Purchase and Sale Agreement - First Bank of Beverly Hills and iPayment Holdings Inc.
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement"), dated June 29,
2001, is entered into between FIRST BANK OF BEVERLY HILLS, a federal savings
bank ("Seller"), iPayment Holdings, Inc., a Tennessee corporation ("iPayment"),
and Beverly Hills Acquisition Corp., a Tennessee corporation, a wholly owned
subsidiary of iPayment ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller has entered into certain merchant service agreements
("Merchant Agreements") regarding credit card processing services provided by
Seller to merchants (as defined below); certain merchant solicitation
agreements, independent sales organization and agent agreements (as listed on
Exhibit A attached hereto); certain agreements with vendors (as listed on
Exhibit B attached hereto), (all of which are collectively referred to as the
"Bank Agreements") pursuant to which Seller acquired certain rights and
obligations with respect to the solicitation and maintenance of a portfolio (the
"Seller Portfolio") of merchants participating in Seller's merchant bank card
transaction processing system. The Seller Portfolio consists of merchants (the
"Merchants") identified on Exhibit C hereto.
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller the Seller Portfolio, together with certain other assets
described in Schedule 1.01 hereto;
NOW, THEREFORE, IN CONSIDERATION of the promises and of the mutual
representations, warranties and covenants which are made and to be performed by
the respective parties, it is agreed as follows:
ARTICLE I
PURCHASE AND SALE OF SELLER PORTFOLIO
1.01. Purchase and Sale of Seller Portfolio. Subject to the terms
and conditions of this Agreement, and subject to Seller's receipt of the
purchase price set forth in Section 1.05(a), on the "Closing Date" (as defined
in Section 1.08 hereof), Seller shall sell, assign and deliver ("Transfer") to
Purchaser, and Purchaser shall purchase, acquire, accept and assume from Seller,
all of Seller's rights and interest in and to the Seller Portfolio, including
all contracts, contract rights, customer lists, merchant accounts, agent
agreements, independent sales organization agreements, computer printouts,
papers and other documents in the possession of Seller relating to the Seller
Portfolio, as are further set forth in Schedule 1.01 attached hereto. The Seller
Portfolio together with the other assets referenced in Schedule 1.01 are
collectively referred to as the "Assets."
1.02. Non-Assumption of Liabilities. Except for the liabilities
specifically assumed hereby and liabilities arising after the Effective Date (as
defined in Section 1.08 hereof) related to post-Effective Date transactions
pertaining to the Assets, Purchaser will not assume any debts, liabilities,
obligations, expenses, taxes, contracts or commitments of Seller of any kind,
character or description, whether accrued, absolute, contingent or otherwise.
With the exception of any liability or losses resulting from or related to third
party consents to be obtained subsequent to the Closing Date, which
indemnification is excluded under this Section 1.02 but separately set forth in,
and limited by, Section 1.07, the Seller hereby indemnifies Purchaser and its
successors, assigns, parent companies, affiliates, officers, directors, agents,
attorneys and insurers against and holds Purchaser harmless from any and all
damages, claims, causes of action, defenses, liabilities, losses or obligations
(collectively "Damages") relating to pre-Effective Date transactions pertaining
to the Assets. Purchaser hereby indemnifies Seller and its successors, assigns,
parent companies, affiliates, officers, directors, agents, attorneys and
insurers against and holds Seller harmless from any and all Damages, relating to
post-Effective Date transactions pertaining to the Assets.
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1.03. Merchant Chargeback.
(a) Subsequent to the Closing, all merchant chargebacks and penalties
pertaining to pre-Effective Date transactions will be processed in
the ordinary course of business, and debited from the operating
accounts of the affected merchants, consistent with the applicable
Merchant Agreements, regardless of the location of the operating
accounts. To the extent that the funds within such operating
accounts are insufficient to pay any chargebacks and/or penalties
and assessments imposed by Visa USA, Inc. or Mastercard
International, Inc., (collectively, "Unfulfilled Chargebacks"),
such Unfulfilled Chargebacks pertaining to the pre-Effective Date
transactions will be processed utilizing funds set aside in the
reserve accounts set forth in Section 1.03(b), subject to the
provisions thereof.
