Page 1 of 23
FACTORING AND SECURITY AGREEMENT
THIS FACTORING AND SECURITY AGREEMENT is made as of June 24,
2002 by and between UDT Consulting, Inc., a Texas Corporation
("Seller") and LANDRY MARKS PARTNERS LP, a Texas limited
partnership ("Purchaser").
1. Definitions. The following terms used herein shall
have the following meaning. All capitalized terms not herein
defined shall have the meaning set forth in the Uniform
Commercial Code:
1.1 "Account" - this term shall have the same
definition as given to it in the Uniform Commercial Code.
1.2 "Advance" - for each Purchased Account, the
Purchase Price minus the product of (A) the Reserve Percentage
multiplied by (B) the Face Amount.
1.3 "Account Debtor" - this term shall have the same
definition as given to it in the Uniform Commercial Code.
1.4 "Avoidance Claim" - any claim that any payment
received by Purchaser from or for the account of an Account
Debtor is avoidable under the Bankruptcy Code or any other debtor
relief statute.
1.5 "Chosen State" - Texas.
1.6 "Clearance Days" - three (3) business days for
all payments.
1.7 "Closed" - a Purchased Account is closed upon the
first to occur of (i) receipt of full payment by Purchaser or
(ii) the unpaid Face Amount has been charged to the Reserve
Account by Purchaser pursuant to the terms hereof.
1.8 "Late Payment Fee" - a fee in the amount of One-
half percent (1/2%) of the Face Amount of a Purchased Account.
1.9 "Collateral" - all now owned and hereafter
acquired Accounts, Chattel Paper, Instruments, including
Promissory Notes, Documents, and General Intangibles.
1.10 "Discounts" - the Initial Discount plus the
Additional Discount.
1.11 "Eligible Account" - an Account which is
acceptable for purchase as determined by Purchaser in the
exercise of its reasonable sole credit or business judgment.
1.12 "Events of Default" - See Section 13.1.
1.13 "Face Amount" - the face amount due on a Purchased
Account at the time of Purchase.
1.14 "Additional Discount" - the Additional Discount
Percentage multiplied by the Advance, less any payments made on
such Account, for a Purchased Account, for each calendar day that
any portion thereof remains unpaid, computed from the date on
which a Purchased Account was purchased to and including the
Ineligible Account Date.
1.15 "Additional Discount Percentage" - Wall Street
Journal Prime Rate plus two percent (2%) per annum, computed and
applied on a daily basis.
1.16 "Initial Discount" - two and one half percent (2
1/2 %) of the Face Amount.
Page 1 of 14
1.17 "Invoice" - the document that evidences or is
intended to evidence an Account. Where the context so requires,
reference to an Invoice shall be deemed to refer to the Account
to which it relates.
1.18 "Default Charge" - .15% per day on all amounts due
from Seller to Purchaser.
1.19 "Ineligible Account Date" - the date which is
sixty (60) days from the date on which a Purchased Account was
purchased.
1.20 "Maximum Amount"- $200,000.
1.21 "Misdirected Payment Fee" - fifteen percent (15%)
of the amount of any payment on account of a Purchased Account
which has been received by Seller and not delivered in kind to
Purchaser.
1.22 "Missing Notation Fee" - fifteen percent (3%) of
the Face Amount.
1.23 "Obligations" - all present and future obligations
owing by Seller to Purchaser whether or not for the payment of
money, whether or not evidenced by any note or other instrument,
whether direct or indirect, absolute or contingent, due or to
become due, joint or several, primary or secondary, liquidated or
unliquidated, secured or unsecured, original or renewed or
extended, whether arising before, during or after the
commencement of any bankruptcy case in which Seller is a Debtor,
including but not limited to any obligations arising pursuant to
letters of credit or acceptance transactions or any other
financial accommodations.
1.24 "Parties" - Seller and Purchaser.
1.25 "Purchase Price" - the Face Amount less the
Initial Discount.
1.26 "Purchased Accounts" - Eligible Accounts purchased
hereunder which have not been Repurchased.
1.27 "Repurchased" - an Account has been repurchased
when Seller has paid to Purchaser the then unpaid Face Amount.
1.28 "Required Reserve Amount" - the Reserve Percentage
multiplied by the unpaid balance of Purchased Accounts.
1.29 "Reserve Account" - a bookkeeping account on the
books of the Purchaser representing an unpaid portion of the
Purchase Price, maintained by Purchaser to ensure Seller's
performance with the provisions hereof.
1.30 "Reserve Percentage" - twenty percent (20%).
