Exhibit 10.6
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is executed on May 8, 2001, to be
effective as of the 1st day of January, 2001 by and between PRINCETON
BIOMEDITECH CORP., a New Jersey corporation with a principal place of business
located at 0000 X.X. Xxxxx 0, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000-0000 ("PBM"),
and WORLDWIDE MEDICAL CORPORATION, a Delaware corporation authorized to do
business in California with a principal place of business located at 00 Xxxxxxxx
Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000 ("Worldwide"). Capitalized terms not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Note (as hereinafter defined).
WHEREAS, Worldwide is indebted to PBM for product supplied to Worldwide
by PBM; and
WHEREAS, Worldwide has requested that PBM forbear in pursuing any and
all legal remedies against Worldwide to which it might be entitled on account of
the aforementioned indebtedness; and
WHEREAS, subject to the execution and delivery of this Agreement and
Worldwide's adherence to the terms and conditions hereof, as well as its
adherence to the terms and conditions of the Note, PBM has agreed to forebear
pursuing any and all such legal remedies against Worldwide; and
WHEREAS, in connection with such forbearance, Worldwide has executed a
Convertible Secured Promissory Note of even date herewith in favor of PBM in the
principal amount of Six Hundred Thirty-One Thousand Five Hundred Thirteen
Dollars and Thirty-Seven Cents ($631,513.37) (the "Note"), the terms of which
are incorporated herein by reference and made a part hereof; and
WHEREAS, to secure payment and performance of Worldwide's duties and
obligations under the Note, Worldwide has agreed to grant PBM a security
interest in one million five hundred fifteen thousand (1,515,000) shares of
Worldwide's Common Stock (as defined in the Note), together with a security
interest in all of Worldwide's "Tangible and Intangible Personal Property" (as
hereinafter defined), subject to the terms and conditions set forth herein and
in the Note;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Worldwide and PBM,
intending to be legally bound hereby, agree as follows:
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1. SECURITY INTEREST.
(a) TO SECURE PAYMENT AND PERFORMANCE OF WORLDWIDE'S
"OBLIGATIONS" (AS HEREINAFTER DEFINED) UNDER THE NOTE, WORLDWIDE HEREBY PLEDGES,
ASSIGNS, TRANSFERS AND GRANTS TO PBM A CONTINUING SECURITY INTEREST IN THE
FOLLOWING:
(i) ONE MILLION FIVE HUNDRED FIFTEEN THOUSAND (1,515,000)
SHARES OF WORLDWIDE'S COMMON STOCK TOGETHER WITH THE DIVIDENDS, RIGHTS, OPTIONS,
ISSUES, PRODUCTS, PROCEEDS AND PROFITS THEREFROM (COLLECTIVELY, THE "COLLATERAL
SHARES"). THE INTEREST OF PBM IN THE COLLATERAL SHARES IS A FIRST PRIORITY LIEN
AND SECURITY INTEREST IN AND TO THE COLLATERAL SHARES. IN ADDITION TO A STOCK
CERTIFICATE REPRESENTING THE COLLATERAL SHARES, WORLDWIDE SHALL DELIVER TO THE
COLLATERAL AGENT WORLDWIDE'S UNDATED ASSIGNMENT SEPARATE FROM SUCH CERTIFICATE
EXECUTED IN BLANK, TOGETHER WITH SUCH OTHER ASSIGNMENTS, AGREEMENTS, INSTRUMENTS
AND DOCUMENTS (COLLECTIVELY, THE "ASSIGNMENT DOCUMENTATION") AS PBM FROM TIME TO
TIME MAY REASONABLY REQUIRE AND AS MAY BE NECESSARY OR EXPEDIENT TO FACILITATE
THE TRANSFER THEREOF. THE COLLATERAL SHARES AND THE ASSIGNMENT DOCUMENTATION
SHALL BE HELD AND DISTRIBUTED BY THE COLLATERAL AGENT IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF THE NOTE AND THIS AGREEMENT; AND
(ii) All of "Worldwide's Property", which shall refer to
all of Worldwide's "Tangible and Intangible Personal Property" which, for
purposes of this Agreement, shall mean all such property located at 00 Xxxxxxxx
Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, and all other tangible and
intangible personal property of Worldwide wherever located, including, without
limitation, all "Goods," "Fixtures," "Accounts," "Chattel Paper," "Contracts,"
"Documents," "Equipment," "General Intangibles," "Instruments" and "Inventory,"
(as those terms are defined hereinbelow), together, in each instance, with the
renewals, substitutions, replacements, additions, rental payments, products and
"Proceeds" (as hereinafter defined) thereof. The interest of PBM in and to
Worldwide's Property is a first priority lien and security interest in and to
Worldwide's Property subject, however, to the rights of the Other Lender in
respect of the Senior Debt (as defined in the Note).
(b) The Collateral Shares and Worldwide's Property referenced by
Subparagraphs (a)(i) and (a)(ii) of this Section, respectively, shall
hereinafter collectively be referred to as the "Collateral".
(c) Worldwide expressly understands and agrees that the security
interests granted to PBM hereunder shall remain as security for payment and
performance of Worldwide's Obligations, whether now existing or that may
hereafter be incurred by future advances or otherwise. Notice of the continuing
grant of these security interests shall, therefore, not be required to be stated
on the face of any document representing any such Obligations, nor otherwise
identify such document as being secured hereby.
2. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(a) "Accounts" means all accounts, as that term is defined in
Article 9 of the Uniform Commercial Code as in effect from time-to-time in the
State of California (the "UCC"), and, in any event, shall include any right to
payment held by Worldwide, whether in the form of accounts receivable, notes,
drafts, acceptances, letters of
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credit (including proceeds of letters of credit) or other forms of obligations
and receivables, now owned or hereafter received or acquired by or belonging or
owing to Worldwide (including, without limitation, under any trade name, style
or division thereof) for Inventory sold or leased or services rendered by it
whether or not earned by performance, together with all guarantees and security
therefor and all Proceeds thereof, whether cash Proceeds or otherwise,
including, without limitation, all right, title and interest of Worldwide in the
Inventory which gave rise to any such Accounts, including, without limitation,
unpaid seller's rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed, rejected or repossessed Inventory or
other goods;
(b) "Chattel Paper" means all chattel paper, as that term is
defined in Article 9 of the UCC, and, in any event, shall include any writing or
writings which evidence both a monetary obligation and a security interest in or
a lease of specific goods, whether now or hereafter held by Worldwide;
(c) "Contracts" means all contracts, undertakings, franchise
agreements or other agreements (other than rights evidenced by Chattel Paper,
Documents or Instruments, as those terms are defined above and below) in or
under which Worldwide may now or hereafter have any right, title or interest,
including, without limitation, with respect to an Account, and any agreement
relating to the terms of payment or the terms of performance thereof;
(d) "Documents" means all documents, as that term is defined in
Article 9 of the UCC;
(e) "Equipment" means all equipment, as that term is defined in
Article 9 of the UCC and, in any event, shall include, without limitation, all
healthcare and diagnostic related equipment, furnishings, and computers and
other electronic data processing and other office equipment, including, but not
limited to, the items of Equipment listed on Exhibit A attached hereto and made
a part hereof, any and all additions, substitutions and replacements of any of
the foregoing, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed thereto, and all
Contracts, contract rights and Chattel Paper arising out of any lease of any of
the foregoing;
(f) "Fixtures" means all fixtures, as that term is defined in
Article 9 of the UCC;
(g) "General Intangibles" means all general intangibles, as that
term is defined in Article 9 of the UCC, and, in any event, shall include all
right, title and interest which Worldwide may now or hereafter have in or under
any Contract, all customer lists, trademarks, patents, rights in intellectual
property, interests in corporations, limited liability companies, partnerships,
joint ventures and other business associations, licenses, permits,
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copyrights, trade secrets, proprietary or confidential information, inventions
(whether or not patented or patentable), technical information, procedures,
designs, knowledge, know-how, software, data bases, data, skill, expertise,
recipes, experience, processes, models, drawings, blueprints, catalogs,
materials and records, FDA approvals, permits and authorizations, unfilled
customer purchase orders, goodwill (including, without limitation, the goodwill
associated with any trademark, trademark registration or trademark licensed
under any trademark license), claims in or under insurance policies, including
unearned premiums, uncertificated securities, deposit accounts, rights to
receive tax refunds and other payments and rights of indemnification;
(h) "Goods" means all goods, as that term is defined in Article 2
of the UCC;
(i) "Instruments" means all instruments, as that term is defined
in Article 9 of the UCC, and, in any event, shall include any negotiable
instrument or certificated security, as defined in Article 8 of the UCC, or any
other writing which evidences a right to the payment of money and is not itself
an instrument that constitutes, or is a part of a group or writings that
constitute, Chattel Paper, and is of a type which, in the ordinary course of
business, is transferred by delivery with any necessary endorsement or
assignment, whether now or hereafter held by Worldwide;
(j) "Inventory" means all inventory, as that term is defined in
Article 9 of the UCC, wherever located, and, in any event, shall include all
inventory, merchandise, goods and other personal property which are held by or
on behalf of Worldwide for sale or lease or are furnished or are to be furnished
under a contract of service or which constitute raw materials, work in process
or materials used or consumed or to be used or consumed in Worldwide's business,
or the processing, packaging, promotion, delivery or shipping of the same, and
all finished goods, whether or not the same is in transit or in the
constructive, actual or exclusive occupancy or possession of Worldwide or is
held by Worldwide or by others for Worldwide's account, including, without
limitation, all goods covered by purchase orders and contracts with suppliers
and all goods billed and held by suppliers and all inventory which may be
located on premises of Worldwide or of any carriers, forwarding agents,
truckers, warehousemen, vendors, selling agents or other Persons;
(k) "Loan Documents" means this Agreement, and any and all
agreements, notes, guaranties, instruments, security agreements, mortgages,
assignments, and documents evidencing, governing, securing or relating in any
way to any of the Obligations, including without limitation, that certain Note
in the original principal amount of $631,513.37 from Worldwide in favor of PBM
of even date herewith and that certain Form UCC-1 Financing Statement executed
by the parties of even date herewith;
(l) "Obligations" means any and all indebtedness, obligations,
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liabilities, contracts, indentures, agreements, warranties, covenants,
guaranties, representations, provisions, terms and conditions of whatever kind
with regard to the Loan Documents, whether due or to become due, absolute or
contingent, now existing or hereafter incurred or arising, whether or not
otherwise guaranteed or secured and whether evidenced by any note or draft or
documented on the books and records of PBM or otherwise on open account,
including without limitation, all costs, expenses, fees, charges and attorneys'
and other professional fees incurred by PBM in connection with, involving or
related to the administration, protection, modification, collection,
enforcement, preservation or defense of any of PBM's rights with respect to any
of the Obligations, the Collateral or any agreement, instrument or document
evidencing, governing, securing or relating to any of the foregoing, including
without limitation, all costs and expenses incurred in inspecting or surveying
mortgaged real estate, if any, or conducting environmental studies or tests, and
in connection with any "workout" or default resolution negotiations involving
legal counsel or other professionals and any renegotiation or restructuring of
any of the Obligations; and
(m) "Proceeds" means all proceeds, as that term is defined in
Article 9 of the UCC, and, in any event, shall include (a) any and all Accounts,
Chattel Paper, Instruments, cash and other proceeds payable to Worldwide from
time-to-time in respect of any of the foregoing collateral security, (b) any and
all proceeds of any insurance, indemnity, warranty or guaranty payable to
Worldwide from time-to-time with respect to any of the collateral security, (c)
any and all payments (in any form whatsoever) made or due and payable to
Worldwide from time-to-time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the collateral
security by any governmental body, authority, bureau or agency (or any person
acting under color of governmental authority), and (d) any and all other amounts
from time-to-time paid or payable under or in connection with any of the
collateral security.
3. WORLDWIDE'S REPRESENTATIONS AND WARRANTIES. WORLDWIDE MAKES THE FOLLOWING
REPRESENTATIONS AND WARRANTIES HEREUNDER AND UPON WHICH PBM RELIES:
(a) Authority. Worldwide has full power and authority to enter
into and perform the Obligations under this Agreement, to execute and deliver
the Loan Documents and to incur the obligations provided for herein and therein,
all of which have been duly authorized by all necessary and proper corporate
action. No other consent or approval or the taking of any other action is
required as a condition to the validity or enforceability of this Agreement or
any of the other Loan Documents.
