EXHIBIT 10.28
THIRD AMENDMENT TO ACCOUNT TRANSFER AND PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO ACCOUNT TRANSFER AND PURCHASE AGREEMENT (this
"Amendment") is entered into by and between H.E.R.C. PRODUCTS INCORPORATED a
Delaware corporation and H.E.R.C. CONSUMER PRODUCTS, INC., an Arizona
corporation (collectively, the "Seller"), and S. Xxxxxx Xxxx, the "Guarantor"
and KBK FINANCIAL, INC., a Minnesota corporation ("KBK").
WHEREAS, Seller and KBK entered into that certain Account Transfer and Purchase
Agreement dated as of September 22, 1997, 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
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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
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Section 2.01 Effective as of the date hereof, the "Authorized Remittance
Address" disclosed in Section 2 of the Purchase Agreement is hereby amended to
read as follows:
"P.O. Xxx 0000, Xxxx Xxxxx, XX 00000"
Section 2.02 Effective as of the date hereof, the first sentence of Section 5 of
the Purchase Agreement is hereby amended in its entirety to read as follows:
""Fixed Discount" means a discount of one percent (1.00%) of the Gross Amount of
such account.
Section 2.03 Effective as of the date hereof, the Addendum to the Purchase
Agreement is hereby deleted in its entirety.
ARTICLE III
Representations, Warranties, Ratification and Reaffirmation
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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 Guarantor previously executed that certain Limited Guaranty (the
"Guaranty Agreement") dated September 22, 1997 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. 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
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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 5, 2004.
SELLER:
H.E.R.C. PRODUCTS INCORPORATED
By:
Name: S. Xxxxxx Xxxx
Title: Chief Executive Officer
H.E.R.C. CONSUMER PRODUCTS, INC.
By:
Name: S. Xxxxxx Xxxx
Title: Chief Executive Officer
GUARANTORS:
S XXXXXX XXXX
KBK:
KBK FINANCIAL, INC.
By:
Name:
Title:
Date:____________________________
STATE OF VIRGINIA
COUNTY OF PORTSMOUTH
The foregoing instrument was acknowledged before me this 5th day of April,
2004 by S. Xxxxxx Xxxx as Chief Financial Officer of H.E.R.C. Products
Incorporated and H.E.R.C Consumer Products, Inc. and individually.
Witness my hand and official seal.
My Commission expires: (Notary Public)
