exv10w45



 






AMENDMENT 10.45




FIRST AMENDMENT TO ACCOUNT TRANSFER

AND PURCHASE AGREEMENT




     THIS FIRST 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 KBK FINANCIAL, INC., a Minnesota corporation (“KBK”).



     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 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 KBK 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, Section 1(b) of the Addendum to the Purchase
Agreement is hereby amended in its entirety to read as follows:





“Tangible Net Worth. At the end of each fiscal month, its Tangible Net Worth at not less
than Two Million Four Hundred Thousand and NO/100 dollars ($2,400,000.00).”



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 KBK to unconditionally guarantee the
payment by Seller of certain losses incurred by KBK 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 KBK.




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 KBK OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM KBK. SELLER AND GUARANTORS EACH HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES KBK, 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 KBK, 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 KBK a fee equal to $1,000.00 contemporaneously with the
effectiveness of this Amendment in consideration of the financial accommodations provided by KBK to
Seller contained herein.




     EXECUTED as of March 23, 2004.



 









 





	 	 	 	 	 	 	 
	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 
	 	 	AESP, INC.	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ Slav Stein	 	 
	

	 	 	 	 	 	 
	

	 	Name:
	 	Slav Stein	 	 
	

	 	Title:
	 	President & CEO	 	 
	 	 	GUARANTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Slav Stein	 	 
	 	 	 	 	 
	 	 	SLAV STEIN	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Roman Briskin	 	 
	 	 	 	 	 
	 	 	ROMAN BRISKIN	 	 
	 
	 	 	 	 	 	 
	

	 	KBK:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	KBK FINANCIAL, INC.	 
	 
	

	 	By:
	 	/s/ Ramona Ledbetter	 	 
	

	 	 	 	 	 	 
	

	 	Name:
	 	Ramona Ledbetter	 	 
	

	 	Title:
	 	Legal Administrator