(b) Binding Agreements. This Agreement and the other Loan
Documents constitute the valid and legally binding obligations of Worldwide,
enforceable in accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally.
(c) No Conflicting Law or Agreements. The execution, delivery and
performance by Worldwide of this Agreement and the other Loan Documents: (i)
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do not violate any provision of the bylaws of Worldwide, (ii) do not violate any
order, decree or judgment, or any provision of any statute, rule or regulation,
(iii) do not violate or conflict with, result in a breach of or constitute (with
notice or lapse of time, or both) a default under any mortgage, indenture,
contract or other agreement to which Worldwide is a party, or by which any of
Worldwide's properties are bound, or (iv) except for the lien granted to PBM
hereunder, do not result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any property or assets of Worldwide.
(d) Collateral. Worldwide is and shall continue to be the sole
owner of the Collateral free and clear of all liens, encumbrances, security
interests and claims, except for (i) the liens granted to PBM hereunder; (ii)
the interest in the Collateral granted to the Other Lender for the Senior Debt
(as such terms are defined in the Note); and (iii) liens granted to providers of
office equipment lease financing for Worldwide's office equipment. Worldwide is
fully authorized to sell, transfer, pledge and/or grant a security interest in
each and every item of the Collateral to PBM. All documents and agreements
related to the Collateral shall be true and correct and in all respects what
they purport to be; all signatures and endorsements that appear thereon shall be
genuine and all signatories and endorsers shall have full capacity to contract.
None of the transactions underlying or giving rise to the Collateral shall
violate any applicable state or federal laws or regulations. All documents
relating to the Collateral shall be legally sufficient under such laws or
regulations and shall be legally enforceable in accordance with their terms.
Worldwide agrees to defend the Collateral against the claims of all persons
other than PBM, except as expressly reserved or otherwise provided herein.
4. AFFIRMATIVE COVENANTS OF WORLDWIDE. WORLDWIDE COVENANTS AND AGREES THAT FROM
THE DATE HEREOF UNTIL FULL AND FINAL PAYMENT AND PERFORMANCE OF ALL OBLIGATIONS
WORLDWIDE SHALL:
(a) Financial Information. Deliver to PBM promptly upon PBM's
request, such documentation and information about Worldwide's financial
condition, business and/or operations as PBM may, at any time and from time to
time, reasonably request, including without limitation, monthly unaudited
interim, quarterly unaudited interim and annual audited or unaudited financial
statements, records relating to Paid Sales (as defined in the Note), federal and
state income tax returns and all schedules thereto, aging reports of Worldwide's
Accounts Receivable, documentation relating to Senior Debt, a listing of
Worldwide's Inventory and Equipment, and such other records and documentation as
shall reasonably related to PBM's interest as a secured creditor of Worldwide
under the terms of the Note.
(b) Insurance and Endorsement. (i) Keep the Collateral and
Worldwide's other properties insured against loss or damage by fire and other
hazards (so-called "All Risk" coverage) in amounts and with companies
satisfactory to PBM to the same extent and covering such risks as is customary
in the same or a similar business; maintain public liability coverage, including
without limitation, products liability coverage, against claims for personal
injuries or death; and maintain all worker's compensation, employment or similar
insurance as may be required by applicable law; (ii) All insurance shall contain
such terms, be in such form, and be for such periods as are reasonably
satisfactory to PBM, and be written by such carriers
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duly licensed by the State of California. Without limiting the generality of the
foregoing, such insurance must provide that it may not be canceled without ten
(10) days' prior written notice to PBM. Worldwide shall cause PBM to be endorsed
as a loss payee with a long form Lender's Loss Payable Clause, in form and
substance acceptable to PBM on all such insurance. In the event of a failure to
provide and maintain insurance as herein provided, PBM may, at its option after
having giving five (5) days prior written notice of intent to do so, provide
such insurance and charge the amount thereof to Worldwide. Worldwide shall
furnish to PBM certificates or other satisfactory evidence of compliance with
the foregoing insurance provisions. Worldwide hereby irrevocably appoints PBM as
its attorney-in-fact, coupled with an interest, to make proofs of loss and
claims for insurance, and to receive payments of the insurance and execute all
documents, checks and drafts in connection with payment of the insurance. Any
Proceeds received by PBM shall be applied to the Obligations or shall be
remitted to Worldwide, in either event at PBM's reasonable discretion.
(c) Tax and Other Liens. Comply with all statutes and government
regulations and pay all taxes (including withholdings), assessments,
governmental charges or levies, or claims for labor, supplies, rent and other
obligations made against it or its property which, if unpaid, might become a
lien or charge against Worldwide or its properties.
(d) Inspections. Upon reasonable notice and during normal
business hours, allow PBM by or through any of their officers, and/or
accountants designated by PBM, to enter the offices of Worldwide to examine or
inspect any of the properties, books and records or extracts therefrom relating
to Worldwide's financial or business conditions and to discuss the affairs,
finances and accounts thereof with Worldwide all at such reasonable times and as
often as PBM or any such representative of PBM may reasonably request, all
solely to provide such assurances as PBM may reasonably require that Worldwide
is adhering to the terms and conditions of the Loan Documents.
(e) Litigation. Promptly advise PBM of the commencement or threat
of litigation, including arbitration proceedings and any proceedings before any
governmental agency (collectively, "Litigation"), which is instituted against
Worldwide.
(f) Maintenance of Existence. Maintain its corporate existence,
and comply with all valid and applicable statutes, rules and regulations, and
maintain its properties in good repair, working order and operating condition.
Worldwide shall immediately notify PBM of any event causing material loss in the
value of its assets.
(g) Collateral Duties. Do whatever PBM may reasonably request
from time to time by way of obtaining, executing, delivering and filing
financing statements, assignments, landlord's or mortgagee's waivers, and other
notices and amendments and renewals thereof, and Worldwide will take any and all
steps and observe such formalities as PBM may reasonably request in order to
create and maintain a valid and enforceable first lien upon, pledge of, and
first priority security interest in, any and all of the Collateral (subject to
the Senior Debt). PBM is authorized to file financing statements without the
signature of Worldwide
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and to execute and file such financing statements on behalf of Worldwide as
specified by the UCC to perfect or maintain PBM's security interest in all of
the Collateral.