1.31 "Reserve Shortfall" - the amount by which the
Reserve Account is less than the Required Reserve Amount.
1.32 "Schedule of Accounts" - a form supplied by
Purchaser from time to time wherein Seller lists such of its
Accounts as it requests that Purchaser purchase under the terms
of this Agreement.
2. Sale; Purchase Price; Billing; Reserve
--------------------------------------
2.1 Assignment and Sale.
2.1.1 Seller shall sell to Purchaser as absolute
owner, with full recourse, such of Seller's Accounts as are
listed from time to time on Schedules of Accounts.
2.1.2 Each Schedule of Accounts shall be
accompanied by such documentation supporting and evidencing the
Account as Purchaser shall from time to time request.
Page 2 of 14
Purchaser shall have the right, but not the obligation, to
purchase from Seller such Accounts as Purchaser determines to be
Eligible Accounts, so long as the aggregate Advances, less
payments received on such Accounts does not exceed, before and
after such purchase, the Maximum Amount.
Purchaser shall pay the Advance, less any amounts due to
Purchaser from Seller, of any Purchased Account, to Seller
whereupon the Accounts shall be deemed purchased hereunder.
2.2 Billing. In the event Purchaser desires to
confirm amounts directly with Seller's customer, upon reasonable
prior notice to Seller, Purchaser may send a statement to all
Account Debtors itemizing their account activity during the
preceding billing period. All Account Debtors will be instructed
to make payments to Purchaser prior to an Account being purchased
by Purchaser, and Purchaser's obligation to Purchase an Account
shall be expressly conditioned upon such notification.
2.3 Reserve Account.
2.3.1 Seller shall pay to Purchaser on demand the
amount of any Reserve Shortfall.
2.3.2 Purchaser shall pay to Seller weekly, any
amount by which the Reserve Account exceeds the Required Reserve
Amount.
2.3.3 Purchaser may charge the Reserve Account with
any Obligation, including any amounts due from Seller to
Purchaser hereunder.
2.3.4 Purchaser may pay any amounts due Seller
hereunder by a credit to the Reserve Account;
2.3.5 Upon termination of this Agreement, Purchaser
may retain the Reserve Account:
2.3.5.1 for forty-five (45) days thereafter to be
applied to payment of any Obligations that were unknown to
Purchaser at the time of termination, and
2.3.5.2 unless and until Seller has executed and
delivered to Purchaser a general release in the form of Exhibit A
hereto.
3. Authorization for Purchases. Subject to the terms and
conditions of this Agreement, Purchaser is authorized to purchase
Accounts upon telephonic, facsimile or other instructions
received from any of Mike Teachworth, Brian Dewhirst or David
Pilotte, each a Vice President of Seller.
4. Fees and Expenses. Seller shall pay to Purchaser:
4.1 Additional Discount. The Additional Discount on
the date on which a Purchased Account is Closed, which amount may
also be charged against the Reserve Account.
4.2 Misdirected Payment Fee. Any Misdirected Payment
Fee immediately upon its accrual.
4.3 Missing Notation Fee. The Missing Notation Fee on
any Invoice that is sent by Seller to an Account Debtor which
does not contain the notice as required by Section 10.5 hereof,
which fee shall be due and payable immediately upon demand from
Purchaser.
4.4 Late Payment Fee. The Late Payment Fee, on all
Accounts not Closed within 30 days after purchase by Purchaser.
For each Account not Closed by such deadline, Purchaser shall
charge the Late Payment Fee on the 31st day after purchase, and
each 15th day thereafter until such Account is Closed.
4.5 Out-of-pocket Expenses. The out-of-pocket
expenses directly incurred by Purchaser in the administration
and/or enforcement of this Agreement such as wire transfer fees,
postage and audit fees.
Page 3 of 14
5. Repurchase Of Accounts. Purchaser may require that
Seller repurchase, and Seller may, at its option repurchase, by
payment of the then unpaid Face Amount thereof, together with any
unpaid Discounts and/or fees relating to the Purchased Account
within three (3) business days after written demand from
Purchaser/Seller, or, at Purchaser's option, by Purchaser's
charge to the Reserve Account:
5.1 Any Purchased Account, the payment of which has
been disputed by the Account Debtor obligated thereon, Purchaser
being under no obligation to determine the merit or validity of
such dispute;
5.2 Any Purchased Account for with Seller has breached
its warranty under Section 12 hereunder;
5.3 Any Purchased Account owing from an Account Debtor
which in Purchaser's reasonable credit judgement has become
insolvent;
5.4 All Purchased Accounts upon the occurrence of an
Event of Default, or upon the termination date of this Agreement;
and
5.5 Any Purchased Account which remains unpaid beyond
the Ineligible Account Date.
