exv10w46



 






AMENDMENT 10.46




SECOND AMENDMENT TO ACCOUNT TRANSFER

AND PURCHASE AGREEMENT




     THIS SECOND AMENDMENT TO ACCOUNT TRANSFER AND PURCHASE AGREEMENT (this “Amendment”) is
entered into by and between AESP, INC., a Florida corporation (“Seller”), Slav Stein and Roman
Briskin (collectively, the “Guarantors”) and MARQUETTE COMMERCIAL FINANCE, INC., a Minnesota
corporation (“MCF”).



     WHEREAS, Seller and KBK Financial, Inc., a Delaware corporation (“KBK Delaware”) entered into
that certain Account Transfer and Purchase Agreement dated as of September 18, 2003, as amended
from time to time (collectively, the “Purchase Agreement”), such agreement, and all rights and
obligations thereunder, having been assigned by KBK Delaware to KBK Financial, Inc., a Minnesota
corporation (now known as MCF) pursuant to a Bill of Sale dated November 24, 2003; and



     WHEREAS, pursuant to the Purchase Agreement the parties have provided for the terms and
conditions under which MCF may from time to time purchase certain of Seller’s accounts; and



     WHEREAS, the Purchase Agreement and all other documents securing, governing, guaranteeing
and/or pertaining to the Purchase Agreement are hereinafter referred to collectively as the
“Purchase Documents”; and



     WHEREAS, the parties hereto now desire to modify the Purchase Agreement as hereinafter
provided;



     NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties, and
agreements contained herein, and for other valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



ARTICLE I

Definitions




Section 1.01 The terms used in this Amendment to the extent not otherwise defined herein shall
have the same meanings as in the Purchase Agreement.




ARTICLE II

Amendments




Section 2.01 Effective as of the date hereof, the Addendum attached to the Purchase Agreement is
hereby replaced in its entirety with the Addendum attached hereto.




ARTICLE III

Representations, Warranties, Ratification and Reaffirmation




Section 3.01 Seller hereby represents and warrants that: (i) the representations and warranties
contained in the Purchase Agreement are true and correct on and as of the date hereof as though
made on and as of the date hereof, and (ii) no event has occurred and is continuing that
constitutes an Event of Default or would constitute an Event of Default but for the requirement of
notice or lapse of time or both.




Section 3.02 The terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Purchase Agreement, but except as expressly
modified and superseded by this Amendment, the terms and provisions of the Purchase Agreement are
ratified and confirmed and shall continue in full force and effect, Seller hereby agreeing that the
Purchase Agreement and the other Purchase Documents are and shall continue to be outstanding,
validly existing and enforceable in accordance with their respective terms.




Section 3.03 Guarantors previously executed that certain Limited Guaranty (the “Guaranty
Agreement”) dated September 18, 2003 for the benefit of MCF to unconditionally guarantee the
payment by Seller of certain losses incurred by MCF under the Purchase Agreement, as more fully
described therein. Guarantors, by executing this Amendment, hereby consent to this Amendment and
agree that, notwithstanding the execution of this Amendment, the Guaranty Agreement remains in full
force and effect and the obligations thereunder remain valid and binding against Guarantors.




 









 








ARTICLE IV

Miscellaneous




Section 4.01 Each of the Purchase Documents is hereby amended so that any reference in the
Purchase Documents to the Purchase Agreement shall mean a reference to the Purchase Agreement as
amended hereby.




Section 4.02 This Amendment may be executed simultaneously in one or more counterparts, each of
shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by telecopy shall be equally as
effective as delivery of a manually executed counterpart of this Amendment. Any party delivering
an executed counterpart of this Amendment by telecopy also shall deliver a manually executed
counterpart of this Amendment but the failure to deliver a manually executed counterpart shall not
affect the validity, enforceability, and binding effect of this Amendment.




Section 4.03 The Agreement and this Amendment have been entered into in Tarrant County, Texas and
shall be performable for all purposes in, Tarrant County, Texas. THE AGREEMENT, AS AMENDED HEREBY,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. Courts
within the State of Texas shall have jurisdiction over any and all disputes arising under or
pertaining to the Agreement, as amended hereby, and venue in any such dispute shall be the courts
located in Tarrant County, Texas.




Section 4.04 This Amendment shall not become effective until executed by MCF.