(b) Seller has in its possession certain reserves set aside for
Unfulfilled Chargebacks. The pre-Effective Date reserve accounts,
as of the Closing, are as set forth in Schedule 1.03 attached
hereto ("Pre-Effective Date Reserves"). As soon as possible
following the Closing, the parties shall substitute a new Schedule
1.03 containing the actual account balances of the Pre-Effective
Date Reserves (through June 30, 2001), in substantially the same
form as Schedule 1.03 attached hereto. Subsequent to the
Effective Date, the accounts in which the Pre-Effective Date
Reserves are deposited will be maintained at Seller until the
termination of the Interim Processing Agreement executed
concurrently herewith, at which time any remaining Pre-Effective
Date Reserves will be transferred to another financial
institution, which is a member in good standing of the national
credit card associations, at Purchaser's direction ("Purchaser's
Bank"). Notwithstanding the transfer of the Pre-Effective Date
Reserves, Purchaser shall direct Purchaser's Bank to debit the
applicable Pre-Effective Date Reserves in the amount of the
Unfulfilled Chargebacks related to transactions which occur prior
to the Effective Date not to exceed the amount of the
Pre-Effective Date Reserves existing on the Effective Date. All
such Chargebacks shall be honored on a chronological basis, with
the oldest being honored first. To the extent that Seller is
required to advance funds for any Unfulfilled Chargebacks, Seller
shall be entitled to reimbursement by Purchaser to the extent of
the Pre-Effective Date Reserves existing on the Effective Date.
1.04. Limitation on Representations and Warranties. Except for the
representations and warranties set forth in Article II herein, the sale of the
Seller Portfolio is on an as is, where is basis, and with all faults. Purchaser
has had an opportunity to conduct its due diligence investigation and otherwise
examine the Seller Portfolio to its satisfaction. Purchaser warrants that, other
than the written representations and warranties contained in Article II herein,
no person acting on behalf of Seller is authorized to make, and by execution
hereof, Purchaser acknowledges and agrees that, except as specifically provided
in this Agreement, Seller has not made, does not make and specifically negates
and disclaims any representations, warranties, promises, covenants, agreements
or guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, as to, concerning or with respect to
the Seller Portfolio.
1.05. Purchase Price.
(a) The purchase price for the Seller Portfolio
shall be Five Million, Eight Hundred
Thousand Dollars ($5,800,000.00), in cash,
due and payable at Closing.
(b) In addition to the Purchase Price described
in Section 1.05(a) above, the Seller shall
be entitled to one of the following:
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(i) upon the Seller's large merchant,
European Health Concepts, its
successors or assigns (hereinafter
referred to as the "Major Merchant")
entering into a twenty four (24)
month service agreement with
Purchaser within six (6) months of
the Closing Date, the Seller shall
be entitled to receive a lump sum
payment of Four Hundred Thousand
Dollars ($400,000.00) in the
aggregate, within 15 days of the
signing of the Major Merchant
service agreement; OR
(ii) So long as the Major Merchant
continues to process with Purchaser
(or one of its wholly owned
subsidiaries) within 5% of its
current processing levels and
pricing levels (at the Closing
Date), the Seller shall be entitled
to receive an additional Four
Hundred Thousand Dollars
($400,000.00) in the aggregate,
payable in three equal installments
every six months during the eighteen
(18) month period immediately after
Closing, with the first payment due
seven months from the Closing Date.
If, however, at the end of any six
(6) month period described above,
the Major Merchant is no longer
processing with the Purchaser, the
Seller shall not be entitled to
receive any further payment from the
Purchaser. Seller shall be paid this
additional sum no later than four
weeks after the close of the period
of time in question.
The foregoing purchase price is allocated by the Parties entirely to
the purchase of the contracts, contract rights, customer lists, merchant
accounts, agent agreements, independent sales organization agreements, computer
printouts, papers and other documents relating to the Seller Portfolio, and as
consideration for the non-solicitation provision.
1.06. Instruments of Conveyance and Transfer, Etc. Subject to the
receipt of any third party consents listed on Schedule 2.03 not yet received on
the Closing Date, Seller is delivering to Purchaser herewith such assignments
and other good and sufficient instruments of conveyance and transfer, in form
and substance reasonably satisfactory to Purchaser, as is necessary to complete
the Transfer and be effective to vest in Purchaser all of Seller's rights and
interest in the Assets free of all liens or encumbrances or other claims of
third parties other than those disclosed in Schedule 1.06, and simultaneously
with such delivery, is taking such steps as may be necessary to put Purchaser in
operating control of the Seller Portfolio. Purchaser is delivering to Seller
such acknowledgments or assumption agreements herewith as may be required to
assume the obligation to perform service under the Bank Agreements subsequent to
the Effective Date with respect to post-Effective Date transactions. The
consummation of the Closing shall be deemed to constitute Seller's
acknowledgment of satisfaction as to such acknowledgments and assumptions. The
documents delivered pursuant to this section shall be dated as of the Closing
Date. Seller shall use its best efforts and take all commercially reasonable
steps necessary to secure the third-party consents and/or assumption agreements
which remain outstanding as of the Closing.
