SECURITY AGREEMENT
This
Security Agreement (this “Agreement”)
dated
as of the 16th
day of
November, 2006 (the “Effective
Date”),
is
made by Centurion Acquisitions, L.P., a Texas limited partnership and Pars
Investments, Inc., a Texas corporation (for purposes of this Agreement each
is
referred to as a “Debtor”
and
collectively, “Debtors”),
in
favor of United Development Funding III, L.P., a Delaware limited partnership
(“Lender”).
R
E C I T A L S:
A. Lender
has agreed to advance funds to Debtors pursuant to that Secured Promissory
Note
dated as of the Effective Date in the principal amount of $5,272,250.00 (the
“Note”).
B. It
is a
condition precedent to Lender’s willingness to accept the Note and advance funds
to Debtors thereunder that Debtors enter into this Agreement with Lender,
pursuant to which Debtors grant Lender a security interest in and lien on all
of
their respective assets, and Debtors are willing to enter into this Agreement
and agree to be bound by its terms and conditions.
AGREEMENT:
NOW,
THEREFORE, in consideration of the foregoing premises and in order to induce
Lender to accept the Note and advance funds thereunder, and for other good
and
valuable consideration, the receipt and sufficiency of which are acknowledged,
Debtors jointly and severally covenant and agree with Lender as
follows:
1. Definitions.
All
capitalized terms used but not defined in this Agreement shall have the
respective meanings given to such terms in the Note. Notwithstanding the
foregoing sentence, terms used in Article 9 of the Uniform Commercial Code
(the
“Code”)
in the
State of Texas, when used in this Agreement, have the definitions given to
such
terms as therein defined.
2. Grant
of Security Interest.
Each
Debtor hereby assigns, pledges and grants to Lender for its benefit, a
continuing security interest in all of such Debtor’s right, title and interest
in and to all of its assets, whether now owned or hereafter acquired, and
including, without limitation, all full and partial interests in the following
(collectively, the “Collateral”):
(a) all
accounts receivable, rights to payment, promissory notes, and all guarantees,
security agreements, insurance policies, and security interests and the rights
to receive payment thereon;
(b) all
cash
on hand, including, without limitation, cash held in bank accounts, brokerage
accounts, certificates of deposit, and other depositories, all accounts
receivable owing by any person or entity, including all such amounts due to
such
Debtor, and all security for payment thereof, and in and to all the proceeds,
monies, income, instruments, securities, accounts, benefit, collections, tax
refunds, insurance proceeds, and products thereof and thereon and attributable
or accruing thereto;
(c) all
of
such Debtor’s interest in all equipment, inventory, materials, computer software
and records, goods, and other personal property, and all documents and receipts
covering such property, and all licenses and permits used or held for use in
connection with such property;
(d) all
patents, trademarks, service marks, copyrights, licenses, and all other
intellectual property (collectively, the “Intellectual
Property”),
and
all agreements and contracts to which such Debtor is a party regarding the
use
and exploitation of any of the Intellectual Property and applications therefor,
now owned or hereafter acquired by such Debtor;
(e) all
of
such Debtor’s contract rights and other general intangibles relating to any of
the Collateral, including, without limitation, all contract and other rights
to
receive proceeds and reimbursements and license agreements;
(f) all
such
Debtor’s interest in any subsidiary company, and all capital stock, equity
interests, partnership interests, and membership interests and all warrants,
options and other rights to purchase any such interests, in any other
corporation, partnership, limited liability company or other business
entity;
(g) all
books
and records (including electronic records, computer disks, tapes, printouts
and
other storage media) relating to any of the foregoing; and
(h) all
of
such Debtor’s interest in the proceeds of any sale or disposition of any of the
foregoing, and in and to any and all money, documents, instruments, securities,
or accounts owned or belonging to Debtor.
Debtors
shall be deemed to have possession of any of the Collateral in transit to it
or
set apart for it or for any of its agents, affiliates or correspondents.
3. Security
for Obligations.
This
Agreement and the security interest created and evidenced hereby secures the
prompt and complete payment, observance and performance of all duties,
liabilities, obligations and indebtedness owing by Debtors to Lender arising
under the Note and the other Loan Documents, fixed or contingent, joint or
several, whether as principal, surety, endorser, guarantor, or otherwise, now
existing or hereafter arising, and all modifications, extensions, renewals,
replacements, and increases of each of the foregoing (all such obligations
and
liabilities being the “Obligations”).
