Exhibit 10.1
ACCOUNT TRANSFER AND PURCHASE AGREEMENT
This Account Transfer and Purchase Agreement (this "Agreement") is dated this
18th day of September, 2003, and is between KBK Financial, Inc., a Delaware
corporation authorized to do business in Texas ("KBK"), and AESP, Inc., a
Florida corporation ("Seller"). This Agreement shall become effective as of the
day it is accepted in the State of Texas by KBK as indicated at the end hereof
by the date and signature on behalf of KBK.
WHEREAS, KBK is in the business of purchasing accounts receivable
("accounts"); and
WHEREAS, Seller desires, from time to time during the term of this
Agreement, to sell accounts to KBK; and
WHEREAS, the parties hereto desire to enter into this Agreement to
govern the purchase and sale of accounts;
NOW THEREFORE, in consideration of the premises, the mutual agreements
herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. OFFER OF ACCOUNTS. At its election from time to time during the term of
this Agreement, Seller agrees to offer for sale to KBK certain of its
accounts arising out of sales of goods, or services rendered, by
Seller, and to sell to KBK on the terms set forth in this Agreement
such of the offered accounts as KBK may accept for purchase in the
State of Texas. KBK shall have the absolute right in its sole
discretion to reject any or all offered accounts, whether or not KBK
has previously purchased accounts of any particular account debtor
hereunder. The parties agree that, without the prior consent of KBK,
the maximum Gross Amount (as defined below) of accounts that KBK may
purchase hereunder at any time, together with the Gross Amount of
accounts previously purchased by KBK from Seller hereunder which then
remain outstanding, will not exceed TWO MILLION AND NO/100 Dollars
($2,000,000.00) (the "Facility Amount"). KBK's consent to purchase
accounts in excess of such amount may be evidenced by KBK's acceptance
for purchase of such offered accounts.
2. PURCHASE AND SALE OF ACCOUNTS. Each account purchased by KBK hereunder
shall be purchased by KBK without recourse against Seller. All losses
incurred by KBK from the financial inability of the applicable account
debtor to pay such account over and above any and all Residual Payments
(as hereinafter defined) and Reserve (as hereinafter defined) amounts
offset shall be borne solely by KBK; provided, however, that nothing in
this Agreement shall be construed to relieve Seller from liability for
any breach by Seller of any representation, warranty or agreement of
Seller contained herein. Notwithstanding any provision in this
Agreement to the contrary, it is contemplated by and the intention of
the parties hereto that accounts of Seller may be considered and
purchased as one account (herein a "batch") and the terms "account" and
"accounts" as used herein may also refer to and mean a "batch" or
"batches," as the case may be, except with respect to the calculation
of the KBK Discounts (as defined hereinbelow).
In connection with each offer of accounts to KBK, Seller shall (i)
forward electronically to KBK copies of its accounts receivable aging,
sales journal and collection journal, and (ii) deliver to KBK a
complete certificate in the form of Exhibit 1 attached hereto. Seller
shall maintain at its offices a written assignment of all accounts
offered to KBK, together with a copy of all invoices relating to such
accounts, and evidence of delivery of the related goods or performance
of the related services (and, if requested, the original purchase
orders from the applicable customers), all in a form satisfactory to
KBK, and to make available to KBK all such assignments, invoices and
evidence in accordance with Section 12 hereof. In order for an account
to be eligible for purchase by KBK, the related invoice must set forth,
as the sole address for payment, the following post office box: ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ("Authorized Remittance
Address") (or, upon notice from KBK, another post office box of KBK)
and, in the case of payments to be effected by wire transfer or other
electronic means, the related invoice must set forth, as the sole bank
account for such payment, a bank account of KBK (or a third party
designated by KBK) designated by KBK from time to time (except in each
case as otherwise agreed in writing by KBK). KBK's acceptance for
purchase of offered accounts shall be evidenced by KBK's tendering of
the Initial Payment (as hereinafter defined) to Seller or otherwise
delivering to Seller a schedule of accounts accepted for purchase by
KBK. Seller's transference of offered accounts shall not be effective
as to any accounts not accepted for purchase by KBK.
Seller hereby sells, transfers, assigns and otherwise conveys to KBK
(as a sale by Seller and a purchase by KBK, and not as security for any
indebtedness or other obligation of Seller to KBK) all right, title and
interest of Seller in and to all accounts accepted by KBK for purchase
hereunder, together with all related rights (but not obligations) of
Seller with respect thereto, including all contract rights, guarantees,
letters of credit, liens in favor of Seller, insurance and other
agreements and arrangements of whatever character from time to time
supporting or securing payment of such accounts and all right, title
and interest of Seller in any related goods, including Seller's rights
and remedies under Article 2, Part 7 of the applicable Uniform
Commercial Code ("UCC"). The foregoing sale, transfer, assignment and
conveyance does not constitute and is not intended to result in an
assumption by KBK of any obligation of Seller or any other person in
connection with the accounts or related rights or under any agreement
or instrument relating thereto. Seller agrees to execute and deliver
such bills of sale, assignments, letters of credit, notices of
assignment, financing statements (including continuation statements)
under the applicable UCC and other documents, and make such entries and
markings in its books and records, and to take all such other actions
(including the negotiation, assignment or transfer of negotiable
documents, letters of credit or other instruments) as KBK may request
to further evidence or protect the sales and assignments of accounts
and related rights to KBK hereunder, as well as KBK's interest in any
returned goods referred to in Section 7 hereof.