1.07. Further Assurances. From time to time after the Closing,
without further consideration, Seller will execute and deliver such other
reasonable instruments of conveyance, assignment, transfer and delivery and take
such other action, so long as those actions do not necessitate the purchase of
any computer hardware or the hiring or contracting for the services of any
information technology staff, as Purchaser reasonably may request in order more
effectively to transfer, convey, assign and deliver to Purchaser, and to place
Purchaser in control of, the Assets, so long as such matters are under the
control of Seller. Seller will use its best efforts and take all
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commercially reasonable steps to secure the required consents of any third
parties whose consent was required by this Agreement, but not obtained prior to
the Closing Date, as identified in Schedule 2.03. Seller shall, up to a maximum
total aggregate amount of Five Hundred Thousand Dollars ($500,000.00), indemnify
and hold Purchaser harmless for any actual losses suffered by Purchaser due to
obtaining or failing to obtain the third party consents identified in Schedule
2.03 subsequent to the Closing. Further, Purchaser shall not seek such indemnity
or compensation for damages unless its actual damages, in the aggregate, equal
or exceed Ten Thousand Dollars ($10,000.00), resulting from the Closing prior to
obtaining all such third party consents identified in Schedule 2.03.
1.08. Closing Date. The purchase and sale of the Seller Portfolio
pursuant to this Agreement (the "Closing") shall take place on June 29, 2001, at
the office of Seller. The date of Closing is referred to in this Agreement as
the "Closing Date." Irrespective of the actual time of Closing, for all economic
purposes, including without limitation the allocation of chargebacks liability,
and revenue relating to the Assets, the Closing will be deemed to have taken
place and shall be effective as of July 1, 2001 ("Effective Date"); provided,
however, that all representations, warranties and covenants (to the extent any
covenants are to be performed after Closing) shall be measured and determined as
of the Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
2.01. Corporate Organization; Etc. Seller is a federal savings bank
duly organized, validly existing and in good standing and has full corporate
power and authority to carry on the business as it is now being conducted and to
own the properties and assets it now owns, including the Seller Portfolio.
2.02. Authorization. Seller has full corporate power and authority
to enter into this Agreement and carry out the transactions contemplated hereby.
The Board of Directors of Seller has duly authorized the execution and delivery
by Seller of this Agreement, the performance by Seller of its obligations
hereunder and the consummation of the transactions contemplated hereby.
2.03. No Violation. Neither the execution and delivery of this
Agreement, nor the performance by Seller of its obligations hereunder nor the
consummation of the transactions contemplated hereby will (a) violate any
provision of the Articles of Incorporation or Bylaws of Seller; (b) would
require the consent of any other party which has not been obtained prior to
Closing, except as described in Schedule 2.03, constitute a breach of, or result
in the creation or imposition of any lien upon the Seller Portfolio under, any
agreement or commitment to which Seller is a party or by which Seller is bound;
or (c) violate any statute or law or any judgment, decree, order, regulation or
rule of any court or governmental authority to which Seller is subject.
2.04. Consents and Approvals of Governmental Authorities. No
consent, approval or authorization of, or declaration, filing or registration
with, any governmental or regulatory authority is required to be made or
obtained by Seller in connection with the execution, delivery and performance of
this Agreement by Seller.
2.05. No Undisclosed Liabilities; Etc. Seller has no known material
liabilities or obligations of any nature, absolute, accrued, contingent or
otherwise, that adversely impact the Seller Portfolio.
2.06. Litigation. Other than the litigation disclosed in Schedule
2.06, there is no known action, proceeding or investigation pending or
threatened against Seller, or any properties or rights
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of Seller, before any court, arbitrator or administrative or governmental body
that would involve the Seller Portfolio in any manner.