4. Debtors
Remains Liable.
Notwithstanding anything to the contrary contained in this Agreement: (a)
Debtors shall remain liable under the contracts and agreements included in
the
Collateral and obligated to perform all of their respective duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by Lender of any of its rights hereunder shall not
release Debtors from any of their respective duties or obligations under the
contracts and agreements included in the Collateral, and (c) Lender shall have
no obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall Lender be obligated to perform
any of the obligations or duties of Debtors thereunder or to take any action
to
collect or enforce any claim for payment assigned hereunder.
5. Representations
and Warranties.
Debtors
jointly and severally represent and warrant as follows:
(a) Debtors
own the Collateral free and clear of any lien, security interest, charge or
encumbrance of any kind whatsoever (collectively, “Liens”)
except
for (i) the security interest created hereby in favor of Lender, (ii) Liens
in
favor of any person or entity that Lender has agreed in writing shall have
priority over the Collateral (the “Senior
Liens”),
(iii)
Liens approved by Lender pursuant to a written consent or agreement executed
by
Lender or otherwise permitted by the Loan Documents, and (iv) Liens for
taxes not yet due and payable (collectively, the Liens described in clauses
(i)
through (iv) above are referred to herein as the “Permitted
Liens”).
No
effective financing statement, continuation statement or amendment thereto
promulgated under the Uniform Commercial Code of any state (collectively,
“Financing
Statements”)
or
other instrument similar in effect covering all or any part of the Collateral
is
on file in any recording office, except such as may have been filed in favor
of
Lender or in favor of the holder(s) of the Permitted Liens. The validity of
the
Collateral in whole or in part, and Debtors’ title thereto is not currently
being questioned in any litigation or regulatory proceeding to which any Debtor
is a party, nor is any such litigation or proceeding threatened.
(b) This
Agreement creates and evidences a valid and perfected security interest in
the
Collateral, securing the payment of the Obligations, second in priority only
to
any Senior Liens, and all filings and other actions of Debtors necessary or
desirable to perfect and protect such security interest have been, or will
be
upon request, duly taken by Debtors.
(c) No
authorization, approval or other action by, and no notice to or other filing
with, any governmental authority or regulatory body is required, either (i)
for
the grant by Debtors of the security interest granted hereby or for the
execution, delivery or performance of this Agreement by Debtors, or (ii) for
the
perfection of or the exercise by Lender of its rights and remedies hereunder
(other than the filing of Financing Statements by Lender).
(d) Each
Debtor’s principal place of business is at the address for Debtors set forth in
Section
17
of this
Agreement (the “Principal
Place of Business”).
All
Collateral and books of account and records relating to the Collateral are
located at Debtors’ Principal Place of Business.
6. Covenants
and Further Assurances.
(a) Each
Debtor agrees that from time to time, at its own expense, it will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be reasonably necessary or desirable, or that Lender may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Lender to exercise and
enforce rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, each Debtor will, subject to the
priority rights, if any, of the holders of the Senior Liens: (i) xxxx
conspicuously each document included in the Collateral and each of its records
pertaining to the Collateral, with a legend, in form and substance satisfactory
to Lender, indicating that such document or Collateral is subject to the
security interest granted hereby; (ii) transfer, register or otherwise put
any
of the Collateral in the name of Lender or its nominee; and (iii) execute and
file such Financing Statements, and such other instruments or notices, as may
be
necessary or desirable, or as Lender may request, in order to perfect and
preserve the security interest granted or purported to be granted
hereby.
(b) Debtors
hereby authorize Lender to file one or more Financing Statements relative to
all
or any part of the Collateral without the signature of Debtors where permitted
by law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a Financing Statement where permitted by law. Each Debtor
acknowledges and agrees that any Financing Statement filed by or on behalf
of
Lender against such Debtor, whether such filing is or was made prior to or
after
the date of this Agreement, is hereby deemed to include the security interest
granted by this Agreement, regardless of whether such Financing Statement is
or
was filed in connection with the Loan or some other indebtedness owed to Lender.
(c) Debtors
shall at all times maintain the Collateral and their respective books of account
and records relating to the Collateral at their Principal Place of Business,
and
shall not relocate such books of account and records and Collateral unless
they
deliver to Lender, prior written notice of such relocation and the new location
thereof (which must be within the United States). Debtors will furnish to Lender
from time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as
Lender may reasonably request, all in reasonable detail.
