event of Default has occurred and is continuing.
3.8 Taxes. Each of the Company and its Significant Subsidiaries has filed or caused to be filed all tax returns which, to the knowledge of the Company, are required to be filed and has paid all material taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all material other taxes, fees or other charges imposed
 
27

on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Company or its Subsidiaries, as the case may be); on the Closing Date, no tax Lien has been filed, and, to the knowledge of the Company, no claim is being asserted, with respect to any such tax, fee or other charge.
3.9 Federal Regulations. No part of the proceeds of any Loans will be used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U or Regulation X of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect if such use would violate, or cause the Loans or the Commitments to be in violation of, the provisions of the Regulations of such Board of Governors. If requested by any Bank or the Administrative Agent at any time (and in any case prior to or concurrently with the borrowing of any Loan the proceeds of which will be used to purchase or carry margin stock), the Company will furnish to the Administrative Agent and each Bank a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in said Regulation U.
3.10 ERISA. Except to the extent that all of the following, in the aggregate, would not have a Material Adverse Effect: (i) no Reportable Event has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan, and each Plan has complied in all material respects with the applicable provisions of ERISA and the Code; (ii) the present value of all accrued benefits under each Single Employer Plan maintained by the Company or any Commonly Controlled Entity (based on those assumptions used to fund the Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits based upon the actuarial assumptions used by such Plan; (iii) neither the Company nor any Commonly Controlled Entity has or has had any liability or obligation in respect of any Multiemployer Plan; and (iv) the present value (determined using actuarial and other assumptions which are reasonable in respect of the benefits provided and the employees participating) of the liability of the Company and each Commonly Controlled Entity for post retirement benefits, if any, to be provided to their current and former employees under Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all such Plans or other funding arrangements allocable to such benefits, if any; (v) no application for a minimum funding waiver with respect to a Plan has been made; and (vi) the PBGC has not instituted proceedings to terminate a Plan pursuant to Section 4042 of ERISA, nor has any event of condition descried in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan occurred.
3.11 Investment Company Act. Neither the Company nor any of its Subsidiaries is subject to registration as an “investment company” or is “controlled” by such a company, within the meaning of the Investment Company Act of 1940, as amended.
3.12 Purpose of Loans. The proceeds of the Loans shall be used by the Company to refinance existing Indebtedness and to provide financing in connection with the spin-off of the Parent from First Data Corporation as set forth in the Western Union Form 10.
 
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3.13 Disclosure. On the Closing Date, neither this Agreement, the Notes, nor the Information Materials, taken as a whole with the Western Union Form 10 (or in any subsequent filing of the Parent with the Securities and Exchange Commission made prior to the Closing Date), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances in which they were made, not materially misleading.
3.14 Ranking. The Loans shall remain at least pari passu with all other senior unsecured obligations of the Company.
3.15 Compliance with OFAC, FCPA. Company is in material compliance with all applicable United States economic and trade sanctions, including those administered by the Office of Foreign Asset Control within the United States Department of the Treasury, and the United States Foreign Corrupt Practices Act.
3.16 Closing Date Representations and Warranties. The representations and warranties of the Company made in this Agreement on or as of the Closing Date shall be deemed to be made immediately after giving effect to the spin-off of the Parent described in the Western Union Form 10.
SECTION 4
CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The agreements of each Bank contained herein are subject to the satisfaction of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of the Company, and (ii) for the account of each Bank, a Note conforming to the requirements hereof and executed by a duly authorized officer of the Company.
(b) Corporate Proceedings of the Company. The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the Board of Directors of the Company authorizing (i) the execution, delivery and performance of this Agreement and the Notes and (ii) the borrowings contemplated hereunder, certified by the Secretary or an Assistant Secretary of the Company as of the Closing Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded and are in full force and effect and shall be in form and substance satisfactory to the Administrative Agent.
(c) Corporate Documents. The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by-laws of the Company, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of the Company.
 
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(d) No Violation. The consummation of the transactions contemplated hereby shall not contravene, violate or conflict with, nor involve the Administrative Agent or any Bank in any violation of, any Requirement of Law.
(e) Fees. The Administrative Agent shall have received the fees to be received on the Closing Date referred to in subsection 2.4.
(f) Legal Opinion. The Administrative Agent shall have received the executed legal opinion of counsel of the Company, substantially in the form of Exhibit C, and the Company hereby instructs its counsel to execute and deliver such opinion to the Administrative Agent. Such legal opinion shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require.
(g) Litigation. Except as listed on Schedule 3.6 hereto, there shall exist no pending or threatened litigation, bankruptcy or insolvency, injunction, order or claim which could have a material adverse effect on this Agreement or the Company and its Subsidiaries taken as a whole.
(h) Consents and Approvals. All consents and approvals of the boards of directors, shareholders and other applicable third parties necessary in connection with this Agreement shall have been obtained.
(i) Material Adverse Change. No material adverse change shall have occurred since the date of the Spin-Off Financial Statements in the business, assets, liabilities, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole.
(j) Financial Statements. The Administrative Agent shall have received copies of the financial statements referred to in Section 3.1 hereof, each in form and substance reasonably satisfactory to it.
(k) Patriot Act Certificate. The Administrative Agent shall have received a certificate reasonably satisfactory thereto, for benefit of itself and the Banks, provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of the Company, the name and address of the Company and other information that will allow the Administrative Agent or any Bank, as applicable, to identify such Company in accordance with the Patriot Act (as defined in Section 9.9 hereof).
(l) Consummation of Spin-Off. All conditions precedent to the transactions described in the Western Union Form 10 relative to the spin-off of the Parent from First Data Corporation (other than any condition of payment with the proceeds of Loans made hereunder) shall have been satisfied.
4.2 Conditions to Each Loan. The agreement of each Bank to make any Loan (other than the conversion or continuation of any Loan pursuant to subsection 2.7) requested to be made
 
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by it on any date (including, without limitation, its initial Loan) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and warranties made by the Company in this Agreement shall be true and correct in all material respects on and as of such date as if made on and as of such date, both before and after giving effect to the making of such Loans (except any representation or warranty relating to or made expressly as of a specific date shall be true and correct in all material respects solely with respect to and as of such specific date).
(b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Loans requested to be made on such date.
(c) Borrowing Certificate. In the case of Loans, the Administrative Agent shall have received, on or prior to the time required for its receipt pursuant to subsection 2.3, a Borrowing Certificate with respect to the Loans requested to be made on such date.
Each borrowing by the Company hereunder shall constitute a representation and warranty by the Company as of the date of such Loan that the conditions contained in subsection 4.2(a) and (b) have been satisfied.
SECTION 5
AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect, any Note remains outstanding and unpaid or any other amount is owing to any Bank or the Administrative Agent hereunder, the Company shall:
5.1 Financial Statements. Furnish to the Administrative Agent (which shall promptly make available to the Banks):
(a) as soon as available, but in any event no later than the earlier of (i) the date that is five days after the Parent is required by the SEC to deliver its Form 10-K for any fiscal year of the Parent and (ii) 95 days after the end of each fiscal year of the Parent, a copy of the consolidated balance sheet of the Parent and its consolidated Subsidiaries as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or any qualification arising out of the scope of the audit, provided that to the extent different components of such consolidated financial statements are separately audited by different independent public accounting firms, the audit report of any such accounting firm may contain a qualification or exception as to scope of such consolidated financial statements by Ernst & Young LLP or other independent certified public accountants of nationally recognized standing not unacceptable to the Majority Banks (it being understood that any of the following
 
31

accounting firms: Deloitte & Touche, Ernst & Young LLP, KPMG and PricewaterhouseCoopers shall not be unacceptable to the Banks); and
(b) as soon as available, but in any event not later than the earlier of (i) the date that is five days after the Parent is required by the SEC to deliver its Form 10-Q for each of the first three quarterly periods of each fiscal year of the Parent and (ii) 50 days after the end of each of the first three quarterly periods of each fiscal year of the Parent, the unaudited consolidated balance sheet of the Parent and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and retained earnings and of cash flows of the Parent and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter together with financial information with respect to the Company and its Subsidiaries presented on a basis consistent with the Spin-Off Financial Statements), setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer of the Company with respect to the Company’s financial information contained therein as being fairly stated in all material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein with a reasonable estimate of the effect on such financial statements on account of such changes in application).
5.2 Certificates; Other Information. Furnish to the Administrative Agent (which shall promptly make available to the Banks):
(a) concurrently with the delivery of the financial statements referred to in subsections 5.1(a) and 5.1(b), a certificate of a Responsible Officer stating that such Officer has obtained no knowledge of any Default or Event of Default that has occurred and is continuing except as specified in such certificate;
(b) promptly upon receipt thereof, copies of the executive summary portion of any final auditor’s letter or auditor’s report submitted to the Company’s board of directors or any committee thereof relating to internal financial controls of the Company or any Subsidiary; and
(c) promptly, such additional financial and other information as any Bank through the Administrative Agent may from time to time reasonably request.
5.3 Conduct of Business and Maintenance of Existence. Continue to engage in business of substantially the same general type as now conducted by it or any business reasonably ancillary, complementary or related thereto, taken as a whole, and preserve, renew and keep in full force and effect its corporate existence and take such reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business except as otherwise permitted pursuant to subsection 6.4; comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith would not, in the aggregate, have a Material Adverse Effect.
 
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5.4 Inspection of Property; Books, Records and Discussions.
(a) Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law are to be made of all dealings and transactions in relation to its business and activities.
(b) Permit representatives of the Administrative Agent and the Banks (other than Excluded Individuals of the Administrative Agent and the Banks) which are not Competitors to visit and inspect at their own expense (unless a Default or Event of Default has occurred and is continuing, in which case at the Company’s expense) any of its properties and examine and make abstracts from any of its books and records at any reasonable time upon reasonable prior notice to the Company and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition of the Company and its Subsidiaries with officers and employees of the Company and its Subsidiaries and with its independent certified public accountants, provided that (i) representatives of the Company shall have the opportunity to be present at any meeting with its independent certified public accountants and (ii) the Company and its Subsidiaries shall have no obligation to provide access to information which is the subject of a confidentiality agreement between the Company or any of its Subsidiaries, on the one hand, and a customer of the Company or of any of its Subsidiaries, on the other hand. The Administrative Agent shall endeavor to coordinate such visits by the Banks in order to minimize inconvenience to the Company, and so long as no Event of Default shall be continuing, such visits shall occur not more frequently than once per fiscal quarter.
5.5 Notices. Promptly give notice to the Administrative Agent (and the Administrative Agent shall promptly notify each Bank) of:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of a Change of Control;
(c) any litigation, investigation or proceeding which would have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within ten Business Days after the Company or any Commonly Controlled Entity knows or has reason to know thereof: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, the commencement of any obligation to contribute to any Multiemployer Plan by the Company or any Commonly Controlled Entity, or any withdrawal from, or the termination, Reorganization or Insolvency of any Multiemployer Plan; (ii) the institution of proceedings or the taking of any other action by the PBGC or the Company or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan; (iii) the application for a minimum funding waiver with respect to a Plan has been made; (iv) all of the requirements for imposition of a lien under Section 302(f) of ERISA
 
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have been met with respect to any Plan; and (iv) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; and
(e) the use of the proceeds of any Loans for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect. Each notice pursuant to this subsection shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Company proposes to take with respect thereto.
SECTION 6
NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect, any Note remains outstanding and unpaid or any other amount is owing to any Bank or the Administrative Agent hereunder, the Company shall not:
6.1 Limitation on Significant Subsidiary Indebtedness. Permit any of its Significant Subsidiaries, directly or indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes of this subsection 6.1 shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Significant Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under this Agreement and (B) Indebtedness owed to the Company or a Significant Subsidiary, including any renewal or replacement of any of the obligations under clauses (A) or (B)), (y) the aggregate amount of indebtedness secured by Liens permitted under Section 6.2(j) and (z) the discounted present value of all net rentals payable under leases covered by subsection 6.3(a) (and not expressly excluded therefrom) would not exceed the greater of $300,000,000 or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Significant Subsidiary in the ordinary course of business consistent with past practice, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under this Agreement, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under this Agreement; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a Significant Subsidiary or is merged with or into the Company or a Significant Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Significant
 
34

Subsidiary or otherwise deemed to be Indebtedness of a Significant Subsidiary for the purposes of this covenant.
6.2 Limitation on Liens. Directly or indirectly, create, incur, assume or suffer to exist, or permit any of its Significant Subsidiaries to create, incur, assume or suffer to exist, any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for:
(a) any Lien on any property now owned or hereafter acquired or constructed by the Company or a Subsidiary, or on which property so owned, acquired or constructed is located, which Lien (i) in the case of any property so acquired, existed on such property at the time of acquisition thereby by the Company or such Subsidiary or (ii) secures or provides for the payment of any part of the purchase or construction price or cost of improvements of such property and was created prior to, contemporaneously with or within 360 days after, such purchase, construction or improvement (and any replacements or refinancings for such Liens); provided, that (i) if a firm commitment from a bank, insurance company or other lender or investor (not including the Company, a Subsidiary or an Affiliate of the Company) for the financing of the acquisition or construction of property is made prior to, contemporaneously with or within the 360-day period hereinabove referred to, the applicable Lien shall be deemed to be permitted by this paragraph (a) whether or not created or assumed within such period, and (ii) each such Lien is not spread to cover any additional property and the amount of Indebtedness secured thereby is not increased;
(b) Liens for taxes not yet delinquent or which are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves with respect thereto are maintained on the books of the Company or its Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business;
(d) Liens of landlords or of mortgagees of landlords arising by operation of law;
(e) pledges, deposits or other Liens in connection with workers’ compensation, unemployment insurance, other social security benefits or other insurance related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements) and Liens on the proceeds of insurance policies created in connection with any of the foregoing;
(f) Liens arising by reason of any judgment, decree or order of any court or other Governmental Authority, if appropriate legal proceedings which have been duly initiated for the review of such judgment, decree or order, are being diligently prosecuted and have not been finally terminated or the period within which such proceedings may be initiated shall not have expired;
 
35

(g) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds, judgment and like bonds, replevin and similar bonds and other obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances incurred in the ordinary course of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries taken as a whole;
(i) Liens on Purchased Receivables and related assets granted in connection with one or more Purchased Receivables Financings; and
(j) any Lien not otherwise permitted under this subsection 6.2, provided that the aggregate amount of indebtedness secured by all such Liens, together with (x) the aggregate principal amount of Subsidiary Indebtedness that is subject to limitation under Section 6.1 and (y) the aggregate sale price of property involved in sale and leaseback transactions not otherwise permitted except under subsection 6.3(a), does not exceed the greater of $300,000,000 or 15% of Consolidated Net Worth.
6.3 Limitation on Sales and Leasebacks. Sell or transfer, or permit any Subsidiary to sell or transfer, (except to the Company or one or more of its wholly-owned Subsidiaries, or both) any Principal Facility owned by it on the date of this Agreement with the intention of taking back a lease of such property, other than a lease relating to computer hardware with lease terms of four years or less, unless either:
(a) the sum of the aggregate sale price of property involved in sale and leaseback transactions not otherwise permitted under this subsection plus (x) the aggregate principal amount of Subsidiary Indebtedness subject to limitation under Section 6.1 and (y) the aggregate amount of indebtedness secured by all mortgages, pledges, liens and encumbrances not otherwise permitted except under subsection 6.2(j) does not exceed the greater of $300,000,000 or 15% of Consolidated Net Worth; or
(b) the Company within 120 days after the sale or transfer shall have been made by the Company or by any such Subsidiary applies an amount equal to the greater of (i) the net proceeds of the sale of the Principal Facility sold and leased back pursuant to such arrangement or (ii) the fair market value of the Principal Facility sold and leased back at the time of entering into such arrangement (which may be conclusively determined by the Board of Directors of the Company) to the retirement of Funded Indebtedness of the Company; provided, that the amount required to be applied to the retirement of Funded Indebtedness of the Company pursuant to this clause (b) shall be reduced by the principal amount of any Funded Indebtedness of the Company voluntarily retired by the Company within 120 days after such sale, whether or not any such retirement of Funded Indebtedness shall be specified as being made pursuant to this clause (b). Notwithstanding the foregoing, no retirement referred to in this clause (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.
 
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6.4 Limitations on Fundamental Changes. Directly or indirectly, sell, assign, lease, transfer or otherwise dispose of all or substantially all of its assets or consolidate with or merge into any Person or permit any Person to merge into it, provided that the Company may enter into a consolidation or merger with any Person if (i) the survivor formed by or resulting from such consolidation or merger is the Company and (ii) at the time of such consolidation or merger and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing.
6.5 Limitations on Restrictions on Dividends. Permit any Significant Subsidiary exclusively organized under the laws of the United States of America or any state thereof to enter into any arrangement with any Person which in any way prohibits, limits the amount of or otherwise impairs the declaration or distribution by such Subsidiary of dividends on its Capital Stock (other than limitations arising under (i) any Requirement of Law, (ii) any agreement or instrument in effect at the time a Person first became a Subsidiary of the Company or the date such agreement or instrument is otherwise assumed by the Company or any of its Subsidiaries, so long as such agreement or instrument was not entered into solely in contemplation of such Person becoming a Subsidiary of the Company or such assumption, and (iii) any agreement or instrument entered into in connection with the sale of such Subsidiary) if such arrangement, together with all other similar arrangements, could reasonably be expected to have a Material Adverse Effect.
SECTION 7
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Note when due in accordance with the terms thereof or hereof; or the Company shall fail to pay any interest on any Note, or any other amount payable hereunder, within three Business Days after any such interest or other amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made, or deemed made pursuant to subsection 4.2, by the Company herein or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of the date made or deemed made or furnished; or
(c) The Company shall default in the observance or performance of any agreement contained in subsection 5.4(b), 5.5(a) or 5.5(b) or Section 6; or
(d) A Change of Control shall occur; or
(e) The Company shall default in the observance or performance of any other agreement contained in this Agreement (other than as provided in paragraphs (a) through (d) of this Section), and such default shall continue unremedied for a period of 30 days after the earlier of written notification to the Company by the Administrative Agent or
 
37

any Bank or after any Responsible Officer becomes aware or, with reasonable diligence, would become aware of such default; or
(f) The Company or any of its Significant Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Notes) or in the payment of any Guarantee Obligation, beyond the period of grace (not to exceed 30 days), if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created, and such default shall be continuing; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Guarantee Obligation or contained in any instrument or agreement evidencing, securing or relating thereto beyond any applicable period of grace, and such default shall be continuing, or any other event shall occur or condition exist and be continuing, the effect of which default or other event or condition is to cause, or permit the holders of such Indebtedness or Guarantee Obligation to cause, such Indebtedness to become due or required to be purchased, redeemed or otherwise defeased prior to its stated maturity or such Guarantee Obligation to become payable, provided that the aggregate principal amount of any such Indebtedness and Guarantee Obligations outstanding at such time, when aggregated with the outstanding principal amount of all other such Indebtedness and Guarantee Obligations in respect of which the Company or any Significant Subsidiary shall have so defaulted or an event shall have occurred or a condition exists as described above, aggregates $100,000,000 or more; or
(g) (i) The Company or any of its Significant Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Company or any of its Significant Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Company or any of its Significant Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Company or any of its Significant Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Company or any of its Significant Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Company or any of its Significant Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
 
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(h) (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Banks, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Banks is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or
(i) The rendering against the Company or any Significant Subsidiary of one or more final nonappealable judgments, decrees or orders for the payment of money which, either singly or in the aggregate with all other monies in respect of which a final nonappealable judgment, decree or order for payment shall have been rendered against the Company or any Significant Subsidiary, aggregates $100,000,000 or more, and the continuance of such judgments, decrees or orders unsatisfied and in effect for any period of 30 consecutive days or, in the case of a foreign judgment, decree or order the enforcement of which is not being sought in the United States, 60 consecutive days without a stay of execution; provided, however, that any such amount shall be calculated after deducting from the sum so payable any amount of such judgment or order that is covered by a valid and binding policy of insurance in favor of the Company or such Subsidiary from an insurer that is rated at least “A” by A.M. Best Company, which policy covers full payment thereof and which insurer has been notified, and has not disputed the claim made for payment, of such amount of such judgment or order;
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (g) above with respect to the Company, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Notes shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, by notice to the Company declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, by notice of default to the Company and (Y) declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Notes to be due and payable forthwith, whereupon the same shall immediately become due and payable, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived.
 