2.07. Seller Portfolio. The list of the accounts contained in the
Seller Portfolio is attached hereto as Exhibit C, which sets forth (a) the name
of the individual Merchant, (b) the address, (c) the current month-to-date
sales, (d) the current year-to-date sales and (e) the discount rate paid by
Merchant, is accurate and complete in all material respects to the best
knowledge of Seller. The Seller's most recent Visa USA, Inc. and MasterCard
International Inc. settlement reports are attached hereto as Schedule 2.07, and
are accurate and complete in all material respects to the best knowledge of
Seller. Further to the best knowledge of Seller, no Merchant intends to
materially change its transaction volume following the Closing, and Seller has
no reason to believe any of the Bank Agreements are unenforceable. Finally, to
the best knowledge of Seller, Seller is not subject to any material agreements
involving Merchants or the Seller Portfolio which are not being assigned to
Purchaser pursuant to this Agreement. The knowledge of Seller in this Agreement
refers to the knowledge of Richard S. Cupp, President and Chief Executive
Officer of Seller and Cathy Herring. With respect to the information referenced
in items (c), (d) and (e) above, the information is not presently included in
Schedule 2.07, but will be provided by Seller as soon as commercially
practicable after the Closing Date.
2.08. Licenses, Permits and Authorizations. Seller has all
approvals, authorizations, consents, licenses, franchises, orders and other
permits of all governmental or regulatory agencies, whether federal, state,
local or foreign, the absence of which would impair the Seller Portfolio.
2.09. Disclosure. No representations or warranties by Seller in this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the statements
herein not misleading. There is no fact or development known to Seller which
materially adversely affects, or which might in the future, in Seller's
reasonable judgment, materially adversely affect the Seller Portfolio or
Purchaser's continuing business relationship with the Merchants, which has not
been set forth in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser and iPayment hereby represents and warrants to Seller as
follows:
3.01. Corporate Organization; Etc. Purchaser and iPayment are at the
date hereof, and will be on the Closing Date, corporations duly organized,
validly existing and in good standing under the laws of the State of Tennessee,
are solvent, and have corporate power and authority to carry on their business
as now being conducted, and Purchaser is duly authorized to conduct such
business in the State of California. The purchase price will be paid by
iPayment, which is the sole shareholder of Purchaser.
3.02. Authorization, Etc. Purchaser and iPayment have full corporate
power and authority to enter into this Agreement and carry out the transactions
contemplated hereby. The Boards of Directors of Purchaser and iPayment have duly
authorized the execution and delivery by Purchaser of this Agreement, the
performance by Purchaser and iPayment of their obligations hereunder and the
consummation of the transactions contemplated hereby.
3.03. No Violation. Neither the execution and delivery of this
Agreement, nor the performance by Purchaser or iPayment of their obligations
hereunder nor the consummation of the transactions contemplated hereby will (a)
violate any provision of the Charters or Bylaws of Purchaser or iPayment; (b)
would require the consent of any other party which has not been obtained
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prior to Closing; or (c) violate any statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority to which
Purchaser or iPayment is subject.
3.04. Litigation. There is no known action, proceeding or
investigation pending or, to the best knowledge and belief of Purchaser,
threatened against Purchaser, or any properties or rights of Purchaser, before
any court, arbitrator or administrative or governmental body, which questions or
challenges the validity of this Agreement or any action taken or to be taken by
Purchaser pursuant to this Agreement or in connection with the transactions
contemplated by this Agreement.
ARTICLE IV
NON-SOLICITATION COVENANT; CONFIDENTIALITY
4.01. Seller's Non-Solicitation Covenant. During the period of five
(5) years following the Closing Date, Seller and its successors in interest,
assigns and affiliates, shall not (i) other than mass market campaigns not
specifically directed toward any Merchant, directly solicit any Merchant for
purposes of providing credit card authorization and related services to any of
the Merchants, wherever located, or (ii) intentionally or knowingly interfere
with, disrupt or attempt to disrupt any past, present or prospective business
relationship, contractual, between Purchaser and any Merchant, client, supplier,
consultant, agent or employee of Purchaser; provided, however, nothing herein
shall prevent Seller or its successors, assigns and affiliates from contracting
with any such Merchant, client, supplier, consultant, agent or employee in a
manner that does not interfere with, disrupt or attempt to disrupt any
contractual relationship between such person and Purchaser or from accepting any
unsolicited business relationships of any kind with any such person.