7. Insurance.
(a) Debtors
shall, at their own expense, maintain insurance with respect to the Collateral
in such amounts, against such risks, in such form and with such insurers, as
shall be reasonably satisfactory to Lender from time to time. Debtors shall
ensure that the Collateral is, and remains, insured against loss by fire and
other casualty. Each policy for property damage insurance shall provide for
all
losses to be paid to Lender as holder of the security interest created hereby,
subject to the priority rights, if any, of the holders of the Senior Liens.
Each
such policy shall in addition (i) contain the agreement (if available) by the
insurer that any loss thereunder shall be payable to Lender notwithstanding
any
action, inaction or breach of representation or warranty by Debtors, subject
to
the priority rights, if any, of the holders of the Senior Liens, (ii) provide
that there shall be no recourse against Lender for payment of premiums or other
amounts with respect thereto, and (iii) provide that at least 10 days prior
written notice of cancellation or of lapse shall be given to Lender by the
insurer. Debtors shall, if so requested by Lender, deliver to Lender original
or
duplicate policies of such insurance and, as often as Lender may reasonably
request, a report of a reputable insurance broker selected by Debtors with
respect to such insurance. Further, Debtors shall, at the request of Lender,
duly execute and deliver instruments of assignment of such insurance policies
to
comply with the foregoing requirements and cause the respective insurers to
acknowledge notice of such assignment.
(b) Reimbursement
under any liability insurance maintained by Debtors may be paid directly to
the
person who shall have incurred liability covered by such insurance. All
insurance payments to Lender in respect of Collateral shall be applied by Lender
as specified in the Note.
8. Transfers
and Other Liens.
Debtors
shall not sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Collateral, other than obsolete or worn out property and sales
of
inventory in the ordinary course of business or as otherwise permitted by the
Note, or create or suffer to exist any Lien upon or with respect to any of
the
Collateral to secure debt of any person, except for Permitted
Liens.
9. Lender
Appointed Attorney-in-Fact.
Each
Debtor hereby irrevocably appoints Lender as its attorney-in-fact, with full
authority in the place and stead of such Debtor, as applicable, and in the
name
of such Debtor, as applicable, or otherwise, from time to time in Lender's
discretion at any time after the occurrence of an Event of Default (as such
term
is defined in the Note), to take any action and to execute any instrument which
Lender may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation:
(a) to
obtain
insurance required to be maintained by Debtors and to settle and adjust claims
under any insurance policy;
(b) to
ask,
demand, collect, xxx for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due, under or in respect of any of the
Collateral including, without limitation, moneys due and to become due;
(c) to
file
any claims or take any action or institute any proceedings which Lender may
deem
necessary or desirable to enforce the rights of Lender with respect to any
of
the Collateral;
(d) to
commence and prosecute any actions in any court for the purposes of collecting
amounts owed to Debtors and enforcing any other rights in respect thereof,
and
to defend, settle or compromise any action brought and, in connection therewith,
and to give such discharge or release as Lender may deem appropriate;
(e) to
receive, open and dispose of mail addressed to Debtors and endorse checks,
notes, drafts, acceptances, money orders, bills of lading, warehouse receipts
or
other instruments or documents evidencing payment made on account of or funds
paid on behalf of and in the name of any Debtor;
(f) sell,
assign, transfer, make any agreement in respect of, or otherwise deal with
or
exercise rights in respect of, any Collateral as fully and completely as though
Lender were the absolute owner thereof for all purposes;
(g) to
execute Financing Statements or any other documents or writing deemed necessary
by Lender to evidence or perfect Lender's security interest in the Collateral;
provided that Lender agrees to furnish copies of any document executed hereunder
to the appropriate Debtor, as applicable, upon request; and
(h) to
enter
on the premises of Debtors in order to exercise any of Lender's rights and
remedies.
The
foregoing appointment of Lender as attorney-in-fact is coupled with an interest
and is irrevocable.
10. Rights
Prior to Event of Default; Termination.
(a) Rights
Prior to Event of Default.
So long
as no Event of Default shall have occurred and be continuing, Debtors shall
be
entitled to exercise any and all rights and powers relating or pertaining to
the
Collateral for any purpose not inconsistent with the terms of this
Agreement.
(b) Termination
of Rights.