(h) Notice of Default. Provide to PBM, not later than five (5)
business days after becoming aware of the occurrence or existence of an Event of
Default (as defined in the Note) or a condition which would constitute an Event
of Default but for the giving of notice or passage of time on both, notice in
writing of such Event of Default or condition.
(i) Maintenance of Current Public Information. Worldwide agrees
to use its best efforts to make available "adequate current public information"
concerning itself within the meaning of Rule 144(c) promulgated under the
Securities Act of 1933, as amended. Notwithstanding anything herein to the
contrary, this covenant shall continue until the 15th month after the payment in
full of the Obligations and shall survive the termination of this Agreement.
5. NEGATIVE COVENANTS OF WORLDWIDE. WORLDWIDE COVENANTS AND AGREES THAT FROM THE
DATE HEREOF UNTIL FULL AND FINAL PAYMENT AND PERFORMANCE OF ALL OBLIGATIONS,
WORLDWIDE SHALL NOT WITHOUT THE PRIOR WRITTEN CONSENT OF PBM, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED:
(a) Encumbrances. Incur or permit to exist any lien, mortgage,
charge or other encumbrance against any of the Collateral, whether now owned or
hereafter acquired, except: (i) liens required or expressly permitted by the
Loan Documents; (ii) pledges or deposits in connection with or to secure
worker's compensation, unemployment or liability insurance; and (iii) tax liens
which are being contested in good faith against which, if reasonably requested
by PBM, Worldwide shall set up a cash reserve or post a surety bond in an amount
equal to the total amount of the lien being contested.
(b) Maintenance of Collateral. Permit to incur or suffer any
loss, theft, substantial damage or destruction of any of the Collateral which is
not immediately replaced with Collateral of equal or greater value, or which is
not fully covered by insurance, the proceeds of which shall have been endorsed
over to PBM in accordance with Section 4(b) hereof.
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6. Additional Rights of PBM.
(a) Upon the occurrence of an Event of Default as defined in the
Note, Worldwide hereby constitutes and appoints PBM (and any officer of PBM,
with full power of substitution) its true and lawful attorney and agent in fact
to take any or all of the actions described below in PBM's or Worldwide's name
and at Worldwide's expense, and Worldwide hereby ratifies and confirms all
actions so taken:
(i) Evidence of Liens. PBM may execute such financing
statements and other documents and take such other actions as PBM deems
reasonably necessary or proper in order to create, perfect or continue the
security interest and other liens provided for by this Security Agreement, and
PBM may file the same (or a photocopy of this Security Agreement or of any
financing statement signed by Worldwide) in any appropriate governmental office.
(ii) Preservation of Collateral. PBM may take any and all
action that it deems reasonably necessary or proper to preserve its interest in
the Collateral, including, without limitation, the payment of debts of
Worldwide, which, if unpaid, might materially impair the Collateral or PBM's
security interest therein; the purchase of insurance on the Collateral, if
Worldwide shall not then have in effect one or more policies of insurance
reasonably adequate to protect PBM's security interest therein; the repair or
safeguarding of the Collateral; or the payment of taxes, assessments or other
liens thereon. All sums so expended by PBM shall be added to the Obligations,
shall be secured by the Collateral, and shall be payable thirty (30) days
following PBM's written demand.
(iii) PBM's Right to Cure. In the event Worldwide fails to
perform any of its obligations, then PBM may perform the same but shall not be
obligated to do so. All sums so expended by PBM shall be added to the
Obligations, shall be secured by the Collateral, and shall be payable thirty
(30) days following PBM's written demand.
(iv) Verification of Accounts. PBM may test verifications
of any and all Accounts in any standard manner and through any recognized medium
PBM considers reasonable; provided, however, that such verifications shall
neither interfere nor have the prospect to interfere with the business or
prospects of Worldwide. Worldwide shall render any reasonable assistance upon
the written request therefor by PBM.
(v) Proofs of Loss. Upon ten (10) days' prior written
notice to Worldwide, PBM may file proofs of loss with respect to any of the
Collateral with the appropriate insurer and may endorse any checks or drafts
constituting insurance proceeds.
(vi) Collections; Modification or Terms. Upon the
occurrence and continuance of any Event of Default, PBM may demand, xxx for,
collect and give receipts for any money, instruments or property payable or
receivable on account of or in exchange for any of the Collateral, or make any
compromises it deems necessary or proper including, without limitation,
extending the time of payment, permitting payment in installments, or otherwise
modifying the terms or rights relating to any of the Collateral, all of which
may be effected without notice to or consent by Worldwide and without otherwise
discharging or affecting the Obligations, the Collateral or the security
interest granted under this Security Agreement.
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(vii) Notification of Account Debtors. Upon the occurrence
and continuance of any Event of Default and upon ten (10) days' prior written
notice to Worldwide, PBM may notify the account debtors of Worldwide on any of
the Accounts to make payment directly to PBM and PBM may endorse all items of
payment received by it which are payable to Worldwide and properly account to
Worldwide for all such transactions.
(viii) Endorsements. Upon the occurrence and continuance
of any Event of Default and upon ten (10) days' prior written notice to
Worldwide, PBM may endorse Worldwide's name on checks, notes, acceptances,
drafts, invoices, bills of lading and any other documents or instruments
requiring Worldwide's endorsement and properly account to Worldwide for all such
transactions.
(b) Worldwide covenants and agrees that the power of attorney
granted by the foregoing subsection (a) is coupled with an interest and shall be
irrevocable so long as this Security Agreement is in force; that said powers are
granted solely for the protection of PBM's interest and that PBM shall have no
duty to exercise any thereof; that the decision whether to exercise any of such
powers, and the manner of exercise, shall be solely within PBM's reasonable
discretion.
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7. REMEDIES OF PBM IN RESPECT OF THE COLLATERAL SHARES.