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3. TERMS OF ACCOUNTS. Except as otherwise may be agreed to in writing by
KBK from time to time, the terms of sale offered by Seller to its
account debtors with respect to all accounts offered to KBK for
purchase hereunder shall be NET 60 DAYS. After an account has been
purchased by KBK, Seller shall not have the right to vary the terms of
sale set forth in the invoice relating to such account, or any other
aspect of the account, except in Seller's capacity as agent for KBK for
purposes of collection of accounts purchased by KBK as set forth in
Section 8 hereof, and then only with the prior written consent of KBK.
4. PURCHASE PRICE. The purchase price for each account purchased hereunder
shall consist of and be paid by the Initial Payment and the Residual
Payment. The Initial Payment shall be payable by KBK to Seller on the
business day that KBK accepts for purchase the related account, and the
Residual Payment shall be payable by KBK to Seller within five business
days after KBK receives and deposits the proceeds of collection for the
subject account in an amount equal to the Net Amount (as hereinafter
defined) of such account (subject to KBK's right to withhold payment of
Residual Payments hereunder, and subject to KBK's right to withhold,
offset and charge, each as described below).
"Initial Payment" means Eighty five percent (85.00%) of the Gross
Amount of an account for the first advance only. The "Initial Payment"
will be decreased to Eighty two and one half percent (82.50%) for all
subsequent advances and will be reviewed quarterly. "Gross Amount" of
an account means the gross face amount payable pursuant to the related
invoice. "Net Amount" of an account means the Gross Amount of such
account, less all permitted discounts, deductions and allowances.
"Residual Payment" with respect to an account means the aggregate
amount collected with respect to such account, less the sum of (i) the
Initial Payment with respect to such account, (ii) the KBK Discounts
(as hereinafter defined), (iii) any and all attorneys' fees and other
costs of collection.
5. FIXED AND VARIABLE DISCOUNTS. "Fixed Discount" means a discount of
eight-tenths percent (.80%) of the Gross Amount of such account.
"Variable Discount" means a discount computed on the Initial Payment
and accruing on the basis of actual days elapsed from the date of
Initial Payment until and including five business days after KBK
receives and deposits the proceeds of collection of such account at a
per annum rate equal to KBK's Base Rate (as hereinafter defined) in
effect on the date of purchase of such account plus two percent (2.00%)
per annum; provided, however, in no event shall the Variable Discount
with respect to any account purchased hereunder be less than seven
percent (7.0%) per annum. "Base Rate" means that per annum variable
rate (expressed as a per annum percentage based on a year consisting of
360 days) determined from time to time by KBK without notice to Seller
as KBK's Base Rate for purposes of calculating variable discounts under
KBK's account transfer agreements. Notwithstanding the foregoing, in
the event the KBK Base Rate exceeds the Prime Rate published in THE
WALL STREET JOURNAL by more than 25 basis points for more than 30
consecutive days (the "Rate Termination Event"), Seller shall have the
right for 30 days after such event to terminate this Agreement without
payment of the Termination Fee; provided, however, Seller must notify
KBK in writing of its intention to so terminate within 10 days after
the occurrence of a Rate Termination Event. The Fixed Discount and the
Variable Discount shall be collectively referred to herein as the "KBK
Discounts". The KBK Discounts may be subject to one or more adjustments
during the term of this Agreement if a Performance Based Pricing
Addendum is attached hereto.
6. RESERVE. In the event that KBK believes Seller has breached any
material representation, warranty, covenant or agreement contained
herein (including, without limitation, in the event an account
purchased by KBK becomes a Disputed Account as hereinafter defined),
any account is not paid in full within 90 days from the date of
purchase of such account, or KBK deems itself insecure hereunder, KBK
may at its election, withhold and accumulate the payment of the
Residual Payments ("Reserve") with respect to any or all accounts
purchased hereunder to the extent necessary to maintain a Reserve in an
amount up to the sum of (a) the total Initial Payments made by KBK with
respect to accounts purchased by KBK hereunder which remain
uncollected, plus (b) the total of the KBK Discounts with respect to
such accounts and (c) such other amounts which may become due by Seller
to KBK hereunder or under any other agreement. Seller hereby authorizes
KBK to offset and charge any and all amounts for which Seller or the
Reserve may be obligated to pay to KBK pursuant to the terms of this
Agreement against the Reserve, and at KBK's election, against any funds
of Seller in the possession or control of KBK, from whatever source.
However, if, on any business day that KBK regularly makes a payment to
Seller for accounts purchased, none of the foregoing conditions exists
and no other breach of this Agreement by Seller exists, then KBK shall
distribute to Seller the Residual Payments then due and all funds it
then has on hand that it has collected from accounts that KBK has not
then purchased.