Debtors
understand and agree that during any period when an Event of Default shall
have
occurred and be continuing, and after Lender has given written notice to Debtors
that Lender has exercised its rights hereunder, all rights of Debtors to
exercise power with respect to the Collateral, which Debtors were previously
entitled to exercise shall cease and all such rights shall become vested in
Lender, which shall have the sole and exclusive right and authority to exercise
such power immediately upon such written notice. All amounts, if any,
representing principal prepayment or payoffs and all amounts, if any, collected
by Debtors after the occurrence of any Event of Default represents trust funds
which are assigned and belong to Lender and which are to be immediately
delivered to Lender, and any retention of such funds by Lender before and after
the occurrence of an Event of Default shall be deemed to be a conversion of
Lender's property, ipso facto.
The
obligor making any payment to Lender under this Agreement shall be fully
protected in relying on the written statement of Lender that it then holds
a
security interest which entitles Lender to receive such payments. Any and all
money and other property paid over to or received by Lender pursuant to the
provisions hereof shall be retained by Lender as additional Collateral under
this Agreement.
11. Lender
May Perform.
If any
Debtor fails to perform any covenant or agreement contained in this Agreement,
Lender may itself perform, or cause performance of, such covenant or agreement,
and the expenses of Lender incurred in connection therewith shall be payable
by
Debtor and/or payable under the Note as a Discretionary Advance.
12. Lender's
Duties.
The
powers conferred on Lender under this Agreement are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise
any
such powers. Except for the safe custody of any Collateral in its possession
and
the accounting for moneys actually received by it hereunder, Lender shall have
no duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral.
13. Remedies.
If any
Event of Default shall occur and be continuing, subject to the priority rights,
if any, of the holders of the Senior Liens, Lender may protect and enforce
its
rights under this Agreement and the other Loan Documents by any appropriate
proceedings, including proceedings for specific performance of any covenant
or
agreement contained in any Loan Document, and Lender may enforce the payment
of
any Obligations due it or enforce any other legal or equitable right which
it
may have. All rights, remedies and powers conferred upon Lender under the Loan
Documents shall be deemed cumulative and not exclusive of any other rights,
remedies or powers available under the Loan Documents or at law or in equity.
Lender's authority and rights shall include, without limitation, the following:
(a) Lender
may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the Code (whether or not the Code
applies to the affected Collateral) and also may (i) require any or all Debtors
to, and each Debtor hereby agrees that it will at its expense and upon request
of Lender forthwith, assemble all or part of the Collateral as directed by
Lender and make it available to Lender at a place to be designated by Lender
which is reasonably convenient to it, and (ii) without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of Lender's offices or elsewhere, for cash,
on
credit or for future delivery, and upon such other terms as Lender may deem
commercially reasonable. Each Debtor agrees that, to the extent notice of sale
shall be required by law, at least ten (10) business days' notice to such Debtor
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. Lender shall not
be
obligated to make any sale of Collateral regardless of notice of sale having
been given. Lender may adjourn any public or private sale from time to time
by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so
adjourned.
(b) All
cash
proceeds received by Lender in respect of any sale of, collection from, or
other
realization upon all or any part of the Collateral may, in the discretion of
Lender, be held by Lender as Collateral for, and/or then or at any time
thereafter applied in whole or in part by Lender against all or any part of
the
Obligations in such order as Lender shall elect, subject to any mandatory
provisions of this Agreement or applicable law. Any surplus of such cash or
cash
proceeds held by Lender and remaining after payment in full of all the
Obligations shall be paid over to Debtors or to whomsoever may be lawfully
entitled to receive such surplus.
14. No
Impairment.
The
execution and delivery of this Agreement in no manner shall impair or affect
any
other security (by endorsement or otherwise) for the payment of the Obligations
and no security taken hereafter as security for payment of the Obligations
shall
impair in any manner or affect this Agreement, all such present and further
additional security to be considered as cumulative security. Any of the
Collateral for, or any obligor on, any of the Obligations may be released
without altering, varying or diminishing in any way the force, effect, lien,
security interest, or charge of this Agreement as to the Collateral not
expressly released, and this Agreement shall continue as a security interest
and
charge on all of the Collateral not expressly released until all the Obligations
secured hereby have been paid in full. This Agreement shall not be construed
as
relieving Debtors from full recourse liability on the Obligations and any and
all further and other indebtedness secured hereby and for any deficiency
thereon.
15. Indemnity
and Expenses.
(a)
Each
Debtor agrees to indemnify Lender from and against any and all claims, losses
and liabilities growing out of or resulting from this Agreement (including,
without limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting from Lender's gross negligence or willful misconduct.