6. Security Interest.
6.1 As collateral securing the Obligations, Seller
grants to Purchaser a continuing first priority security interest
in and to the Collateral.
6.2 Notwithstanding the creation of the above security
interest, the relationship of the parties shall be that of
Purchaser and Seller of Accounts, and not that of lender and
borrower.
7. Clearance Days. For purposes of section 2.3 under
this Agreement, Clearance Days will be added to the date on which
any payment is received by Purchaser. Clearance days will not be
added to receipts on the Accounts.
8. Authorization to Purchaser.
8.1 Seller hereby irrevocably authorizes Purchaser at
Seller's expense, to exercise at any time any of the following
powers until all of the Obligations have been paid in full: (a)
receive, take, endorse, assign, deliver, accept and deposit, in
the name of Purchaser or Seller, any and all cash, checks,
commercial paper, drafts, remittances and other instruments and
documents relating to the Collateral or the proceeds thereof, (b)
take or bring, in the name of Purchaser or Seller, all steps,
actions, suits or proceedings deemed by Purchaser necessary or
desirable to effect collection of or other realization upon the
Accounts and other Collateral, (c) after an Event of Default,
change the address for delivery of mail to Seller and to receive
and open mail addressed to Seller, (d) after an Event of Default,
extend the time of payment of, compromise or settle for cash,
credit, return of merchandise, and upon any terms or conditions,
any and all Accounts or other Collateral which includes a
monetary obligation and discharge or release any Account Debtor
or other obligor (including filing of any public record releasing
any lien granted to Seller by such account debtor), without
affecting any of the Obligations, (e) pay any sums necessary to
discharge any lien or encumbrance which is senior to Purchaser's
security interest in the Collateral, which sums shall be included
as Obligations hereunder, and in connection with which sums the
Default Charge shall accrue and shall be due and payable, (f)
file in the name of Seller or Purchaser or both, (1) mechanics
lien or related notices or (2) claims under any payment bond, in
connection with goods or services sold by Seller in connection
with the improvement of realty, and (g) notify any Account Debtor
obligated with respect to any Account, that the underlying
Account has been assigned to Purchaser by Seller and that payment
thereof is to be made to the order of and directly and solely to
Purchaser, and (h) communicate directly with Seller's Account
Debtors to verify the amount and validity of any Account created
by Seller.
8.2 Seller authorizes Purchaser at any time and from
time to time to file any initial financing statements and
amendments thereto that:
Page 4 of 14
8.2.1 indicate the Collateral (as defined in
section 1.9 above) of the Seller or words of similar effect,
regardless of whether any particular asset comprised in the
Collateral falls within the scope of Article 9 of the UCC, or as
being of an equal or lesser scope or with greater detail;
8.2.2 contain any other information required by
Article 9 of the UCC for the sufficiency or filing office
acceptance of any financing statement or amendment, including (i)
whether the Seller is an organization, the type of organization,
and any organization identification number issued to the Seller
and, (ii) in the case of a financing statement filed as a fixture
filing or indicating Collateral as as-extracted collateral or
timber to be cut, a sufficient description of real property to
which the Collateral relates;
8.2.3 contain a notification that the Seller has
granted a negative pledge to the Purchaser, and that any
subsequent lienor may be tortuously interfering with Purchaser's
rights; and
8.2.4 advises third parties that any notification
of Seller's Account Debtors will interfere with Purchaser's
collection rights.
8.3 Seller hereby releases and exculpates Purchaser,
its officers, employees and designees, from any liability arising
under this Agreement or in furtherance thereof, whether of
omission or commission, and whether based upon any error of
judgment or mistake of law or fact, except for willful
misconduct. In no event will Purchaser have any liability to
Seller for lost profits, punitive, exemplary, speculative or
other special or consequential damages. Without limiting the
generality of the foregoing, Seller releases Purchaser from any
claims which Seller may now or hereafter have arising out of
Purchaser's endorsement and deposit of checks issued by Seller's
customers stating that they were in full payment of an Account,
but issued for less than the full amount which may have been owed
on the Account.
8.4 Seller authorizes Purchaser to accept, indorse and
deposit on behalf of Seller any checks tendered by an Account
Debtor "in full payment" of its obligation to Seller. Seller
hereby waives, and agrees that it shall not assert against
Purchaser any claim arising therefrom, irrespective of whether
such action by Purchaser effects an accord and satisfaction of
Seller's claims under the Uniform Commercial Code, or otherwise.