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SECTION 8
THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and appoints CNAI as the Administrative Agent of such Bank under this Agreement and the Notes and each Bank irrevocably authorizes CNAI, as the Administrative Agent for such Bank, to take such action on its behalf under the provisions of this Agreement and the Notes and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the Notes, together with such other powers as are reasonably incidental thereto. Each Bank acknowledges that the Company may rely on each action taken by the Administrative Agent on behalf of the Banks hereunder. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Bank, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the Notes or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the Notes by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care. Without limiting the foregoing, the Administrative Agent may appoint one of its affiliates as its agent to perform the functions of the Administrative Agent hereunder relating to the advancing of funds to the Company and distribution of funds to the Banks and to perform such other related functions of the Administrative Agent hereunder as are reasonably incidental to such functions.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or the Notes (except for its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Banks for any recitals, statements, representations or warranties made by the Company or any officer thereof contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement (except for the Administrative Agent’s due execution and delivery) or the Notes or for any failure of the Company to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Bank to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or the Notes or to inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telecopy or teletype message, statement, order or other
 
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document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or the Notes unless it shall first receive such advice or concurrence of the Majority Banks as it deems appropriate or it shall first be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the Notes in accordance with a request of the Majority Banks (or such other number of Banks as is expressly required hereby), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Banks and all future holders of the Notes.
(b) For purposes of determining compliance with the conditions specified in Section 4.1, each Bank that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Bank.
8.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Bank or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Banks. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Majority Banks; provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Banks.
8.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Company, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Bank. Each Bank represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Company and made its own decision to make its Loans hereunder and enter into this Agreement. Each Bank also represents that it will, independently and without reliance upon the Administrative Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis,
 
41

appraisals and decisions in taking or not taking action under this Agreement and the Notes, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Company. Except for notices, reports and other documents expressly required to be furnished to the Banks by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Bank with any credit or other information concerning the business, operations, property, condition (financial or otherwise) or creditworthiness of the Company which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Company and without limiting the obligation of the Company to do so to the extent required pursuant to Section 9.5), ratably according to the respective amounts of their Commitments (or, if the Commitments have been terminated, ratably according to the respective amount of their outstanding Loans or, if no Loans are outstanding, their Commitments as of the date of such termination) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Notes) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of this Agreement, the Notes or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Bank shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct. The agreements in this subsection shall survive the payment of the Notes and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. With respect to its Commitment, the Loans made by it and the Note issued to it, CNAI shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Administrative Agent; and the term “Bank” or “Banks” shall, unless otherwise expressly indicated, include CNAI in its individual capacity. CNAI and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, the Company, any of its Subsidiaries and any Person who may do business with or own securities of the Company or any such Subsidiary, all as if CNAI were not the Administrative Agent and without any duty to account therefor to the Banks. The Administrative Agent shall have no duty to disclose any information obtained or received by it or any of its Affiliates relating to the Company or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as Administrative Agent. In the event that CNAI or any of its Affiliates shall be or become an indenture trustee under the Trust Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of any securities issued or guaranteed by the Company, the parties hereto acknowledge and agree that any payment or property received in satisfaction of or in respect of any obligation of the Company hereunder or under any other Loan Document by or on behalf of CNAI in its capacity as the Administrative Agent for the benefit of any Bank under this Agreement or any Note (other than CNAI or an Affiliate of CNAI) and which is applied in
 
42

accordance with this Agreement shall be deemed to be exempt from the requirements of Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture Act.
8.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the Banks and the Company, such resignation to become effective upon the appointment of a successor Administrative Agent as provided below. If the Administrative Agent shall resign as Administrative Agent under this Agreement, then the Majority Banks shall appoint from among the Banks a successor agent for the Banks, which successor agent shall be approved by the Company if no Default or Event of Default has occurred and is continuing (such approval not to be unreasonably withheld), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon its appointment, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Notes. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this subsection shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
8.10 Syndication Agent, etc. Neither the Syndication Agent, any Documentation Agent nor any Persons identified in this Agreement as “Lead Arranger” or “Book Runner” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Banks. Without limiting the foregoing, none of such Banks shall have or be deemed to have a fiduciary relationship with any Bank. Each Bank hereby makes the same acknowledgments with respect to Banks as it makes with respect to the Administrative Agent in Section 8.8.
SECTION 9
MISCELLANEOUS
9.1 Amendments and Waivers. None of this Agreement, any Note or any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this subsection. With the written consent of the Majority Banks, the Administrative Agent and the Company may, from time to time, enter into written amendments, supplements or modifications hereto and to the Notes for the purpose of changing any provisions of or adding any provisions to this Agreement or the Notes or changing in any manner the rights of the Banks or of the Company hereunder or thereunder or waiving, on such terms and conditions as the Administrative Agent may specify in such instrument, any of the requirements of this Agreement or the Notes or any Default or Event of Default and its consequences; provided, however, that (i) each Bank shall receive a form of any such waiver, amendment, supplement or modification prior to the execution thereof by the Majority Banks or the Administrative Agent and (ii) no such waiver and no such amendment, supplement or modification shall (a) increase or extend the Commitment of any Bank, the maturity of any Note or any installment thereof, or reduce the rate or extend the time of payment of interest thereon (other than an amendment of 2.09(d) or waiver of the obligation of the Company to pay any increased interest pursuant to 2.09(d) which may be approved by the Majority Banks), or reduce
 
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the amount or extend the time of payment of any fee payable to any Bank hereunder, or change the amount of any Bank’s Commitment without the consent of the Bank affected thereby, or (b) amend, modify or waive any provision of this subsection or reduce the percentage specified in the definition of Majority Banks, or consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement, or waive the conditions precedent to the making of any Loan set forth in subsection 4.2, in each case without the written consent of all the Banks, (c) amend, modify or waive any provision of Section 8 without the written consent of the then Administrative Agent, (d) amend, modify or waive any provision of the Loan Documents affecting the rights or duties of the Administrative Agent under any Loan Document without the written consent of the Administrative Agent in addition to the Banks required hereinabove to take such action. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Banks and shall be binding upon the Company, the Banks, the Administrative Agent and all future holders of the Notes. In the case of any waiver, the Company, the Banks and the Administrative Agent shall be restored to their former position and rights hereunder and under the outstanding Notes, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
9.2 Notices. (a) Except as otherwise provided in subsection (b) below, all notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy,) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or five days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Company and the Administrative Agent, and as set forth in Schedule 1.1 in the case of the other parties hereto, or to such other address as may be hereafter notified by the respective parties hereto and any future holders of the Notes:

The Company:	  	First Financial Management Corporation	
	  	c/o The Western Union Company	
	  	12500 E. Mt. Belford Ave. M2385	
	  	Englewood, CO 80112	
	  	Attention: Treasurer	
	  	Telecopy: (720) 332-0213	
	  	Confirmation Telephone: (720) 332-5269	
		
with a copy of
any notice to
the Company to:	  	First Financial Management Corporation	
	  	12500 E. Mt. Belford Ave. M2385	
	  	Englewood, CO 80112	
	  	Attention: General Counsel’s Office	
	  	Telecopy: (720) 332-0515	
	  	Confirmation Telephone: (720) 332-5683	
 
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The Administrative	  		
Agent:	  	Citicorp North America, Inc., as Administrative Agent	
	  	Two Penns Way	
	  	New Castle, DE 19720	
	  	Attention: Bank Loan Syndications	
	  	Telecopier: 212-994-0961	
	  	Telephone: 302-894-6128	
with a copy of
any notice to the	  		
Administrative Agent to:	  	Citicorp North America, Inc., as Administrative Agent	
	  	400 Perimeter Center Terrace, Suite 600	
	  	Atlanta, GA 30346	
	  	Attention: David McNeela	
	  	Telecopier: 404-921-9163	
	  	Telephone: 770-668-8613	
provided that any notice, request or demand to or upon the Administrative Agent or the Banks pursuant to subsection 2.3, 2.5, 2.6 or 2.7 shall not be effective until received.
(b) So long as CNAI or any of its Affiliates is the Administrative Agent, the Company shall use commercially reasonable efforts to deliver to the Administrative Agent to materials required to be delivered pursuant to Section 5.1 in an electronic medium in a format acceptable to the Administrative Agent and the Company by e-mail at oploanswebadmin@citigroup.com. The Company agrees that the Administrative Agent may make such materials, and, without warranty or liability to the Company, other written information, documents, instruments and other material relating to the Company, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the “ Communications ”) available to the Banks by posting such notices on a confidential basis on Intralinks or a substantially similar electronic system (the “ Platform ”) mutually acceptable to the Administrative Agent and the Company. The Company acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform in the absence of gross negligence or willful misconduct of the Administrative Agent or its Affiliates. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent or any of its Affiliates in connection with the Platform.
(c) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address as set forth above, and each Bank agrees that notice to
 
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it (as provided in the next sentence) (a “ Notice ”) specifying that any Communications have been posted to the Platform, in each case, shall constitute effective delivery of such information, documents or other materials to the Administrative Agent and such Bank for purposes of this Agreement; provided that if requested by any Bank the Administrative Agent shall deliver a copy of the Communications to such Bank by email or telecopier. Each Bank agrees (i) to notify the Administrative Agent in writing of such Bank’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Bank becomes a party to this Agreement (and from time to time thereafter to ensure that the Administrative Agent has on record an effective e-mail address for such Bank) and (ii) that any Notice may be sent to such e-mail address.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Bank, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the Notes.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the Notes and any other documents prepared in connection herewith, and the consummation and administration of the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent, (b) to pay or reimburse each Bank and the Administrative Agent for all its costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the Notes and any such other documents, including, without limitation, fees and disbursements of counsel to the Administrative Agent and to the several Banks, (c) to pay, and indemnify and hold harmless each Bank and the Administrative Agent from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the Notes and any such other documents, and (d) to pay, and indemnify and hold harmless each Bank and the Administrative Agent and each of their respective officers, directors, employees and affiliates from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the Notes, and any such other documents (all the foregoing, collectively, the “indemnified liabilities”), provided, that the Company shall have no obligation hereunder to the Administrative
 
46

Agent or any Bank with respect to indemnified liabilities arising from (i) the gross negligence or willful misconduct of the Administrative Agent or such Bank, (ii) legal proceedings commenced or claims against the Administrative Agent or such Bank by any security holder or creditor thereof arising out of and based upon rights afforded any such security holder or creditor solely in its capacity as such, (iii) legal proceedings commenced or claims against the Administrative Agent or such Bank by any other Bank or by any Transferee or (iv) claims settled without the consent of the Company. In the case of any investigation, litigation or other proceeding or action to which the indemnity in this subsection 9.5 applies, such indemnity shall be effective whether or not such investigation, litigation or other proceeding or action is brought by the Company or any affiliate of the Company, whether or not the party seeking indemnity is otherwise a party thereto and whether or not any aspect of the transactions contemplated hereby is consummated. The agreements in this subsection shall survive repayment of the Notes and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks.
(a) This Agreement shall be binding upon and inure to the benefit of the Company, the Banks, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that the Company may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Bank.
(b) Any Bank may, in accordance with applicable law, sell to one or more banks or other entities which are not Competitors (“Participants”) participating interests in any Loan owing to such Bank, any Note held by such Bank, the Commitment of such Bank or any other interest of such Bank hereunder, provided that with respect to any such sale of a participating interest, the Bank selling such participating interest must retain the right to make all determinations under this Agreement other than requests for (i) reductions in the principal amount of the Loans, (ii) reductions in the interest rates payable on the Loans, (iii) reductions in the facility fee payable to such selling Bank pursuant to subsection 2.4 and (iv) waivers and extensions in respect of payment dates on account of principal of the Loans, Interest Payment Dates and the dates on which such facility fee is payable. In the event of any such sale by a Bank of participating interests to a Participant, such Bank’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Bank shall remain solely responsible for the performance thereof, such Bank shall remain the holder of any such Note for all purposes under this Agreement, and the Company and the Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. The Company agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Bank under this Agreement or any Note, provided that such Participant shall only be entitled to such right of setoff if it shall have agreed in the agreement pursuant to which it shall have acquired its participating interest to share with the Banks the proceeds thereof as provided in
 
47

subsection 9.7. The Company also agrees that each Participant shall be entitled to the benefits of subsections 2.14, 2.15 and 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time; provided that no Participant shall be entitled to receive any greater amount pursuant to such subsections than the transferor Bank would have been entitled to receive in respect of the amount of the participation transferred by such transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in accordance with applicable law and with the consent of the Administrative Agent (which shall not be unreasonably withheld) at any time sell to any Bank or any affiliate thereof (but only if such affiliate’s Short-Term Ratings equal or exceed the Short-Term Ratings of such selling Bank) and, with the consent of the Company (unless there is an Event of Default under clause (a) or (g) of Article VII occurring or continuing) and the Administrative Agent (which in each case shall not be unreasonably withheld), to one or more additional banks or financial institutions other than the Borrower or any of its Subsidiaries (“Purchasing Banks”) all or any part of its rights and obligations under this Agreement and its Note pursuant to a Commitment Transfer Supplement, substantially in the form of Exhibit D (a “Commitment Transfer Supplement”), executed by such Purchasing Bank, such transferor Bank (and, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the Company and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register, provided that (i) in connection with such sale, such transferor Bank must transfer all of its outstanding Commitment to such Purchasing Bank or, if no Commitments are then in effect, such transferor Bank must transfer all of the unpaid Loans held by such Bank to such Purchasing Bank or (ii) after giving effect to such sale the outstanding Commitment of such transferor Bank must equal or exceed $10,000,000, provided, further, with respect to a Purchasing Bank which was not a Bank or an affiliate of a Bank prior to such sale, the outstanding Commitment of such Purchasing Bank after giving effect to such sale must equal or exceed $10,000,000, unless the Company and the Administrative Agent otherwise agree. Upon such execution, delivery, acceptance and recording, from and after the Transfer Effective Date determined pursuant to (and as defined in) such Commitment Transfer Supplement, (x) the Purchasing Bank thereunder shall be a party hereto and, to the extent provided in such Commitment Transfer Supplement, (in addition to any such rights and obligations theretofore held by it) have the rights and obligations of a Bank hereunder with a Commitment as set forth therein, and (y) the transferor Bank thereunder shall, to the extent provided in such Commitment Transfer Supplement, be released from its obligations under this Agreement (and, in the case of a Commitment Transfer Supplement covering all or the remaining portion of a transferor Bank’s rights and obligations under this Agreement, such transferor Bank shall cease to be a party hereto, provided, that it is expressly understood and agreed that such transferor Bank shall retain (x) all of such transferor Bank’s rights under subsections 2.14, 2.15, 2.16 and 9.5 of this Agreement with respect to any cost, reduction or payment incurred or made prior to the Transfer Effective Date determined pursuant to such Commitment Transfer Supplement, including, without limitation the rights to indemnification and to reimbursement for taxes, costs and expenses and (y) all of such transferor Bank’s obligations under Section 8.7 to the extent any claim thereunder relates to an event arising prior to the Transfer
 
48

Effective Date determined pursuant to such Commitment Transfer Supplement). Such Commitment Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing Bank and the resulting adjustment of Commitments and Commitment Percentages arising from the purchase by such Purchasing Bank of all or a portion of the rights and obligations of such transferor Bank under this Agreement and the Notes. On or prior to the Transfer Effective Date determined pursuant to such Commitment Transfer Supplement, the Company, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note a new Note to the order of such Purchasing Bank in an amount equal to the Commitment assumed by it pursuant to such Commitment Transfer Supplement and, if the transferor Bank has retained a Commitment hereunder, a new Note to the order of the transferor Bank in an amount equal to the Commitment retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. The Note surrendered by the transferor Bank shall be returned by the Administrative Agent to the Company marked “cancelled”.
(d) The Administrative Agent shall maintain at its address referred to in subsection 9.2 a copy of each Commitment Transfer Supplement delivered to it and a register (the “ Register ”) for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Company, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register as the owner of each Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Company or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by a transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the Company and the Administrative Agent) together with payment to the Administrative Agent, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, of a registration and processing fee of $3,500 by the transferor Bank, the Administrative Agent shall (i) promptly accept such Commitment Transfer Supplement and (ii) on the Transfer Effective Date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Banks and the Company.
(f) Subject to subsection 9.8, the Company authorizes each Bank to disclose to any Participant or Purchasing Bank (each, a “ Transferee ”) and any prospective Transferee any and all financial information in such Bank’s possession concerning the Company and its affiliates which has been delivered to such Bank by or on behalf of the Company pursuant to this Agreement or which has been delivered to such Bank by or on behalf of the Company in connection with such Bank’s credit evaluation of the Company and its affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this subsection, any interest in this Agreement or any Note is transferred to any Transferee which is not a United States person (as such term is
 
49

defined in Section 7701(a)(30) of the Code), the transferor Bank shall require such Transferee, concurrently with the effectiveness of such transfer, to deliver (i) two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be or (ii) in the case of such a Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) two duly completed copies of United States Internal Revenue Service Form W-8BEN, in each case certifying such Bank’s entitlement to a complete exemption from United States withholding tax with respect to interest payments to be made under this Agreement and under any Note. The transferor Bank shall also require such Transferee (i) to represent to the transferor Bank (for the benefit of the transferor Bank, the Administrative Agent and the Company) that under applicable law and treaties no taxes will be required to be withheld by the Administrative Agent, the Company or the transferor Bank with respect to any payments to be made to such Transferee in respect of the Loans, (ii) to agree (for the benefit of the transferor Bank, the Administrative Agent and the Company) to provide the transferor Bank (and, in the case of any Purchasing Bank registered in the Register, the Administrative Agent and the Company) new such form or successor applicable form upon the expiration or obsolescence of any previously delivered forms and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such Transferee and (iii) to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(h) Nothing herein shall prohibit any Bank from pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law.
9.7 Adjustments; Set-off.
(a) If any Bank (a “ benefitted Bank ”) shall at any time receive any payment of all or part of its Loans then payable, or interest then payable thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 7(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Bank, if any, in respect of such other Bank’s Loans then payable, or interest then payable thereon, such benefitted Bank shall purchase for cash from the other Banks such portion of each such other Bank’s Loans or such interest thereon, or shall provide such other Banks with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such benefitted Bank to share the excess payment or benefits of such collateral or proceeds ratably with each of the Banks; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such benefitted Bank, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Bank so purchasing a portion of another Bank’s Loans or interest thereon may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Bank were the direct holder of such portion.
 
50

(b) In addition to any rights and remedies of the Banks provided by law, if an Event of Default has occurred and is continuing, each Bank and each of its Affiliates shall have the right, without prior notice to the Company, any such notice being expressly waived by the Company to the extent permitted by applicable law, upon any amount becoming due and payable by the Company hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Bank, any of its Affiliates or any branch or agency thereof to or for the credit or the account of the Company. The aforesaid right of set-off may be exercised by such Bank and each of its Affiliates against the Company or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor of the Company, or against anyone else claiming through or against the Company or any such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Bank or its Affiliates prior to the occurrence of any Event of Default. Each Bank agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Bank or its Affiliates, provided that the failure to give such notice shall not affect the validity of such set-off and application.
9.8 Table of Contents and Section Headings. The table of contents and the section and subsection headings herein are intended for convenience only and shall be ignored in construing this Agreement.
9.9 Confidentiality. Each of the Banks and the Administrative Agent agrees to keep confidential (and to cause its officers, directors, employees, agents and representatives, and its Affiliates’ officers, directors, employees, agents and representatives who gain access to Confidential Materials (as defined below), to keep confidential) any information which is or has been obtained pursuant to the terms of this Agreement (including, without limitation, subsection 5.4(b)) (collectively, the “Confidential Materials”), except that such Bank or the Administrative Agent, as the case may be, shall be permitted to disclose the Confidential Materials (a) to such of the officers, directors, employees, agents, independent auditors and representatives of the Bank or any of its Affiliates as need to know such Confidential Materials in connection with its administration of its Commitment and Loans (provided such persons are informed of the confidential nature of the Confidential Materials and the restrictions imposed by this subsection), (b) to the extent required by law (including, without limitation disclosure to bank examiners and regulatory officials) or legal process (in which event such Bank or the Administrative Agent, as the case may be, will promptly notify the Company of any such requirement), (c) to the extent such Confidential Materials become publicly available other than as a result of a breach of the provisions of this subsection, (d) to the extent the Company shall have consented to such disclosure in writing, (e) to a prospective Transferee which agrees in writing to be bound by the terms of this subsection as if it were a Bank party to this Agreement, (f) to a Governmental Authority in connection with litigation involving this Agreement or the Notes, (g) to Gold Sheets and other similar bank trade publications; such information to consist of deal terms and other information regarding the credit facilities evidenced by this Agreement customarily found in
 
51

such publications and (h) in connection with any suit, action or proceeding for the purpose of defending itself, reducing its liability, or protecting or exercising any of its claims, rights, remedies or interests under or in connection with this Agreement or any other Loan Document; provided that in no event shall any such Bank or the Administrative Agent disclose any of the Confidential Materials to any of its Excluded Individuals.
9.10 Patriot Act Notice. Each Bank and the Administrative Agent (for itself and not on behalf of any other party) hereby notifies the Company that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Bank or the Administrative Agent, as applicable, to identify the Company in accordance with the Patriot Act.
9.11 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Company and the Administrative Agent.
9.12 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
9.13 Integration. This Agreement represents the entire agreement of the Company, the Administrative Agent and the Banks with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Bank relative to subject matter hereof not expressly set forth or referred to herein or in the Notes.
9.14 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.15 Submission To Jurisdiction; Waivers. Each of the Company, the Administrative Agent and the Banks hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Notes, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such
 
52

action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Company at its address set forth in subsection 9.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection any special, exemplary, punitive or consequential damages.
9.16 Acknowledgements. Each of the Company, the Administrative Agent and the Banks hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the Notes;
(b) neither the Administrative Agent nor any Bank has any fiduciary relationship to the Company, and the relationship between the Administrative Agent and the Banks, on the one hand, and the Company, on the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the Company and the Banks.
9.17 WAIVERS OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY COUNTERCLAIM THEREIN.
9.18 Effectiveness. This Agreement shall become effective on the date on which all of the conditions set forth in Section 4.1 have been satisfied or waived by the Banks and all of the parties have signed a copy hereof (whether the same or different copies) and shall have delivered the same to the Administrative Agent pursuant to Section 9.2 or, in the case of the Banks, shall have given to the Administrative Agent written, telecopied or telex notice (actually received) at such office that the same has been signed and mailed to it.
 
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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed and delivered in New York, New York by their proper and duly authorized officers as of the day and year first above written.

COMPANY:	 		 	FIRST FINANCIAL MANAGEMENT CORPORATION
a Georgia corporation	
				
	 		 	By:	 	/s/ Rajesh K. Agrawal	
	 		 		 	Name:	 	Rajesh K. Agrawal	
	 		 		 	Title:	 	Vice President and Treasurer	
 
54

									
ADMINISTRATIVE AGENT AND BANKS:	 		 	CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as a Bank	
				
	 		 	By:	 	/s/ Kevin A. Ege	
	 		 		 	Name:	 	Kevin A. Ege	
	 		 		 	Title:	 	Vice President	
			
	 		 	MORGAN STANLEY BANK	
				
	 		 	By:	 	/s/ Daniel Twenge	
	 		 		 	Name:	 	Daniel Twenge	
	 		 		 	Title:	 		
			
	 		 	WACHOVIA BANK, NATIONAL ASSOCIATION	
				
	 		 	By:	 	/s/ Mark B. Felker	
	 		 		 	Name:	 	Mark B. Felker	
	 		 		 	Title:	 	Managing Director	
 
55

Schedule 1.1
BANKS AND COMMITMENTS
[Omitted]

Schedule 3.6
to the Credit Agreement
[None]
 
2
 
Exhibit 10.9
July 12, 2006
Mr. David G. Barnes
1512 Rivercrest Court
Fort Worth, TX 76107
Dear David,
At First Data, we are one team , leading the industry, leading the future. Every day, our employees are helping to change the course of global commerce. To continue to grow and succeed in the future, we need talented people like you.
On behalf of The Western Union Company (“Western Union”), it is my pleasure to extend this offer of employment with First Data Corporation, (the “Company”). We are looking forward to you joining us as Executive Vice President of Finance and Strategic Development. If you choose to accept this offer, your starting date will be determined at a later date.
Salary
As we discussed, your starting annual salary rate will be $475,000 payable in accordance with the Company’s regular payroll practices. You will be eligible for a merit review and potential salary increase in March 2007.
Bonus
For 2006 you will receive a guaranteed bonus of 70% of your annualized base salary, to be prorated from August 15, 2006 through December 2006. This bonus is in lieu of and you specifically waive any right to any bonus due to you under the terms of the First Data Corporation Performance First Incentive Plan or Senior Executive Incentive Plan (“SEIP”) for 2006.
For 2007, you will be eligible to participate in the 2007 SEIP or a similar plan, with a target bonus of 70% of your annualized base salary. Your actual bonus payment, if any, will be based on requirements and conditions set in the applicable bonus plan.