(b) Each
Debtor agrees that it will, upon demand, pay to Lender the amount of any and
all
reasonable expenses, including the reasonable fees and disbursements of Lender’s
counsel and of any experts and agents, which Lender may incur in connection
with
(i) the administration of this Agreement, (ii) the custody, preservation, use
or
operation of, or the sale of, collection from, or other realization upon, any
of
the Collateral, (iii) the exercise or enforcement of any of the rights of Lender
hereunder, or (iv) the failure by any Debtor to perform or observe any of the
provisions hereof.
16. Security
Interest Absolute.
All
rights of Lender and security interests hereunder, and all obligations of
Debtors hereunder, shall be absolute and unconditional, irrespective
of:
(a) any
lack
of validity or enforceability of the Note or any other Loan Document or
instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations or any other amendment or waiver of or any consent
to
any departure from the Note;
(c) any
exchange, release or non-perfection of any other collateral, or any release
or
amendment or waiver of or consent to departure from any guaranty, for all or
any
of the Obligations; or
(d) any
other
circumstance which might otherwise constitute a defense available to, or a
discharge of, Debtor, or a third party holder of a security
interest.
17. Notice.
Any
notice, request, demand or other communication required or permitted hereunder,
will be in writing and will be mailed by registered or certified mail, postage
prepaid, sent by facsimile, delivered personally by hand, or delivered by
nationally recognized overnight delivery service addressed to Debtors at 0000
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Facsimile No. Facsimile No.
(000) 000-0000 or to Lender at
0000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Facsimile No. (000) 000-0000
or
with
respect to any party, to such other address as a party may have delivered to
the
other parties for purposes of notice. Each notice or other communication will
be
treated as effective and as having been given and received (a) if sent by mail,
at the earlier of its receipt or three (3) business days after such notice
or
other communication has been deposited in a regularly maintained receptacle
for
deposit of United States mail, (b) if sent by facsimile, upon written or
electronic confirmation of facsimile transfer, (c) if delivered personally
by
hand, upon written or electronic confirmation of delivery from the person
delivering such notice or other communication, or (d) if sent by nationally
recognized overnight delivery service, upon written or electronic confirmation
of delivery from such service.
18. Continuing
Security Interest.
This
Agreement shall create a continuing security interest in the Collateral. Upon
the payment in full of the Obligations as determined by Lender in its sole
discretion, the security interest granted hereby shall terminate. Upon any
such
termination, Lender will, at Debtors’ expense, execute and deliver to Debtors
such documents as Debtors shall reasonably request to evidence such
termination.
19. Mutual
Understanding.
Each
Debtor represents and warrants to Lender that such Debtor has read and fully
understands the terms and provisions hereof, has had an opportunity to review
this Agreement with legal counsel and has executed this Agreement based on
such
Debtor’s own judgment and advice of counsel. If an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties and no presumption or burden of proof will arise favoring
or disfavoring any party because of authorship of any provision of this
Agreement.
20. Further
Assurances.
Each
Debtor at such Debtor’s expense will promptly execute and deliver to Lender on
Lender’s request, all such other and further documents, agreements and
instruments, and shall deliver all such supplementary information, in compliance
with or accomplishment of the agreements of such Debtor under this Agreement.
21. Cumulative
Remedies.
Each
Debtor hereby agrees that all rights and remedies that Lender is afforded by
reason of the Loan Documents are separate and cumulative with respect to Debtors
and otherwise and may be pursued separately, successively, or concurrently,
as
Lender deems advisable. In addition, all such rights and remedies of Lender
are
non-exclusive and shall in no way limit or prejudice Lender’s ability to pursue
any other legal or equitable rights or remedies that may be available to
Lender.
22. Enforcement
and Waiver by Lender.
Lender
shall have the right at all times to enforce the provisions of this Agreement
in
strict accordance with their respective terms, notwithstanding any conduct
or
custom on the part of Lender in refraining from so doing at any time or times.
The failure of Lender at any time or times to enforce its rights under such
provisions, strictly in accordance with the same, shall not be construed as
having created a custom or in any way or manner modified or waived the same.
All
rights and remedies of Lender are cumulative and concurrent and the exercise
of
one right or remedy shall not be deemed a waiver or release of any other right
or remedy.
23. CHOICE
OF LAW; JURISDICTION; VENUE.