(a) UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT (AS DEFINED IN
THE NOTE), PBM SHALL HAVE THE RIGHT TO DECLARE ALL OF THE OBLIGATIONS TO BE
IMMEDIATELY DUE AND PAYABLE AND SHALL THEN, IN RESPECT ONLY OF THE COLLATERAL
SHARES, HAVE THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM
COMMERCIAL CODE OR UNDER ANY OTHER APPLICABLE LAW, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO TAKE POSSESSION OF THE COLLATERAL SHARES. FOLLOWING AN
EVENT OF DEFAULT, PBM SHALL HAVE THE RIGHT TO IMMEDIATELY MAKE WRITTEN DEMAND
UPON THE COLLATERAL AGENT TO DELIVER THE COLLATERAL SHARES AND THE ASSIGNMENT
DOCUMENTATION TO PBM. NOT LATER THAN FIVE (5) DAYS AFTER THE COLLATERAL AGENT'S
RECEIPT OF SUCH WRITTEN DEMAND, THE COLLATERAL AGENT SHALL MAKE DELIVERY, IN
ACCORDANCE WITH PBM'S DEMAND, OF THE CERTIFICATE REPRESENTING THE COLLATERAL
SHARES TOGETHER WITH THE ASSIGNMENT DOCUMENTATION IN BLANK OR COMPLETED AS PBM
SHALL HAVE SPECIFIED UNLESS, PRIOR TO THE END OF SUCH FIVE (5) DAY PERIOD,
WORLDWIDE SHALL HAVE GIVEN WRITTEN NOTICE TO THE COLLATERAL AGENT AND TO PBM IN
GOOD FAITH DISPUTING THE OCCURRENCE OF THE EVENT OF DEFAULT AND DIRECTING THE
COLLATERAL AGENT TO WITHHOLD THE DELIVERY OF THE COLLATERAL SHARES AND THE
ASSIGNMENT DOCUMENTATION. UPON RECEIPT OF SUCH WRITTEN NOTICE FROM WORLDWIDE,
THE COLLATERAL AGENT SHALL NOT DELIVER THE COLLATERAL SHARES AND THE ASSIGNMENT
DOCUMENTATION TO ANY PERSON OTHER THAN INTO COURT UNTIL THE CONTROVERSY SHALL
HAVE BEEN SETTLED EITHER BY AN AGREEMENT OR BY A FINAL JUDGMENT OF A COURT OF
COMPETENT JURISDICTION. EACH PARTY SHALL BE ENTITLED TO REIMBURSEMENT BY THE
OTHER OF ITS REASONABLE ATTORNEYS FEES AND COSTS AND OTHER REASONABLE EXPENSES
INCURRED IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION SHALL DETERMINE IN
ITS FAVOR (THAT IS, AS TO PBM, THAT AN EVENT OF DEFAULT SHALL HAVE OCCURRED
FOLLOWING WORLDWIDE'S DISPUTE OF SAME; AND THAT IS, AS TO WORLDWIDE, THAT AN
EVENT OF DEFAULT SHALL NOT HAVE OCCURRED), NOTWITHSTANDING A PARTY'S GOOD FAITH
IN ASSERTING THE EXISTENCE OF AN EVENT OF DEFAULT (IN THE CASE OF PBM) OR THE
ABSENCE THEREOF (IN THE CASE OF WORLDWIDE).
(b) UPON THE DELIVERY TO PBM OF THE COLLATERAL SHARES AND THE
ASSIGNMENT DOCUMENTATION PURSUANT TO SECTION 7(a) ABOVE, PBM MAY DATE ANY OF THE
ASSIGNMENT DOCUMENTS AND PARTICIPATE AS THE OWNER OF THE COLLATERAL SHARES IN
THE ELECTION OF DIRECTORS AND MAY EXERCISE SUCH OTHER RIGHTS AS A STOCKHOLDER OF
WORLDWIDE AS IT MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, SEE FIT. IN ADDITION
TO THE FOREGOING REMEDIES, PBM MAY BE THE PURCHASER OF ANY OR ALL OF THE
COLLATERAL SHARES SOLD AT ANY PUBLIC OR PRIVATE SALE AND THEREAFTER HOLD THE
SAME, ABSOLUTELY, FREE AND CLEAR OF AND FROM ANY AND ALL CLAIMS OR RIGHTS OF ANY
KIND WHATSOEVER. WORLDWIDE HEREBY ACKNOWLEDGES AND AGREES THAT TEN DAYS' NOTICE
SHALL BE DEEMED COMMERCIALLY REASONABLE NOTICE WITH RESPECT TO THE TIME AND
PLACE OF ANY PUBLIC SALE OR THE TIME AFTER WHICH ANY PRIVATE SALE OR ANY OTHER
INTENDED DISPOSITION OF THE COLLATERAL SHARES IS TO BE MADE, AND, IN THE CASE OF
ANY NOTICE TO WORLDWIDE OF A PRIVATE SALE, SUCH NOTICE SHALL ADVISE WORLDWIDE OF
THE TERMS AND CONDITIONS OF THE SALE AS ARE THEN KNOWN TO PBM. RECOGNIZING THE
POSSIBILITY THAT THERE MAY BE NO ADEQUATE MARKET FOR THE COLLATERAL SHARES OR
THAT THE SALE OF THE COLLATERAL SHARES MAY REQUIRE REGISTRATION UNDER THE
SECURITIES ACT OF 1933 OR QUALIFICATION UNDER OTHER STATE OR FEDERAL LAWS
RELATING TO SECURITIES, WORLDWIDE SPECIFICALLY AUTHORIZES (i) A PRIVATE SALE OF
ALL OR ANY OF THE COLLATERAL SHARES WITHOUT ATTEMPTS BY PBM TO APPROACH MORE
THAN ONE POSSIBLE PURCHASER AND (ii) PBM'S RIGHT, WITHOUT THE SALE OF ANY OF THE
COLLATERAL SHARES, TO VOTE ANY OF THE COLLATERAL SHARES FOR THE SALE, TRANSFER
OR EXCHANGE OF ASSETS AND/OR LIQUIDATION OR DISSOLUTION OF WORLDWIDE.
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(c) THE PROCEEDS OF ANY SALE OF ANY OF THE COLLATERAL SHARES
SHALL BE APPLIED TO EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEY'S FEES TO
THE FULLEST EXTENT ALLOWABLE BY LAW, REASONABLY INCURRED IN CONNECTION WITH SUCH
SALES, THE COLLECTION OF THE NOTE, AND THE PROSECUTION OR DEFENSE OF ANY
PROCEEDING RELATED THERETO, AND THEN TO THE PAYMENT OR SATISFACTION OF THE NOTE.