Sign-On Bonus
If you accept this offer, you will be paid a signing bonus of $75,000 less applicable deductions, payable within 30 days of your commencement of employment with the Company. You will be required to repay a prorated amount of this signing bonus if your employment is terminated within 12 months of your start date, however you are not required to repay a prorated amount of the signing bonus if you are terminated involuntarily and not for cause.
Benefits
You will be eligible to participate in the Company’s health, welfare and financial security benefit programs on the same terms as similarly situated employees of the Company at the location where you will be employed. Additional information regarding benefits and enrollment information will be reviewed with you on or shortly after your first day of employment. Please understand that the Company reserves the right to amend or terminate any or all of its employee benefit plans and corporate policies at any time, in its sole discretion. Your eligibility for medical-related benefits will start at the first day of the month following commencement of employment.
Stock Options
You will be eligible for consideration for a grant of an option to purchase 50,000 shares of the common stock of First Data Corporation pursuant to the terms of the Company’s Long-Term Incentive Plan (“LTIP”). This stock option grant requires the approval of the First Data Compensation and Benefits Committee (“Committee”) of the Company’s Board of Directors (“Board”) and the execution by you of an agreement containing some restrictive covenants such as nonsolicitation, nondisclosure and non-compete commitments. We will recommend to the Committee that they approve a grant in the amount noted above and the grant will be subject to the Committee’s approval of the amount and terms of the grant. All your rights and obligations with respect to any options granted to you are subject to the terms and conditions of the LTIP as well as the terms and conditions of the stock option agreement. If you do not receive materials reflecting this option grant within three months of your start date, please let me know immediately.
Subject to completion of the Spin-Off of Western Union from First Data Corporation, you will also be eligible for consideration for an annual target grant of either options or a combination of options and restricted stock with respect to the common stock of Western Union of approximately two times your base salary. This stock option/restricted stock grant requires the approval of the Committee and/or the appropriate Western Union entity and the execution by you of an agreement containing some restrictive covenants such as nonsolicitation, nondisclosure and non compete commitments. All your rights and obligations with respect to any Western Union options or restricted stock granted to you will be subject to the terms and conditions of the Western Union LTIP as well as the terms and conditions of the stock option agreement and any other applicable agreement.

Deferred Compensation Plan
If you accept this offer, you will be eligible to participate in the First Data’s Supplemental Incentive Savings Plan, a nonqualified deferred compensation plan. Plan information and enrollment materials will be provided separately. Eligibility for this program is subject to approval by First Data’s Benefits Plan Design Committee.
Termination Pay
Should your employment with the Company or Western Union be involuntarily terminated and not for cause within the first two years of employment, you will be eligible for 24 months termination pay using the sum total of the base salary of $475,000 and the target bonus of $665,000 (2 years at 70% of $475,000) for a total of $1,615,000 subject to the requirements of Code §409A (“Termination Pay”). To receive the Termination Pay, you will be required to waive all rights to any severance you may otherwise be eligible for under any applicable First Data Corporation or Western Union Severance Policy or any applicable successor plan (“Severance Policy”). In order to receive the Termination Pay, you must sign a release of all claims and restrictive covenant agreement in a form satisfactory to the Company. Notwithstanding the foregoing provision, if during the first 2 years of your employment with the Company or Western Union, the applicable Western Union Severance/Change of Control Policy for similarly situated executives covering you, the severance pay is equal to or greater than the Termination Pay, this provision shall be null and void and you will only be eligible for severance benefits under the applicable Western Union Severance/Change of Control Policy. If the severance pay is less than the Termination Pay, then you shall be entitled only to the Termination Pay and will be required to waive all rights under the Western Union Severance/Change of Control Policy in the Agreement and Release. After the anniversary date of the second year of your employment with the Company or Western Union you will be subject to the then applicable Western Union Severance/Change of Control Policy, if any.
Relocation
If you accept this offer you will be eligible for relocation assistance and reimbursement for relocation expenses pursuant to First Data’s relocation policy. A relocation specialist will contact you within 24 to 48 hours after we receive a signed copy of this letter. Please note that if you resign from, or are terminated for cause by the Company within a period of 12 months after your starting/transfer date, you will refund, at a prorated amount, to the Company expenses incurred by the Company as a result of your relocation/transfer. This prorated amount will be based on the portion of the twelve-month period you have been employed by the Company.
Other Agreements
As a condition of your employment with the Company, you may be required to sign an agreement regarding non-solicitation, non-competition, confidentiality, and arbitration of employment disputes. You will also be subject to all Company policies applicable to the Company’s employees, including but not limited to the First Data Code of Conduct.
Drug Screen
As one of the requirements for employment, you will be required to complete a drug screen within 30 days of your start date. If you fail to complete your drug screen within this timeframe,

this offer of employment will be rescinded. Please refer to the attached instruction sheet for specific details.
Immigration Reform & Control Act
In compliance with the Immigration Reform and Control Act of 1986, on your first day of work we ask that you bring documents that will establish your identity and your eligibility to work in the United States. Some examples include your driver’s license and social security card, your birth certificate, or a current passport.
At Will Statement
Please understand that this offer does not constitute a contract or a guarantee of continued employment for any period of time. As is the case throughout First Data Corporation and its subsidiaries and affiliated companies, employment is “at will” and may be terminated by either you or the Company at any time for any reason. The terms and conditions of employment may be changed at any time at the sole discretion of management. This offer is also, of course, contingent upon our receiving favorable results acceptable to the Company from your references and background investigation, which must also be completed at least 30 days prior to your start date, satisfactory completion by you, of all required security clearance and training applicable to your position (which may require fingerprinting, handwriting samples, and other items) drug screen, and provision by you or original documentation which verifies your right to work in the United States.
Remote Acceptance
David, I hope you will accept this offer. Please indicate your decision and confirm your acceptance of this offer under the terms described in this letter by signing, dating, and faxing a copy of this letter along with your completed application to Marie Sondergard at (303) 967-6937. Please also mail the original signed letter along with your completed new hire forms to Marie Sondergard no later than end of business on your first day. The address is Western Union, 12500 E. Belford Avenue, Suite M22B6, Englewood, Colorado 80112. Please contact me at (720) 332-5995 if you have questions or if I can be of help in any way.

Sincerely,	
	
/s/ Grover N. Wray	
Grover N. Wray
Senior Vice President
Human Resources Western Union	

			
/s/ David Barnes	 		 	Date: 7/14/06	
I accept your offer of employment as described in this letter.
 
Exhibit 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of September 30, 2006, by and between Western Union LLC (“WULLC”), a Colorado limited liability company, The Western Union Company, a Delaware corporation (hereinafter individually and collectively the “Company”), and Scott T. Scheirman (“Executive”).
WHEREAS, in connection with the distribution of the shares of The Western Union Company to the shareholders of First Data Corporation (“the Spin Off”), the Company now desires to employ Executive in the role of Executive Vice President (“EVP”) and Chief Financial Officer (“CFO”) pursuant to the terms of this Agreement, and the Executive desires to enter into this Agreement and to accept such employment, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the Company’s employment of Executive, the mutual promises and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive, intending legally to be bound agree as follows:
1. Employment . This Agreement shall become effective October 1, 2006, at which time the Company will promote the Executive to the role of EVP and CFO and the Executive hereby agrees to accept the promotion upon the terms and subject to the conditions contained in this Agreement. The term of this Agreement shall commence October 1, 2006 and, unless terminated earlier pursuant to Sections 4, shall end on November 30, 2008 (such period referred to herein as the “Employment Period”).
2. Position and Duties; Responsibilities .
(a) Executive shall have responsibility for performing for and on behalf of the Company such duties and functions as are necessary and reasonably related to the role and responsibilities of the EVP and CFO, and such other duties and responsibilities as may be determined from time to time by the Chief Executive Officer or the Executive Vice President, Financial and Strategic Development (“EVP Finance and Strategic Development”) of the Company, including serving as an officer or board member of Company affiliates; provided approval by the Company’s General Counsel is given and no conflict of interest exists in such serving in such role. The Executive shall report to the EVP Finance and Strategic Development. Executive shall be a member of the Western Union Executive Committee.
(b) Executive covenants and agrees that, at all times during the Employment Period, he shall faithfully, loyally, and to the best of his ability, experience, and talents devote his full business time, attention and best efforts to perform all duties that may be reasonably required of and from him pursuant to the terms hereof, and shall be bound by all policies, rules, and regulations of the Company in effect from time to time which are applicable to the Company’s employees generally or to Executive in particular except as provided to the contrary in this Agreement. During the Employment Period, Executive will not, directly or indirectly, whether as an officer, director, agent, partner, associate,
 
Page 1

representative, consultant, employee, or otherwise, become or be employed by or perform services for any other entity without the written consent of the Company.
3. Compensation and Benefits . During the Employment Period, the Company agrees to provide to Executive the following compensation and benefits under this Agreement subject to the terms and conditions of this Agreement :
(a) Executive shall be paid a base salary at the rate of $425,000 per year, payable semi-monthly in accordance with the Company’s normal payroll practices, net of required or permitted withholdings and deductions, effective October 1, 2006.
(b) Executive shall receive incentive payments in accordance with the bonus plan applicable to similarly situated executives (“Bonus Plan”), subject to the terms and conditions of the Bonus Plan and Executive’s continued employment pursuant to the terms of this Agreement. Payment under the Bonus Plan, if any, will be based on the Company’s achievement of its annual financial goals, together with any other performance measures applicable to Executive under the Bonus Plan for the relevant year. Executive’s current 2006 Target Bonus will remain in effect for the entirety of 2006 and any bonus payable to Executive for 2006 shall be based upon the performance measures currently in effect under the Bonus Plan for 2006. However, if the other Executive Committee Members’ 2006 Target Bonuses are adjusted upwards, Executive’s 2006 Target Bonus will also be adjusted upwards. Beginning January 1, 2007 and throughout the term of this Agreement, Executive’s new Target Bonus shall be 65% to 75% of his 2007 base salary.
(c) Executive will be eligible for an annual merit and Target Bonus increase.
(d) On or about September 29, 2006, Executive shall receive a grant of Western Union stock options and restricted stock valued at approximately $1,912,500 determined as of the date of grant by the Western Union Compensation Committee (“Spin Off Grant”). This Spin Off Grant is awarded subject to its terms and conditions for the fourth quarter of 2006, and for the years 2007 and 2008.
(e) Executive, as a member of the Executive Committee, is eligible for reimbursement of financial planning costs of up to $20,000 in the first year and up to $10,000 for each succeeding year, subject to the terms and conditions of the financial planning policy. The Company reserves the right to amend or terminate this benefit for Executive Committee members at any time.
(f) Executive will receive stock options, restricted stock and other compensation subject to their terms and conditions consistent with similarly situated members of the Executive Committee. Executive will receive indemnification to the extent permitted by the Company’s Articles and By-Laws.
(g) Notwithstanding the foregoing, Executive shall also be eligible to participate in the Company’s long-term incentive (equity) compensation, 401(k), nonqualified deferred compensation, health, disability and group life insurance plans on the same basis as similarly-situated employees of the Company, subject to the terms of the relevant plans, programs, or arrangements and in accordance with the Company’s policies. The Company reserves the right to alter, suspend, amend or terminate, at any time, any and all of its employee benefit and executive compensation plans, policies or
 
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fringe benefits, in whole or in part, at any time with or without notice. If the Company’s aggregate contribution to 401(k) or other retirement plans on behalf of Executive is less than that received by Executive prior to the Spin Off and the effective date of this Agreement, Executive’s annual base salary shall be increased to make up the difference.
4. Termination of Employment.
During the Employment Period, Executive’s employment is subject to the provisions of this Agreement and may be terminated by the Company or Executive at any time under the terms of this Agreement.
 
 	(a)	February 2008 Termination Election.	
 
 	(i)	At any time during February 2008, either the Company or Executive may give notice to the other party that the employment relationship will be terminated effective November 30, 2008 (“February 2008 Termination Election”). In the event of such notice, the Executive will receive termination payments set forth in Section 5 (“Termination Payments A”), subject to the terms of this Agreement, and the execution of an Agreement and Release to the Company in the form attached as Exhibit A (“Agreement and Release”).	
 
 	(ii)	Executive’s entitlement to Termination Payments A will vest upon the February 2008 Termination Election subject to Executive not having been terminated for Cause, Death, Disability, in connection with a Change in Control as defined in the applicable Western Union severance policy, or pursuant to Section 4(c) between the February 2008 Termination Election and November 30, 2008 and subject to the Executive’s execution of an Agreement and Release on or within 21 days of November 30, 2008.	
 
 	(iii)	Waiver of Severance . To receive the Termination Payments A, Executive will be required to waive all rights to any severance otherwise payable under any applicable Western Union severance policy, if any. Failure of either party to make the February 2008 Termination Election terminates any right to Termination Payments A. Except as provided in this Agreement, at all subsequent times during the Employment Period and thereafter if applicable, Executive will be subject to the terms of the applicable Western Union severance policy, if any, and its terms will supersede the severance provisions of this Agreement.	
 
 	(b)	Resignation for Good Reason or No Cause Termination.	
Good Reason Resignation.
 
 	(i)	Executive may notify the Company no later than the end of February 2008 of his election to terminate his employment for “Good Reason”.	
 
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Good Reason means any one or more of the following: (A) action by the Company resulting in a diminution of the Executive’s titles or positions with the Company; (B) a reduction in the Executive’s Base Salary or Target Bonus; or (C) any action by the Company to require the relocation of the Executive more than thirty-five (35) miles from the Executive’s current principal work location without the Executive’s consent. Within 30 days after Executive becomes aware of one or more actions or inactions described in the preceding sentence, Executive shall deliver written notice to the Company of the action(s) or inaction(s) (the “Good Reason Notice”). The Company shall have 30 days after the Good Reason Notice is delivered to cure the particular action(s) or inaction(s). If the Company so effects a cure, the Good Reason Notice will be deemed rescinded and of no further force and effect.
In the event Executive serves the Company with a Good Reason Notice no later than the end of February 2008 and the Company does not effect a cure, the Executive will receive termination payments as set forth in Section 6 (“Termination Payments B”), subject to Executive not having terminated for Cause as defined in (c) below, Death, Disability, or in connection with a Change in Control as defined in the applicable Western Union severance policy before the Good Reason Termination Date and the execution of the Agreement and Release by Executive on or within 21 days of the Good Reason Termination Date. The “Good Reason Termination Date” will be the last day of the 30 day period.
No Cause Termination.
 
 	(ii)	In the event the Company involuntarily terminates Executive on or before February 29, 2008, other than for Cause as defined in (c) below, and other than on account of Death, Disability or in connection with a Change in Control as defined in the applicable Western Union severance policy, Executive will receive Termination Payments B subject to the terms of this Agreement and the execution of an Agreement and Release by Executive. The Company agrees to give Executive written notice of his No Cause Termination (“No Cause Termination Notice”). Executive’s termination date shall be the last day of the two-week period beginning on the day of Executive’s receipt of written notice as provided in Section 8 (“No Cause Termination Date”). If no written notice is provided, Executive’s effective termination date is two weeks from when no cause termination is orally given.	
 
 	(iii)	Waiver of Severance . To receive the Termination Payments B, Executive will be required to waive all rights to any severance otherwise payable under any applicable Western Union severance policy, if any. Failure of Executive to give a Good Reason Notice	
 
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 	or receive a No Cause Termination Notice by the end of February 2008 terminates any right to Termination Payments B. Except as provided in this Agreement, at all subsequent times during the Employment Period and thereafter if applicable, Executive will be subject to the terms of the applicable Western Union severance policy, if any, and its terms will supersede the severance provisions of this Agreement.	
 
 	(iv)	Termination for Cause or Resignation Without Good Cause . If Company terminates Executive for Cause or Executive resigns without Good Reason, Executive shall not be entitled to receive any Termination Payments provided for in this Agreement or any other payments or benefits of any kind from the Company (except as required by applicable law or in accordance with the terms of the employee benefit plans and programs of the Company).	
 
 	(c)    (i)  	Cause . “Cause” shall be defined as the willful and continued failure of Executive to substantially perform the duties assigned by the Company (other than a failure resulting from Disability), the willful engagement by Executive in conduct that is demonstrably injurious to Western Union (monetarily or otherwise), any act of dishonesty, the commission of a felony, the continued failure by Executive to meet performance standards, excessive absenteeism, or a significant violation by Executive of any statutory or common law duty of loyalty to the Company.	
 
 	(ii)	Cause Only Upon A February 2008 Termination Election .	
For purposes of determining Cause once either party has exercised the February 2008 Termination Election, “Cause” shall be defined as the willful and continued failure of Executive to substantially perform the duties assigned by the Company (other than a failure resulting from Disability), the willful engagement by Executive in conduct that is demonstrably injurious to Western Union (monetarily or otherwise), any act of dishonesty, the commission of a felony, the continued failure by Executive to meet performance standards related solely to Executive’s transition of his job responsibilities, in anticipation of his November 30, 2008 termination date, excessive absenteeism, or a significant violation by Executive of any statutory or common law duty of loyalty to the Company.
Only in the event of a February 2008 Termination Election and only if the Company terminates Executive, for the continued failure by Executive to meet performance standards related solely to Executive’s transition of his job responsibilities in anticipation of his November 30, 2008 termination date (“Performance Deficiency”) does the Company agree to give Executive written notice to the Executive (“Performance Cause Notice”). The
 
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Performance Cause Notice shall state in writing the particular action(s) or inaction(s) related to Executive’s Performance Deficiency giving rise to the Performance Cause Termination, citing examples and setting forth definable, reasonable, and measurable job transition goals and responsibilities. The Executive shall have 30 days from the Performance Cause Notice to cure the particular action(s) or inaction(s) giving rise to the Performance Cause Notice. If the Company in its sole discretion determines that the definable, reasonable, and measurable job transition goals and responsibilities set forth in the written Performance Cause Notice have been satisfactorily met by the Executive, the Performance Cause Notice shall be deemed rescinded and of no force and effect.
(d) Death . Upon the death of Executive, all rights of Executive and Executive’s heirs, executors and administrators to compensation and other benefits under this Agreement and any Company or the Company policy, plan or program shall cease immediately, except that Executive’s heirs, executors or administrators, as the case may be, shall be entitled to:
 
 	(i)	accrued base salary and vacation pay, less required and authorized withholding and deductions, through and including Executive’s date of death;	
 
 	(ii)	other employee benefits to which Executive or Executive’s beneficiaries are entitled on the date of death in accordance with the terms of the employee benefit plans and programs of the Company; and	
 
 	(iii)	if either party gives notice under either Sections 4(b) or (c) and Executive dies after becoming eligible for Termination Payments A or B, as applicable, and executing an Agreement and Release but before full payment of all cash Termination Payments, the remaining cash Termination Payments will be paid to the Executive’s estate or representative in one lump sum. If either party gives notice under either Sections 4(b) or (c) during the Employment Period and Executive dies before executing an Agreement and Release, his estate or representative may not execute an Agreement and Release, and no Termination Payments will be available to Executive.	
(e) Disability . The Company may, at its option, terminate Executive’s employment during the Employment Period upon written notice to Executive if Executive becomes disabled. “Disability” means the inability of the Executive to substantially perform such Executive’s duties and responsibilities due to a physical or mental condition (i) that would entitle such executive to benefits under the Company’s long-term disability plan or, if the Western Union Compensation Committee deems it relevant, any disability rights provided as a matter of local law or (ii) if such Executive is not eligible for long-term disability benefits under any plan sponsored by the Company,
 
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that would, as determined by the Western Union Compensation Committee, entitle such Executive to benefits under the Company’s long-term disability plan if the Executive were eligible therefore. Upon such termination, all obligations of the Company hereunder shall cease immediately, except that Executive shall be entitled to:
 
 	(i)	accrued base salary and vacation pay, less required and authorized withholding and deductions, through and including the effective date of Executive’s termination of employment; and	
 
 	(ii)	other employee benefits to which Executive is entitled upon termination of employment in accordance with the terms of the employee benefit plans and programs of the Company.	
(f) Cooperation & Indemnification. In the event of Executive’s termination of employment, Executive agrees to reasonably assist and cooperate with the Company, its subsidiaries and Affiliates and/or their agents, officers, directors and employees (i) on matters relating to the tasks for which Executive was responsible, or about which Executive had knowledge before termination of employment or which may otherwise be within the knowledge of Executive and (ii) in connection with any existing or future disputes, litigation or investigations of any nature brought by, against, or otherwise involving the Company in which the Company deems Executive’s cooperation necessary. The Company will reimburse Executive for reasonable out of pocket expenses incurred in connection therewith, in accordance with Company policy. Executive shall be eligible for such indemnification as is provided for by the bylaws of the Company.
5. Termination Payments A .
(a) The Termination Payments will be an amount equal to two times the sum of Executive’s annual base salary and annual Target Bonus (Annual Target Bonus will be calculated at 70% of the then current base salary) plus a prorated amount of Executive’s annual Target Bonus (Annual Target Bonus will be calculated at 70% of the then current base salary) payable to the Executive for 2008. Such prorated amount shall be equal to the product of (1) the Executive’s Target (Annual Target Bonus will be calculated at 70% of the then current base salary) for 2008 and (2) the ratio of the number of days elapsed during such year prior to November 30, 2008 to 365.
(b) The Termination period will be the 24 consecutive month period commencing on November 30, 2008 (“24 Month Termination Period”). But for Executive’s status as a “specified employee” under Section 409A of the Internal Revenue Code (“Code § 409A”), the Termination Payments would be paid in equal semi-monthly installments over the 24 Month Termination Period on the 15th and the last business day of each month, and would be paid no earlier than the eighth day following the date on which the Company has received Executive’s fully executed Agreement and Release. Because Executive is subject to Code § 409A, no payments shall be made to Executive during the first six months of the 24 Month Termination Period, and as soon as administratively practicable thereafter Executive shall receive a lump sum payment, less tax withholding and other legally allowed deductions, representing accumulated installment payments Executive would have received under this Agreement during such six month period but for his status as a “specified employee” under Code § 409A.
 