7. CERTAIN SECURITY. For the purpose of securing KBK (a) in the payment of
any and all sums of money that may become due and owing KBK from Seller
by reason of this Agreement, (b) in the performance by Seller of
Seller's obligations hereunder, and under any other agreement,
contract, document, note or other instrument in favor of KBK or its
assignees and (c) in the performance of all the obligations of all
Affiliates (as hereinafter defined) under each Affiliate's agreements,
contracts, documents, notes or other instruments in favor of KBK or its
assigns, Seller hereby grants to KBK a security interest in (i) all of
Seller's present and future accounts, account and contract rights,
proceeds of inventory, contracts, drafts, acceptances, documents,
instruments, chattel paper, deposit accounts, general intangibles and
all products and proceeds therefrom, including all returned or
repossessed goods, as well as all books and records pertaining to all
of the foregoing, (ii) all amounts due as Residual Payments or withheld
by KBK as the Reserve pursuant to Section 6 hereof and (iii) all money
and other funds of Seller now or hereafter in the possession, custody
or control of KBK, from whatever source (the "Collateral"). The term
"Affiliate" shall mean with respect to any person or entity in
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question, any other person or entity owned or controlled by, or which
owns or controls or is under common control or is otherwise affiliated
with such person or entity in question. Seller agrees to execute and
deliver such financing statements under the applicable UCC and other
documents, and make such entries and markings in its books and records
and to take all such other actions, as KBK may request to further
evidence, perfect, preserve or protect the security interest granted to
KBK hereunder. KBK shall have all rights and remedies in respect of the
lien and security interest herein granted as are provided in this
Agreement, the UCC and other applicable law, including the right at any
time, before or after any default by Seller of any of its obligations
hereunder, to notify account debtors and obligors on instruments to
make payment to KBK (or its designee) and to take control of proceeds
to which KBK is entitled, and to apply proceeds to (in addition to
other obligations of Seller to KBK) the reasonable attorneys' fees and
legal expenses incurred by KBK in connection with the disposition of
collateral or the other exercise of rights and remedies by KBK.
Seller hereby authorizes KBK to file in any jurisdiction KBK may deem
appropriate, without the signature of Seller, one or more financing
statements, and all amendments and continuations with respect thereto,
relating to the Collateral and hereby ratifies, confirms and consents
to any such filings made by KBK prior to the date hereof. Seller
further agrees that a carbon, photographic or other reproduction of
this Agreement or any financing statement describing any Collateral is
sufficient as a financing statement and may be filed in any
jurisdiction KBK may deem appropriate.
Seller herein acknowledges and warrants to KBK that it has received and
will receive, direct and indirect benefits by and from granting this
security interest to KBK to secure the obligations of any Affiliate to
KBK.
In the event a security interest has heretofore been granted and given
to KBK by Seller in a prior agreement(s) or document(s) to secure
certain obligations, then, in such event, and notwithstanding anything
in this Agreement to the contrary, including Section 23 hereof, the
lien and security interest herein granted and given to KBK is in
renewal and extension, and not in extinguishment of, all such prior
liens and security interests and are valid and subsisting liens and
security interests to secure all prior, existing and new obligations of
Seller to KBK hereunder and under any such prior agreements, which
obligations are likewise herein renewed and extended, in any manner,
including any action required in connection with or by virtue of the
United States Bankruptcy Code (the "Bankruptcy Code").
8. SERVICING. KBK hereby appoints Seller as servicing agent for KBK
("Servicer") for the purpose of expediting the payment of accounts
purchased by KBK hereunder which become past due. Servicer agrees to
maintain an active, on-going and regular dialogue with each Account
Debtor. Servicer further agrees to utilize all powers, influences and
rights and take every action within its control in accordance with its
customary practices and applicable law to expedite the collection of
the accounts purchased by KBK which become past due and direct such
payments in specie exclusively to the Authorized Remittance Address.
Seller will furnish to KBK, upon request, any and all papers, documents
and records in its possession or control related to accounts purchased
by KBK hereunder, or related to Seller's business relationship with the
respective account debtors, and agrees to cooperate fully with KBK in
all matters related to collection of accounts purchased by KBK
hereunder. KBK reserves the right to terminate such servicing
relationship at any time with or without cause and without notice to
Servicer.