Section 4.05 SELLER AND GUARANTORS EACH HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE INDEBTEDNESS AND
OBLIGATIONS NOW OR HEREAFTER OWING BY SELLER AND GUARANORS TO MCF OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM MCF. SELLER AND GUARANTORS EACH HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES MCF, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED,
FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR
BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SELLER AND GUARANTORS MAY NOW OR HEREAFTER HAVE
AGAINST MCF, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE
OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY SUCH CLAIMS ARISING FROM THE CONTRACTING FOR,
CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE
APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE PURCHASE AGREEMENT OR OTHER PURCHASE
DOCUMENTS, AND THE NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.




Section 4.6 THE PURCHASE AGREEMENT AND THE OTHER PURCHASE DOCUMENTS, EACH AS AMENDED
HEREBY, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.




Section 4.07 Seller agrees to pay MCF a fee equal to $1,000 contemporaneously with the
effectiveness of this Amendment in consideration of the financial accommodations provided by MCF to
Seller contained herein.




     EXECUTED as of April 21, 2004.



	 	 	 	 	 	 	 
	 	 	SELLER:	 	 
	 	 	AESP, INC.	 	 
	 
	

	 	By:
	 	/s/ Slav Stein	 	 
	

	 	 	 	 	 	 
	

	 	Name:

Title:
	 	Slav Stein

President and CEO	 	 






 









 






	 	 	 	 	 
	 	 	GUARANTORS:
	 
	 	 	 	 
	 	 	/s/ Slav Stein
	 	 	 
	 	 	SLAV STEIN
	 
	 	 	 	 
	 	 	/s/ Roman Briskin
	 	 	 
	 	 	ROMAN BRISKIN
	 
	 	 	 	 
	

	 	MCF:	 	 
	 
	 	 	 	 
	 	 	MARQUETTE COMMERCIAL FINANCE, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Ramona Ledbetter
	

	 	 	 	 
	

	 	Name:
	 	Ramona Ledbetter
	

	 	Title:
	 	Legal Administrator
	

	 	Date:
	 	4-27-04






 









 






ADDENDUM




to Account Transfer and Purchase Agreement between KBK Financial, Inc., now known as Marquette
Commercial Finance, Inc. (“MCF”) and AESP, Inc., a Florida corporation (“Seller”) dated September
18, 2003 (the “Agreement”).




This Addendum modifies and supplements the Agreement as follows:





	1.  	Financial Covenants. Beginning with the March, 2004 Financial Statements, Seller
agrees to maintain the following financial covenants while this Agreement remains in effect:






	 	(a)  	Current Ratio. At the end of each fiscal month, a ratio, calculated on a pro
forma basis (i.e., add back in purchased accounts and factored balance), of (i) current
assets (excluding prepaid expenses), to (ii) current liabilities of not less than less
than .66 to 1.0.
	 
	 	(b)  	Tangible Net Worth. At the end of each fiscal month, its Tangible Net Worth at
not less than Two Million Two Hundred Thousand and NO/100 dollars ($2,200,000.00).
	 
	 	(c)  	Dilution. Seller covenants and agrees that at the end of each fiscal month
during the effectiveness of this Agreement, the Seller’s Dilution shall not exceed six
percent (6%). As used herein, the term “Dilution” means for any period of time
the percentage obtained by dividing (a) the aggregate amount of credit memos, discounts
and other downward adjustments to the original invoiced price of inventory sold or
services rendered by Seller during such period, by (b) gross sales for such period, all
as determined by MCF.






As used herein, the term “Tangible Net Worth” shall mean, as of any date, the amount by
which Seller’s total assets exceeds its total liabilities, plus Subordinated Debt, less any
intangible assets (as defined by generally accepted accounting principles, including,
without limitation, trademarks, patents, copyrights, goodwill, covenants not to compete and
customer lists), less deferred charges. The term “Subordinated Debt” shall mean
indebtedness owing by Seller to a creditor other than MCF which has been subordinated and
subject in right of payment to the prior payment of all indebtedness and obligations now or
hereafter owing by Seller to MCF, such subordination to be evidenced by a written agreement
between Seller and the subordinated creditor which is in form and substance satisfactory to
MCF.



	 	 	 	 	 	 	 
	 	 	AESP, Inc.	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ Slav Stein	 	 
	

	 	 	 	 	 	 
	

	 	Name:
	 	Slav Stein	 	 
	

	 	Title:
	 	President and CEO	 	 
	 
	 	 	 	 	 	 
	 	 	MARQUETTE COMMERCIAL FINANCE, INC.	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ Ramona Ledbetter	 	 
	

	 	 	 	 	 	 
	

	 	Name:
	 	Ramona Ledbetter	 	 
	

	 	Title:
	 	Legal Administrator