9. ACH Authorization. In order to satisfy any of the
Obligations, Purchaser is hereby authorized by Seller to initiate
electronic debit or credit entries through the ACH system to any
deposit account maintained by Seller wherever located.
10. Covenants By Seller.
10.1 Seller shall not, without the prior written
consent of Purchaser in each instance, (a) grant any extension of
time for payment of any of the Purchased Accounts, (b) compromise
or settle any of the Purchased Accounts for less than the full
amount thereof, (c) release in whole or in part any Account
Debtor, or (d) grant any credits, discounts, allowances,
deductions, return authorizations or the like with respect to any
of the Purchased Accounts.
10.2 From time to time as requested by Purchaser, at
the sole expense of Seller, Purchaser or its designee shall have
unrestricted access, during reasonable business hours if prior to
an Event of Default and at any time if on or after an Event of
Default, to all premises where the Collateral is located for the
purposes of inspecting (and removing, if after the occurrence of
an Event of Default) any of the Collateral, including Seller's
books and records, and Seller shall permit Purchaser or its
designee to make copies of such books and records or extracts
therefrom as Purchaser may request.
10.3 Seller shall furnish to Purchaser on a monthly
basis such financial statements and other financial information
as Purchaser may from time to time request. All such financial
statements shall show all material contingent liabilities and
shall accurately and fairly present the results of operations and
the financial condition of Seller at the dates and for the period
indicated. Without limitation of the foregoing, Seller shall
furnish to Purchaser the following statements:
Page 5 of 14
10.3.1 Income statements of the Seller dated as of
the last day of each month, to be delivered within 20 days after
the end of each month and certified by Seller as true, correct,
and complete, and yearly income statements of Seller to be
delivered within 90 days after the end of each fiscal year and
certified by Seller as true, correct, and complete.
10.3.2 Schedules containing the aging of accounts
receivable and accounts payable of the Seller dated as of the
last day of each month, to be delivered within 5 business days
after the end of each month and certified by the Seller to be
true, correct and complete.
10.3.3 Annual balance sheets and financial
statements from Seller within 90 days of the end of each fiscal
year of the reporting party, which are true and correct in all
respects, have been prepared in accordance with GAAP, and fairly
present the financial condition(s) of the person(s) referred to
therein as of the date(s) indicated.
10.3.4 If Seller fails to furnish or cause to be
furnished promptly any report required above, or if Purchaser
reasonably deems such reports to be unacceptable, Purchaser may
elect (in addition to exercising any other right and remedy) to
conduct an audit of all books and records of Seller and/or
prepare the statement or statements which Seller failed to
procure and deliver. Such audit shall be made and such statement
or statements shall be prepared by an independent firm of
certified public accountants to be selected by Purchaser. Seller
shall pay all reasonable expenses of the audit and other
services, which expenses shall be immediately due and payable
with interest thereon at the rate of twelve percent (12%) per
annum.
10.4 Without expense to Purchaser, Purchaser may use
any of Seller's personnel, equipment, including computer
equipment, programs, printed output and computer readable media,
supplies and premises for the collection of Accounts and
realization on other Collateral as Purchaser, in its sole
discretion, deems appropriate. Seller hereby irrevocably
authorizes all accountants and third parties to disclose and
deliver to Purchaser at Seller's expense all financial
information, books and records, work papers, management reports
and other information in their possession relating to Seller.
10.5 Before sending any Invoice to an Account Debtor,
Seller shall mark same with a notice of assignment as may be
required by Purchaser.
10.6 Seller shall pay when due all payroll and other
taxes, and shall provide proof thereof to Purchaser in such form
as Purchaser shall reasonably require.
10.7 Seller shall not create, incur, assume or permit
to exist any lien upon or with respect to any Collateral now
owned or hereafter acquired by Seller.
10.8 Seller shall maintain insurance on all insurable
property owned or leased by Seller in the manner, to the extent
and against at least such risks (in any event, including but not
limited to fire and business interruption insurance) as usually
maintained by owners of similar businesses and properties in
similar geographic areas. All such insurance shall be in amounts
and form and with insurance companies acceptable to Purchaser in
its sole discretion. Seller shall furnish to Purchaser: (a) upon
written request, any and all information concerning such
insurance carried; (b) as requested by Purchaser, loss payee
endorsements (or their equivalent) in favor of Purchaser. All
policies of insurance shall provide for not less than thirty (30)
day's prior written cancellation notice to Purchaser.