Seller authorizes KBK to forward directly to account debtors statements
or invoices on accounts purchased by KBK hereunder, and to request
payment at such address or to such bank account as may be designated by
KBK. Seller agrees that, if any payment is made to Seller on any
account purchased by KBK from Seller hereunder, Seller (i) will hold
such payment in trust for KBK, (ii) will not commingle such payment
with any funds of Seller, and (iii) will deliver such payment to KBK,
in the exact form received, by the close of business on the next
business day following receipt thereof by Seller. With respect to all
accounts purchased by KBK from Seller hereunder, Seller shall direct
all account debtors for such accounts to remit all payments pertaining
to such accounts directly to the Authorized Remittance Address. If any
payment on such accounts is received by Seller (rather than sent to the
Authorized Remittance Address), Seller shall give prompt notice thereof
to KBK. Without limiting the other rights and remedies of KBK under
this Agreement or otherwise, Seller's failure to strictly comply with
this Section 8 shall constitute an immediate breach of and default
under this Agreement, entitling KBK (in KBK's discretion) to
immediately terminate this Agreement. If any goods relating to an
account purchased by KBK hereunder shall be returned to or repossessed
by Seller, Seller shall give prompt notice thereof to KBK and shall
hold such goods in trust for KBK, separate and apart from Seller's own
property, and such goods shall be owned solely by KBK and be subject to
KBK's direction and control. Seller shall properly store and protect
such goods and agrees to cooperate fully with KBK in any subsequent
disposition thereof for the benefit of KBK.
Seller authorizes KBK to collect, ▇▇▇ for and give releases for in the
name of Seller or KBK in KBK's sole discretion, all amounts due on
accounts sold to KBK hereunder. Seller specifically authorizes KBK to
endorse, in the name of Seller, all checks, drafts, trade acceptances
or other forms of payment tendered by account debtors in payment of
accounts sold to KBK hereunder and made payable to Seller. KBK shall
have no liability to Seller for any mistake in the application of any
payment received with respect to any account, IT BEING THE SPECIFIC
INTENT OF THE PARTIES HERETO THAT KBK SHALL HAVE NO LIABILITY HEREUNDER
FOR ITS OWN NEGLIGENCE except for its own gross negligence or willful
misconduct. Seller hereby waives notice of nonpayment of any account
sold to KBK hereunder as well as any and all other notices with respect
to such accounts, demands or presentations for payment, and agrees that
KBK may extend or renew from time to time the payment of, or vary or
reduce the amount payable under or compromise any of the terms of, any
account purchased by KBK, in each case without notice to or the consent
of Seller. Seller further authorizes KBK (or its designee) to open and
remove the contents of any post office box of Seller or KBK (or its
designee) which KBK believes contains mail relating to accounts, and in
connection therewith or otherwise, to receive, open and dispose of mail
addressed to Seller which KBK believes may relate to accounts, and in
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order to further assure receipt by KBK (or its designee) of mail
relating to such accounts, to notify other parties including customers
and postal authorities to change the address for delivery of such mail
addressed to Seller to such address as KBK may designate. KBK agrees to
use reasonable measures to preserve the contents of any such mail which
does not relate to accounts purchased hereunder and to deliver same to
Seller (or, at the election of KBK, to notify Seller of the address
where Seller may take possession of such contents; provided, if Seller
does not take possession of such contents within 30 days after notice
from KBK to take possession thereof, KBK may dispose of such contents
without any liability to Seller). Seller hereby irrevocably appoints
KBK (and any employee, agent or other person designated by KBK, any of
whom may act without joinder of the others) as Seller's
attorneys-in-fact and agents, in Seller's name, place and stead, to
take all actions, execute and deliver all notices, negotiate such
instruments and other documents, as may be necessary or advisable to
permit KBK (or its designee) to take any and all of the actions
described in this paragraph or to carry out the purpose and intent
thereof, as fully and for all intents and purposes as Seller could
itself do, and hereby ratifies and confirms all that said
attorneys-in-fact and agents may do or cause to be done by virtue
hereof. This power of attorney is irrevocable and deemed coupled with
an interest.
9. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and
warrants to KBK with respect to each account offered by Seller to KBK
hereunder that (i) Seller is the sole owner of such account, which
account is free and clear of any liens, claims, equities or
encumbrances whatsoever, and upon each purchase by KBK of such account,
KBK will own such account free and clear of any liens, claims, equities
or encumbrances whatsoever and the consideration received by Seller
from KBK for such account is fair and adequate, (ii) Seller is the sole
obligee under such account, and has full power and is duly authorized
to sell, assign and transfer such account to KBK hereunder, and the
date of sale of such account is not more than 30 days after the date of
the original invoice relating to such account, (iii) Seller has no
knowledge of any fact which would lead it to expect that, at the date
of sale of such account to KBK , such account will not be paid in the
full stated amount when due except as set forth in Schedule B attached
hereto, (iv) such account arises out of a bona fide sale of conforming
goods or the bona fide rendition of services by Seller, and all
underlying goods have been delivered to the account debtor, or all
underlying services have been rendered by Seller, in complete
fulfillment of all of the terms and conditions of a fully executed,
delivered and unexpired contract with the account debtor, and the
account debtor has accepted the goods or services to which the account
relates, (v) such account is denominated and payable only in United
States dollars and constitutes the legal, valid and binding payment
obligation of the account debtor, enforceable in accordance with its
terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally), (vi)
such account is current and not past due as of the date of purchase by