Notwithstanding the foregoing: (a) neither Seller nor its successors, assigns or
affiliates shall be prohibited from contracting with any Merchant that
terminated service with Purchaser at least six months prior to entering into a
contract with Seller, so long as Seller was not in breach of this covenant with
respect to such Merchant prior to entering into such contract; and (b) mass
marketing campaigns not specifically directed toward any Merchant and done
without violation of Section 4.02 by any successor, assign or affiliate of
Seller shall not be deemed a violation of this Section 4.01.
4.02. Confidentiality. Unless otherwise required by law, Seller
agrees that during the period of five (5) years following the Closing Date, it
will not voluntarily at any time, directly or indirectly, communicate, furnish,
divulge or disclose to any individual, firm, association, partnership or
corporation except to its accountants, attorneys, regulators, or to persons or
entities who are conducting due diligence for purposes of acquiring Purchaser or
its parent/holding company, subject, however, to a confidentiality agreement, ,
any knowledge or information with respect to any matters concerning or relating
to the Merchants or the Seller Portfolio, including but not limited to, copies
or originals of any information supplied to Purchaser.
4.03. Right to Injunctive Relief. Seller agrees and acknowledges
that the violation of the foregoing covenants set forth in Sections 4.01 and
4.02 would cause irreparable injury to Purchaser and that the remedy at law for
any violation or threatened violation would be inadequate and that Purchaser,
provided that Purchaser shall be in compliance with this Agreement, shall be
entitled to temporary and permanent injunctive relief or other equitable relief
without the necessity of proving actual damages.
4.04. Notice of Merchant Conversion. If Seller discovers that it has
accepted the application for credit card authorization services from a Merchant,
except as permitted in Section 4.01 above, for a five year period from the date
hereof, it shall promptly notify Purchaser. Purchaser agrees that in the event
that Seller takes processing applications from any of the Merchants, except as
permitted in Section 4.01 above, Purchaser shall, prior to taking the actions
permitted in Section 4.03 above, give written notice to the Seller and Seller
shall then have 30 days in which to assign such processing application to
Purchaser or to cancel the processing agreement between Seller and such
Merchant. If
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the Seller fails to take such action within the 30 day period, Purchaser shall
then be entitled to pursue any remedies against Seller, including without
limitation, the remedies provided in Section 4.03.
ARTICLE V
DELIVERY OF DOCUMENTS AT OR PRIOR TO CLOSING
5.01. Delivery of Documents by Seller. With the exception of those
third party consents which are not available as of the Closing, as identified in
Schedule 2.03, at or prior to the Closing, Seller shall deliver to Purchaser,
unless waived by Purchaser, the following documents and instruments:
(a) all consents from government agencies and third
parties necessary to complete the Transfer and otherwise to consummate the
transactions contemplated hereby;
(b) such bills of sale, endorsements, assignments, and
other good and sufficient instruments of conveyance and assignment, reasonably
satisfactory in form and substance to Purchaser and its counsel, as shall be
necessary to vest all of Seller's rights and interest in, and title to, the
Seller Portfolio in Purchaser and otherwise to consummate the transactions
contemplated hereby;
(c) the most recent VISA/MASTERCARD Settlement Report and
copies of such other documents and computer printouts requested by Purchaser
related to the Seller Portfolio. Seller may delete all information not related
to the Seller Portfolio. Seller shall deliver to Purchaser originals of all
documents that relate to the Seller Portfolio;
(d) written instruments whereby the creditors, if any,
listed on Schedule 5.01(d) hereto, if any, have effectively released and
discharged the security interests referred to in said schedule; and
(e) such other documents or instruments as Purchaser may
reasonably request.
5.02. Delivery of Documents by Purchaser. At or prior to the
Closing, Purchaser shall deliver to Seller, the following documents and
instruments:
(a) the purchase price set forth in Section 1.05(a)
hereof; and
(b) the Purchaser's Receipt.
5.03 Concurrent Agreements. At or prior to the Closing,
Purchaser and Seller shall enter into an Interim Processing Agreement and an
Interim Marketing Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01. No Brokerage. With the exception of Jack Shoykhet of JBS
Group, Inc., whose services will be paid by Seller, each party hereto represents
and warrants to the other party hereto that it has not incurred any obligation
or liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other like payment in connection with this Agreement or the
transactions contemplated hereby, and each party agrees to indemnify and hold
the other party harmless against and in respect of any such obligation or
liability based in any way on agreements, arrangements or understandings claimed
to have been made by such party with any third party.
