Looking for an agreement? Search from over 1 million agreements now.

Account Transfer And Purchase Agreement

This is an actual contract by AESP.

Save time and money with our Premium Packages.
Buy all (8) recommended agreements for
$140.00 (50% savings)
Agreement Preview
Sectors: Computer Hardware
Governing Law: Texas, View Texas State Laws
Effective Date: September 18, 2003
Search This Document
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: P.O.
Box 550741, Tampa, Florida 033655-0741 ("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.


1


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


2


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 d
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  3.85.143.239