10.9 Notwithstanding that Seller has agreed to pay the
Misdirected Payment Fee, Seller shall deliver in kind to
Purchaser no later than the second business day following the
date of receipt by Seller of the amount of any payment on account
of a Purchased Account. Such delivery shall be to a P.O. box
at_______________________ (address) or to the offices of
Purchaser: 5950 Sherry Lane, Suite 750, Dallas, TX 75225.
Page 6 of 14
10.10 Avoidance Claims.
10.10.1 Seller shall indemnify Purchaser from any
loss arising out of the assertion of any Avoidance Claim and
shall pay to Purchaser on demand the amount thereof.
10.10.2 Seller shall notify Purchaser within two
business days of it becoming aware of the assertion of an
Avoidance Claim.
10.10.3 This provision shall survive termination of
this Agreement.
11. Account Disputes. Seller shall notify Purchaser
promptly of and, if requested by Purchaser, will settle all
disputes concerning any Purchased Account, at Seller's sole cost
and expense. Purchaser may, but is not required to, attempt to
settle, compromise, or litigate (collectively, "Resolve") the
dispute upon such terms as Purchaser in its sole discretion deem
advisable, for Seller's account and risk and at Seller's sole
expense. Upon the occurrence of an Event of Default Purchaser
may Resolve such issues with respect to any Account of Seller.
12. Representation and Warranties. Seller represents and
warrants that:
12.1 It is fully authorized to enter into this
Agreement and to perform hereunder;
12.2 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); and
12.3 Seller is solvent and in good standing in the
State of its organization.
12.4 Each Purchased Account is and will remain:
12.4.1 a bona fide existing obligation created by
the sale and delivery of conforming goods or the rendition of
services in the ordinary course of Seller's business, and all
underlying goods have been delivered to the Account Debtor, or
all underlying services have been rendered by the Seller, in
complete fulfillment of all of the terms and conditions of a
fully executed, delivered and unexpired contract with the Account
Debtor (a true and complete copy of which contract having been
delivered to Purchaser), and the Account Debtor has accepted the
goods or services to which the Account relates;
12.4.2 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);
12.4.3 current and not past due as of the date of
purchase by Purchaser, and 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, recoupment,
defense or claim by the Account Debtor, whether relating to the
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 such sale
of such account to Purchaser hereunder) against payment of such
account;
12.5 No Purchased Account is from a sale of goods or
rendition of services to an entity which is affiliated with
Seller. Each Purchased Account has resulted from an "arms
length" transaction with the applicable Account Debtor.
12.6 Seller has not received notice of any actual,
imminent, or threatened bankruptcy, insolvency, or material
impairment of the financial condition of any applicable Account
Debtor liable under a Purchased Account. Seller has no knowledge
of any fact which would lead it to expect that, as of the date of
sale of such account to Purchaser, that such Account will not be
paid in the full stated amount when due.
Page 7 of 14
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 Purchaser
hereunder.
13 Default.
13.1 Events of Default. The following events will
constitute an Event of Default hereunder:
13.1.1 Seller defaults in the payment of any
Obligations or in the performance of any provision hereof or of
any other agreement now or hereafter entered into with Purchaser,
or any warranty or representation contained herein proves to be
false in any way, howsoever minor,
13.1.2 Seller or any guarantor of the Obligations
becomes subject to any debtor-relief proceedings,
13.1.3 any such guarantor fails to perform or
observe any of such Guarantor's obligations to Purchaser or shall
notify Purchaser of its intention to rescind, modify, terminate
or revoke any guaranty of the Obligations, or any such guaranty
shall cease to be in full force and effect for any reason
whatever,
13.1.4 Purchaser for any reason, in good faith,
deems itself insecure with respect to the prospect of repayment
or performance of the Obligations;
13.1.5 Seller or any Account Debtor:
13.1.5.1 Executes an
assignment for the benefit of creditors,
or takes any action in furtherance
thereof; or (B) admits in writing its
inability to pay, or fails to pay, its
debts generally as they become due; or
(C) as a debtor, files a petition, case,
proceeding or other action pursuant to,
or voluntarily seeks the benefit or
benefits of, Title 11 of the United
States Code as now or hereafter in
effect or any other federal, state or
local law, domestic or foreign, as now
or hereafter in effect relating to
bankruptcy, insolvency, liquidation,
receivership, reorganization,