KBK, has not been paid by or on behalf of the account debtor in whole
or in part, and is not and will not be subject to any dispute,
rescission, set-off except as set forth in Schedule B attached hereto,
recoupment, defense or claim by the account debtor, whether relating to
price, quality, quantity, workmanship, delay in delivery, set off,
counterclaim or otherwise, and the account debtor has not and will not
claim any defense of any kind or character (other than bankruptcy or
insolvency arising after the date of sale of such account to KBK
hereunder) against payment of such account, and (vii) as of the date of
purchase by KBK of such account, the account debtor with respect to
such account is located (within the meaning of Section 9-307 of the
applicable UCC) and has its principal executive offices within the
United States. Seller further represents and warrants to KBK that (a)
the execution, delivery and performance of this Agreement by Seller
have been duly authorized and this Agreement constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms (except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally), (b) Seller is not a debtor in any bankruptcy proceedings,
insolvent, undergoing composition or adjustment of debts or unable to
make payment of its obligations when due and no petition in bankruptcy
has been filed by or against Seller or any Affiliate, nor has Seller or
any Affiliate filed any petition seeking an adjustment of its debts or
for any other relief under the Bankruptcy Code, and no application for
appointment of a receiver or trustee for all or a substantial part of
the property of Seller or any Affiliate is pending, nor has Seller or
any Affiliate made any assignment for the benefit of creditors, (c)
Seller is not in default (i) of any debt or obligation to KBK,
CommerceBank NA or any other lender or finance company, or (ii) of any
debt or obligation in excess of $5000 to any other creditor, (d)
Seller's principal place of business, chief executive office, the
location where all records concerning its books of account and contract
rights are kept, and (except any additional locations listed on
Schedule A attached hereto) the sole location of any property subject
to the security interest granted herein is its "Address for Notices"
set forth on the signature page hereon, and (e) Seller is organized
under the laws of the State of Florida and its charter number or
similar organization number in such state is G58619. Seller agrees not
to change the location of its principal place of business or chief
executive office, the location where its records concerning its books
of account or contract rights are kept, or the location of any property
subject to the security interest granted herein, without giving at
least 15 days advance written notice thereof to KBK pursuant to Section
19 herein. Seller does business under no trade or assumed names except
as may be listed on Schedule A attached hereto.
Each representation and warranty of Seller contained in this Agreement
shall be deemed to be made at and as of the date hereof and at and as
of the date of each sale of accounts to KBK hereunder.
Seller agrees to indemnify and hold all Indemnified Persons (as
hereinafter defined) harmless against any breach by Seller of any
representation, warranty or agreement of Seller contained in this
Agreement, and against any claims or damages arising out of the
manufacture, sale, possession or use of, or otherwise relating to,
goods, or the performance of services, associated with or relating to
accounts or related rights purchased (or with respect to which a
security interest is granted) hereunder. The term "Indemnified Persons"
shall mean KBK and its officers, directors, shareholders, employees,
attorneys, representatives, agents, Affiliates, successors and assigns.
Seller agrees to notify KBK immediately of any breach by Seller of any
representation, warranty or agreement of Seller contained herein or
should any representation, warranty or agreement made herein become
untrue or false at any time. Seller further agrees to notify KBK
immediately of the assertion by any account debtor of any dispute or
other claim (including any defense or offset asserted by any account
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debtor) with respect to any account sold to KBK hereunder, or with
respect to any related goods or services ("Disputed Accounts"). Upon
KBK's request, Seller agrees to settle, at its own expense and for the
benefit of KBK, all such Disputed Accounts; provided, that any such
settlement shall be made only with the prior written consent of KBK.
Unless KBK is advised in writing by Seller to the contrary, any account
that has not been approved by the account debtor within sixty (60) days
from the date of the invoice upon which the account is based, shall be
deemed to be a Disputed Account. As to any Disputed Account, KBK shall
have the right, in its sole discretion, (i) to settle at the expense of
Seller (including all attorneys' fees and expenses of KBK) and for the
benefit of KBK any such dispute or claim upon such terms as KBK may in
its sole discretion deem advisable or (ii) to assign the related
account to Seller, without recourse to KBK , and charge any unpaid
balance with respect thereto (up to the amount of the Initial Payment
with respect thereto and KBK's Discounts through the date of such
charge with respect thereto) against the Reserve or deduct such unpaid
balance from any Initial Payments or against any money or other funds
of Seller in the possession, custody or control of KBK, from whatever
source. Seller agrees that, in lieu of KBK charging any such unpaid
balance against the Reserve, Initial Payments or against such other
funds, KBK may require Seller to pay (and Seller hereby agrees to pay)
to KBK on demand any such unpaid balance. An account with respect to
which the account debtor has asserted an Insolvency Claim is not a
Disputed Account. As used herein, "Insolvency Claim" means any defense
or other claim by an account debtor with respect to an account sold to
KBK hereunder arising solely out of the bankruptcy or insolvency of the
account debtor or the financial inability of the account debtor to pay,
if Seller has not breached its representation contained in clause (vi)
of the first paragraph of this Section. Notwithstanding anything herein
to the contrary, KBK shall have the right to charge all accounts not
paid because of an Insolvency Claim against the Reserve and such charge
shall have priority over and be paid before any Disputed Account
charge. Seller agrees to maintain the additional covenants set forth in
the Addendum attached hereto.