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(c) Executive’s unvested non-qualified stock options and restricted stock awards awarded in the Spin Off Grant and any other non-qualified stock options and restricted stock awards granted between the Spin Off date through February 29, 2008 will become quick vested effective on March 1, 2008, and Executive’s non-qualified stock options (and stock appreciation rights, if any) will be exercisable until February 28, 2009, subject to the provisions of Code §409A or until the terms of such awards have expired, if earlier.
(d) The Company shall pay to the Executive a lump sum in an amount equal to the approximate difference in cost between COBRA premiums and active employee premiums for 18 months of COBRA coverage, less tax withholding and other legally allowed deductions, on the same date that the lump sum payment referenced in Section 6(b) is made, provided that Executive has made a timely election for COBRA coverage.
6. Termination Payments B .
(a) The Termination Payments will be an amount equal to two times the sum of Executive’s annual base salary and annual Target Bonus (Annual Target Bonus will be calculated at 70% of the then current base salary) plus a prorated amount of Executive’s annual Target Bonus (Annual Target Bonus will be calculated at 70% of the then current base salary) payable to the Executive for the year in which the Good Reason or No Cause Termination Date occurs. Such prorated amount shall be equal to the product of (1) the Executive’s Target Bonus (Annual Target Bonus will be calculated at 70% of the then current base salary) for the year in which the Good Reason or No Cause Termination Date occurs and (2) the ratio of the number of days elapsed during such year prior to the Good Reason or No Cause Termination Date to 365.
(b) The Termination period will be the 24 consecutive month period commencing on Executive’s Good Reason or No Cause Termination Date (“Good Reason or No Cause Termination Period”). But for Executive’s status as a “specified employee” under Code § 409A, the Termination Payments would be paid in equal semi-monthly installments over the 24 Month Termination Period on the 15th and the last business day of each month, and would be paid no earlier than the eighth day following the date on which the Company has received Executive’s fully executed Agreement and Release. Because Executive is subject to Code § 409A, no payments shall be made to Executive during the first six months of the 24 Month Termination Period, and as soon as administratively practicable thereafter Executive shall receive a lump sum payment, less tax withholding and other legally allowed deductions, representing accumulated installment payments Executive would have received under this Agreement during such six month period but for his status as a “specified employee” under Code § 409A.
(c) Executive’s unvested non-qualified stock options and restricted stock awards awarded in the Spin Off Grant and any other non-qualified stock options and restricted stock awards granted between the Spin Off date and the applicable Good Reason or No Cause Termination Date will become vested effective as of the Good Reason or No Cause Termination Date and will be exercisable for three months following the Good Reason or No Cause Termination Date subject to the provisions of Code §409A or until the terms of such awards have expired, if earlier.
 
Page 8

(d) The Company shall pay to the Executive a lump sum in an amount equal to the approximate difference in cost between COBRA premiums and active employee premiums for 18 months of COBRA coverage, less tax withholding and other legally allowed deductions, on the same date that the lump sum payment referenced in Section 6(b) is made, provided that Executive has made a timely election for COBRA coverage.
(e) The parties agree that in the event that a Good Reason Termination and No Cause Termination occur concurrently, Executive is eligible to receive only one Termination Payments B.
7. Federal and State Withholding . The Company shall deduct from the amounts payable to Executive pursuant to this Agreement the amount of all required federal, state and local taxes or assessments of all kinds, in accordance with Executive’s Form W-4 on file with the Company and applicable laws. Executive shall be solely responsible for all personal and individual income taxes associated with the amounts payable under the Agreement.
8. Notices . All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (a) delivered personally, by verifiable electronic delivery, or by overnight courier to the following address of the other party hereto (or such other address for such party as shall be specified by notice given pursuant to this Section) or (b) sent by facsimile to the following facsimile number of the other party hereto (or such other facsimile number for such party as shall be specified by notice given pursuant to this Section), with the confirmatory copy delivered by overnight courier to the address of such party pursuant to this Section:
If to the Company, to:
Grover Wray
EVP of Human Resources, The Western Union Company
12500 E. Belford Ave., Suite M22B6
Englewood, CO 80112
With a copy to:
Sally Sommers
Associate General Counsel, The Western Union Company
Global Employment Labor and Benefits Law Group
12500 E. Belford Ave, Suite M21A3
Englewood, CO 80112
If to the Executive, to:
Scott T. Scheirman
1050 Buffalo Ridge Road
Castle Rock, CO 80108
 
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With a copy to:
James W. Hubbell
Kelly, Haglund, Garnsey & Kahn LLC
1441 18 th Street
Denver, CO 80220
9. Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other provision of this Agreement or the validity, legality or enforceability of such provision in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
10. Entire Agreement . This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related in any manner to the subject matter hereof. This Agreement is supplemental to, and does not supersede, any non solicitation, non-compete, non-disclosure, or confidentiality agreement that Executive may have signed while employed with the Company, Western Union Financial Services, Inc., or First Data Corporation.
11. No Waiver . The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver or as a codicil to or a waiver of any subsequent breach hereof.
12. Successors and Assigns . This Agreement shall be enforceable by Executive and Executive’s heirs, executors, administrators and legal representatives. Executive may not assign this Agreement, and any such assignment shall be null and void. The Company shall have the right to assign the Agreement, and this Agreement shall inure to the benefit of and be enforceable by the Company’s successors and assigns.
13. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Colorado without regard to principles of conflict of laws. The Executive agrees to submit to the jurisdiction of the State of Colorado. The Executive waives any and all objections to jurisdiction or venue. THE PARTIES AGREE TO WAIVE THEIR RIGHT TO TRIAL BY JURY FOR ANY DISPUTE HEREUNDER .
14. Amendment and Waiver . The provisions of this Agreement may be amended or waived only by the written agreement of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
 
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15. Counterparts . This Agreement may be executed in two counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

THE WESTERN UNION COMPANY
WESTERN UNION L.L.C.	 		 	EXECUTIVE	
					
By:	 	/s/ Sally M. Sommers	 		 		 	/s/ Scott T. Scheirman	
	 	Sally M. Sommers, Esq.
Associate General Counsel
Global Employment, Benefits and Labor Law
Group	 		 		 	Scott T. Scheirman	
 
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EXHIBIT A
THE WESTERN UNION COMPANY
AGREEMENT AND RELEASE
This is an Agreement and Release (“Agreement”) between Scott T. Scheirman (“Executive”) and Western Union LLC (“WULLC”), a subsidiary of The Western Union Company (collectively, the “Company”) whereby Executive’s employment will be terminated effective ______________________________ (“Termination Date”).
1. Payments and Benefits. In consideration for Executive’s execution of this Agreement, but subject to the paragraph in this Agreement entitled “Review Period and Revocation” and the terms of paragraph 11, the Company agrees to provide to Executive the following payments and benefits, consistent with and subject to the terms of the Employment Agreement effective September 29, 2006. Provision of the severance payments and benefits specified in subparagraphs (a) and (b) hereof is intended to comply with the terms of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), to the extent applicable, based upon the assumption that Executive is a “specified employee” within the meaning of Code § 409A.
 
 	(a)	Executive will receive installment payments of $_________, less tax withholding and other legally allowed deductions, on the 15 th and last business day of each month for the period commencing on ___________ and ending ______________, up to a total amount of $______________. On ____________________, Executive shall also receive a lump sum payment in the amount of $______________, less tax withholding and other legally allowed deductions, representing accumulated installment payments Executive would have received under the Termination Payments during the first six months after the Termination Date but for his status as a “specified employee” under Code Section 409A. The period from the Termination Date through ______________ is defined as the Termination Period.	
 
 	(b)	On _______________________, Executive shall also receive a lump sum payment in the amount of $______________, less tax withholding and other legally allowed deductions, which represents the approximate difference in cost between COBRA premiums and active employee premiums for 18 months of COBRA coverage, provided that Executive has made a timely election for COBRA coverage. Notwithstanding the foregoing, Executive’s continued health benefits coverage under this subsection shall cease as of the date the Executive becomes eligible to receive such benefits under a subsequent employer’s benefit programs. From and after the beginning of the Termination Period, Executive will not be eligible to continue active participation in any other Company benefit plan, program or perquisite, including but not limited to long-term incentive compensation, nonqualified deferred compensation, employee stock purchase, 401(k),	
 
Exhibit A - Page 1

 	pension, life insurance, long-term disability coverage, or any other plan or policy. Details about specific plan coverages, conversion and distribution eligibility will be provided separately. Information on electing COBRA coverage will be provided at the conclusion of group health plan eligibility.	
 
 	(c)	Termination Payments A . Executive’s unvested non-qualified stock options and restricted stock awards awarded in the Spin Off Grant and any other non-qualified stock options and restricted stock awards granted from the Spin-Off date through February 29, 2008 will become quick vested effective on March 1, 2008, and Executive’s non-qualified stock options will be exercisable for three months until February 28, 2009 subject to the provisions of Code §409A, the terms and conditions of the Plans or until the term of such awards have expired, if earlier.	
 
 	(c)	Termination Payments B. Executive’s unvested non-qualified stock options and restricted stock awards awarded in the Spin Off Grant and any other non-qualified stock options and restricted stock awards granted from the Spin Off date through the Good Reason or No Cause Termination Date will become quick vested effective on the Good Reason or No Cause Termination Date, and that Executive’s non-qualified stock options will be exercisable for three months following the Good Reason or No Cause Termination Date subject to the provisions of Code §409A, the terms and conditions of the Plans or until the term of such awards have expired, if earlier.	
 
 	(d)	To the extent permitted under applicable law, Executive agrees that the Company may deduct from the payments referenced in this Payments and Benefits paragraph any outstanding debt Executive owes the Company and its subsidiaries or Affiliates including, but not limited to, the value of unreturned property, any overpayment made to Executive, or any other amount Executive owed to the Company, its subsidiaries or Affiliates.	
2. Complete Release . In consideration of those payments and benefits listed above which are payable only under this Agreement, Executive agrees to and hereby does knowingly and voluntarily release and discharge the Company, its subsidiaries and Affiliates, their agents, executives, directors, officers, employees and their predecessors and successors and the subsidiaries, Affiliates, agents, executives, directors, officers and employees of such predecessors and successors (the “Released Parties”), from any and all claims, causes of action and demands of any kind, whether known or unknown, which Executive has, ever has had, or ever in the future may have and which are based on acts or omissions occurring up to and including the date of this Agreement. Included in the release set forth in the preceding sentence, without limiting its scope, are claims arising under Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act of 1974, and the Age Discrimination in Employment Act of 1967, each as amended, as well as any other federal, state or local employment discrimination or labor laws, and/or contract, tort, or wage and hour laws, and which are related
 
Exhibit A - Page 2

to Executive’s employment with the Company or the termination of that employment. The foregoing release shall not apply to (i) Executive’s right to indemnification under the Company’s bylaws or otherwise, (ii) rights to directors and officers liability insurance (to the extent eligible), (iii) obligations of the Company created by this Agreement, or (iv) claims, causes of action or demands of any kind that may arise after the date this Agreement is executed and which are based on acts or omissions occurring after such date.
For purposes of this Agreement, “Affiliate” means a Person that directly, or indirectly through one or more intermediaries, owns or controls, is owned or is controlled by, or is under common ownership or control with, another Person. As used herein, “control” means the power to direct the management or affairs of a Person, and “ownership” means the beneficial ownership of at least 5% of the voting securities of the Person. Company shall be deemed to control any settlement network in which it has any equity ownership. As used herein, “Person” means any corporation, limited or general partnership, limited liability company, joint venture, association, organization or other entity.
3. Return of Company Property. On or before the last day of Executive’s active employment, Executive will resign from all titles and positions with the Company, and return to the Company all property within Executive’s possession belonging to the Company, its subsidiaries or Affiliates, any customers of the Company or its subsidiaries or Affiliates or any entity with whom the Company, its subsidiaries or Affiliates has entered into a confidentiality agreement, including, but not limited to, reports, maps, files, memoranda, records, credit cards, keys, passes, customer lists, information, forms, software, formulas, plans, documents, systems, designs, methodologies, product features, technology, and other written and computer material, equipment and access codes, and copies of same that Executive has requested or received, prepared or helped to prepare in connection with Executive’s employment with the Company. Executive will not at any time, now or thereafter, retain any copies, duplicates, reproductions or excerpts of such property.
4. Commencing Another Position. If Executive obtains employment with the Company or its subsidiaries or Affiliates during the Termination Period (“Subsequent Company Employment”), any and all further payments or benefits under the Agreement immediately will cease as of the date of such employment. In the event of Subsequent Company Employment, Executive specifically agrees that the offer of employment to Executive by the Company or its subsidiaries or Affiliates, and Executive’s acceptance thereof, is sufficient consideration to support the release of claims contained herein notwithstanding the fact that payments and benefits hereunder have ceased. If Executive obtains employment during the Termination Period with an entity other than the Company or its subsidiaries or Affiliates (“Subsequent Non-Company Employment”), Executive will, subject to the provisions of this Agreement, continue to receive cash payments in accordance with paragraph 1(a) of this Agreement, but, except as otherwise required under applicable law, will no longer be eligible to receive the benefits specified under paragraph 1(b) of this Agreement as of the date Executive becomes eligible to receive such benefits under a subsequent employer’s benefit plans or policies. In any event, it is Executive’s obligation to immediately advise the Company of Subsequent Non-Company Employment.
 
Exhibit A - Page 3

5. Cooperation. During the Termination Period and thereafter, Executive agrees to cooperate fully with the Company, its financial and legal advisors, and/or government officials in any claims, investigations, administrative proceedings, lawsuits, and other legal, internal or business matters, as reasonably requested by the Company. Company will take into consideration the Executive’s personal and business commitments, will give the Executive as much advance notice as reasonably possible, and ask that [to the extent fully possible] Executive be available at such time or times, and at such location or locations, as are mutually convenient to the Company and the Executive. Company agrees to reimburse Executive for the actual out-of-pocket expenses Executive incurs, [in accordance with the Company’s travel expense reimbursement policy,] as a result of Executive’s complying with this paragraph 6, subject to Executive’s submission to the Company of documentation substantiating such expenses as the Company may reasonably require. To the extent that it is consistent with the Company’s by-laws, certificate of incorporation and applicable laws, the Company will engage on its own behalf to represent Executive with legal counsel of its choosing if necessary in connection with such cooperation, and in any event will reimburse Executive for documented, reasonable and necessary out-of-pocket travel expenses as are required and which Executive incurs in complying with Executive’s obligations under this paragraph. If for any reason the Company determines that a conflict of interest may exist between Executive and the Company, the Company may require Executive to obtain separate counsel in which case the Company will subsequently reimburse Executive for the reasonable and necessary legal fees associated with the use of such counsel and/or related travel expenses (as limited above), to the extent that such reimbursement is permitted by the Company’s by-laws, certificate of incorporation and applicable laws.
6. Confidentiality and Non-Disparagement. Executive hereby agrees to maintain the terms and conditions of this Agreement in the strictest confidence and agrees not to disclose any of the terms of this Agreement unless and to the extent such disclosure is required by law or to secure advice from a legal or tax advisor or outplacement provider. This obligation extends to Executive’s agents, including all tax advisors, who Executive must duly notify of the confidential nature of the content of this Agreement and of their confidential obligations hereunder. Notwithstanding this provision it is acknowledged that Executive’s position as a principal financial officer of the Company requires disclosure of this Employment Agreement and Agreement and Release under the applicable SEC filings. The Company further acknowledges that Executive may be required to discuss the terms of this Employment Agreement and Agreement and Release with the Investment Community and others.
Executive agrees not to intentionally make any direct or indirect derogatory statements regarding, or disparage in any way, the business or reputation of the Company or its subsidiaries or Affiliates, or any of their directors, officers, managers or employees, unless such statements are required by law. Company agrees that its officers, directors, and Executive Committee Members shall not intentionally make any direct or indirect derogatory statements regarding, or disparage in any way, the reputation of Executive, unless such statements are required by law.
7. Severability and Governing Law. In the event that any provision of this Agreement is deemed unenforceable, Executive agrees that a court of competent jurisdiction shall have jurisdiction to reform such provision to the extent necessary to cause it to be
 
Exhibit A - Page 4

enforceable to the maximum extent permitted by law. The provisions in this Agreement are severable, and if any provision is determined to be prohibited or unenforceable in any jurisdiction, the remaining provisions shall nevertheless be binding and enforceable. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado without regard to principles of conflicts of law.
8. Non-Admission . Nothing in this Agreement is intended to or shall be construed as an admission by the Company, any of the other Released Parties, or Executive that any of the parties violated any law, interfered with any right, breached any obligation or otherwise engaged in any improper or illegal conduct, the parties expressly denying any such improper or illegal conduct.
9. Other Agreements, Survivability and Successorship. Executive acknowledges that, except as noted in the following sentence, this Agreement is the entire agreement between the Company and Executive and that Executive has not relied on any other representations or statements, written or oral, by the Released Parties or their employees or agents concerning the terms of the Agreement or any other matters not contained herein. This Agreement is supplemental to, and does not supersede, any non-solicitation, non-compete, non-disclosure, confidentiality and other agreements that Executive may have signed while employed with the Company. In addition to this paragraph, the following paragraphs in this Agreement survive the termination of this Agreement: Complete Release; Return of Company Property; Commencing Another Position; Cooperation; Confidentiality and Non-Disparagement; Severability and Governing Law; Non-Admission; and Other Agreements, Survivability and Successorship.
This Agreement inures to the benefit of any successors or assigns of the Company, and Executive’s obligations apply equally to the Company and its successors and assigns.
In the event of Executive’s death prior to Executive’s receipt of all of the sums due to Executive under paragraph 1(a) above, the unpaid balance of such sums shall be paid to Executive’s estate.
10. Consideration and Remedy. Executive acknowledges that the following paragraphs are material provisions of this Agreement: Complete Release, Return of Company Property; Commencing Another Position; Cooperation; Confidentiality and Non-Disparagement; Restrictive Covenant Agreement; Severability and Governing Law; and Other Agreements, Survivability and Successorship (collectively, the “Material Provisions”). Executive further acknowledges that (i) the first $50,000 payable to Executive as payments pursuant to subparagraph (a) of the “Payments and Benefits” paragraph of this Agreement is consideration (the “ADEA Consideration”) for Executive’s release and waiver in the “Complete Release” paragraph of this Agreement of any claims, causes of action and demands of any kind arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA Released Claims”) and (ii) the remainder of the amount payable to Executive as payments and benefits described in the “Payments and Benefits” paragraph of this Agreement are consideration (the “Other Consideration”) for (a) the Executive’s release and waiver in the “Complete Release” paragraph of this Agreement of any claims, causes of action and demands of any kind other than
 
Exhibit A - Page 5

the ADEA Released Claims (the “Other Released Claims”) and (b) the Executive’s obligations pursuant to the Material Provisions. In the event of a breach by Executive of the Material Provisions (excluding ADEA Released Claims) or in the event Executive challenges the enforceability of this Agreement as to any of the Other Released Claims, the Company shall be entitled to immediately cease providing to Executive the Other Consideration and any other benefits under this Agreement, except to the extent that such payments and benefits are required, either under this paragraph 11 or by law. In the event of a breach of this Agreement by either party, the other party shall be entitled to all remedies available at law or equity.
11. Paragraph Headings. The paragraph headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
12. Review Period and Revocation. Executive acknowledges that Executive was given twenty-one (21) days to review this Agreement from the time Executive received it. Executive acknowledges that the Company has made no promises to Executive other than those contained in this Agreement. EXECUTIVE ACKNOWLEDGES EXECUTIVE WAS ADVISED TO REVIEW THIS AGREEMENT WITH AN ATTORNEY OF EXECUTIVE’S CHOICE. Executive is further advised that Executive has 7 days after Executive signs this Agreement to revoke it by notifying the Company of such revocation in writing. In the event Executive revokes this Agreement as specified in the immediately preceding sentence, the Company shall deem this Agreement to be void in its entirety, in which case neither party shall be bound by its terms and no payment shall be made to the Executive hereunder.
Executive’s signature below indicates that Executive has carefully read, reviewed, and fully understands this Agreement. Executive acknowledges that Executive’s signature below constitutes a knowing and voluntary execution of this Agreement and Executive signs the same of Executive’s own free will and it is Executive’s intention to be bound thereby.
Dated this _______day of _____________________, 2006.

THE WESTERN UNION COMPANY
WESTERN UNION L.L.C.	 		 	EXECUTIVE	
					
By:	 	  	 		 		 	  	
	 	Sally M. Sommers, Esq.
Associate General Counsel
Global Employment, Benefits and Labor Law
Group	 		 		 	Scott T. Scheirman	
 
Exhibit A - Page 6
 
Exhibit 10.13
THE WESTERN UNION COMPANY
NON-EMPLOYEE DIRECTOR DEFERRED COMPENSATION PLAN
1. Purpose . The purpose of The Western Union Company Non-Employee Director Deferred Compensation Plan (the “Plan”) is to provide members of the Board of Directors of The Western Union Company (the “Company”) who are not employees of the Company or its subsidiaries with the opportunity to defer the receipt of all or any portion of their annual retainers otherwise payable to them in their capacity as non-employee directors of the Company. Elections under this Plan shall result in the grant of stock options and unrestricted stock units authorized by The Western Union Company 2006 Non-Employee Director Equity Compensation Plan (the “Equity Plan”). Capitalized terms not defined herein shall have the respective meanings assigned to such terms by the Equity Plan.
2. Administration . The Plan shall be administered by the Committee. Each year, the Committee, at its sole discretion will determine which members of the Board of Directors of the Company will be offered participation in the Plan.
The Committee shall, subject to the terms of this Plan, determine such grants, the exercise price associated with an NQO, the time and conditions of exercise or settlement of unrestricted stock units and all other terms and conditions of such grants.
The Committee shall, subject to the terms of this Plan, interpret this Plan and the application thereof and establish, amend and revoke rules and regulations as it deems necessary or desirable for the administration of the Plan. All such interpretations, rules, regulations and conditions shall be final, binding and conclusive. A majority of the Committee shall constitute a quorum. The acts of the Committee shall be either (i) acts of a majority of the members of the Committee present at any meeting at which a quorum is present or (ii) acts approved in writing by all of the members of the Committee without a meeting. The Committee may authorize any one or more of their number or the Secretary or any other officer of the Company to execute and deliver documents on behalf of the Committee.
No member of the Board or the Committee, and no other officer of the Company or Secretary to whom the Committee delegates any of its power and authority hereunder, shall be liable for any act, omission, interpretation, construction or determination made in connection with this Plan in good faith, and the members of the Board and the Committee and such officers or Secretary shall be entitled to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including attorneys’ fees) arising therefrom to the full extent permitted by law.
3. Eligibility . Each member of the Board of Directors of the Company who is not an employee of the Company or any of its subsidiaries (an “Eligible Director”) shall be eligible to participate in the Plan, if selected by the Committee, and to make the elections provided hereunder. Each Eligible Director who elects to participate in this Plan shall be referred to herein as a “Participant.”