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6.02. Survival. Each party hereto covenants and agrees that (i) its
representations and warranties contained in this Agreement and in any instrument
of sale, assignment, conveyance and transfer executed and delivered pursuant to
this Agreement, (ii) the provisions of Sections 1.02, 1.03, 1.04, 1.05, 1.06,
1.07 and 6.02, and (iii) the covenants of the Seller in Article IV, shall
survive the Closing Date.
6.03. Amendments. Purchaser and Seller may amend, modify or
supplement this Agreement only by an instrument in writing signed on behalf of
Purchaser and Seller.
6.04. Waivers. Either party to this Agreement may, by written notice
to the other, (a) extend the time for the performance of any of the obligations
or other actions of the other party; (b) waive any inaccuracies in the
representations or warranties of the other party contained in this Agreement or
in any document delivered pursuant to this Agreement; (c) waive compliance with
any of the covenants of the other party contained in this Agreement; and (d)
waive or modify performance of any of the obligations of the other party. No
action taken pursuant to this Agreement, including without limitation any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by either party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
6.05. Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, each of the parties hereto shall pay its own fees and
expenses incident to the negotiation, preparation, execution and performance of
this Agreement including counsel and accountant's fees.
6.06. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given if mailed, certified mail, return receipt requested,
with postage prepaid:
(a) If to Seller, to:
Mr. Richard Cupp
President/Chief Executive Officer
First Bank of Beverly Hills, F.S.B.
23901 Calabasas Road, Suite 1050
Calabasas, California 91302-1542
With copy to Steven N. Richman
c/o Epport & Richman, LLP
10100 Santa Monica Boulevard, Suite 1450
Los Angeles, California 90067 4118
(b) If to Purchaser, to:
Beverly Hills Acquisition Corp.
c/o iPayment Holdings, Inc.
Attn: Afshin Yazdian, General Counsel
30 Burton Hills, Suite 520
Nashville, Tennessee 37215
With a copy to:
Howard Herndon, Esq.
Waller Lansden Dortch & Davis,
A Professional Limited Liability Company
511 Union Street, Suite 2100
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Nashville, Tennessee 37219-1760
or to such other person or address as either party shall furnish the other party
in writing.
6.07. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned without the
prior written consent of the other party.
6.08. Governing Law. THE PROVISIONS OF THIS AGREEMENT AND THE LEGAL
RELATIONS BETWEEN THE PARTIES ARISING THEREFROM SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
6.09 Venue. Any and all disputes between the parties which may
arise pursuant to this Agreement shall be heard and determined before an
appropriate federal or state court located in Los Angeles, California. The
parties hereto acknowledge that such courts have the jurisdiction to interpret
and enforce the provisions of this Agreement, and the parties waive any and all
objections that they may have as to jurisdiction, venue or conflict of law
issues in any of the above courts.
6.10. Counterparts. This Agreement may be executed simultaneously
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. Facsimile
signatures may be accepted as originals.
6.11. Schedules and Headings. Information set forth in the
Schedules hereto is deemed to have been disclosed for all purposes of this
Agreement.
6.12. Entire Agreement. This Agreement, including the Schedules, the
Concurrent Agreements set forth in Section 5.03 and other documents referred to
herein which form a part hereof, embody the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
6.13 Severability. In the event any portion of this Agreement may
be determined by any Court of competent jurisdiction to be unenforceable, the
balance of the Agreement shall be severed therefrom and shall continue in full
force and effect unless a failure of consideration would thereby result.
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6.14. Attorneys Fees. Notwithstanding anything in Section 6.05,
should a dispute, including but not limited to any litigation or arbitration be
commenced (including any proceedings in a bankruptcy court) between the parties
hereto or their representatives concerning any provision of this Agreement, or
the rights and duties of any person or entity hereunder, the party or parties
prevailing shall be entitled to attorneys' fees, expenses of counsel and court
costs incurred by reason of such action.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER
FIRST BANK OF BEVERLY HILLS, a Federal Savings Bank
By: /s/ illegible
________________________________
Title: Pres./CEO
________________________________
PURCHASER
BEVERLY HILLS ACQUISITION CORP.
a Tennessee Corporation
By: /s/ Greg S. Daily
________________________________
Title: CEO
________________________________
iPAYMENT
iPAYMENT HOLDINGS, INC., a Tennessee Corporation
By: /s/ Greg S. Daily
________________________________
Title CEO
________________________________
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