arrangement, composition, extension or
adjustment of debts, or similar laws
affecting the rights of creditors (Title
11 of the United States Code and such
other laws being herein called "Debtor
Relief Laws"), or takes any action in
furtherance thereof; or (D) seeks the
appointment of a receiver, trustee,
custodian or liquidator of the Project
or any part thereof or of any
significant portion of its other
property; or
13.1.5.2 Suffers the filing
of a petition, case, proceeding or other
action against it as a debtor under any
Debtor Relief Law or seeking appointment
of a receiver, trustee, custodian or
liquidator of the Collateral or any part
thereof or of any significant portion of
its other property, and (A) admits,
acquiesces in or fails to contest
diligently the material allegations
thereof, or (B) the petition, case,
proceeding or other action results in
entry of any order for relief or order
granting relief sought against it, or
(C) in a proceeding under Debtor Relief
Laws, the case is converted from one
chapter to another, or (D) fails to have
the petition, case, proceeding or other
action permanently dismissed or
discharged on or before the earlier of
trial thereon or sixty (60) days next
following the date of its filing; or
13.1.5.3 Conceals, removes,
or permits to be concealed or removed,
any part of its property, with intent to
hinder, delay or defraud its creditors
or any of them, or makes or suffers a
transfer of any of its property which
may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or
makes any transfer of its property to or
for the benefit of a creditor at a time
when other creditors similarly situated
have not been paid; or suffers or
permits, while insolvent, any creditor
to obtain a lien upon any of its
property through legal proceedings which
are not vacated and such lien discharged
prior to enforcement thereof and in any
event within sixty (60) days from the
date thereof; or
Page 8 of 14
13.1.5.4 Fails to have
discharged within a period of ten (10)
days any attachment, sequestration, or
similar writ levied upon any of its
property; or
13.1.5.5 Fails to pay
immediately any final money judgment
against it.
13.2 Waiver of Notice. SELLER WAIVES ANY REQUIREMENT
THAT PURCHASER INFORM SELLER BY AFFIRMATIVE ACT OR OTHERWISE OF
ANY ACCELERATION OF SELLER'S OBLIGATIONS HEREUNDER. FURTHER,
PURCHASER'S FAILURE TO CHARGE OR ACCRUE INTEREST OR FEES AT ANY
"DEFAULT" OR "PAST DUE" RATE SHALL NOT BE DEEMED A WAIVER BY
PURCHASER OF ITS CLAIM THERETO.
13.3 Effect of Default.
13.3.1 Upon the occurrence of any Event of Default, in
addition to any rights Purchaser has under this Agreement or
applicable law, Purchaser may immediately terminate this
Agreement, at which time all Obligations shall immediately become
due and payable without notice.
13.3.2 The Default Charge shall accrue and is
payable on demand on any Obligation not paid when due.
14. Account Stated. From time to time during the term of
this Agreement, Purchaser may render to Seller a statement
setting forth the transactions arising hereunder. Each statement
shall be considered correct and binding upon Seller as an account
stated, except to the extent that Purchaser receives, within ten
(10) days after the receipt of such statement, written notice
from Seller of any specific exceptions by Seller to that
statement, and then it shall be binding against Seller as to any
items to which it has not objected.
15. Waiver. No failure to exercise and no delay in
exercising any right, power, or remedy hereunder shall impair any
right, power, or remedy which Purchaser may have, nor shall any
such delay be construed to be a waiver of any of such rights,
powers, or remedies, or any acquiescence in any breach or default
hereunder; nor shall any waiver by Purchaser of any breach or
default by Seller hereunder be deemed a waiver of any default or
breach subsequently occurring. All rights and remedies granted
to Purchaser hereunder shall remain in full force and effect
notwithstanding any single or partial exercise of, or any
discontinuance of action begun to enforce, any such right or
remedy. The rights and remedies specified herein are cumulative
and not exclusive of each other or of any rights or remedies that
Purchaser would otherwise have. Any waiver, permit, consent or
approval by Purchaser of any breach or default hereunder must be
in writing and shall be effective only to the extent set forth in
such writing and only as to that specific instance.
16. Termination; Effective Date.
16.1 This Agreement will be effective when accepted by
Purchaser. Seller may terminate this Agreement at any time upon
giving Purchaser at least thirty (30) days prior written notice
of termination.
16.2 Purchaser may terminate this Agreement at any time
upon giving Seller at least thirty (30) days prior written notice
of termination.
16.3 Purchaser may, at its election, terminate this
Agreement immediately and without the requirement of notice to
Seller upon an Event of Default hereunder.