IN THE EVENT THE PROCEEDS OF ANY SALE, LEASE OR OTHER DISPOSITION OF THE
COLLATERAL HEREUNDER, INCLUDING WITHOUT LIMITATION, THE PROCEEDS FROM THE
COLLECTION OF ACCOUNTS, ARE INSUFFICIENT TO PAY ALL OF THE OBLIGATIONS IN FULL,
WORLDWIDE WILL BE LIABLE FOR THE DEFICIENCY, TOGETHER WITH INTEREST THEREON, AT
THE MAXIMUM RATE ALLOWABLE BY LAW, AND THE COSTS AND EXPENSES OF COLLECTION OF
SUCH DEFICIENCY, INCLUDING (TO THE EXTENT PERMITTED BY LAW) WITHOUT LIMITATION,
ATTORNEY'S FEES, EXPENSES AND DISBURSEMENTS. FROM AND AFTER THE OCCURRENCE OF AN
EVENT OF DEFAULT AND UNLESS AND UNTIL THE NOTE HAS BEEN FULLY PAID AND
SATISFIED, PBM SHALL BE ENTITLED TO ACT WITH RESPECT TO THE COLLATERAL SHARES IN
ALL MATTERS OR EVENTS, AND TO EXERCISE ALL RIGHTS AND PRIVILEGES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, AS AN ABSOLUTE OWNER OF THE COLLATERAL SHARES AND TO
HOLD ALL PROCEEDS FROM THE SALE THEREOF AS PART OF THE COLLATERAL HEREUNDER.
8. REMEDIES OF PBM IN RESPECT OF THE COLLATERAL. UPON THE OCCURRENCE OF AN EVENT
OF DEFAULT THAT IS OF A NATURE THAT IS EXPRESSLY SET FORTH IN ANY OF SECTIONS
5(b), 5(c), 5(d) OR 5(e) OF THE NOTE, PBM SHALL HAVE THE RIGHT TO DECLARE ALL OF
THE OBLIGATIONS TO BE IMMEDIATELY DUE AND PAYABLE AND SHALL THEN AS RESPECTS ANY
AND ALL OF THE COLLATERAL HAVE THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER
THE UNIFORM COMMERCIAL CODE OR UNDER ANY OTHER APPLICABLE LAW. IN ADDITION, PBM
SHALL BE ENTITLED TO THE RIGHTS AND REMEDIES, AND WORLDWIDE SHALL HAVE THE
OBLIGATIONS, SET FORTH BELOW:
(a) PBM may enter upon the premises where any of the Collateral
is located and take possession of, and at PBM's option remove, any or all
thereof.
(b) Upon notice from PBM, Worldwide shall promptly at its expense
assemble any or all of the Collateral and make it available at a reasonably
convenient place designated by PBM.
(c) PBM may, with or without judicial process, sell, lease or
otherwise dispose of any or all of the Collateral at public or private sale or
proceedings, by one or more contracts, in one or more parcels, at the same or
different times and places, with or without having the Collateral at the place
of sale or other disposition, to such persons or entities, for cash or credit or
for future delivery and upon such other terms, as PBM may in its discretion deem
best in each such matter. The purchaser of any of the Collateral at any such
sale shall hold the same free of any equity of redemption of other right or
claim of Worldwide, all of which, together with all rights, of stay, exemption
or appraisal under any statute or other law now or hereafter in effect,
Worldwide hereby unconditionally waives to the fullest extent permitted by law.
If any of the Collateral is sold on credit or for future delivery, PBM shall not
be liable for the failure of the purchaser to pay for same and, in the event of
such failure, PBM may resell such Collateral.
(d) Worldwide further agrees that notice of the time after which
any private sale or other intended disposition or action relating to any of the
Collateral is to be made or taken, shall be deemed commercially reasonable
notice thereof, and shall satisfy the requirements of any applicable statute or
other law, if such notice is delivered or mailed (by ordinary first class
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mail, postage prepaid) not less than ten (10) business days prior to the date of
the sale, disposition or other action to which the notice related. PBM shall not
be obligated to make any sale or other disposition or take other action pursuant
to such notice and may, with similar notice or publication, adjourn or postpone
any public or private sale or other disposition or action by announcement at the
time and place fixed therefor, and such sale, disposition or action may be held
or accomplished at any time or place to which the same may be so adjourned or
postponed.
(e) PBM may purchase any or all of the Collateral at any public
sale and may purchase at private sale any of the Collateral that is of a type
customarily sold in a recognized market or the subject of widely distributed
price quotations or as may be further permitted by law. PBM may make payment of
the purchase price for any Collateral by credit against the then outstanding
amount of the Obligations.
(f) PBM may at its discretion retain any or all of the Collateral
and apply the same, at fair market value, in satisfaction of part or all of the
Obligations.
(g) Any cash proceeds of sale, lease or other disposition of
Collateral shall be applied as follows:
First: To the reasonable expenses of collecting,
enforcing, safeguarding, holding and disposing of Collateral, and to other
reasonable expenses of PBM in connection with the enforcement of this Security
Agreement, the Note, or the Loan Documents including, without limitation, court
costs and the reasonable fees of attorneys, accountants and appraisers;
Second: Any surplus then remaining to the payment of the
Obligations; and
Third: Any surplus then remaining to Worldwide or whoever
may be lawfully entitled thereto.
(h) Worldwide agrees that, in connection with any action or
proceeding arising out of or relating to the Obligations, this Security
Agreement or the Collateral:
(i) Worldwide waives the right to a trial by jury and all
defenses and right to interpose any setoff or counterclaim of any nature, except
and only to the extent such defense pertains to the existence of an Event of
Default;
(ii) Worldwide consents to the jurisdiction of any court
of the State of California and of any federal court located in California, and
Worldwide waives any right to object to such court as a forum inconvenient to
Worldwide;
(iii) Worldwide agrees that PBM shall be entitled to sell
or otherwise deal with any or all of the Collateral, in any order or
simultaneously as PBM shall determine in its reasonable discretion, free of any
requirement for the marshalling of assets or other restriction upon PBM in
dealing with the Collateral.
