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EXHIBIT 10.29.1
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 BASIS, INC., an Arizona corporation
("Seller"), Prologic Management Systems, Inc., (the "Guarantor") and KBK
FINANCIAL, INC., a Delaware corporation ("KBK").
WHEREAS, Seller and KBK entered into that certain Account Transfer and
Purchase Agreement dated as of March 29, 2001, as amended from time to time
(collectively, the "Purchase Agreement"); 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, the second paragraph of Section 2
of the Purchase Agreement is hereby amended in its entirety to read as follows:
"In connection with each offer of accounts to KBK, Seller agrees to
deliver to KBK a written assignment of such accounts, 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. 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: X.X.
Xxx Xxxx 00000, X.X. 00000, Xxx Xxxxxxxxx, XX 00000-0000 ("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 herein 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."
Section 2.02 Effective as of the date hereof, the first paragraph of Section 4
of the Purchase Agreement is hereby amended in its entirety to read as follows:
"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)."
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
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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 Guarantor previously executed that certain Limited Guaranty (the
"Guaranty Agreement") dated March 29, 2001, for the benefit of KBK to
unconditionally guarantee the payment by Seller of losses incurred by KBK under
the Purchase Agreement, as more fully described therein. Guarantor, by executing
this Amendment, hereby consents to this Amendment and agrees 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 Guarantor. Guarantor acknowledges and agrees that there are no claims or
offsets against, or defenses or counterclaims to, the terms and provisions of
the Guaranty Agreement or the obligations created or evidenced thereby.
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.
EXECUTED as of April 17, 2001.
SELLER:
BASIS, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Secretary/Treasurer
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GUARANTOR:
PROLOGIC MANAGEMENT SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: President
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KBK:
KBK FINANCIAL, INC.
By: /s/ Xxxxxx XxXxx
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Name: Xxxxxx XxXxx
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Title: Vice President
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