10. FINANCIAL STATEMENTS. Seller represents and warrants that all financial
and other information provided by Seller to KBK in connection with or
in Seller's application to KBK or to induce KBK to enter into this
Agreement is true, complete and correct in all material respects.
Seller agrees to furnish to KBK (i) within 60 days after the last day
of each fiscal year of Seller, a statement of income and a statement of
cash flows of Seller for such fiscal year, and a balance sheet of
Seller as of the last day of such fiscal year, in each case company
prepared, and (ii) within 105 days after the last day of each fiscal
year of AESP, Inc., a consolidated statement of income and a
consolidated statement of cash flows of AESP, Inc. for such fiscal
year, and a consolidated balance sheet of AESP, Inc. as of the last day
of such fiscal year, in each case audited by an independent certified
public accounting firm acceptable to KBK, together with a copy of any
report to management delivered to AESP, Inc. by such accountants in
connection therewith within 10 days of receipt by Seller, and (iii)
within 30 days after the last day of each fiscal month of Seller, an
unaudited statement of income and statement of cash flows of Seller for
such fiscal month, and an unaudited balance sheet of Seller as of the
last day of such fiscal month. Seller represents and warrants that each
such statement of income and statement of cash flows will fairly
present, in all material respects, the results of operations and cash
flows of Seller for the period set forth therein, and that each such
balance sheet will fairly present, in all material respects, the
financial condition of Seller as of the date set forth therein, all in
accordance with generally accepted accounting principles applied on a
consistent basis, except as otherwise noted in the accompanying
auditors' report (or, with respect to unaudited financial statements,
in the notes thereto). Seller also agrees to furnish to KBK, upon
request, such additional financial and business information concerning
Seller and its business as KBK may reasonably request, including copies
of its Form 941 returns filed with the Internal Revenue Service and
evidence of payment of related taxes. KBK and its agents,
representatives and accountants shall have the right, at all times
during normal business hours and without prior notice to Seller, to
conduct an audit or other examination of the financial and business
records of Seller and to examine and make copies of all books and
records of Seller for the purpose of assuring or verifying compliance
by Seller with the terms of this Agreement, and Seller agrees to
cooperate fully with KBK and its agents, representatives and
accountants in connection therewith and to timely pay all costs
associated with such audits at a rate equal to $750.00 per day, per
person, plus out-of-pocket expenses. Seller agrees to properly reflect
the effect of this Agreement, and all sales related thereto, in all
financial reports and disclosures, written or otherwise, provided to
Seller's creditors and other interested parties. Seller specifically
agrees that all accounts purchased by KBK will be excluded from
Seller's reported accounts receivable balances. Seller also
specifically agrees to immediately notify KBK of any material adverse
change in Seller's financial condition or business. Seller agrees to
provide an Accounts Payable aging on a monthly basis within 5 days of
month end.
11. TAXES. All taxes and governmental charges of any kind imposed with
respect to the sale of goods or the rendering of services relating to
accounts purchased by KBK hereunder shall be for the account of, and
paid by, Seller.
12. FEES. Seller hereby agrees to pay to KBK on the execution hereof a
one-time commitment fee (the "Commitment Fee") of ten thousand and
No/100 Dollars ($10,000.00). Seller and KBK acknowledge and agree that
the Commitment Fee is intended as reasonable compensation to KBK for
making this facility available under the terms of this Agreement and
for no other purpose.
Seller hereby agrees to pay to KBK a termination fee equal to two
percent (2.00%) of the Facility Amount (the "Termination Fee") and the
payment shall be an obligation of Seller secured under Section 7
hereof. This Termination Fee is payable upon termination of this
Agreement by Seller for any reason or upon termination by KBK at its
election for the reasons set forth in the second sentence of Section 13
below. However, if this Agreement is so terminated after the expiration
of one (1) year from the date of KBK's execution hereof, but before the
expiration of two (2) years from such date, one-half of the Termination
Fee shall be waived. If the Agreement is terminated more than two (2)
years after the date of KBK's execution hereof, all of the Termination
Fee shall be waived.
If Seller provides information electronically to KBK (e.g., by email,
via the internet, the world wide web, etc.) with respect to the
accounts that Seller sells to KBK and such information does not conform
5
to the data download parameters that KBK has provided to Seller (which
parameters may changed from time to time in KBK's discretion; provided
that KBK shall notify Seller of any changes in such parameters before
KBK shall be entitled to charge the Additional Processing Fee described
below), Seller agrees to pay to KBK a processing and handling fee
("Additional Processing Fee") equal to fifty cents ($0.50) per invoice
and/or cash receipt entry that does not so comply with such parameters.
In no event shall the additional processing fee be less than one
hundred and fifty Dollars ($150.00) per data file.