9. Costs and Expenses. Upon the occurrence of an Event of Default as
defined in the Note, Worldwide agrees to pay on demand all of PBM's reasonable
expenses in collecting,
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enforcing, safeguarding, holding and disposing of Collateral, and all other
losses, costs and expenses incurred by PBM in connection with the enforcement of
this Security Agreement, the Note or the Loan Documents, or in connection with
legal advice relating to the rights or responsibilities of PBM under any thereof
(including in each case, without limitation, the reasonable fees and
out-of-pocket expenses of attorneys, accountants and appraisers).
With respect to any amount advanced by PBM and required to be reimbursed
by Worldwide pursuant to any provision of this Security Agreement, Worldwide
shall also pay PBM interest on such amount at the rate from time to time
applicable to overdue principal of the Note from the date on which Worldwide
receives written notice of the expenditure to the date of reimbursement.
Worldwide's obligations under this Section 9 shall survive payment of the Note
and the other Obligations.
10. WAIVERS; ETC. WORLDWIDE HEREBY WAIVES PRESENTMENT, DEMAND, NOTICE, PROTEST
AND ALL OTHER DEMANDS AND NOTICES IN CONNECTION WITH THIS AGREEMENT OR THE
ENFORCEMENT OF PBM'S RIGHTS HEREUNDER OR IN CONNECTION WITH ANY OBLIGATIONS OR
ANY COLLATERAL; AND CONSENTS TO AND WAIVES NOTICE OF: (a) THE GRANTING OF
RENEWALS, EXTENSIONS OF TIME FOR PAYMENT OR OTHER INDULGENCES TO WORLDWIDE OR TO
ANY ACCOUNT DEBTOR IN RESPECT OF ANY ACCOUNT RECEIVABLE OF WORLDWIDE; (b)
SUBSTITUTION, RELEASE OR SURRENDER OF ANY COLLATERAL; (c) THE ADDITION OR
RELEASE OF PERSONS PRIMARILY OR SECONDARILY LIABLE ON ANY OF THE OBLIGATIONS OR
ON ANY ACCOUNT RECEIVABLE OR OTHER COLLATERAL; AND (d) THE ACCEPTANCE OF PARTIAL
PAYMENTS ON ANY OBLIGATIONS OR ON ANY ACCOUNT RECEIVABLE OR OTHER COLLATERAL
AND/OR THE SETTLEMENT OR COMPROMISE THEREOF. NO DELAY OR OMISSION ON THE PART OF
PBM IN EXERCISING ANY RIGHT HEREUNDER SHALL OPERATE AS A WAIVER OF SUCH RIGHT OR
OF ANY OTHER RIGHT HEREUNDER. ANY WAIVER OF ANY SUCH RIGHT ON ANY ONE OCCASION
SHALL NOT BE CONSTRUED AS A BAR TO OR WAIVER OF ANY SUCH RIGHT ON ANY SUCH
FUTURE OCCASION. WORLDWIDE'S WAIVERS UNDER THIS SECTION HAVE BEEN MADE
VOLUNTARILY, INTELLIGENTLY, KNOWINGLY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS THEREOF.
11. TERMINATION; ASSIGNMENT; ETC. THIS AGREEMENT AND THE SECURITY INTEREST IN
THE COLLATERAL CREATED HEREBY SHALL TERMINATE WHEN ALL OF THE OBLIGATIONS HAVE
BEEN PAID AND FINALLY DISCHARGED IN FULL. NO WAIVER BY PBM OR BY ANY OTHER
HOLDER OF THE OBLIGATIONS OF ANY DEFAULT SHALL BE EFFECTIVE UNLESS IN WRITING
SIGNED BY PBM NOR SHALL ANY WAIVER GRANTED ON ANY ONE OCCASION OPERATE AS A
WAIVER OF ANY OTHER DEFAULT OR OF THE SAME DEFAULT ON A FUTURE OCCASION. IN THE
EVENT OF A SALE OR ASSIGNMENT BY PBM OF ALL OR ANY OF THE OBLIGATIONS HELD BY
PBM, PBM MAY NOT ASSIGN OR TRANSFER ITS RESPECTIVE RIGHTS AND INTERESTS UNDER
THIS AGREEMENT IN WHOLE OR IN PART TO THE PURCHASER OR PURCHASERS OF SUCH
OBLIGATIONS; ACCORDINGLY, SUCH PURCHASER OR PURCHASERS SHALL BECOME VESTED WITH
ALL OF THE POWERS AND RIGHTS HEREUNDER FURTHER, NO SALE OR ASSIGNMENT SHALL ACT
TO RELEASE OR DISCHARGE, IN WHOLE OR IN PART, PBM FROM ANY LIABILITY OR
RESPONSIBILITY HEREUNDER WITH RESPECT TO THE RIGHTS AND INTERESTS SO ASSIGNED.
12. MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon PBM and Worldwide and their respective successors
and
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assigns.
(b) Changes. Changes in or additions to this Agreement may be
made or compliance with any term, covenant, agreement, condition or provision
set forth herein may be omitted or waived (either generally or in a particular
instance and either retroactively or prospectively), only upon written consent
of Worldwide and PBM.
(c) Notices. All notices, requests, consents and demands shall be
made in writing and shall be delivered by facsimile to the fax number set forth
below or by hand, sent via a reputable overnight courier service or mailed by
first class certified or registered mail, return receipt requested, postage
prepaid to Worldwide;
If to Worldwide:
Worldwide Medical Corporation
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxx, President
Fax No.: (000) 000-0000
With a copy to:
(which shall not constitute notice)
Xxxxx Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esquire
Fax Number: (000) 000-0000
If to PBM:
Princeton BioMeditech Corp.
0000 X.X. Xxxxx 0
Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xx. Xxxx Xxxx
Fax No.: (000) 000-0000
With a copy to:
(which shall not constitute notice)
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Fox, Rothschild, O'Brien & Xxxxxxx
000 Xxxxx Xxxxx
Xxxxxxxx 0
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esquire
Fax No.: (000) 000-0000
(d) Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of California notwithstanding any conflict-of-laws doctrines of
such state or other jurisdictions to the contrary, and without the aid of any
canon, custom or rule of law requiring constructions against the draftsman. The
parties agree to submit to the jurisdiction and venue of the sate and federal
courts of Orange County, California, for the purposes of resolving disputes
hereunder and authorize any such action to be instituted and prosecuted
exclusively in the Superior Court of the State of California or, if appropriate,
the United States District Court for the Central District of California.