Page 9 of 14
16.4 Upon termination, Seller shall pay the Obligations
to Purchaser, and Purchaser shall not purchase any Accounts from
Seller. 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 Purchaser 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 Purchaser with
respect to transactions occurring on or prior to the date of
termination have been paid to Purchaser, and Seller has performed
all its obligations to Purchaser with respect to such
transactions and all obligations under this Agreement including
but not limited to payment of any fees owing hereunder.
17. Amendment. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated, nor may
any consent to the departure from the terms hereof be given,
orally (even if supported by new consideration), but only by an
instrument in writing signed by all parties to this Agreement.
Any waiver or consent so given shall be effective only in the
specific instance and for the specific purpose for which given.
18. No Lien Termination without Release. In recognition of
the Purchaser's right to have its attorneys' fees and other
expenses incurred in connection with this Agreement secured by
the Collateral, notwithstanding payment in full of all
Obligations by Seller, Purchaser shall not be required to record
any terminations or satisfactions of any of Purchaser's liens on
the Collateral unless and until Seller has executed and delivered
to Purchaser a general release in the form of Exhibit A hereto.
Seller understands that this provision constitutes a waiver of
its rights under Section 9-513 of the UCC.
19. Conflict. Unless otherwise expressly stated in any
other agreement between Purchaser and Seller, if a conflict
exists between the provisions of this Agreement and the
provisions of such other agreement, the provisions of this
Agreement shall control.
20. Survival. All representations, warranties and
agreements of Seller herein contained shall be effective so long
as any portion of this Agreement remains executory.
21. Severability. In the event any one or more of the
provisions contained in this Agreement is held to be invalid,
illegal or unenforceable in any respect, then such provision
shall be ineffective only to the extent of such prohibition or
invalidity, and the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
22. Enforcement. This Agreement and all agreements
relating to the subject matter hereof is the product of
negotiation and preparation by and among each party and its
respective attorneys, and shall be construed accordingly.
23. Relationship of Parties. The relationship of the
parties hereto shall be that of Seller and Purchaser of Accounts,
and Purchaser shall not be a fiduciary of the Seller, although
Seller may be a fiduciary of the Purchaser.
24. Attorneys Fees. Seller agrees to reimburse Purchaser
on demand for:
24.1 the actual amount of all costs and expenses,
including attorneys' fees, which Purchaser may incur after the
execution hereof in:
24.1.1 administering this Agreement and any
documents prepared in connection herewith;
24.1.2 any way arising out of this Agreement;
24.1.3 protecting, preserving or enforcing any lien,
security interest or other right granted by Seller to Purchaser
or arising under applicable law, whether or not suit is brought,
including but not limited to the defense of any Avoidance Claims;
24.2 the actual costs, including photocopying (which,
if performed by Purchaser's employees, shall be at the rate of
$.10/page), travel, and attorneys' fees and expenses incurred in
complying with any subpoena or other legal process attendant to
any litigation in which Seller is a party;
Page 10 of 14
24.3 The actual amount of all costs and expenses,
including attorneys' fees, which Purchaser may incur in enforcing
this Agreement and any documents prepared in connection herewith,
or in connection with any federal or state insolvency proceeding
commenced by or against Seller, including those (i) arising out
the automatic stay, (ii) seeking dismissal or conversion of the
bankruptcy proceeding or (ii) opposing confirmation of Seller's
plan thereunder.
25. Entire Agreement. This Agreement supersedes all other
agreements and understandings between the parties hereto, verbal
or written, express or implied, relating to the subject matter
hereof. No promises of any kind have been made by Purchaser or
any third party to induce Seller to execute this Agreement. No
course of dealing, course of performance or trade usage, and no
parole evidence of any nature, shall be used to supplement or
modify any terms of this Agreement.
26. Choice of Law. This Agreement and all transactions
contemplated hereunder and/or evidenced hereby shall be governed
by, construed under, and enforced in accordance with the internal
laws of the Chosen State.
27. JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS
AND DELAY WHICH MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING HEREUNDER, OR (B) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY FURTHER WAIVES
ANY RIGHT TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL
HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
28. Venue; Jurisdiction. 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 PURCHASER 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 PURCHASER EACH CONSENT TO THE
PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
DALLAS 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
29. Assignment. Purchaser may assign its rights and
delegate its duties hereunder to any affiliated parties as such
is defined by the Securities and Exchange Commission. Upon such
assignment, Seller shall be deemed to have attorned to such
assignee and shall owe the same obligations to such assignee and
shall accept performance hereunder by such assignee as if such
assignee were Purchaser. This Agreement is not assignable by
Seller, unless consented to in writing by Purchaser.
