EXHIBIT 10.44
MEMORANDUM OF UNDERSTANDING AND AGREEMENT
November 26, 2002
The purpose of this memorandum ("XXXX") is to memorialize the terms and
understanding between SSP Solutions, Inc. (SSP), Pulsar Data Systems, Inc.
("Pulsar") and Electronic Data Systems Corporation ("EDS"), related to monies
currently owed to EDS by Pulsar for Hardware Resale purchases to Pulsar. SSP
Solutions, Inc. ("SSP") is the parent of Pulsar. Pulsar, EDS and SSP, are
collectively known as "the Parties." This memorandum is to serve as a binding
understanding between the Parties.
The Terms and Conditions are as follows:
1) AMOUNTS PAST DUE UNDER THE PULSAR FULFILLMENT ARRANGEMENT: That SSP will pay
EDS $1,120,203.16, plus interest (the remaining balance of Invoice #2 EDS-Pulsar
in the amount of $341,302.93 has been accruing interest since the original due
date of December 28, 2001; the complete balance of Invoice#3 EDS-Pulsar in the
amount of $779,042.87 has been accruing interest since the original due date of
January 25, 2002), related to past due invoices involving computers and related
products purchased and shipped by EDS on behalf of Pulsar ("Obligation"), less
$83,456 (plus accrued interest of $6,259.20, as of October 30, 2002) that is due
from EDS to SSP for equipment and/or services relative to the Xxxxxxx
laboratory. The terms of payment are as follows:
a) Initial partial payment of $46,675.14 due on or before December 1,
2002
b) Subsequent payments of $23,337.57 will be due on the first business
day of each month thereafter
c) The remaining principal balance of the Obligation will be due on
December 1, 2003 - the "Balloon Payment."
d) The interest rate on the Obligation will be Citibank prime + 2%( a
total of 6.75% as of November 25, 2002). Said interest will continue
to accrue monthly on the unpaid principal balance.
e) All interest accrued on the Obligation as of the Balloon Payment will
be paid December 31, 2003.
f) Additional Payments to be credited against the Obligation:
i) As of the date of this XXXX, 50% of SSP's future gross profit on
sales pursuits through EDS will be paid to EDS by SSP within 10
business days of SSP's receipt of payment.
ii) Should SSP sell all or part of Pulsar and receive cash payments,
then 75% of the cash received will be paid to EDS within 10
business days of SSP receiving funds.
iii) Should SSP receive a cash investment from any means, including
but not limited to: raise of additional capital, teaming
agreement, partial or complete sale to a third party, totaling in
the aggregate $5 million or more, then, subject to the terms of
the cash investment EDS will be paid in full (100% of the
remaining balance, including interest) within 10 business days of
SSP verifying receipt of funds.
iv) Should EDS purchase goods or services from SSP, then 50% of the
gross revenue on those sales will be credited against the
Obligation..
Provided that SSP makes these payments, EDS will not bring any legal action
against SSP or Pulsar for the Obligation.
2) SECURITY: Pursuant to the above mentioned amounts payable to EDS, for value
received, SSP hereby grants to EDS a continuing security interest in property
now owned or hereafter acquired, including accounts, chattel paper, equipment,
general intangibles, inventory, causes of actions and instruments, (hereinafter
the "Collateral") to secure the payment of indebtedness to EDS subject to any
properly perfected existing liens as governed by Division 9 of the California
Commercial Code.
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EVENTS OF DEFAULT. Each of the following constitutes an "EVENT OF DEFAULT" under
this XXXX:
a) FAILURE TO PAY OBLIGATIONS. The failure, refusal or neglect of SSP to
make payment of the Obligations, or any portion thereof as the same
shall become due and payable, provided EDS provides written notice to
SSP of such failure and SSP shall not have cured within five business
days after receipt of notice; or
b) DEFAULT TO THIRD PARTY. The occurrence of any event which permits the
acceleration of the maturity of any secured indebtedness in excess of
$100,000 owing by SSP to any third party under any agreement or
undertaking
c) BANKRUPTCY OR INSOLVENCY. If SSP:
i) makes a general assignment for the benefit of creditors, or
admits in writing its inability to pay its debts as they become
due; or
ii) files a petition for relief under the United States Bankruptcy
Code or any other present or future federal or state insolvency,
bankruptcy or similar laws (all of the foregoing hereinafter
collectively called "APPLICABLE BANKRUPTCY LAW") or an
involuntary petition for relief is filed against such party under
any Applicable Bankruptcy Law and such petition is not dismissed
within sixty (60) days after the filing thereof, or an order for
relief naming such party is entered under any Applicable
Bankruptcy Law, or any composition, rearrangement, extension,
reorganization or other relief of debtors now or hereafter
existing is requested or consented to by such party; or
iii) LIQUIDATION AND RELATED EVENTS. If SSP liquidates, dissolves, is
acquired or sells substantially all of its assets.
iv) EXECUTION ON COLLATERAL. The Collateral or any substantial
portion thereof is taken on execution or other process of law in
any action against SSP; or
v) ABANDONMENT. SSP abandons the Collateral or any substantial
portion thereof; or
vi) ACTION BY OTHER LIENHOLDER. The holder of any lien or security
interest in excess of $100,000 in the Collateral declares a
default thereunder or institutes foreclosure or other proceedings
for the enforcement of its remedies thereunder.
4) REMEDIES AND RELATED RIGHTS. If an Event of Default shall have occurred,
and without limiting any other rights and remedies provided herein or
otherwise available, EDS may exercise one or more of the rights and
remedies provided in this section.
a) REMEDIES. EDS may from time to time at its discretion, without
limitation:
i) exercise in respect of the Collateral all the rights and remedies
of a secured party under the law;
ii) reduce its claim to judgment or foreclose or otherwise enforce,
in whole or in part, the security interest granted hereunder by
any available judicial procedure;
b) OTHER RECOURSE. SSP waives any right to require EDS to proceed against
any third party, exhaust any Collateral or other security for the
Obligation, or to have any third party joined with SSP in any suit
arising out of the Obligation, or pursue any other remedy available to
EDS. SSP further waives any and all notice of acceptance of this XXXX
and of the creation, modification, rearrangement, renewal or extension
of the Obligation. SSP further waives any defense arising by reason of
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any disability or other defense of any third party or by reason of the
cessation from any cause whatsoever of the liability of any third
party. Until the Obligation has been paid in full, SSP shall have no
right of subrogation and SSP waives the right to enforce any remedy
which EDS has or may hereafter have against any third party, and
waives any benefit of and any right to participate in any other
security whatsoever now or hereafter held by EDS (with the exception
of sales to EDS customers, for which funds are being paid by SSP to
EDS).
c) ATTORNEY'S FEES. In any action to enforce this XXXX, the prevailing
party shall be entitled to recover all court costs and expenses and
reasonable attorneys' fees, in addition to any other relief to which
it may be entitled.
5) GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without regard to the
conflict of law principles thereof.
This XXXX constitutes the entire understanding between the Parties with respect
to the subject matter herein, may be executed in one or more counterparts, all
of which shall constitute one and the same understanding, and may be amended
only in writing executed by the Parties. Should any portion of this XXXX be
contrary to law, then the remaining provisions shall remain in effect.
Agreed to and Accepted by:
SSP SOLUTIONS, INC.
By: /S/ Xxxxxx X. Xxxxxxx
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Name:
Title:
Date:
PULSAR DATA SYSTEMS, INC.
By: /S/ Xxxxxx X. Xxxxxxx
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Name:
Title:
Date:
ELECTRONIC DATA SYSTEMS CORPORATION
By: /S/
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Name:
Title:
Date:
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