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF SECURITY INTERESTS
OR
REMEDIES IN RESPECT OF ANY PARTICULAR COLLATERAL IS GOVERNED BY THE LAWS OF
A
JURISDICTION OTHER THAN THE STATE OF TEXAS, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
JURISDICTION FOR ALL MATTERS ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE EXCLUSIVELY IN THE STATE AND FEDERAL COURTS SITTING IN DALLAS
COUNTY, TEXAS, AND EACH DEBTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF
SUCH STATE AND FEDERAL COURTS AND AGREES AND CONSENTS NOT TO ASSERT IN ANY
PROCEEDING, THAT ANY SUCH PROCESS IS BROUGHT IN AN INCONVENIENT FORUM OR THAT
THE VENUE THEREOF IS IMPROPER, AND FURTHER AGREES TO A TRANSFER OF SUCH
PROCEEDING TO THE COURTS SITTING IN DALLAS COUNTY, TEXAS.
24. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of them together shall constitute one and
the
same agreement.
25. Severability.
If any
provision of this Agreement shall be held invalid under any applicable laws,
then all other terms and provisions of this Agreement shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by applicable
law.
26. Amendments;
Waivers.
No
amendment or waiver of any provision of this Agreement nor consent to any
departure herefrom, shall in any event be effective unless the same shall be
in
writing and signed by the affected party, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given. Debtors may not be released from their obligations hereunder,
except pursuant to a written instrument executed by Lender.
27. Binding
Effect; Assignment.
This
Agreement shall be binding on Debtors and their respective successors and
assigns, including, without limitation, any receiver, trustee or debtor in
possession of or for any Debtor, and shall inure to the benefit of Lender and
its successors and assigns. Debtors shall not be entitled to transfer or assign
this Agreement in whole or in part without the prior written consent of Lender.
This Agreement is freely assignable and transferable by Lender without the
consent of Debtors. Should the status, composition, structure or name of any
Debtor change, this Agreement shall continue and also cover such Debtor under
the new status composition, structure or name according to the terms of this
Agreement.
28. Captions.
The
captions in this Agreement are for the convenience of reference only and shall
not limit or otherwise affect any of the terms or provisions
hereof.
29. Number
of Gender of Words.
Except
where the context indicates otherwise, words in the singular number will include
the plural and words in the masculine gender will include the feminine and
neutral, and vice versa, when they should so apply.
30. WAIVER
OF JURY TRIAL, PUNITIVE DAMAGES, ETC.
EACH DEBTOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY (A)
WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT SUCH DEBTOR
MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR DIRECTLY
OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED HEREBY OR
THEREBY OR ASSOCIATED HEREWITH OR THEREWITH, BEFORE OR AFTER MATURITY OF THE
NOTE; (B) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT SUCH
DEBTOR MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY “SPECIAL
DAMAGES”, AS DEFINED BELOW, (C) CERTIFIES THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OF LENDER OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT
OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (D) ACKNOWLEDGES THAT
LENDER HAS BEEN INDUCED TO ENTER INTO THE NOTE AND THE OTHER LOAN DOCUMENTS
BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
AS
USED IN THIS SECTION, “SPECIAL DAMAGES” INCLUDES ALL SPECIAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE
ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY
OR
DELIVER TO ANY OTHER PARTY HERETO.
31. ENTIRE
AGREEMENT.
THIS AGREEMENT, THE
NOTE AND THE OTHER LOAN DOCUMENTS TOGETHER CONSTITUTE THE ENTIRE AGREEMENT
AMONG
THE PARTIES CONCERNING THE SUBJECT MATTER HEREOF, AND ALL PRIOR DISCUSSIONS,
AGREEMENTS AND STATEMENTS, WHETHER ORAL OR WRITTEN, ARE MERGED INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
AMONG THE PARTIES AND THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
[The
remainder of this page is left blank intentionally.]
IN
WITNESS WHEREOF, each Debtor has caused this Agreement to be duly executed
and
delivered on the 16th day of November, 2006, effective for all purposes as
of
the Effective Date.
DEBTORS:
|
CENTURION
ACQUISITIONS, L.P.
a Texas limited partnership
By: Pars Investments, Inc.
Its: General Partner
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name: Xxxxxxx Xxxxxxx |
||
| Its: President | ||
|
PARS
INVESTMENTS, INC.
a Texas corporation
|
||
| |
|
|
| Date: | By: | /s/ Xxxxxxx Xxxxxxx |
|
Name: Xxxxxxx Xxxxxxx |
||
| Its: President | ||