13. TERMINATION. This Agreement may be terminated by either party hereto by
delivery of written notice of termination of this Agreement to the
other party specifying the date of termination, which date shall be at
least 30 days after the date such notice is given. KBK may, at its
election, terminate this Agreement immediately and without the
requirement of notice to Seller if (i) Seller shall fail to perform any
of its obligations hereunder or shall breach any of its representations
and warranties hereunder, (ii) Seller or any of its Affiliates shall
become insolvent or suspend all or a substantial part of its or their
business, (iii) a petition under the Bankruptcy Code or any other
insolvency or debtor statute shall be filed by or against Seller or any
Affiliate or any receivership proceedings with respect thereto shall
commence, (iv) any guarantee of any of Seller's obligations hereunder
shall be terminated or become impaired, (v) an event of default occurs
under any other agreement now or hereafter executed between Seller and
KBK, or (vi) KBK in good faith otherwise determines that it is insecure
hereunder.
Termination of this Agreement shall not affect the rights and
obligations of the parties hereunder with respect to transactions
occurring on or prior to the date of such termination, and this
Agreement shall continue to govern the rights and obligations of the
parties hereto with respect to accounts purchased by KBK from Seller on
or prior to the date of such termination. All security interests
granted or contemplated by this Agreement shall survive the termination
of this Agreement until all amounts payable to KBK with respect to
transactions occurring on or prior to the date of termination have been
paid to KBK, and Seller has performed all its obligations to KBK with
respect to such transactions and all obligations under this Agreement
including but not limited to payment of any fees owing hereunder.
14. Intentionally omitted.
15. ATTORNEY'S FEES, LITIGATION EXPENSE. Seller agrees to reimburse KBK
upon demand for KBK's attorneys' fees, court costs and other fees and
expenses incurred in collecting any sums due or to become due to KBK
hereunder, enforcing any of KBK's rights under this Agreement and all
actions taken by KBK that it deems necessary or desirable under the
Bankruptcy Code or should any provisions of the Bankruptcy Code be
applicable to any rights or obligations of any party to this Agreement,
as well as all appearances, motions and actions to which KBK may be or
become a party in any bankruptcy case.
16. GOVERNING LAW; VENUE; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF, EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION
OR NON-PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF TEXAS. THIS AGREEMENT IS
PERFORMABLE BY THE PARTIES IN TARRANT COUNTY, TEXAS. SELLER AND KBK
EACH AGREE THAT TARRANT COUNTY, TEXAS SHALL BE THE EXCLUSIVE VENUE FOR
LITIGATION OF ANY DISPUTE OR CLAIM ARISING UNDER OR RELATING TO THIS
AGREEMENT, AND THAT SUCH COUNTY IS A CONVENIENT FORUM IN WHICH TO
DECIDE ANY SUCH DISPUTE OR CLAIM. SELLER AND KBK EACH CONSENT TO THE
PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
TARRANT COUNTY, TEXAS FOR THE LITIGATION OF ANY SUCH DISPUTE OR CLAIM.
SELLER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
17. WAIVER OF JURY TRIAL. SELLER AND KBK EACH HEREBY IRREVOCABLY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR ASSOCIATED HEREWITH.
18. AMENDMENTS; WAIVERS. This Agreement may be amended only in writing
signed by the parties hereto. No failure on the part of KBK to
exercise, and no delay by KBK in exercising, and no course of dealing
by KBK with respect to, any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder by KBK
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies of KBK hereunder are
cumulative and not exclusive of any remedies provided by law.
19. NOTICES. All notices and other communications provided for herein shall
be given or made in writing and telecopied or delivered by courier or
mail to the intended recipient at the "Address for Notices" specified
opposite its name on the signature page hereto, or at such other
address or telecopy number as shall be designated by a party to the
other party in the manner specified in this Section. All such notices
and other communications shall be deemed to have been duly given when
6
transmitted by telecopier (with receipt thereof confirmed by
telecopier) or personally delivered or, in the case of a mailed notice,
upon deposit in the United States Postal System postage prepaid and
properly addressed, in each case given or addressed as aforesaid.
20. INDEMNIFICATION. Seller agrees to indemnify, defend and hold the
Indemnified Persons harmless from and against any and all loss,
liability, obligation, damage, penalty, judgment, claim, deficiency and
expense (including interest, penalties, attorneys' fees and amounts
paid in settlement) owing to any third party to which any Indemnified
Person may become subject arising out of or based upon this Agreement
as well as any prior relationship of Seller with any Indemnified
Person, WHETHER BY ALLEGED OR ACTUAL NEGLIGENCE OF ANY INDEMNIFIED
PERSON, except and to the extent caused by the gross negligence or
willful misconduct of any Indemnified Person.