4. Deferral of Retainer.
(a) Annual Elections . Prior to the first day of each calendar year beginning on or after January 1, 2006, each Eligible Director shall be permitted to elect, in accordance with rules and procedures established by the Committee, that 100 percent, or a lesser percentage as the Committee may determine in its sole discretion, of such Eligible Director’s retainer to be earned in such calendar year not be paid to the Eligible Director, but, at the election of such Eligible Director, be replaced by issuance under the Equity Plan of either (i) a combination of (A) an immediately exercisable NQO to purchase a number of whole shares of the Company’s common stock such that the option has a fair value, as determined by the Committee, of 75% of the amount to be deferred pursuant to such election, and (B) unrestricted stock units representing shares of the Company’s common stock with a fair market value (as defined in the Equity Plan) equal to the remainder of the amount to be deferred pursuant to such election, provided that any fractional shares shall be rounded up to the next whole share, or (ii) unrestricted stock units representing shares of the Company’s common stock with a fair market value (as defined in the Equity Plan) equal to the entire amount subject to such election, provided that any fractional shares shall be rounded up to the next whole share. Notwithstanding the foregoing, such options and unrestricted stock units shall not be issued at the time of such election, but shall be issued as of such date as shall be determined by the Committee consistent with section 409A of the Code and the terms of the Equity Plan, and the number of shares subject to each such option and the number of unrestricted stock units issued shall be determined based on the fair market value (as defined in the Equity Plan) of a share of the Company’s common stock as of such date.
(b) Initial Elections . An individual who becomes an Eligible Director after a calendar year has commenced shall be permitted to make a deferral election under this Plan not later than the 30 th day following the date the individual first becomes an Eligible Director with respect to the amount of annual retainer earned and payable to such Eligible Director after the date of such election.
(c) Effect of Elections . Any election made pursuant to Sections 4(a) or 4(b) above, as the case may be, once made, shall remain in effect for future calendar years unless the Eligible Director makes a new election. In order to elect a deferral for any subsequent calendar year, an Eligible Director must make a new election prior to the calendar year for which the new election is to be effective. In no event shall a Salary Deferral election apply to compensation payable for services rendered prior to the date on which such election is received by the Company. Each Participant’s retainer shall be reduced by the amount subject to the deferral election made on his or her behalf. Dividend equivalents shall be deferred in the form of additional unrestricted stock units issued under the Equity Plan, the number of which shall be determined based on the fair market value (as defined in the Equity Plan) of the Company’s common stock on the applicable dividend record date.
 
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5. Distributions With Respect to Unrestricted Stock Units .
(a) In general . Except to the extent otherwise elected by an Eligible Director in his or her deferral election made pursuant to Section 4 hereof, on the first business day of January next following the date on which the Eligible Director’s services as a member of the Company’s Board of Directors terminates for any reason, the Participant (or his or her estate or beneficiary, as the case may be) shall receive a distribution of shares of the Company’s common stock represented by all the unrestricted stock units issued to the Participant pursuant to this Plan.
(b) Unforeseeable Emergency . If a Participant provides satisfactory evidence of an unforeseeable emergency, the Participant may request a distribution of all or a portion of the Participant’s deferral accounts maintained under the Plan prior to the date on which payments would have commenced under Section 5(a) hereof. An “Unforeseeable Emergency” shall mean (i) a severe financial hardship to a Participant resulting from an illness or accident of the Participant, or the spouse or a dependent (as defined in section 152(a) of the Code) of the Participant, (ii) the loss of a Participant’s property due to casualty or (iii) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.
6. Unfunded Plan . No funds, securities or other property of any nature shall be segregated or earmarked for any current or former Participant, beneficiary or other person. Accordingly, no current or former Participant, Beneficiary or other person, individually or as a member of a group, shall have any right, title or interest in any Plan account, in any fund or specific sum of money, in any asset or in any shares of stock which may be acquired by the Company in respect of its obligations hereunder, the sole right of the Participant being to receive a distribution as a general creditor of the Company with an unsecured claim against its general assets.
7. Amendment . The Board and the Committee shall each have the right to amend the Plan from time to time, except that no amendment shall reduce the amount credited or awarded to a Participant hereunder or adversely affect the rights of any Participant or his or her Beneficiary with respect to amounts previously deferred under the Plan, or change the timing of distributions in a manner inconsistent with section 409A of the Code, without the consent of such Participant or, if the Participant is deceased, his or her Beneficiary. Any amendment shall be adopted by action of the Board or Committee; provided , however , that the Equity Plan Committee of the Company and the Chief Executive Officer of the Company shall be, and hereby are, also authorized to amend the Plan, but only to the extent that such amendment: (i) is required or deemed advisable as the result of legislation or regulation; (ii) concerns solely routine ministerial or administrative matters; or (iii) is not routine, ministerial or administrative, but does not materially increase any cost to the Company.
8. General Provisions
(a) Non-Alienation of Benefits . A Participant’s rights to the amounts represented by unrestricted stock units issued under the Equity Plan in respect of elections made hereunder shall not be salable, transferable, pledgeable or otherwise assignable, in whole or in part, by the
 
3

voluntary or involuntary acts of any person, or by operation of law, and shall not be liable or taken for any obligation of such person. Any such attempted grant, transfer, pledge or assignment shall be null and void and without any legal effect.
(b) Compliance With Section 409A of Code . This Plan is intended to comply with the provisions of section 409A of the Code, and shall be interpreted and construed accordingly. This Plan may be amended in accordance with Section 7 at any time to satisfy any requirements of section 409A of the Code or guidance provided by the U.S. Treasury Department to the extent applicable to the Plan.
(c) Severability . If any provision of the Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of the Plan, and the Plan shall be enforced as if the invalid provisions had never been set forth therein.
(d) Successors in Interest . The obligation of the Company under the Plan shall be binding upon any successor or successors of the Company, whether by merger, consolidation, sale of assets or otherwise, and for this purpose reference herein to the Company shall be deemed to include any such successor or successors.
(e) Governing Law; Interpretation . The Plan shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware. The Company intends that transactions under the Plan shall be exempt under Rule 16b-3 promulgated under Section 16 of the Securities Exchange Act of 1934, as amended.
(f) Termination of the Plan . The Board of Directors of the Company may terminate the Plan at any time; provided , however , that termination of the Plan shall not adversely affect the rights of a Participant or beneficiary thereof with respect to amounts previously deferred under the Plan without the consent of such Participant and that of such Participant’s beneficiary.
 
4
 
Exhibit 10.14
THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level) Effective September 29, 2006
 
1.	Purpose	
This severance/change in control policy (the “Policy”) is established by The Western Union Company, a Delaware corporation (“Western Union”), to enable Western Union to offer a form of income protection to its Eligible Executives in the event their employment with the Company is involuntarily terminated other than for Cause. The Policy is also intended to secure for the benefit of the Company the services of the Eligible Executives in the event of a potential or actual Change in Control without concern for whether such executives might be hindered in discharging their duties by the personal uncertainties and risks associated with a Change in Control, by affording such executives the opportunity to protect the share value they have helped create as of the date of any Change in Control and offering income protection to such executives in the event their employment terminates involuntarily or for Good Reason in connection with a Change in Control.
This Policy shall constitute a “welfare plan” within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and shall be construed in a manner consistent with such intent.
 
2.	Effective Date	
The effective date of this Policy is September 29, 2006 (the “Effective Date”).
 
3.	Definitions	
Base Salary means the Eligible Executive’s current annualized rate of base cash compensation as paid on each regularly scheduled payday for the executive’s regular work schedule as of his or her Termination Date and including any before-tax contributions that are deducted for Company benefit plan purposes. Base Salary shall not include taxable or nontaxable fringe benefits or awards, vacation, performance awards, bonus, commission or other incentive pay, or any payments which are not made on each regular payday, regardless of how such payments may be characterized.
Board means the Board of Directors of Western Union.
Cause means the willful and continued failure by an Eligible Executive to substantially perform the duties assigned by the Company (other than a failure resulting from Disability), the willful engagement by an Eligible Executive in conduct which is demonstrably injurious to the Company (monetarily or otherwise), any act of dishonesty, the commission of a felony, the continued failure by an Eligible Executive to meet performance standards, an Eligible Executive’s excessive absenteeism or a significant violation by an Eligible Executive of any statutory or common law duty of loyalty to the Company.
Change in Control means
 
 	(a)	the acquisition by any individual, entity or group (a “Person”), including any “person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act, of 25% or more of either (i) the then outstanding shares of common stock of Western Union (the “Outstanding Common Stock”) or (ii) the combined voting power of the then outstanding securities of Western Union entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); excluding, however, the following: (A) any acquisition directly from Western Union (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege unless the security being so exercised, converted or exchanged was acquired directly from Western Union), (B) any acquisition by Western Union, (C) any acquisition by an employee benefit plan (or	

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
 	related trust) sponsored or maintained by Western Union or any corporation controlled by Western Union or (D) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii), and (iii) of subsection (c) of this definition; provided further, that for purposes of clause (B), if any Person (other than Western Union or any employee benefit plan (or related trust) sponsored or maintained by Western Union or any corporation controlled by Western Union) shall become the beneficial owner of 25% or more of the Outstanding Common Stock or 25% or more of the Outstanding Voting Securities by reason of an acquisition by Western Union, and such Person shall, after such acquisition by Western Union, become the beneficial owner of any additional shares of the Outstanding Common Stock or any additional Outstanding Voting Securities and such beneficial ownership is publicly announced, such additional beneficial ownership shall constitute a Change in Control;	
 
 	(b)	the cessation of individuals who constitute the Board (the “Incumbent Board”) as of the date this Policy is adopted by the Committee, to constitute at least a majority of such Incumbent Board; provided that any individual who becomes a director of Western Union subsequent to the date this Policy is adopted by the Committee whose election, or nomination for election by Western Union’s stockholders, was approved by the vote of at least a majority of the directors then comprising the Incumbent Board shall be deemed a member of the Incumbent Board; and provided further, that any individual who was initially elected as a director of Western Union as a result of an actual or threatened solicitation by a Person other than the Board for the purpose of opposing a solicitation by any other Person with respect to the election or removal of directors, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board shall not be deemed a member of the Incumbent Board;	
 
 	(c)	the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of Western Union (a “Corporate Transaction”); excluding, however, a Corporate Transaction pursuant to which (i) all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 60% of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns Western Union or all or substantially all of Western Union’s assets either directly or indirectly) in substantially the same proportions relative to each other as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (ii) no Person (other than Western Union; any employee benefit plan (or related trust) sponsored or maintained by Western Union or any corporation controlled by Western Union; the corporation resulting from such Corporate Transaction; and any Person which beneficially owned, immediately prior to such Corporate Transaction, directly or indirectly, 25% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as the case may be) will beneficially own, directly or indirectly, 25% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors and (iii) individuals who were members of the Incumbent Board will constitute at least a majority of the members of the board of directors of the corporation resulting from such Corporate Transaction; or	
 
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THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
 	(d)	the consummation of a plan of complete liquidation or dissolution of Western Union.	
Committee means the Compensation and Benefits Committee of the Board or its delegate or successor.
Company means Western Union or its subsidiaries or any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise, including, without limitation, any successor due to a Change in Control) to the business or assets of Western Union, except that for purposes of Section 16, the definition of Change of Control and other provisions where the context so requires, Company means Western Union or any such successor.
Disability means the inability of the Eligible Executive to substantially perform such executive’s duties and responsibilities due to a physical or mental condition (i) that would entitle such executive to benefits under the Company’s long-term disability plan or, if the Committee deems it relevant, any disability rights provided as a matter of local law or (ii) if such executive is not eligible for long-term disability benefits under any plan sponsored by the Company, that would, as determined by the Committee, entitle such executive to benefits under the Company’s long-term disability plan if the executive were eligible therefor.
Eligible Executive means an individual who is designated by Western Union as an insider for purposes of Section 16 of the Exchange Act and who is a member of Western Union’s Executive Committee on the earlier of his or her Termination Date or the date of a Change in Control.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Good Reason means any one or more of the following: (i) action by the Company resulting in a diminution of the Eligible Executive’s titles or positions with the Company, (ii) a reduction in the Eligible Executive’s Base Salary or bonus, or (iii) action by the Company to require the relocation of the Eligible Executive more than thirty-five (35) miles from the Eligible Executive’s current principal work location without the executive’s consent. Within 30 days after the Eligible Executive becomes aware of one or more actions or inactions described in the preceding sentence, the Eligible Executive shall deliver written notice to the Company of the action(s) or inaction(s) (the “Good Reason Notice”). The Company shall have 30 days after the Good Reason Notice is delivered to cure the particular action(s) or inaction(s). If the Company so effects a cure, the Good Reason Notice will be deemed rescinded and of no further force and effect.
Severance Benefits means the benefits payable to an Eligible Executive pursuant to this Policy, other than the Change in Control-related benefits payable pursuant to Sections 7(c)(ii) and 8 hereof.
Severance Period means with respect to Western Union’s Chief Executive Officer the 36 consecutive month period commencing on the executive’s Termination Date and with respect to all other Eligible Executives the 24 consecutive month period commencing on the executives’ Termination Date.
Termination Date means the date on which the Eligible Executive’s employment with the Company terminates for a reason set forth under Section 5.
 
4.	Eligibility	
All Eligible Executives who have been on the Company’s or a Company subsidiary’s or affiliate’s payroll for at least three months are eligible to receive benefits according to the terms of this Policy. Executives are not eligible for any benefits under this Policy during the first three months of their employment.
 
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THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
5.	Eligible Termination Reasons	
 
 	(a)	Prior to the occurrence of a Change in Control, action by the Company (or in the case of an Eligible Executive employed by a subsidiary of the Company, by such subsidiary) to involuntarily terminate the employment of an Eligible Executive with the Company (and its subsidiaries), but not including a termination of employment on account of death, Disability or for Cause.	
 
 	(b)	After the occurrence of a Change in Control, (i) action by the Company (or in the case of an Eligible Executive employed by a subsidiary of the Company, by such subsidiary) to involuntarily terminate the employment of an Eligible Executive with the Company (and its subsidiaries), but not including a termination of employment on account of death, Disability or for Cause, or (ii) voluntary termination of employment by an Eligible Executive for Good Reason during the period commencing on and ending twenty-four (24) months after the date of the Change in Control.	
 
6.	Non-Eligible Termination Reasons	
A non-eligible termination reason is any reason for an Eligible Executive’s termination of employment by the Company and its subsidiaries that is not an eligible termination reason described in Section 5.
 
7.	Severance and Change in Control Benefits . The provisions of this Section are subject, without limitation, to the provisions of Section 9 hereof.	
 
 	(a)	Severance Pay . If an Eligible Executive’s employment with the Company is terminated after the Effective Date for any reason set forth in Section 5, the Company shall pay the Eligible Executive the following amounts:	
 
 	(i)	An amount equal to 2 multiplied by the sum of (1) the Eligible Executive’s Base Salary and (2) the target bonus payable to the Eligible Executive pursuant to the Company’s Senior Executive Incentive Plan (or the bonus plan then applicable to the executive), for the year in which the Termination Date occurs.	
 
 	(ii)	A prorated amount of the Eligible Executive’s target bonus under the Company’s Senior Executive Incentive Plan (or the bonus plan then applicable to the executive) for the year in which the Termination Date occurs. Such prorated amount shall be equal to the product of (1) the Eligible Executive’s target bonus for the year in which the Termination Date occurs and (2) the ratio of the number of days elapsed during such year prior to the Termination Date to 365.	
 
 	(iii)	For purposes of this subsection (a), if an Eligible Executive’s annual target bonus has not yet been established for the year in which the Termination Date occurs, the Eligible Executive’s annual target bonus for the immediately preceding year shall be used to determine the Eligible Executive’s Severance Pay. If no such prior year target bonus exists with respect to the Eligible Executive, the target bonus established for a similarly situated Eligible Executive shall be used, as determined by the Committee.	
 
 	(b)	Continued Health Benefits Coverage . If an Eligible Executive’s employment with the Company is terminated after the Effective Date for any reason set forth in Section 5, the Eligible Executive	
 
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THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
 	and his or her eligible dependents shall be given the opportunity to elect continued group health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”) with respect to all group health plans in which the Eligible Executive and his or her dependents were participating immediately prior to such termination. Provided that the Eligible Executive (and/or his or her dependents) timely elects such coverage, the Company shall pay to the Eligible Executive, as an additional Severance Benefit, a lump sum approximately equal to the difference in cost between COBRA premiums and active employee premiums for 18 months of COBRA coverage as calculated by the Company in its discretion as of the Termination Date, which payment shall constitute taxable income to the Eligible Executive and which shall be paid in a lump sum on the first date in which the Eligible Executive begins to receive Severance Payments under this Policy. An Eligible Executive receiving Severance Benefits under this Policy shall also be entitled to receive during the Severance Period any financial planning benefits which the Eligible Executive was receiving as of the Termination Date, but shall not be entitled to receive any other perquisites after such date. Notwithstanding the foregoing, the executive’s continued group health coverage under this subsection shall cease as of the date the executive becomes eligible to receive such benefits under a subsequent employer’s benefit programs, to the extent permitted under COBRA. Eligible Executives receiving Severance Benefits under this Policy are not eligible to continue contributions to the Company’s qualified retirement plans or nonqualified deferred compensation program.	
 
 	(c)	Equity-Based Awards	
 
 	(i)	Non-Change in Control . If an Eligible Executive’s employment with the Company is terminated for an eligible termination reason described in Section 5(a), all outstanding equity-based awards granted to the Eligible Executive under The Western Union Company 2006 Long-Term Incentive Plan (or a successor plan) (hereinafter the “LTIP”) that are eligible to become fully vested and exercisable contingent upon the Eligible Executive’s continued employment and the passage of time (whether or not the Company or the executive have attained any specified performance goals) (“Time Vested Awards”), other than Time Vested Awards that are Stock Awards (as defined in the LTIP), shall continue to vest solely on account of the passage of time during the Eligible Executive’s Severance Period and be exercisable in accordance with their terms until the end of the Eligible Executive’s Severance Period (or, if earlier, the expiration of the original term of the award) but not thereafter. If an Eligible Executive’s employment with the Company is terminated for an eligible termination reason described in Section 5(a), all Time Vested Awards granted to the Eligible Executive under the LTIP that are Stock Awards shall vest on a prorated basis effective on the Eligible Executive’s Termination Date. Such prorated vesting shall be calculated on a grant-by-grant basis by multiplying the number of unvested shares subject to each Stock Award by a fraction, the numerator of which is the number of days that have elapsed between the grant date and the Eligible Executive’s Termination Date and the denominator of which is the number of days between the grant date and the date the shares would have become fully vested had the Eligible Executive not terminated his or her employment. This subsection shall not affect the vesting, exercisability or payment of any LTIP award that is not a Time Vested Award.	
 
 	(ii)	Change in Control . In the event of a Change in Control, all outstanding equity-based awards granted to the Eligible Executive under the LTIP that are Time Vested Awards (including but not limited to grants of nonqualified stock options, stock appreciation	
 
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THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
 	rights, restricted stock awards, and restricted stock unit awards) shall become fully vested and exercisable or payable as of the effective date of the Change in Control. In addition, in the event of a Change in Control, all outstanding equity-based awards granted to the Eligible Executive under the LTIP that are not Time Vested Awards and that are eligible to become exercisable, vested or payable (or which provide for accelerated exercisability, vesting or payment) upon the attainment of specified performance goals shall become fully vested and exercisable or payable as if any applicable performance period had lapsed and as if the performance goals had been satisfied at the target level (or, if greater, based upon actual performance) as of the effective date of the Change in Control. In the event this subsection applies, nonqualified stock options and stock appreciation rights granted to an Eligible Executive shall remain exercisable until the earliest of the end of the Eligible Executive’s Severance Period, if applicable, the date otherwise provided for in the LTIP if the Eligible Executive terminated employment for a non-eligible termination reason described in Section 6, or the expiration of the original term of the award.	
 
 	(d)	Legal Fees . If after exhausting the administrative remedies provide for in Section 19 herein, an Eligible Executive commences litigation and as a result thereof, whether by judgment or settlement, becomes entitled to receive benefits in an amount greater than prior to such litigation, the Company shall pay the reasonable legal fees and related expenses incurred by the Eligible Executive in connection with such litigation.	
 
8.	Certain Additional Payments	
 
 	(a)	Notwithstanding anything in this Policy to the contrary, in the event it is determined that any payments or benefits provided by the Company to or on behalf of an Eligible Executive (whether pursuant to the terms of this Policy or otherwise) (any such payments or benefits being referred to in this Section as “Payments”), but determined without taking into account any additional payments required under this Section, would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by the Eligible Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, collectively referred to herein as the “Excise Tax”), then the Eligible Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount so that after payment by the Eligible Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any federal, state or local income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Eligible Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing, if it is determined that the Eligible Executive otherwise would be entitled to a Gross-Up Payment, but that the Payments to the Eligible Executive do not exceed 110% of the amount which is one dollar less than the smallest amount that would give rise to any Excise Tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Eligible Executive and the Payments shall be reduced to the Reduced Amount. In such event, the reduction will occur in the following order unless the Eligible Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards; and (iii) reduction of other employee benefits. If acceleration of vesting of compensation from an Eligible Executive’s equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant unless the Eligible Executive elects in writing a different order for cancellation.	
 
- 6 -

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
 	(b)	Subject to the provisions of Section 8(c), all determinations required to be made under this Section, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be used in arriving at such determination, shall be made by the independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control (the “Accounting Firm”). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint another nationally recognized independent registered public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, to the Company and the Eligible Executive within fifteen (15) calendar days after the date on which the Eligible Employee’s right to Payment is triggered (if requested at that time by the Company or the Eligible Executive) or such other time as requested by the Company or the Eligible Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by the Company to the Eligible Executive within five days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Eligible Executive, it shall furnish the Eligible Executive with a written opinion that no Excise Tax will be imposed. Any good faith determination by the Accounting Firm shall be binding upon the Company and the Eligible Executive. As a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 8(c) and the Eligible Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Eligible Executive.	
 