Page 11 of 14
30. Indemnfication. Seller agrees to indemnify, defend and
hold the Indemnified Persons (hereinafter defined) 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.
Where used herein, the term "Indemnified Persons" shall mean
Purchaser and its partners, officers, members, employees,
attorneys, representatives, agents, affiliates, successors and
assigns.
31. 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 Purchaser, (ii) Seller releases,
relinquishes and waives any and all defenses to the
enforceability of any prior agreements or transactions with
Purchaser in connection therewith to which Seller may have
otherwise been entitled as of the date hereof, (iii) Seller
relinquishes, waives and releases Purchaser from any and all
claims known or unknown which Seller may or might have against
Purchaser arising directly or indirectly out of or from any prior
agreements or transactions between Seller and Purchaser, (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)
Purchaser 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.
32. Notice.
32.1 All notices required to be given to any party
other than Purchaser shall be deemed given upon the first to
occur of (i) deposit thereof in a receptacle under the control of
the United States Postal Service, (ii) deposit with a nationally
recognized overnight courier (such as Federal Express, Airborne,
or a similar courier), or (iii) actual receipt by such party or
an employee or agent of such party.
32.2 All notices to Purchaser hereunder shall be deemed
given upon actual receipt by one of the following officers of
Purchaser: Tolbert Marks or Thomas Landry. For the purposes
hereof, notices hereunder shall be sent to the addresses
hereafter, or to such other addresses as each such party may in
writing hereafter indicate.
32.3 Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if all signatures were upon the same
instrument. Delivery of an executed counterpart of the signature
page to this Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement,
and any party delivering such an executed counterpart of the
signature page to this Agreement by facsimile to any other party
shall thereafter also promptly deliver a manually executed
counterpart of this Agreement to such other party, provided that
the failure to deliver such manually executed counterpart shall
not affect the validity, enforceability, or binding effect of
this Agreement.
33. True Sales. Seller and Purchaser 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 Purchaser from time to time hereunder will pass to Purchaser.
Page 12 of 14
IN WITNESS WHEREOF, the Parties have executed this agreement
on the day and year first above written.
SELLER: UDT Consulting, Inc., a Texas Corporation
By: /s/ David N. Pilotte
----------------------------------
Name: David N. Pilotte
Executive Vice President and Chief
Financial Officer
Address: 1601 Elm Street, Suite 4000,
Dallas, TX 75201
SWORN BEFORE ME this 24th of June, 2002 in the County of Dallas,
State of Texas.
/s/ Amy L. Moris
-----------------------------------
Notary
November 30, 2005
Commission Expires
PURCHASER: LANDRY MARKS PARTNERS LP, a Texas
limited partnership
By: Landry Marks GP LLC, a Texas
limited liability company, its
General Partner
By: /s/ Thomas M. Landry
-----------------------------------
Thomas M. Landry, Manager
Address: 5950 Sherry Lane, Suite 750,
Dallas, TX 75225
Page 13 of 14
EXHIBIT A
GENERAL RELEASE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
adequacy of which are hereby acknowledged, the undersigned and
each of them (collectively "Releasor") hereby forever releases,
discharges and acquits Landry Marks Partners LP. ("Releasee"),
its parent, directors, partners, agents and employees, of and
from any and all claims of every type, kind, nature, description
or character, and irrespective of how, why, or by reason of what
facts, whether heretofore existing, now existing or hereafter
arising, or which could, might, or may be claimed to exist, of
whatever kind or name, whether known or unknown, suspected or
unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length, to the extent that they arise out of or
are in way connected to or are related to that certain Factoring
and Security Agreement dated June 24, 2002.
Releasor agrees that the matters released herein are not
limited to matters which are known or disclosed.
Releasor acknowledges that factual matters now unknown to it
may have given or may hereafter give rise to Claims which are
presently unknown, unanticipated and unsuspected, and it
acknowledges that this Release has been negotiated and agreed
upon in light of that realization and that it nevertheless hereby
intends to release, discharge and acquit the Releasee from any
such unknown Claims.
Acceptance of this Release shall not be deemed or construed
as an admission of liability by any party released.
Releasor acknowledges that either (a) it has had advice of
counsel of its own choosing in negotiations for and the
preparation of this release, or (b) it has knowingly determined
that such advise is not needed.
DATED:
Individual Releasor: __________________________________
[Name of individual], individually
Entity Releasor: By:________________________________
Name:______________________________
Title:_____________________________
Page 14 of 14