21. WAIVER AND RELEASE. Seller, by its execution of this Agreement, does
hereby covenant, warrant and represent that (i) Seller is not in
default and no default exists under any prior agreements or
transactions with KBK, (ii) Seller releases, relinquishes and waives
any and all defenses to the enforceability of any prior agreements or
transactions with KBK in connection therewith to which Seller may have
otherwise been entitled as of the date hereof, (iii) Seller
relinquishes, waives and releases KBK from any and all claims known or
unknown which Seller may or might have against KBK arising directly or
indirectly out of or from any prior agreements or transactions between
Seller and KBK, (iv) the benefit received and to be received by Seller
as a result of this Agreement shall and does constitute sufficient and
valuable consideration to Seller for entering into and performing its
obligations under this Agreement, (v) the execution, delivery and
performance by Seller of this Agreement and the consummation of the
transaction contemplated thereby are (a) not prohibited by any
indenture, contract or agreement, law or corporate or partnership
documents, including, but not limited to the Bylaws and Articles of
Incorporation or Certificate of Incorporation, as the case may be, if
Seller is a corporation, or Seller's partnership agreement, if Seller
is a partnership, (b) duly authorized by appropriate action of Seller,
and (c) legally valid and binding obligations of Seller and will
continue to be such and enforceable against the Seller according to
their terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally), (vi)
that this Agreement will be executed and delivered by properly
authorized officers of Seller, (vii) KBK has no obligation to continue
the prior agreements or enter into this Agreement except for the
considerations herein expressed, and (viii) the representations and
warranties set forth herein will survive the execution and delivery of
this Agreement.
22. CAPTIONS; FINAL AGREEMENT; COUNTERPARTS; SUCCESSORS AND ASSIGNS.
Captions and headings appearing herein are included solely for
convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement. This Agreement
represents the final agreement between the parties hereto with respect
to the subject matter hereof, and supersedes all prior proposals,
negotiations, agreements and understandings, oral or written, related
to such subject matter. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument. Delivery of an executed counterpart of this Agreement
by telecopy shall be equally as effective as delivery of a manually
executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by telecopy also shall deliver a
manually executed counterpart of this Agreement but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement. This Agreement
may not be assigned by Seller without the prior written consent of KBK.
This Agreement may be assigned by KBK, and any accounts purchased by
KBK hereunder, together with all rights and interests related thereto
granted to KBK hereunder, may be assigned by KBK, all without notice to
or the consent of Seller. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns.
23. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective only
upon acceptance by KBK at its offices in Fort Worth, Tarrant County,
Texas as evidenced by KBK's signature hereon.
24. TRUE SALES. Seller and KBK acknowledge and agree that the sale of
accounts contemplated and covered hereby are fully intended by the
parties hereto as true sales governed by the provisions of Section
306.103 of the Texas Finance Code and Section 9.109(e) of the Texas
Business and Commerce Code, as each may be amended from time to time,
and, accordingly, legal and equitable title in all of Seller's accounts
sold to and purchased by KBK from time to time hereunder will pass to
KBK.
25. EXPENSES. KBK shall be entitled to reimbursement upon demand for all
reasonable out of pocket expenses incurred by KBK in the course of
performing its functions with respect to this Agreement, including
without limitation, the following: lock box charges, long-distance
telephone charges, postage, credit reports, wire transfers, check
copying charges, overnight mail delivery, UCC and tax lien searches and
filing fees. Seller hereby authorizes KBK, in KBK's sole discretion, to
collect such expenses (i) by reducing the Initial Payment; (ii) by
deducting such amounts from the Residual Payments (Reserve); or (iii)
by using any combination of the foregoing. This authorization shall not
affect Seller's obligation to pay such sums to KBK on demand
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IN WITNESS WHEREOF, the parties hereto, heretofore duly authorized, have
executed this Agreement as of the date first set forth above.
Address for Notices: AESP, INC.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President and CEO
Address for Notices: KBK FINANCIAL, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ PLAZA By: /s/
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ --------------------------
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ Name:
Title:
Date:
--------------------------
STATE OF SS.
--------------- SS.
COUNTY OF SS.
--------------
The foregoing instrument was acknowledged before me this ____ day of
___________, 20____, by _________________ as _____________ of
_________________________________.
Witness my hand and official seal.
My Commission expires:
----------------- -----------------------------
(Notary Public)
8
SCHEDULE A
TO
ACCOUNT TRANSFER AND PURCHASE AGREEMENT
Dated September 18, 2003
By and Between
KBK FINANCIAL, INC.
AND
AESP, INC.
The addresses of any other locations of Collateral referenced in Section 9:
None
Any trade or assumed names referenced in Section 9:
(1) Advanced Electronic Support Products
(2) Advanced Electronic Manufacturing
(3) Signamax Connectivity Systems
ADDENDUM
to Account Transfer and Purchase Agreement between KBK FINANCIAL, INC., a
Delaware corporation ("KBK") 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. 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 .75 to 1.0.
(b) TANGIBLE NET WORTH. At the end of each fiscal month, its
Tangible Net Worth at not less than Two Million Seven Hundred
Thousand and NO/100 dollars ($2,700,000.00).
(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 KBK.
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 KBK 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 KBK, such subordination
to be evidenced by a written agreement between Seller and the
subordinated creditor which is in form and substance satisfactory to
KBK.
AESP, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President and CEO
KBK FINANCIAL, INC.
By:
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Name:
-----------------------------------
Title:
-----------------------------------