 	(c)	The Eligible Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after the Eligible Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Eligible Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which the Eligible Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Eligible Executive in writing prior to the expiration of such period that it desires to contest such claim, the Eligible Executive shall:	
 
 	(i)	give the Company any information reasonably requested by the Company relating to such claim;	
 
 	(ii)	take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;	
 
 	(iii)	cooperate with the Company in good faith in order effectively to contest such claim; and	
 
- 7 -

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
 	(iv)	permit the Company to participate in any proceedings relating to such claim;	
provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred by the Eligible Executive in connection with such contest and shall indemnify and hold the Eligible Executive harmless, on an after-tax basis, for any Excise Tax or federal, state or local income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 8(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Eligible Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Eligible Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, that if the Company directs the Eligible Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Eligible Executive on an interest-free basis and shall indemnify and hold the Eligible Executive harmless, on an after-tax basis, from any Excise Tax or federal, state or local income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Eligible Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Eligible Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.
 
 	(d)	If, after the receipt by the Eligible Executive of an amount advanced by the Company pursuant to Section 8(c), the Eligible Executive becomes entitled to receive, and receives, any refund with respect to such claim, the Eligible Executive shall (subject to the Company’s complying with the requirements of Section 8(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Eligible Executive of an amount advanced by the Company pursuant to Section 8(c), a determination is made that the Eligible Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Eligible Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.	
 
9.	Requirement of Release and Restrictive Covenant	
The provision of Severance Benefits under this Policy is conditioned upon the Eligible Executive timely signing an Agreement and Release (in a form satisfactory to the Company) which will include restrictive covenants and a comprehensive release of all claims. In this Agreement and Release, the Eligible Executive will be asked to release the Company and its directors, officers, employees and agents from any and all claims the Eligible Executive may have against them, including but not limited to any contract, tort, or wage and hour claims, and any claims under Title VII, the ADEA, the ADA, ERISA, and other federal, state or local laws. Under the Agreement and Release, the Eligible Executive must also agree not
 
- 8 -

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
to solicit business similar to any business offered by the Company from any Company customer, not to advise any entity to cancel or limit its business with the Company, not to recruit, solicit, or encourage any employee to leave their employment with the Company, not to perform the same or substantially the same functions or job duties that the Eligible Executive performed for the Company for any business enterprise engaging in activities that compete with the business activities of the Company, not to disclose any of Company’s trade secrets or confidential information, and not to disparage the Company or its employees in any way. These obligations are in addition to any other non-solicitation, noncompete, nondisclosure, or confidentiality agreements the Eligible Executive may have executed while employed by Company. No Severance Benefits will commence under this Policy prior to the eighth day following the date on which the Company has received the Eligible Executive’s fully executed Agreement and Release.
 
10.	Method of Payment	
Cash Severance Benefits payable hereunder to an Eligible Executive under the Policy on account of a termination of employment that occurs prior to a Change in Control, other than the amount payable pursuant to Section 7(b) shall be paid in substantially equal installments consistent with the Company’s executive payroll practice during the Executive’s Severance Period. Cash Severance Benefits payable hereunder to an Eligible Executive under the Policy on account of a termination of employment that occurs on or after the date a Change in Control occurs shall be paid in a lump sum. Payment of cash Severance Benefits under this Policy shall commence on or as soon as administratively practical following the date which is six months after the Eligible Executive’s Termination Date and shall be paid in full no later than the end of the Eligible Executive’s Severance Period. In no event shall payment of any Severance Benefit be made prior to the effective date of the release described in Section 9 above. In all cases, the payment of Severance Benefits under this Policy shall comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended, to the extent applicable. If an Eligible Executive dies after becoming eligible for Severance Benefits and executing an Agreement and Release but before full receipt of all cash Severance Benefits, the remaining cash Severance Benefits will be paid to the Eligible Executive’s estate in one lump sum. If an Eligible Executive dies after becoming eligible for Severance Benefits but before executing an Agreement and Release, his or her estate or representative may not execute an Agreement and Release and no Severance Benefits with respect to the Eligible Executive are payable under this Policy. All payments under this Policy will be net of amounts withheld with respect to taxes, offsets, or other obligations.
 
11.	Offsets	
The Company may, in its discretion and to the extent permitted under applicable law, offset against the Eligible Executive’s benefits under this Policy any other severance or termination benefits payable to the Eligible Executive by the Company (whether by contract or as a result of the requirements of applicable law), the value of unreturned property, and any outstanding loan, debt or other amount the Eligible Executive owes to the Company. The Company may recover any overpayment of benefits made to an Eligible Executive or an Eligible Executive’s estate under this Policy or, to the extent permitted by applicable law, offset any other overpayment made to the Eligible Executive against any Policy benefits or other amount the Company owes the Eligible Executive or the Eligible Executive’s estate.
 
12.	Outplacement	
In the Committee’s sole and absolute discretion, Eligible Executives who are eligible for Severance Benefits under the Policy also may be eligible for outplacement services selected by the Company. Eligibility for and the scope of any outplacement services will be determined in the sole discretion of the
 
- 9 -

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
Committee. Under no circumstances shall any Eligible Executive be eligible to receive a cash payment in lieu of outplacement services.
 
13.	Re-employment and Other Employment	
In the event an Eligible Executive is re-employed by the Company prior to the commencement of or within the Severance Period, the payment of any Severance Benefits payable with respect to the prior termination immediately will cease and such Severance Benefits shall no longer be payable under this Policy.
Subject to Section 9 of this Policy, if an Eligible Executive obtains employment (other than with the Company) while receiving Severance Benefits, the Eligible Executive shall continue to receive any remaining cash Severance Benefits in accordance with the payment schedule then in effect, but, except as otherwise required under applicable law, he or she will no longer be eligible to receive continued benefits under Section 7(b) of this Policy as of the date the executive becomes eligible to receive such benefits under a subsequent employer’s benefit programs.
 
14.	Funding	
This Policy is not funded, and payment of benefits hereunder shall be made solely from the general assets of the Company. An Eligible Executive entitled to benefits hereunder shall have only the rights of a general creditor of the Company.
 
15.	Administration	
This Policy shall be administered by the Committee, which as the Named Fiduciary shall have the absolute discretion and exclusive right to interpret, construe and administer the Policy and to make final determinations on all questions arising under the Policy, including but not limited to questions concerning eligibility for, the amount of and receipt of Policy benefits. All decisions of the Committee will be conclusive, final and binding upon the parties. Notwithstanding the foregoing, upon the occurrence of a Change in Control, determinations of the Committee hereunder shall be subject to de novo judicial review.
 
16.	Amendment or Termination of the Policy	
The Company reserves the right to amend or terminate this Policy at any time in its sole discretion, provided, however , that during the period commencing upon the earliest of (a) the signing of a definitive agreement that, if consummated, would result in a Change in Control, (b) the filing of a tender offer with the Securities and Exchange Commission that, if accepted, would result in a Change in Control, or (c) the election of a director to the Board who is not a member of the Incumbent Board (each, a “Triggering Event”) and ending upon the earlier of (x) the date on which the Committee in its sole discretion determines that the Triggering Event will not actually result in a Change in Control, or (y) the 36 month anniversary of the Change in Control, the Company shall not amend or terminate this Policy without the consent of each affected Eligible Executive.
 
17.	Limitation on Individually Negotiated Severance Arrangements	
As of the Effective Date, this Policy is intended to be the sole source of severance and change in control benefits for Eligible Executives. Absent prior Board approval, no individual agreement shall be entered into with any Eligible Executive or any person being considered for promotion or hire as an Eligible Executive which would provide severance or change in control-type benefits.
 
- 10 -

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
18.	Miscellaneous	
No executive shall vest in any entitlement to or eligibility for benefits under this Policy until he or she has satisfied all requirements for eligibility and the conditions required to receive the benefits specified in this Policy have been satisfied. No interest shall accrue on any benefit to which an Eligible Executive may be entitled under this Policy. No benefits hereunder, whether or not in pay status, shall be subject to any pledge or assignment, and no creditor may attach or garnish any Eligible Executive’s Policy benefits. This Policy does not create any contract of employment or right to employment for any period of time. Employment with the Company is at-will, and may be terminated by either the Company or the Eligible Executive at any time for any reason.
 
19.	Review Procedure	
Executives eligible to receive benefits under this Policy will be notified of such eligibility as soon as administratively practicable after the event occurs which gives rise to the provision of Policy benefits. If an executive who believes he or she is eligible to receive Policy benefits does not receive such notice or disagrees with the amount of benefits set forth in such notice, or if an executive is informed that he or she is not eligible for benefits under this Policy, the executive (or his or her legal representative) may file a written claim for benefits with the Company’s senior human resources executive or such other officer or body designated by the Committee for this purpose. The written claim must include the facts supporting the claim, the amount claimed, and the executive’s name and mailing address.
If the claim is denied in part or in full, the Company’s senior human resources executive (or other designated officer or body) will notify the executive by mail no later than 90 days (or 180 days in special circumstances) after receipt of the written claim. The notice of denial will state the specific reasons for the denial, the provisions of the Policy on which the denial is based, a description of any additional information or material required by the Committee to consider the claim if applicable, as well as an explanation as to why such information or material is necessary, an explanation of the Policy’s review procedures and the time limits applicable to such procedures, and the executive’s right to bring a civil action under ERISA Section 502(a) in the event of an adverse determination upon review.
An executive (or his or her legal representative) may appeal the denial by filing a written appeal with the Committee. The written appeal must be received no later than 60 days after the executive or legal representative received the notice of denial. During the same 60-day period, the executive or legal representative may have reasonable access to pertinent documents and may submit written comments and supporting documents, records and other materials to the Committee. The Committee will review the appeal and notify the executive or legal representative by mail of its final decision no later than the next regularly scheduled Committee meeting, or if the appeal is received less than 30 days before such meeting, the second regularly scheduled meeting after the Committee receives the written appeal.
Rights Under the Employee Retirement Income Security Act (ERISA)
As a participant in the Policy, an Eligible Executive is entitled to certain rights and protections under ERISA which provides that all Policy participants shall be entitled to:
Receive Information About The Policy And Benefits
The executive may examine, without charge, at the plan administrator’s office and at other specified locations such as worksites, all documents governing the plan and a copy of the latest annual report
 
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THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
(Form 5500 Series) filed with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefits Security Administration.
The executive may obtain, upon written request to the plan administrator, copies of documents governing the operation of the Policy including copies of the latest annual report (Form 5500 Series). The administrator may make a reasonable charge for the copies.
The executive may receive a summary of the plans’ annual financial report. The plan administrator is required by law to furnish each participant with a copy of this summary annual report.
Prudent Actions by Policy Fiduciaries
In addition to creating rights for Policy participants, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. The people who operate the Policy, called “fiduciaries” of the Policy, have a duty to do so prudently and in the interest of the Policy participants and beneficiaries. No one, including an executive’s employer or any other person, may fire an executive or otherwise discriminate against an executive in any way to prevent such executive from obtaining a welfare benefit or exercising his or her rights under ERISA.
Enforcement of Rights
If an executive’s claim for benefits is denied or ignored, in whole or in part, the executive has a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules.
Under ERISA, there are steps that can be taken to enforce the above rights. For example, if an executive requests a copy of Policy documents or the latest annual report from the Policy and does not receive them within 30 days, the executive may file suit in a Federal court. In such a case, the court may require the plan administrator to provide the materials, and pay the executive up to $110 a day until the executive receives the materials, unless the materials were not sent because of reasons beyond the control of the administrator. If an executive has a claim for benefits which is denied or ignored, in whole or in part, he or she may file suit in a state or Federal Court. If it should happen that the Policy fiduciaries misuse the plan’s money, or if an executive is discriminated against for asserting his or her rights, the executive may seek assistance from the U.S. Department of Labor, or may file a suit in a Federal court. The court will decide who should pay court costs and legal fees. If the executive is successful the court may order the person the executive has sued to pay these costs and fees. If the executive loses, the court may order the executive to pay these costs and fees, for example, if it finds the executive’s claim is frivolous.
Assistance With Questions
An executive who has questions about the Policy should contact the plan administrator. If an executive has any questions about this statement or about his or her rights under ERISA, or if the executive needs assistance in obtaining documents from the plan administrator, he or she should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in a telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, D.C. 20210. The executive may also obtain certain publications about his or her rights and responsibilities under ERISA by calling the publication’s hotline of the Employee Benefits Security Administration.
 
- 12 -

THE WESTERN UNION COMPANY
SEVERANCE/CHANGE IN CONTROL POLICY
(Executive Committee Level)
 
ADDITIONAL INFORMATION
The details on the following chart are provided for the Eligible Executive’s information and possible use.

Name of Policy	  	Type of Policy	  	Policy Year:	
			
The Western Union Company Severance/	  		  		
Change in Control Policy	  	Welfare	  	1/1 - 12/31	
(Executive Committee Level)	  		  		
Type of Policy Administration
Self-Administered
Policy Sponsor
The Western Union Company
12500 E. Belford Avenue
Englewood, CO 80112
Plan Administrator
Compensation and Benefits Committee of the Board of Directors
c/o The Western Union Company
Office of the General Counsel
12500 E. Belford Avenue
Englewood, CO 80112
Agent for Service of Legal Process
The Western Union Company
Office of the General Counsel
12500 E. Belford Avenue
Englewood, CO 80112
In addition, service of legal process may be made upon the Plan Administrator.
Identification Number (Policy Sponsor)
20-4531180
Identification Number (Policy)
506
THIS DESCRIPTION OF THE WESTERN UNION COMPANY SEVERANCE/CHANGE IN CONTROL POLICY FOR EXECUTIVE COMMITTEE-LEVEL PARTICIPANTS SERVES AS THE OFFICIAL PLAN DOCUMENT AND AS THE LEGAL SUMMARY PLAN DESCRIPTION.
 
- 13 -
 
Exhibit 10.15
THE WESTERN UNION COMPANY
SENIOR EXECUTIVE INCENTIVE PLAN
(Effective January 1, 2007)
1. PURPOSE OF THE PLAN. The Western Union Company Senior Executive Incentive Plan (the “Plan”) is hereby established effective January 1, 2007 by the Compensation and Benefits Committee of the Board of Directors of The Western Union Company (the “Company”). The Plan is designed to encourage teamwork and individual performance by providing annual incentive compensation contingent upon the achievement of specified financial performance measures, to advance the interests of the Company by attracting and retaining key executives, and to reward contributions made by the Company’s Chief Executive Officer and other senior executive officers in optimizing long-term value to the Company’s shareholders by connecting a portion of each such executive’s total potential cash compensation to the attainment of objective Company financial goals. The Incentive Awards payable under the Plan are intended to qualify as “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended, and shall be interpreted in a manner consistent with such intent.
2. DEFINITIONS. For purposes of this Plan, the following terms shall have the meanings set forth below:
2.1 “Committee” means the Compensation and Benefits Committee of the Company’s Board of Directors, or any successor thereto or delegate thereof with the authority to act on behalf of the Committee with respect to this Plan.
2.2 “Corporate Performance Measures” means specified levels of earnings per share, the attainment of a specified price of the Company’s common stock, specified levels of earnings before interest expense and taxes, operating profit, return to stockholders (including dividends), return on equity, earnings, revenues, pretax return on total capital, cash flow, cost reduction goals, economic value added, or any combination of the foregoing, as selected by the Committee for a specified performance or measurement period for purposes of this Plan, and as such measures may be adjusted for major nonrecurring and non-operating expense and income items, as determined by the Company and as acceptable to the Committee in its sole discretion, based on the facts and circumstances involved, as determined pursuant to generally accepted accounting principles, and as consistently applied by the Committee.
2.3 “Division or Business Unit Performance Measures” mean specified levels of revenue, operating profit, pretax return on total capital, cost reduction goals, economic value added, or any combination of the foregoing, as selected by the Committee for a specified performance or measurement period for purposes of this Plan, and as such measures may be adjusted for major nonrecurring and non-operating expense and income items, as determined by the Company and as acceptable to the Committee in its sole discretion, based on the facts and circumstances involved, as determined pursuant to generally accepted accounting principles, and as consistently applied by the Committee.

2.4 “Incentive Award” means an incentive compensation award paid to a Participant pursuant to the Plan.
2.5 “Participant” means the Company’s Chief Executive Officer and any executive officer of the Company who is identified as eligible to participate in this Plan for a given Plan Year by the Committee.
2.6 “Plan Year” means a period of one year, commencing each January 1 and ending on the following December 31, or such other twelve consecutive month period as may be established from time to time by the Company. Subject to shareholder approval of the Plan, the first Plan Year of the Plan shall be the one year period commencing on January 1, 2007 and ending December 31, 2007.
3. ESTABLISHMENT OF PERFORMANCE MEASURES AND DETERMINATION OF INCENTIVE AWARDS.
3.1 The payment of Incentive Awards to Participants under the Plan shall be determined by the extent to which the selected Corporate Performance Measures and, if appropriate in the Committee’s discretion, the selected Division or Business Unit Performance Measures have been attained in relation to a target incentive level (the “Target Incentive Level”) established for each Participant for each Plan Year. No later than 90 days after the beginning of any Plan Year, the Committee shall (a) select and publish Corporate Performance Measures and, if appropriate in its discretion, Division or Business Unit Performance Measures to be applied for such Plan Year, (b) select and publish the Target Incentive Level expressed as a dollar amount of incentive compensation for each Participant for such Plan Year, and (c) specify the percentage of such Target Incentive Level that shall be payable as a result of the attainment of the Corporate Performance Measures and, if applicable, the Division or Business Unit Performance Measures. The Committee shall establish threshold performance levels which must be achieved at the corporate level and the division/business unit level (if applicable) before any Incentive Award shall be payable under this Plan. Notwithstanding any provision of this Plan to the contrary, the maximum Incentive Award payable to the Company’s Chief Executive Officer under this Plan for any Plan Year shall be $3,000,000, and the maximum Incentive Award payable to any other Participant in this Plan for any Plan Year shall be $1,500,000.
3.2 As soon as practicable following the end of each Plan Year, the Committee shall determine the degree to which the Corporate Performance Measures and the Division or Business Unit Performance Measures (if applicable) have been met for such Plan Year in relation to the applicable Target Incentive Levels for purposes of determining the amounts of any Incentive Awards payable under the Plan. If the applicable measures are satisfied at or above the threshold performance levels established by the Committee, the Committee shall so certify in a written statement and shall authorize the payment of Incentive Awards in accordance with the terms of the Plan; provided, however, that notwithstanding the foregoing, the Committee shall have the sole and absolute discretion to reduce (but not increase) the amount of any Incentive Award otherwise payable under the Plan or to determine that no Incentive Award shall be payable to a
 
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Participant under the Plan (so long as the exercise of such negative discretion does not result in an increase in the Incentive Award payable to any other Participant). Under no circumstances shall any Incentive Award be deemed earned by or payable to a Participant under this Plan with respect to any Plan Year unless and until the Committee both certifies the attainment of all applicable Performance Measures and exercises its discretion to determine whether an Incentive Award shall be paid to each such individual Participant with respect to such Plan Year.
4. PAYMENT OF INCENTIVE AWARDS. Payment of Incentive Awards, less withholding taxes and other applicable withholdings, shall be made to Participants not later than March 15 following the applicable Plan Year, provided the Committee has certified that the applicable Performance Measures have been satisfied and has determined the amount and approved the payment of the Incentive Award to the Participants. Funding of Incentive Awards under this Plan shall be out of the general assets of the Company or of its wholly-owned subsidiaries. Unless otherwise determined by the Committee in its discretion, Incentive Awards shall be paid in cash.
5. ADMINISTRATION. The Plan shall be administered by the Committee, which shall have full power and authority to interpret, construe and administer the Plan in accordance with the provisions set forth herein. The Committee’s interpretation and construction of the Plan, and actions hereunder, or the amount or recipient of the payments to be made from the Plan, shall be binding and conclusive on all persons for all purposes. In this connection, the Committee may delegate to any corporation, committee or individual, regardless of whether the individual is an employee of the Company, the duty to act for the Committee hereunder. No officer or employee of the Company shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of the Plan unless attributable to his or her own willful misconduct or lack of good faith. The expenses of administering the Plan shall be paid by the Company or by a wholly-owned subsidiary of the Company and shall not be charged against the Plan.
6. PARTICIPATION IN THE PLAN. Eligible executive officers of the Company may become Participants in accordance with the terms of the Plan at any time during the Plan Year. If an executive officer becomes a Participant at any time other than as of the commencement of a Plan Year, the Corporate Performance Measures, the Division or Business Unit Performance Measures (if established by the Committee), and the Target Incentive Level for the Participant shall be established by the Committee no later than the time prescribed by the Treasury Regulations under Section 162(m) of the Internal Revenue Code of 1986, as amended.
7. TERMINATION OF EMPLOYMENT. Unless otherwise determined by the Committee, a Participant whose employment in his current position with the Company terminates for any reason prior to the end of a Plan Year shall not be entitled to receive an Incentive Award for such Plan Year.
8. DEFERRAL OF INCENTIVE AWARDS. A Participant may elect to defer receipt of all or any portion of any Incentive Award made under this Plan to a future date as provided in and subject to the terms and conditions of any deferred compensation plan of the Company.
 
