Certain confidential portions of this Exhibit were omitted by means of asterisks
in lieu of the text (the "Xxxx"). This Exhibit has been filed separately with
the Secretary of the Securities and Exchange Commission without the Xxxx
pursuant to the Company's request for confidential treatment pursuant to Rule
406 under the Securities Act of 1933, as amended.
EXHIBIT 10.22
SECOND AMENDMENT TO THE
XXXXXXXXXXX.XXX
SERVICE AGREEMENT
This Second Amendment (the "Amendment") to the Xxxxxxxxxxx.xxx Service
Agreement between Xxxxxxxxxxx.xxx, Inc. (currently known as "iPayment
Technologies, Inc.") and Humboldt Bank dated August 1, 2000 (the "Agreement") is
entered into as of this 3rd day of October, 2002.
RECITALS
WHEREAS, since the effective date of the Agreement, Xxxxxxxxxxx.xxx, Inc.
has changed its name to iPayment Technologies, Inc; and
WHEREAS, the parties entered into the Agreement in order to govern the
relationship of the parties with respect to credit card settlement transactions
and sponsorship; and
WHEREAS, the parties wish to amend Section 3.1 to add a new Section 3.1(h)
and to Amend Section 8.1 and 8.2 of the Agreement;
WHEREAS, the parties wish that the remaining terms of the Agreement remain
the same.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties agree to amend the Agreement as follows:
1. Article III, Section 3.1(c) is hereby amended to read in its entirety as
follows:
"(c) [****]
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
2. Article III, Section 3.1 is hereby amended by adding the following section
as a new Section 3.1(h):
"(h) Notwithstanding anything contained herein, so long as all of the
following are true with respect to Merchant or Merchant Account, Bank
agrees that, except as required by the Rules, Bank shall neither terminate
nor make any change with respect to the discount or reserve of said
Merchant or Merchant Account that will have an adverse effect on the
Merchant or Merchant Account without the prior written consent of
CCC:
"(i) The Merchant Account is not in an Association monitoring program;
"(ii) The Merchant Account is not engaged in, or aiding and abetting,
any illegal activity or fraud;
"(iii) The Merchant Account is not processing Transactions where
products are delivered or services rendered more than ninety (90) days (on
the average, based upon Transactions of the immediately preceding three (3)
months) following the date of the Transaction; and
"(iv) Either (A) the Merchant Account is processing under $ [****]
per month (based upon an average of the immediately prior three months'
Transactions), or (B) with respect to Merchant Accounts with an average
processing of $ [****] or more per month, in Bank's sole judgment the
Merchant Account is neither experiencing significant financial
deterioration nor is there any severe macroeconomic event causing an
instability within merchant processing of a specific merchant or category
of merchants in which the Merchant Account is included.
[****] Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
"In the event Bank decides to terminate or make any such adverse
change with respect to a Merchant Account with an average processing of $1
million or more per month solely because, in Bank's judgment, the
conditions set forth in subparagraph (iv)(B) above are inapplicable, Bank
shall first give CCC written notice of Bank's decision and CCC may, within
three (3) business days of receipt of such notice, deposit into the CCC
Reserve Account an amount equal to not less than fifty percent (50%) of the
then approved monthly processing limit for that specific Merchant Account,
in which case Bank agrees to take no further action with respect to that
Merchant Account solely for the reasons set forth in subparagraph (iv)(B)
above.
"Notwithstanding anything contained to the contrary herein, Bank
covenants and agrees that until the termination of this Agreement, Bank
will continue to operate its business and to maintain its relationship with
CCC in significantly the same manner it has been operating its business as
of the date of this Amendment, and that Bank will not significantly change
any of its existing underwriting guidelines, policies or procedures without
CCC's prior consent, which consent shall not be unreasonably withheld or
delayed, including, but not limited to (1) changes in policies relating to
the closing of Merchant Accounts, (2) increasing CCC's reserve requirements
currently in place, (3) increasing any fees or amounts currently being paid
by CCC to Bank for sponsorship and processing (except as such fees or
amounts are imposed on Bank by a third party and passed through to CCC
pursuant to this Agreement), (4) changes in criteria for withholding CCC's
funds, (5) amending the existing underwriting guidelines or underwriting
procedures, or (6) taking any other actions or failing to take any actions
which are not consistent with the way Bank and CCC conduct their business
as of the date of this Amendment. Each party agrees that it will in good
faith seek to resolve any differences that may arise between the parties
under this Agreement to the extent the same are not expressly covered by
this Agreement, including this Amendment. Bank acknowledges that CCC has
relied on this statement in entering into this Amendment and that Bank's
material breach of this covenant may cause material harm to the business of
CCC and its related parent and subsidiary corporations."
3. Article VIII, Section 8.1 is hereby amended to read in its entirety as
follows:
"8.1. Term. This Agreement will become effective on the Effective Date, and
unless terminated earlier in accordance with the provisions of this
Agreement or by CCC in its sole discretion, will expire on April 29, 2003."
4. Article VIII, Section 8.2 hereby amended to read in its entirety as
follows:
"8.2. Termination. Notwithstanding Section 8.1 the parties will have the
following rights and obligations:
"(a) Ability to Perform. If Visa or MCI prohibits CCC from providing,
or prohibits Bank from allowing CCC to provide, the services set forth
in this Agreement, or if Bank becomes insolvent or is no longer an
Acquiring Member of
Visa or MCI, this Agreement will automatically and immediately terminate.
In addition, Bank may terminate this Agreement upon ninety (90) days'
written notice to CCC in the event Bank becomes subject to any change in a
statute, law, rule, regulation, policy or other official pronouncement of
any state or federal government entity regulatory agency or of VISA or MCI
which would prohibit Bank from continuing the business described in this
Agreement.
"(b) Obligations Upon Expiration or Termination. Immediately following the
expiration or earlier termination of this Agreement for any reason, CCC
will contract with a third party Acquiring Member to perform Bank's duties
under this Agreement and Bank, upon he effective date of the assignment and
assumption agreements entered into at such time, will assign the Merchant
Agreements, including all Merchant files and records (paper and fiche),
BINs, ICAs and databases relating to such Merchants and Merchant
Agreements, and all related deposit accounts to said third party Acquiring
Member at no expense to CCC other than the actual cost of copying,
shipping, supplies, and any related Association, Network and Processor
fees. Pending such assignment, the rights and obligations of the parties
(including, without limitation, the rights and obligations relating to
compensation under Article V hereof) shall continue to be governed by this
Agreement in all respects."
5. As hereby amended and supplemented the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Agreement as of the Effective Date above:
HUMBOLDT BANK By: /s/ Illegible
-----------------------------
Its: CEO
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Date: 10/3/02
-----------------------------
IPAYMENT TECHNOLOGIES, INC. By: /s/ Xxxxxxx Daily
-----------------------------
Its: CEO
-----------------------------
Date: 10/3/02
-----------------------------
