Exhibit 2.11
AMENDMENT NUMBER ONE
TO
ASSET SALE AND PURCHASE AGREEMENT ( DATED JANUARY 12, 2001)
BETWEEN
IPAYMENT TECHNOLOGIES, INC.
A CALIFORNIA CORPORATION ("COMPANY")
AND
ELECTRONIC CHECK PROCESSING, INC.
A CALIFORNIA CORPORATION ("ECP")
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
AN INDIVIDUAL AND A SHAREHOLDER OF ECP ("▇▇▇▇▇▇▇▇▇")
DATED: MARCH 2, 2001
AMENDMENT NUMBER ONE
TO
ASSET SALE AND PURCHASE AGREEMENT
THIS AMENDMENT NUMBER ONE TO ASSET SALE AND PURCHASE AGREEMENT (this
"Amendment Agreement") is made and entered into effective as of this 2nd the day
of March, 2001 by and among iPayment Technologies, Inc. (f/k/a/
"▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"), a California corporation (the "Company"), ELECTRONIC CHECK
PROCESSING, INC. a California corporation ("ECP"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an
individual and a shareholder of ECP ("▇▇▇▇▇▇▇▇▇"), with reference to the
following facts:
▇.▇▇▇▇▇▇▇, ECP and ▇▇▇▇▇▇▇▇▇ are parties to a written Asset Sale and
Purchase Agreement dated as of January 12, 2001 (the "Asset Purchase
Agreement") whereby the parties have agreed to consummate the
transactions set forth in the Asset Purchase Agreement, including
without limitation thereto the sale and assignment by ECP to Company
of ECP's right, title and interest in the Acquired Assets (as
defined in the Asset Purchase Agreement), and payments and credits
arising therefrom, on the terms set forth in the Asset Purchase
Agreement and whereby the parties have modified and amended certain
terms of the Note and the Loan Agreement (as those terms are defined
in the Asset Purchase Agreement) and whereby Company will pay
▇▇▇▇▇▇▇▇▇ the full principal and interest outstanding under the
Note. The Asset Purchase Agreement is incorporated herein by
reference.
B.The parties now wish to amend the Asset Purchase Agreement in
certain respects as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, do hereby agree as follows:
1. Definitions:
1.1 Definitions Incorporated. The capitalized terms used in this
Amendment Agreement shall have the same meanings ascribed to them as
contained in and defined by the Asset Purchase Agreement.
2. Amendments to Existing Sections of the Asset Purchase Agreement.
2.1 Amendment to Section 1.1(a). Subsection (ii) of Section 1.1(a) of the
Asset Purchase Agreement which read as follows: "(ii) ECP's security interest in
all Merchant Reserve Accounts (as such term is used in the Humboldt Agreement)
and other similar reserve funds;" is hereby amended and changed to read as
follows: "(ii) ECP's security interest in all Merchant Reserve Accounts (as such
term is used in the Humboldt Agreement) which ECP security interest is
understood to be a right of subrogation to Humboldt's security interest in all
Merchant Reserve Accounts, and is expressly subordinate to Humboldt's security
interest in all Merchant Reserve Accounts and other similar reserve funds;".
3. Closing and Total Payment Amount.
3.1 Closing Matters. The parties acknowledge and agree that
notwithstanding any terms to the contrary in the Asset Purchase Agreement, the
Closing shall now take place at the offices of Stradling, Yucca, ▇▇▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, at 2:00 P.M. on
March 6, 2001, (the "New Scheduled Closing Date"). The parties further
acknowledge and agree that that notwithstanding any terms to the contrary in the
Asset Purchase Agreement, that the Total Payment Amount is reduced to
$1,575,000, and at the Closing, the Total Payment Amount of $1,575,000 will be
allocated and applied as set forth in SECTIONS 2.3 AND 2.4 of the Asset Purchase
Agreement.
4. Humboldt Assignment and Consent Agreement.
4.1. Acknowledgment and Agreement Relating To Humboldt Assignment and
Consent Agreement. ECP hereby acknowledges that pursuant to the existing
provisions of Section 7.1 (f) of the Asset Purchase Agreement, and the Humboldt
Assignment and Consent Agreement referenced therein, that it was contemplated
that Humboldt Bank would agree to look to ECP for its remedies in connection
with any obligation of ECP under the ECP Humboldt Agreement related to the
Merchant Accounts arising or relating to transactions prior to the Closing Date
and to look to Company for its remedies in connection with any obligation of
Company under its current agreement with the Company related to the Merchant
Accounts arising or relating to transactions after the Closing Date, consistent
with the indemnification provisions contained in SECTION 6 of the Asset Purchase
Agreement. ECP hereby acknowledges that pursuant to the form of the Consent to
Assignment and Amendment to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ SERVICE AGREEMENT attached and
marked AS EXHIBIT A hereto and made a part hereof, that Company and Humboldt
will agree that Humboldt will look to Company, rather than ECP, for its remedies
in connection with any obligation of ECP under the ECP Humboldt Agreement
related to the Merchant Accounts arising or relating to transactions prior to
and/or after the Closing Date. ECP and ▇▇▇▇▇▇▇▇▇, and each of them, hereby
acknowledge and agree that that the attached form of the Consent to Assignment
and Amendment to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ SERVICE AGREEMENT ( Exhibit A) in no way
modifies or otherwise changes any of the rights of
Company to indemnification from ECP and/or ▇▇▇▇▇▇▇▇▇ related thereto pursuant to
SECTION 6, and/or otherwise releases or modifies the obligations of ECP and/or
▇▇▇▇▇▇▇▇▇, pursuant to SECTION 6 and that conditioned on the Company and
Humboldt executing the Consent to Assignment and Amendment to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
SERVICE AGREEMENT in the form attached hereto as Exhibit A, Company shall be
entitled to the full benefit of the indemnification rights provided pursuant to
SECTION 6 of the Asset Purchase Agreement.
5. General Provisions.
5.1 Counterparts. This Amendment Agreement may be executed in one or more
counterparts, including via fax, each of which shall be deemed an original, but
all of which shall constitute but one and the same instrument.
5.2 Headings; References. The headings contained in this Amendment
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment Agreement. References herein to
Sections, Schedules and Exhibits refer to the referenced Section, Schedule or
Exhibit hereof unless otherwise specified.
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5.3 Severability. Any provision of this Amendment Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality, or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Amendment
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
5.4. Effect of Amendment. Except as expressly modified and changed by this
Amendment Agreement, the Asset Purchase Agreement shall remain in full force and
effect as originally executed.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
Agreement to be effective as of the date first above written.
/s/ ▇▇▇▇▇▇▇ ▇. McCormick_________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, individually
ELECTRONIC CHECK PROCESSING, INC.
By: _/s/ ▇▇▇▇▇▇▇ ▇. McCormick____
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
iPayment Technologies, Inc. ("Company")
By__/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ _______
Name: ▇▇▇▇▇▇▇ Schubert______
Title: _Sr. V.P. & General Counsel