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9. MISCELLANEOUS.
9.1 NONTRANSFERABILITY. No Incentive Award payable hereunder, nor any right to receive any future Incentive Award hereunder, may be assigned, alienated, sold, transferred, anticipated, pledged, encumbered, or subjected to any charge or legal process, and if any such attempt is made, or a person eligible for any Incentive Award hereunder becomes bankrupt, the Incentive Award under the Plan which would otherwise be payable with respect to such person may be terminated by the Committee which, in its sole discretion, may cause the same to be held or applied for the benefit of one or more of the dependents of such person or make any other disposition of such award that it deems appropriate.
9.2 CLAIM TO INCENTIVE AWARDS AND EMPLOYMENT RIGHTS. Nothing in this Plan shall require the Company to segregate or set aside any funds or other property for purposes of paying all or any portion of an Incentive Award hereunder. No Participant shall have any right, title or interest in or to any Incentive Award hereunder prior to the actual payment thereof, nor to any property of the Company. Neither the adoption of the Plan nor the continued operation thereof shall confer upon any employee any right to continue in the employ of the Company or shall in any way affect the right and power of the Company to dismiss or otherwise terminate the employment of either Participant at any time for any reason, with or without cause.
9.3 INCOME TAX WITHHOLDING/RIGHTS OF OFFSET. The Company shall have the right to deduct and withhold from all Incentive Awards all federal, state and local taxes as may be required by law. In addition to the foregoing, the Company shall have the right to set off against the amount of any Incentive Award which would otherwise be payable hereunder, the amount of any debt, judgment, claim, expense or other obligation owed at such time by the Participant to the Company or any subsidiary.
9.4 GOVERNING LAW. All questions pertaining to the construction, validity and effect of the Plan shall be determined in accordance with the laws of the State of Delaware.
10. AMENDMENT AND TERMINATION. The Plan may be amended or terminated at any time and for any reason by the Committee. The Committee may, in its sole discretion, reduce or eliminate an Incentive Award to any Participant at any time and for any reason. The Plan is specifically designed to guide the Company in granting Incentive Awards and shall not create any contractual right of any employee to any Incentive Award prior to the payment of such award.
11. EFFECTIVE DATE. The Plan shall be effective for the Plan Year beginning January 1, 2007 and each subsequent Plan Year.
 
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Exhibit 10.17
The Western Union Company
Grandfathered Supplemental Incentive Savings Plan
ARTICLE I
HISTORY AND PURPOSE OF THE PLAN
1.1 Plan History . The Western Union Company (the “Company”) hereby continues a portion of its nonqualified deferred compensation plan as The Western Union Company Grandfathered Supplemental Incentive Savings Plan (the “Plan”) as a separate plan, effective as of the date that the Company was spun off from First Data Corporation (“Spin-Off Date”). Effective as of the Spin-Off Date, the Plan is being spun off from the First Data Corporation Supplemental Incentive Savings Plan (the “First Data SISP”), which was most recently amended and restated effective January 1, 2003.
1.2 Accounts Spun Off From the First Data SISP . The following accrued liabilities under the First Data SISP are hereby spun off from the First Data SISP and held in the Plan, effective as of the Spin-Off Date:
 
 	(a)	liability equal to the bookkeeping accounts for deferrals contributed before January 1, 2005, plus related earnings, by Participants who are Business Employees.	
 
 	(b)	liability equal to the bookkeeping accounts for employer matching contributions, service-related contributions, and ISP Plus contributions to the extent 100% vested as of December 31, 2004 (collectively, “Vested Employer Contributions”), plus related earnings on the Vested Employer Contributions, by Participants who are Business Employees.	
 
 	(c)	liability equal to the bookkeeping accounts for account balances accumulated under other deferred compensation plans or programs of First Data Corporation that were merged into the First Data SISP, as listed in Appendix A, for Participants who are Business Employees.	
For purposes of this Section 1.2, “Business Employees” means a Transferred Employee or any other individual employed at any time on or prior to the Spin-Off Date by the Company or its Affiliates who has, as of the Spin-Off Date, or who, immediately prior to his or her termination of employment with all of First Data Corporation and its Affiliates, had employment duties primarily related to the business of providing consumer to consumer money transfer services, consumer to business payment services, retail money order services and certain prepaid services. For purposes of this Section 1.2, “Transferred Employee” means an employee of First Data Corporation or any of its Affiliates (other than the Company or any of its Affiliates) whose employment is transferred to the Company or any of its Affiliates immediately prior to the Spin-Off Date.

Code § 409A does not apply to the Plan under the grandfather rules of Code § 409A because (i) the predecessor plan, the First Data SISP, was in existence as of October 3, 2004, (ii) the Plan has not been materially modified, and (iii) all amounts credited under the Plan were 100% vested before January 1, 2005.
1.3 Purpose of the Plan . The purpose of the Plan is to further the growth and development of the Company by enhancing the Company’s ability to attract and retain select employees by providing a select group of senior management and highly compensated employees of the Company and its Affiliates the opportunity to defer a portion of their cash compensation. The Plan is intended to provide Participants with an opportunity to supplement their retirement income through deferral of current compensation. The Plan is an unfunded plan.
ARTICLE II
DEFINITIONS
2.1 “ Affiliate ” shall mean any entity which is treated as a single employer together with the Company pursuant to section 414(b) or (c) of the Code, and any other entity or organization designated as an Affiliate by the Committee.
2.2 “ Base Salary ” shall mean a Participant’s annualized base salary, without taking into account (a) commissions, bonus amounts (of any kind), reimbursements of expenses, income realized upon exercise of stock options or sales of stock, or (b) deferrals of income under this Plan or any other employee benefit plan of the Company.
2.3 “ Board ” shall mean the Board of Directors of the Company.
2.4 “ Bonus ” shall mean the payout amount earned by a Participant under one of the Company’s annual bonus or incentive compensation plans.
2.5 “ Cause ” shall mean (i) willful and continued failure to substantially perform the duties assigned by the Company or an Affiliate (other than a failure resulting from the award recipient’s disability); (ii) engaging in conduct which is injurious to the Company or an Affiliate (monetarily or otherwise); (iii) any act of dishonesty, violation of a policy of the Company or Affiliate, or violation of any agreement between the Employee and the Company or Affiliate; (iv) commission of a felony; or (v) continued failure to meet performance standards, excessive absenteeism, or a significant violation of any statutory or common law duty of loyalty to the Company or an Affiliate.
2.6 “ Change in Control ” shall have the meaning ascribed to such term in the 2002 First Data Corporation Long Term Incentive Plan, as approved by First Data Corporation’s shareholders.
2.7 “ Code ” shall mean the United States Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
 
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2.8 “ Committee ” means, prior to the Spin-Off Date, the Company’s Employee Benefits Administration and Investment Committee, or its successor, and, on and after the Spin-Off Date, the Company’s Employee Benefits Committee or its successor.
2.9 “ Compensation ” means, for all purposes of the Plan, “compensation” as defined in the First Data Corporation Incentive Savings Plan, as may be amended, in which case such amendments shall automatically apply to the definition of Compensation under this Plan.
2.10 “ Competitor ” shall mean any business, foreign or domestic, which is engaged, at any time relevant to the provisions of this Plan, in the manufacture, sale, or distribution of products, or in the providing of services, in competition with products manufactured, sold, or distributed, or services provided, by the Company or any subsidiary, partnership, or joint venture of the Company. The determination of whether a business is a Competitor shall be made by the Company’s General Counsel, in his or her sole discretion.
2.11 “ Deferred Account ” or “ Deferral Account ” shall mean the record maintained by the Company for each Participant of the cumulative amount of (a) account balances accumulated under the First Data SISP which were spun off from the First Data SISP into this Plan and (b) imputed gains or losses on those amounts accrued as provided in Article V of the Plan.
2.12 “ Deferred Compensation Agreement ” means, collectively, the written agreements between a Participant and the Company (or an Affiliate), or between a Participant and First Data Corporation and any of First Data Corporation’s affiliates, in substantially the form set forth in Appendix B, whereby a Participant irrevocably agrees to defer a portion of his or her Salary and/or Bonus (a Deferral Election Agreement) and the Company agrees to make benefit payments in accordance with the provisions of the Plan (a Distribution Election Agreement).
2.13 “ Deferred Compensation and Benefits Trust ” or “ DCB Trust ” means the irrevocable trust established by the Company with an independent trustee for the benefit of persons entitled to receive payments or benefits hereunder, the assets of which will be subject to claims of the Company’s creditors in the event of bankruptcy or insolvency.
2.14 “ Designated Beneficiary ” shall mean the person or persons designated by a Participant pursuant to rules prescribed by the Committee to receive any benefits payable pursuant to the Plan upon his or her death. In the absence of a beneficiary designation, or if a Participant’s Designated Beneficiary dies prior to the Participant’s death, the Participant’s Designated Beneficiary shall be his or her surviving spouse, if any, and if none, his or her estate.
2.15 “ Employee ” means a full time employee on the United States Payroll of the Company.
 
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2.16 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
2.17 “ Excess Benefit Credits ” means the amounts, if any, credited to a Participant’s Plan Deferral Account pursuant to Section 4.7 of this Plan.
2.18 “ Incentive Savings Plan ” or “ ISP ” means the First Data Corporation Incentive Savings Plan, as amended from time to time.
2.19 “ Investment Account ” means any of the notional accounts as may be identified by the Company from time to time to which Participants may allocate all or any portion of their Deferred Accounts for purposes of determining the gains or losses to be assigned to the Deferred Accounts. Such accounts shall be notional, unfunded, and established solely for the purpose of determining imputed gains or losses in a Participant’s Deferred Account. Effective before the Spin-Off Date, the available Investment Account and applicable earnings rate shall be the First Data Fixed Interest Rate as determined under the First Data SISP. Effective after the Spin-Off Date and prior to January 1, 2007, Participants may choose to have gains or losses determined under (a) the available Investment Account and applicable earnings rate offered under the First Data SISP as of the Spin-Off Date or (b) the investment options available to participants under The Western Union Company Incentive Savings Plan, excluding any brokerage account option or any employer stock fund. Effective on and after January 1, 2007, the available Investment Accounts shall be the same investment options available to participants under The Western Union Company Incentive Savings Plan, excluding any brokerage account option or any employer stock fund.
2.20 “ Participant ” means an Employee who had satisfied the Plan’s eligibility criteria and who had entered into a written Deferred Compensation Agreement in accordance with the provisions of the First Data SISP.
2.21 “ Person ” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.
2.22 “ Potential Change in Control ” means any of the following: if (a) the Company enters into an agreement, the consummation of which would result in the occurrence of a Change in Control of the Company; (b) the Company or any Person publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control of the Company; (c) any Person becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 9.5% or more of either the then outstanding shares of common stock of the Company or the combined voting power of the Company’s then outstanding securities;
 
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unless that Person has filed a schedule under Section 13 of the Securities Exchange Act of 1934 and the rules and regulations promulgated under Section 13, and that schedule (including any and all amendments) indicates that the Person has no intention to (i) control or influence the management or policies of the Company, or (ii) take any action inconsistent with a lack of intention to control or influence the management or policies of the Company; or (d) the Board adopts a resolution to the effect that a Potential Change in Control of the Company has occurred.
2.23 “ Salary ” means a Participant’s Base Salary plus commissions and incentive compensation other than Bonus paid to the Participant for personal services rendered by the Participant to the Company during a calendar year.
2.24 “ Termination ” means the Participant’s ceasing to be employed by the Company or an Affiliate for any reason whatsoever, whether voluntarily or involuntarily, including by reason of early retirement, normal retirement, death or disability. Transfers from the Company to an Affiliate, or vice versa, or among Affiliates shall not be deemed a Termination for purposes of this Plan.
ARTICLE III
ADMINISTRATION AND INTERPRETATION
The Committee shall have final discretion, responsibility, and authority to administer and interpret the Plan. This includes the discretion and authority to determine all questions of fact, eligibility, or benefits relating to the Plan. The Committee may also adopt any rules it deems necessary to administer the Plan. The Committee’s responsibilities for administration and interpretation of the Plan shall be exercised by Company employees who have been assigned those responsibilities by the Company’s management. Any Company employee exercising responsibilities relating to the Plan in accordance with this Section shall be deemed to have been delegated the discretionary authority vested in the Committee with respect to those responsibilities, unless limited in writing by the Committee. Any Participant may appeal any action or decision of these employees to the Committee. Claims for benefits under the Plan and appeals of claim denials shall be in accordance with Articles IX and X. Any interpretation by the Committee shall be final and binding on the Participants.
ARTICLE IV
PARTICIPANT DEFERRAL AND DISTRIBUTION ELECTIONS
4.1 Eligibility . The Company shall identify those Employees of the Company or any of its subsidiaries that are eligible to participate in this Plan. Only Employees who are in salary grade 13 or above (IT Broadband 4), whose Base Salary is equal to or greater than $80,000 annually (which amount may be reviewed and adjusted annually by the Committee in its discretion), and who are selected by the Committee as eligible to participate may enroll in the Plan. Eligibility to participate in the Plan is entirely at the discretion of the Company and shall be limited to a select group of senior management or
 
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highly compensated employees. Eligibility to participate in this Plan for any calendar year shall not confer the right to participate during any subsequent year.
4.2 Execution of Agreement . An Employee who wishes to participate in the Plan must execute a Deferred Compensation Agreement(s) either (a) for a newly hired Employee, within 30 days after his or her date of hire, or (b) for an Employee satisfying the Plan’s eligibility criteria and who is selected by the Committee, during the annual enrollment period determined from time to time by the Committee. The Deferred Compensation Agreement shall specify the Employee’s election to participate in the Plan to defer Salary and/or Bonus to be earned during the remainder of that calendar year (for new hires only) and subsequent calendar years. Participants shall make separate elections with respect to deferrals of Salary and Bonus.
4.3. Deferral Election . Within limits established by the Company, each Participant shall have the opportunity to elect the amount of his or her Salary and/or Bonus to be earned in calendar years subsequent to the date of election, which will be deferred in accordance with this Plan. The Compensation otherwise paid to a Participant during each calendar year beginning after the date of the deferral election shall be reduced by the amount elected to be deferred. Elections to defer Compensation are irrevocable except as otherwise provided in this Plan. The amount of Salary and/or Bonus to be deferred will be specified in the Deferred Compensation Agreement and will be limited to a maximum of 80 percent of the Participant’s Compensation. Notwithstanding the foregoing, no deferrals to the Plan shall be allowed after December 31, 2004.
4.4 Change of Deferral Election .
 
 	(a)	Change For Following Calendar Year . A Participant who wishes to change an election to defer Compensation may do so at any time by notifying the Committee in writing of such change in election. Such written change must be submitted in all events prior to December 31 of the year immediately preceding the calendar year for which the change in election is to be effective. The Committee may, in its sole discretion, establish earlier deadlines or annual enrollment periods for such election changes during which such elections must be made.	
 
 	(b)	Change For Current Calendar Year . A Participant who wishes to change an election to defer Compensation on or after January 1 of any calendar year for which the change in election is to be effective must submit a written request to the Committee to revoke his or her existing deferral election. The request must state why the Participant believes he or she should be permitted to revoke the prior election. Requests will be reviewed as soon as administratively feasible and, if a change is permitted by the Committee in its sole discretion, the change will be effective for all remaining pay periods following the date of the determination.	
4.5 Distribution Election . At the time a Participant initially elects to defer Compensation under Section 4.3, he or she shall elect a distribution option for the
 
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Compensation so deferred, including gains or losses thereon, as specified in the Deferred Compensation Agreement. The distribution election shall apply to all amounts attributable to the Participant’s Deferred Account under this Plan, including amounts previously deferred under plans listed under Appendix A which have been merged into this Plan and amounts spun off from the First Data SISP. Elections regarding distribution of Deferred Accounts under this Plan are irrevocable except as otherwise provided in this Plan.
4.6 Change of Distribution Election . Participants who are actively employed by the Company or an Affiliate may request, in writing, a change in their distribution election no more frequently than once in any five calendar year period. The changed distribution election must be one of the distribution options in the original Deferred Compensation Agreement. The Committee must receive the request by the earlier of (a) December 31 of the calendar year immediately preceding the year benefits are first scheduled to be paid, or (b) 30 days before the first date benefits are scheduled to be paid. The request shall be approved or denied at the Committee’s sole discretion. No change will be permitted that would allow a payment to be made earlier than originally elected in the Deferred Compensation Agreement.
4.7 Excess Benefit Credits . Participation in this Plan is not intended to cause an employee to lose any portion of any Company contribution that would otherwise have been made to the Participant’s ISP account. The Committee may implement such procedures and policies as are necessary or appropriate in the Committee’s discretion consistent with such intent. A Participant’s Deferral Account under this Plan shall be credited with amounts that would have been contributed by the Company and credited to his or her accounts as employer matching contributions, service-related contributions, and ISP Plus contributions (collectively, “Excess Benefit Credits”) in accordance with the terms of the ISP but for the limitations imposed by sections 401(a)(17) of the Code, provided , however , that Excess Benefit Credits for employer matching contributions shall be made for any Plan Year only to the extent that a Participant’s Participation Election is in effect for such Plan Year. Such amounts shall be credited to the Participant’s Deferral Account as of the date such amounts would have been credited to the Participant’s accounts under the ISP but for the application of such limitations. The Committee shall separately account for that portion, if any, of a Participant’s Deferral Account that is allocable to Excess Benefit Credits attributable to (i) employer matching contributions, (ii) service-related contributions, and (iii) ISP Plus contributions. The Company matching contribution will be allocated to the Investment Account to which the Participant’s deferrals of Base Salary are allocated.
ARTICLE V
DEFERRED ACCOUNT ALLOCATIONS AND ADJUSTMENTS
5.1 Committee’s Selection of Investment Accounts . Effective before the Spin-Off Date, the Committee shall identify one or more Investment Accounts based upon which imputed gains or losses shall be credited to Participants’ Deferred Accounts. The
 
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Committee may add or eliminate Investment Accounts from time to time in its sole discretion. No identification by the Committee of an Investment Account shall give, or be deemed for any purpose to give, a Participant an interest in any asset or investment held by the Company for any purpose. Effective before the Spin-Off Date, the Committee in its sole discretion shall determine the interest or earnings rates to be applied in any such Investment Accounts from time to time. Effective after the Spin-Off Date and prior to January 1, 2007, Participants may choose to have gains or losses determined under (a) the available Investment Account and applicable earnings rate offered under the First Data SISP as of the Spin-Off Date or (b) the investment options available to participants under The Western Union Company Incentive Savings Plan, excluding any brokerage account option or any employer stock fund. Effective on and after January 1, 2007, the available Investment Accounts shall be the same investment options available to participants under The Western Union Company Incentive Savings Plan, excluding any brokerage account option or any employer stock fund.
5.2 Participant Identification of Investment Accounts . Participants shall identify one or more Investment Account(s) with respect to which imputed gains or losses shall be attributed (credited or debited) to the Participant’s Deferred Account. Each Participant must allocate his or her current deferrals of Compensation to one of the Investment Accounts. Participants who are active employees may change the allocation of future deferrals to or from any Investment Account on any business day, with any change effective as of the first pay period beginning after the date of the change. Effective prior to the Spin-Off Date, Participants who are active employees, and on and after the Spin-Off Date, all Participants may, upon notice to the Plan’s recordkeeper, shift the allocation of all or any portion of their Deferred Account balance among any of the Investment Accounts, on any business day. Changes received by the Plan’s recordkeeper prior to the close of trading on the New York Stock Exchange will be effective as of that day. Changes received by the recordkeeper after such time on any day will be effective as of the end of the next trading day on the New York Stock Exchange. Effective January 1, 2007, if a Participant does not choose an Investment Account, the Participant’s Deferred Account shall be invested in the Target Retirement fund based on the Participant’s age as of the default investment election date.
5.3 Record of Investment Accounts . The Committee shall maintain a record of each Participant’s Deferred Account balance, allocations, thereto, and gains or losses credited thereto. Each Participant’s Deferred Account shall be adjusted on a daily basis to reflect the deemed gains or losses attributable to the Investment Account(s) selected by the Participant.
5.4 Initial Investment Accounts for Accounts . A Participant’s Deferred Account spun off from the First Data SISP into this Plan shall be initially allocated to the same Investment Accounts to which the Participant’s Deferred Account balance was allocated under the First Data SISP.
 
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ARTICLE VI
DISTRIBUTIONS
6.1 Distributions in General . The Company shall distribute Participants’ Deferred Accounts as elected by each Participant in the applicable Deferred Compensation Agreement, except as otherwise provided in this Article VI.
6.2 Benefits Upon Termination .
 
 	(a)	Investment Allocation Upon Termination (Prior to the Spin-Off Date) . Effective prior to the Spin-Off Date, upon Termination, the Participant’s entire Deferred Account shall be automatically allocated to the Fixed Income Fund Account pending distribution thereof, notwithstanding any elections or allocation decisions previously made by the Participant. The deemed earnings rate for the Fixed Income Fund Account shall apply prospectively from the date of Termination to all undistributed amounts of the Participant’s Deferred Account. Prior to the Spin-Off Date, from and after the date of Termination, the Participant shall have no rights under this Plan to alter the Investment Account to which his or her Deferred Account is allocated, or to request any change in previous distribution election(s).	
 
 	(b)	Investment Allocation Upon Termination (On and After the Spin-Off Date) . On and after the Spin-Off Date, upon Termination, the Participant’s elections and allocation decisions previously made by the Participant shall continue to apply, and the Participant shall be permitted to change Investment Accounts in his or her discretion in the same manner as an active Employee. Participants who terminated prior to the Spin-Off Date shall again be permitted to change Investment Accounts in their discretion in the same manner as an active Employee.	
 
 	(c)	Payment of Deferred Account Upon Termination . Upon Termination, a Participant shall be paid his or her Deferred Account in a lump sum or in quarterly or annual installments calculated to distribute his or her Deferred Account over a period of not more than 10 years, as elected by the Participant in his or her Deferred Compensation Agreement. Payments shall commence on the date and shall be made in the manner elected by the Participant in the Deferred Compensation Agreement. Unpaid balances under the installment election shall continue to be credited with imputed gains or losses.	
6.3 Service with a Competitor/Violation of Nonsolicitation or Noncompete Agreement . If a Participant provides services for remuneration to a Competitor following his or her Termination, or if a Participant is determined by the Company’s General Counsel to have violated any non-solicitation or non-compete agreement the Participant has signed with the Company, then notwithstanding anything in this Plan to
 
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the contrary such Participant’s entire Deferred Account balance shall be distributed in a single lump sum as soon as administratively feasible, less the value of all Excess Benefit Credits and earnings thereon previously credited to the Participant’s Deferred Account under Section 4.7. Determination of whether a Participant provides services to a Competitor shall be determined by the Company’s General Counsel, in his or her sole discretion.
6.4 Hardship Distribution . If serious and unanticipated financial hardship occurs, a Participant may request termination of participation in the Plan and a lump-sum distribution of all or a portion of his or her Deferred Account balance. The Participant shall document, to the Committee’s satisfaction, that distribution of his or her account is necessary to satisfy an unanticipated, immediate, and serious financial need, and that the Participant does not have access to other funds, including proceeds of any loans, sufficient to satisfy the need. Upon receipt of a request under this Section, the Committee may, in its sole discretion, terminate the Participant’s involvement in the Plan and distribute all or a portion of the Participant’s account balance in a lump sum, to the extent necessary to satisfy the financial need. The Participant shall sign all documentation requested by the Committee relating to the distribution. Any Participant whose participation in the Plan terminates under this Section shall not be eligible to participate in any nonqualified deferred compensation plan maintained by the Company during the remainder of the calendar year of distribution under this paragraph and the immediately following calendar year.
6.5 Premature Distribution With Penalty . Notwithstanding any provision in this Plan to the contrary, a Participant or beneficiary may, at any time, request in writing a single lump-sum payment of the amount credited to his or her Deferred Account under the Plan. The amount of the payment shall be equal to (a) the Participant’s Deferred Account balance under the Plan as of the payment date, reduced by (b) an amount equal to 10% of the Deferred Account balance. This lump-sum payment shall be subject to withholding of federal, state, and other taxes to the extent applicable. The Plan Administrator shall review all requests under this Section 6.5 and shall, in his or her sole discretion, approve or deny the request. If approved, the payment shall be made within 30 days of the date on which the Committee received the request for the distribution. If a Participant makes a request which is approved under this provision, he or she shall not be eligible to participate in any nonqualified deferred compensation plan maintained by the Company, including this Plan, during the remainder of the calendar year of distribution under this paragraph and the immediately following calendar year. In addition, in such event, any deferred compensation agreement under any nonqualified deferred compensation plan of the Company shall not be effective with respect to Compensation payable to the Participant during the remainder of the calendar year of distribution under this paragraph and the immediately following calendar year.
6.6 Distribution Upon Extraordinary Events . If any Participant terminates employment with the Company as a direct result of the sale, closure, or divestiture of a facility, operating division, or reduction in force in connection with any reorganization of the Company’s operations or staff, the Participant may request a lump sum distribution of
 
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his or her entire Deferred Account balance without penalty. Upon receipt of a request for distribution under this Section, the Committee may, in its sole discretion, elect whether to approve or deny the request. If the Committee approves the request, distribution of the Participant’s Deferred Account balance shall occur on or about January 1 of the year following the year during which Termination occurred.
6.7 Small Account Distributions . On the date of Termination, if a Participant’s Deferred Account balance is less than $50,000, the Company shall promptly distribute the entire Deferred Account balance in a lump sum to the Participant, regardless of Participant’s distribution election, and the Participant shall have no further rights or benefits under this Plan.
6.8 Distributions Following Death; Designation of Beneficiary . The Company shall make all payments to the Participant, if living. A Participant shall designate a beneficiary by filing a written notice of designation with the Committee in such form as the Committee may prescribe. If a Participant dies either before benefit payments have commenced under this Plan or after his or her benefits have commenced but before his or her entire Deferred Account has been distributed, his or her Designated Beneficiary shall receive any benefit payments in accordance with the Deferred Compensation Agreement. If no beneficiary designation is in effect at the time of a Participant’s death, or if a Participant’s Designated Beneficiary dies prior to the Participant’s death, the Participant’s Designated Beneficiary shall be his or her surviving spouse, if any, and if none, the Participant’s entire Deferred Account shall be distributed in a single lump sum to the Participant’s estate.
ARTICLE VII
MISCELLANEOUS
7.1 Assignability . A Participant’s rights and interests under the Plan may not be assigned or transferred except, in the event of the Participant’s death, as described in Section 6.8.
7.2 Taxes . The Company shall deduct from all payments made under this Plan all applicable federal or state taxes required by law to be withheld.
7.3 Construction . To the extent not preempted by federal law, the Plan shall be construed according to the laws of the state of Colorado.
7.4 Form of Communication . Any election, application, claim, notice, or other communication required or permitted to be made by a Participant to the Committee shall be made in writing and in such form as the Committee may prescribe. Such communication shall be effective upon receipt by the Company’s Senior Vice President, Compensation and Benefits, at 12500 East Belford Avenue, Englewood, CO 80112.
7.5 Service Providers . The Company may, in its sole discretion, retain one or more independent entities to provide services to the Company in connection with the
 
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operation and administration of the Plan. Except as may be specifically delegated or assigned to any such entity in writing, the Company shall retain all discretionary authority under this Plan. No Participant or other person shall be a third party beneficiary with respect to, or have any rights or recourse under, any contractual arrangement between the Company and any such service provider.
7.6 Amendment and Termination . The Committee may, at its sole discretion, amend or terminate the Plan at any time, provided that the amendment or termination shall not adversely affect the vested or accrued rights or benefits of any Participant without the Participant’s prior consent.
7.7. Unsecured General Creditor . Participants and their beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, interest, or claims in any property or assets of the Company. The assets of the Company shall not be held under any trust for the benefit of Participants, their beneficiaries, heirs, successors, or assigns, or held in any way as collateral security for the fulfilling of the obligations of the Company under this Plan. Any and all Company assets shall be, and remain, the general, unpledged, unrestricted assets of the Company. The Company’s obligation under the Plan shall be an unfunded and unsecured promise of the Company to pay money in the future.
ARTICLE VIII
DEFERRED COMPENSATION AND BENEFITS TRUST
Upon the occurrence of any Potential Change in Control or an actual Change in Control, the Company may in its discretion transfer to the DCB Trust an amount of cash, marketable securities, or other property acceptable to the trustee equal in value up to 105% of the amount necessary, on an actuarial basis and calculated in accordance with the terms of the DCB Trust, to pay the Company’s obligations with respect to Deferred Accounts under this Plan (the “Funding Amount”). Any cash, marketable securities, and other property so transferred shall be held, managed, and disbursed by the trustee subject to and in accordance with the terms of the DCB Trust. In addition, from time to time, the Company may make any and all additional transfers of cash, marketable securities, or other property acceptable to the trustee as may be necessary in order to maintain the Funding Amount with respect to this Plan. Any amounts transferred to the DCB Trust under this paragraph shall, at any time prior to the occurrence of an actual Change in Control, be returned to the Company by the Trustee at the Company’s request.
Upon an actual Change in Control, all assets then held in the DCB Trust shall be used to pay benefits under this Plan, except to the extent the Company pays such benefits. The Company and any successor shall continue to be liable for the ultimate payment of those benefits.
 
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ARTICLE IX
CLAIMS PROCEDURE
Claims for benefits under the Plan shall be filed in writing, within 60 days after the event giving rise to a claim, with the Company’s Senior Vice President, Compensation and Benefits (the “Plan Administrator”), who shall have absolute discretion to determine whether benefits are payable under the Plan, interpret and apply the Plan, evaluate the facts and circumstances, and make a determination with respect to the claim in the name and on behalf of the Committee. The claim shall include a statement of all relevant facts and copies of all documents, materials, or other evidence that the claimant believes relevant to the claim.
The Plan Administrator shall furnish a notice to any claimant whose claim for benefits under the Plan has been denied within 90 days from receipt of the claim. This 90-day period may be extended if special circumstances require an extension, provided that the time period cannot exceed a total of 180 days from the Plan’s receipt of the claimant’s claim and the written notice of the extension is provided before the expiration date of the initial 90-day claim period. If an extension is required, the Plan Administrator shall provide a written notice of the extension that contains the expiration date of the initial 90-day claim period, the special circumstances that require an extension, and the date by which the Plan Administrator expects to render its benefits determination.
The Plan Administrator’s claim denial notice shall set forth:
 
 	(b)	the specific reason or reasons for the denial;	
 
 	(c)	specific references to pertinent Plan provisions on which the denial is based;	
 
 	(d)	a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why the material or information is necessary; and	
 
 	(e)	an explanation of the Plan’s claims review procedure describing the steps to be taken by a claimant who wishes to submit his or her claim for review, including any applicable time limits, and a statement of the Participant’s or beneficiary’s right to bring a civil action under ERISA § 502(a) if the claim is denied on review.	
A claimant who wishes to appeal the adverse determination must request a review in writing to the Plan Administrator within 60 days after the appealing claimant received the denial of benefits.
 
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ARTICLE X
CLAIMS REVIEW PROCEDURE
Any Participant, former Participant, or Designated Beneficiary of either, who has been denied a benefit claim, shall be entitled, upon written request, to a review of the denied claim by the Committee. A claimant appealing a denial of benefits (or the authorized representative of the claimant) shall be entitled to:
 
 	(a)	submit in writing any comments, documents, records and other information relating to the claim and request a review;	
 
 	(b)	review pertinent Plan documents; and	
 
 	(c)	upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim. A document, record, or other information shall be considered relevant to the claim if such document, record, or other information (i) was relied upon in making the benefit determination, (ii) was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination, or (iii) demonstrates compliance with the administrative processes and safeguards designed to ensure and verify that benefit claim determinations are made in accordance with the Plan and that, where appropriate, the Plan provisions have been applied consistently with respect to similarly situated Participants or Designated Beneficiaries.	
The Committee shall reexamine all facts related to the appeal and make a final determination as to whether the denial of benefits is justified under the circumstances.
Decision on Review . The decision on review of a denied claim shall be made in the following manner:
 
 	(a)	The decision on review shall be made by the Committee, who may in its discretion hold a hearing on the denied claim. The Committee shall make its decision solely on the basis of the written record, including documents and written materials submitted by the Participant or Designated Beneficiary (or the authorized representative of the Participant or Designated Beneficiary). The Committee shall make its decision promptly, which shall ordinarily be not later than 60 days after the Plan’s receipt of the request for review, unless special circumstances (such as the need to hold a hearing) require an extension of time for processing. In that case a decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If an extension of time is required due to special circumstances, the Committee will provide written notice of the extension to the Participant or Designated Beneficiary prior to the time the extension commences, stating the special circumstances requiring the extension and the date by which a final decision is expected.	
 
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 	(b)	The decision on review shall be in writing, written in a manner calculated to be understood by the Participant or Designated Beneficiary. If the claim is denied, the written notice shall include specific reasons for the decision, specific references to the pertinent Plan provisions on which the decision is based, a statement of the Participant’s or Designated Beneficiary’s right to bring an action under ERISA § 502(a), and a statement that the Participant or Designated Beneficiary is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits. A document, record, or other information shall be considered relevant to the claim if such document, record, or other information (i) was relied upon in making the benefit determination, (ii) was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination, or (iii) demonstrates compliance with the administrative processes and safeguards designed to ensure and verify that benefit claim determinations are made in accordance with the Plan and that, where appropriate, the Plan provisions have been applied consistently with respect to similarly situated claimants.	
 
 	(c)	The Committee’s decision on review shall be final. In the event the decision on review is not provided to the Participant or Designated Beneficiary within the time required, the claim shall be deemed denied on review.	
ARTICLE XI
LAWSUITS, JURISDICTION, AND VENUE
No lawsuit claiming entitlement to benefits under this Plan may be filed prior to exhausting the claims and claims review procedures described in Articles IX and X. Any such lawsuit must be initiated no later than (a) one year after the event(s) giving rise to the claim occurred, or (b) 60 days after a final written decision was provided to the claimant under Article X, whichever is sooner. Any legal action involving benefits claimed or legal obligations relating to or arising under this Plan may be filed only in Federal District Court in the city of Denver, Colorado. Federal law shall be applied in the interpretation and application of this Plan and the resolution of any legal action. To the extent not preempted by federal law, the laws of the state of Colorado shall apply.
ARTICLE XII
EFFECTIVE DATE OF PLAN
Effective as of the Spin-Off Date, the Plan is being spun off from the First Data SISP, which was effective January 1, 2003.
 
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The Company hereby agrees to the provisions of the Plan and in witness of its agreement, the Company by its duly authorized officer has executed the Plan on the date written below.

THE WESTERN UNION COMPANY	
		
By:	 	  	
		
Title:	 	  	
		
Date:	 	  	
 
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APPENDIX A
List of Deferred Compensation Plans/Programs Merged into
the First Data Corporation Supplemental Incentive Savings Plan
 
•	 	First Data Corporation Supplemental Savings Plan 2000	
 
•	 	First Data Corporation Supplemental Savings Plan	
 
•	 	First Data Corporation 1992 Salary Deferral Plan*	
 
*	indicates merger of plans only to extent of participant elections to transfer accrued liabilities to this Plan.	
NOTE: Plan merger is effective only with respect to active employees. All rights of participants and obligations of First Data Corporation under the above-listed plans with respect to employees who have terminated employment with First Data Corporation or any subsidiary prior to January 1, 2003, shall be as described in those plans. Such former employees shall not be Participants in, or have any rights under, this Plan.
 
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APPENDIX B
First Data Corporation Supplemental Incentive Savings Plan
Deferral Election Agreement
THIS AGREEMENT, dated _____________________, is between FIRST DATA CORPORATION (the “Company”) and ______________________ (the “Employee”). The Company designates the Employee as a Participant in the Company’s Supplemental Incentive Savings Plan (the “Plan”), which is incorporated into this Agreement. The Company and the Employee agree as follows:
Salary Deferral Election
1. I, the Employee, elect to defer a portion of my 2003 Salary [YES____] [NO____] [ Initial one ]. If Yes, I irrevocably elect to defer receipt of ____% (1% to 80%) of my Salary otherwise payable to me commencing January 1, 2003.
Note: This election will apply to your Salary defined as Plan eligible compensation excluding annual bonus compensation, paid during 2003 and in successive years provided that you remain eligible for participation in the Plan , unless you elect to change this deferral election as provided in the Plan . You will have the opportunity each year to make a different deferral election for the following year.
Bonus Deferral Elections
2. I, the Employee, elect to defer a portion of my 2002 Annual Bonus, payable in 2003, in addition to the deferral election stated above [YES____] [NO____] [ Initial one ]. If Yes, I irrevocably elect to defer receipt of ____% (1% to 80%) of the Bonus otherwise payable in 2003. 
3 . I, the Employee, elect to defer a portion of my 2003 Annual Bonus in addition to the deferral election stated above [YES____] [NO____] [ Initial one ]. If Yes, I irrevocably elect to defer receipt of ____% (1% to 80%) of the Bonus, if any, earned based on 2003 performance and otherwise payable in 2004.
Note: Your election to defer 2003 Annual Bonus payable in 2004 will remain in effect for future annual bonus compensation provided that you remain eligible for participation in the Plan, unless you elect to change this deferral election as provided in the Plan. You will have the opportunity each year to make a different bonus deferral election on bonus amounts to be earned during the following year (and payable in the next following year).
The Company believes, but does not guarantee, that a deferral election made in accordance with the terms of the Plan is effective to defer the receipt of taxable income.
I, the Employee, understand and acknowledge that my account balance in the plan is unfunded, represents a contractual obligation of the Company, that no assets are or will be set aside from the Company’s general assets to pay benefits under the Plan, and that I am an unsecured general creditor of the Company with respect to my interest in and benefits under the Plan.
In witness whereof, the parties have entered into this Agreement on the day first written above.

First Data Corporation	 		 	Employee	
					
By	 	  	 		 	By	 	  	
 
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First Data Corporation Supplemental Incentive Savings Plan
Distribution Election Agreement and Beneficiary Designation
THIS AGREEMENT, dated ___________, is between FIRST DATA CORPORATION (the “Company”) and ______________________ (the “Employee”). The Company has designated the Employee as a Participant in the Company’s Supplemental Incentive Savings Plan (the “Plan”), which is incorporated into this Agreement. The Company and the Employee agree as follows:
Distribution Election. This election will apply to ALL Employee’s nonqualified plan deferred compensation with the Company including amounts deferred under prior plans that have been merged into this Plan.
 
1.	The Employee elects the following form of distribution of his or her Deferred Account balance (choose one):	
¨      A. Lump-sum payment.
¨      B. Quarterly installment payments over a period of ________ years (enter whole number not to exceed 10 years).
¨      C. Annual installment payments over a period of ________ years (enter whole number not to exceed 10 years).
 
2.	The Employee elects the following payment start date (choose one):	
 
 	¨	A. Upon Termination of Employment.	
 
 	¨	B. One Year Following Termination of Employment. [“First Anniversary”]	
 
 	¨	C. Two Years Following Termination of Employment. [“Second Anniversary”]	
 
 	¨	D. _____Years (Maximum of 5) Following Termination of Employment [“______ Anniversary”]	
 
3.	If at the time on termination of employment, the value of the Employee’s Deferred Account balance is less than $50,000, the entire Deferred Account balance will be distributed as soon as administratively feasible to the employee as a single lump sum.	
 
4.	Beneficiary Designation:	
Beneficiary _____________________________
Social Security Number_____________
Contingent Beneficiary ____________________
Social Security Number_____________
If the Employee dies at any time with a valid beneficiary designation, the Employee’s entire Deferred Account balance will be distributed as soon as administratively feasible to the beneficiary as a single lump sum. If there is not valid beneficiary designation at the time of the participant’s death, the Employee’s entire Deferred Account balance will be distributed as soon as administratively feasible to the Employee’s estate in a single lump sum .
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day first written above.

First Data Corporation	 		 	Employee	
					
By	 	  	 		 	By	 	  	

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First Data Corporation
Deferred Compensation Consolidation Election
THIS ELECTION, dated _____________________, is made by __________________ (the “Employee”). The Company has designated the Employee as a Participant in the Company’s Supplemental Incentive Savings Plan (the “Plan”), under which this Election is made. Under the terms of the Plan, the Employee may elect to transfer existing account balances (collectively, “Deferred Compensation”) under the Company’s Supplemental Savings Plan, Supplemental Savings Plan 2000, or Salary Deferral Plan (collectively, the “Deferral Plans”) to this Plan.
Deferred Compensation Consolidation Election
I the Employee, hereby elect to transfer my Deferred Compensation to my Deferred Account under the Plan. I acknowledge that all rights with respect to the Deferred Compensation under the terms of the Deferral Plan(s) will be null and void and that my rights with respect to the Deferred Compensation represented by those account balances will be governed exclusively by the terms and conditions of the Plan, including but not limited to the distribution election I make or have made under the Plan. I understand and acknowledge that if I make no other affirmative election, my account balance under the Plan, including all amounts transferred pursuant to this election, will be credited with earnings or losses based on the Plan’s Stable Value Investment Fund. I understand and acknowledge that my account balance in the plan is unfunded, represents a contractual obligation of the Company, that no assets are or will be set aside from the Company’s general assets to pay benefits under the Plan, and that I am an unsecured general creditor of the Company with respect to my interest in and benefits under the Plan.
[YES____] [NO____] [ Initial one ]
The Employee has executed this Election on the day first written above.
Employee Signature ______________________________ 
 
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Exhibit 99.1

			
Contacts:	  		
Media	  	Investors	
Sherry Johnson	  	Gary Kohn	
720-332-4750	  	720-332-8276	
Sherry.l.Johnson@westernunion.com	  	Gary.Kohn@westernunion.com	
WESTERN UNION TO BEGIN TRADING ON NYSE FOLLOWING SUCCESSFUL
COMPLETION OF TAX-FREE SPIN-OFF FROM FIRST DATA
Board Authorizes $1.0 Billion Stock Repurchase Program
Englewood, CO, Sept. 29, 2006 – The Western Union Company today announced that it has completed its previously announced spin-off from First Data Corp. (NYSE: FDC) and expects that shares of its common stock will begin regular trading on the New York Stock Exchange (NYSE) under the symbol “WU” on Monday, Oct. 2, 2006. The newly independent company will be a member of the S&P 500. Western Union President and Chief Executive Officer Christina Gold will ring the opening bell at the NYSE on Wednesday, Oct . 4, 2006, to celebrate the occasion.
In addition, Western Union announced that the company’s Board of Directors has approved a stock repurchase program that authorizes the purchase of up to $1.0 billion of Western Union common stock prior to Dec. 31, 2008, subject to market conditions. Stock purchases under the program will be made from time to time in the open market on such terms as are deemed to be in the best interests of Western Union. In connection with the spin-off, the company secured $3.5 billion of debt financing.
“Today marks the beginning of an exciting new chapter in Western Union’s celebrated 150-year history,” said Ms. Gold. “The separation from First Data creates rich opportunities for Western Union to continue to strengthen our brand, expand and deepen our relationships with consumers

and agents, and re-invest our strong cash flow in growing the business. With our vast distribution network of more than 270,000 agent locations in over 200 countries and territories, as well as our marquis brand, financial strength, seasoned management team and Board, and dedicated employees, Western Union is well positioned to continue to be a leading provider of money transfer services in the world. Going forward, we intend to continue to grow by capitalizing on long-term global migration trends and increasing cross-border remittances.
Ms. Gold concluded: “We look forward to building a future as bright as our past and continuing to provide consumers with the fastest, most reliable and most convenient ways to send money anywhere in the world.”
In connection with the spin-off, today First Data shareholders received one share of Western Union common stock for every one share of common stock they held in First Data as of the Sept. 22, 2006 record date. Approximately 765 million shares of Western Union common stock were distributed.
Safe Harbor Compliance Statement for Forward-Looking Statements
This press release may contain forward-looking statements. Forward-looking statements include all statements that do not relate solely to historical or current facts. All forward-looking statements are inherently uncertain as they are based on various expectations and assumptions concerning future events and they are subject to numerous known and unknown risks and uncertainties which could cause actual events or results to differ materially from those projected. These factors include, but are not limited to: the impact of our spin-off from First Data Corporation; changes in immigration laws, patterns and other factors related to immigrants; the integration of significant businesses and technologies we acquire and realization of anticipated synergies from these acquisitions; technological changes, particularly with respect to e-commerce; our ability to attract and retain qualified key employees; changes in laws, regulations or industry standards affecting our businesses; changes in foreign exchange spreads on money transfer transactions; changes in the political or economic climate in countries in which we operate; continued growth at rates approximating recent levels for consumer money transfer transactions and other product markets; our ability to compete effectively in the money transfer

industry with respect to global and niche or corridor money transfer providers, United States and international banks, card associations, card-based payments providers and a number of other types of competitive service providers; our ability to maintain our agent network; implementation of Western Union agent agreements with governmental entities according to schedule and no interruption of relations with countries in which Western Union has or is implementing material agent agreements; successfully managing the potential both for patent protection and patent liability in the context of rapidly developing legal framework for expansive software patent protection; successfully managing credit and fraud risks from our agents and from consumers; unanticipated developments relating to lawsuits, investigations or similar matters; catastrophic events; and any material breach of security of any of our systems. For more information on important factors upon which these forward-looking statements are premised, please refer to The Western Union Company Form 10, as amended, filed with the Securities and Exchange Commission.
About Western Union
Western Union, together with its affiliates Orlandi Valuta and Vigo, are leaders in global money transfer, providing people with fast, reliable and convenient ways to send money around the world, pay bills and purchase money orders through a network of over 270,000 agent locations in more than 200 countries and territories. For more information, visit www.westernunion.com.
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