(e) Breach. Worldwide agrees to pay all costs of enforcement,
including reasonable attorney's fees and legal expenses incurred by PBM in the
event that Worldwide fails to comply with or otherwise breaches this Agreement.
(f) Severability. If any provision of this Agreement is held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of the other provisions of this Agreement, all of
which are declared severable.
(g) Headings. The headings used in this Agreement are solely for
convenience of reference and shall not affect its interpretation.
(h) Words and Phrases. Words and phrases such as "to this
Agreement," "herein," "hereinafter," "hereto," "hereof," "hereby," and
"hereunder," when used with reference to this Agreement, refer to this Agreement
as a whole, unless the context otherwise requires.
(i) Gender and Number. Wherever from the context of this
Agreement it appears appropriate, each term stated in either the singular or the
plural shall
76
include the singular or the plural, and pronouns sated in either the masculine,
feminine or neuter gender, shall include the masculine, feminine and neuter.
(j) Conflict. In the event of any conflict between the terms of
any of the Loan Documents, including, but not limited to, this Agreement and the
Note, the terms of the Note shall control.
(k) Entire Understanding. Except as expressly reserved or
otherwise provided herein, this Agreement contains the entire understanding
among the parties hereto with respect to the subject matter hereof, and
supercedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
(l) Jury Waiver. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY
COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH
OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THIS AGREEMENT IS A
PART AND/OR THE ENFORCEMENT OF ANY OF THE PARTIES' RESPECTIVE RIGHTS AND
REMEDIES, INCLUDING WITHOUT LIMITATION, TORT CLAIMS. THE PARTIES ACKNOWLEDGE
THAT EACH MADE THIS WAIVER VOLUNTARILY, INTELLIGENTLY, KNOWINGLY, WITHOUT DURESS
AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS THEREOF.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, including separate counterparts, all of which when taken together,
shall constitute one instrument.
Signed as of the date first above written.
WITNESSES: WORLDWIDE MEDICAL CORPORATION
By:
---------------------------------- ------------------------------------
Xxxxxx XxXxxxx, President
PRINCETON BIOMEDITECH CORP.
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By:
---------------------------------- ------------------------------------
Xxxx Xxxx, President
78
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ______ day of
__________, 2001, by Xxxxxx XxXxxxx, President of Worldwide Medical Corporation,
a Delaware corporation.
------------------------------------
Notary Public
My commission expires:
--------------
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Exhibit A
1. Security Interest.
A. Stock. One million five hundred fifteen thousand (1,515,000) shares
of the Debtor's Common Stock together with the dividends, rights, options,
issues, products, proceeds and profits therefrom (collectively, the "Collateral
Shares"). The interest of the Secured Party in the Collateral Shares is a first
priority lien and security interest in and to the Collateral Shares. In addition
to a stock certificate representing the Collateral Shares, the Debtor shall
deliver to the Collateral Agent (as that term is defined in the Collateral Agent
Agreement between the Debtor and the Secured Party) the Debtor's undated
assignment separate from such certificate executed in blank, together with such
other assignments, agreements, instruments and documents (collectively, the
"Assignment Documentation") as the Secured Party from time to time may
reasonably require and as may be necessary or expedient to facilitate the
transfer thereof. The Collateral Shares and the Assignment Documentation shall
be held and distributed by the Collateral Agent in accordance with the terms and
conditions of the Convertible Secured Promissory Note of the Debtor in favor of
the Secured Party, executed on May 8, 2001, to be effective as of January 1,
2001 (the "Note"), and the related Security Agreement, executed and effective as
of such dates (the "Security Agreement").
B. The Debtor's Property. All of the Debtor's Property, which shall
refer to all of the Debtor's "Tangible and Intangible Personal Property" which,
for purposes of the Security Agreement and this UCC-1 Financing Statement, shall
mean all such property located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxx,
Xxxxxxxxxx 00000, and all other tangible and intangible personal property of the
Debtor wherever located, including, without limitation, all "Goods," "Fixtures,"
"Accounts," "Chattel Paper," "Contracts," "Documents," "Equipment," "General
Intangibles," "Instruments" and "Inventory," (as those terms are defined
hereinbelow), together, in each instance, with the renewals, substitutions,
replacements, additions, rental payments, products and "Proceeds" (as
hereinafter defined) thereof. The interest of the Secured Party in and to the
Debtor's Property is a first priority lien and security interest in and to the
Debtor's Property subject, however, to the rights of the "Other Lender" in
respect of the "Senior Debt" (as defined in the Note).
2. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
A. "Accounts" means all accounts, as that term is defined in Article 9
of the Uniform Commercial Code as in effect from time-to-time in the State of
California (the "UCC"), and, in any event, shall include any right to payment
held by the Debtor, whether in the form of accounts receivable, notes, drafts,
acceptances, letters of credit (including proceeds of letters of credit) or
other forms of obligations and receivables, now owned or hereafter received or
acquired by or belonging or owing to the Debtor (including, without limitation,
under any trade name, style or division thereof) for Inventory sold or leased or
services rendered by it whether or not earned by performance, together with all
guarantees and security therefor and all Proceeds thereof, whether cash Proceeds
or otherwise, including, without limitation, all right, title and interest of
the Debtor in the Inventory which gave rise to any such Accounts, including,
without limitation, unpaid
seller's rights of rescission, replevin, reclamation and stoppage in transit and
rights to returned, reclaimed, rejected or repossessed Inventory or other goods;
B. "Chattel Paper" means all chattel paper, as that term is defined in
Article 9 of the UCC, and, in any event, shall include any writing or writings
which evidence both a monetary obligation and a security interest in or a lease
of specific goods, whether now or hereafter held by the Debtor;
C. "Contracts" means all contracts, undertakings, franchise agreements
or other agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments, as those terms are defined above and below) in or under which the
Debtor may now or hereafter have any right, title or interest, including,
without limitation, with respect to an Account, and any agreement relating to
the terms of payment or the terms of performance thereof;
D. "Documents" means all documents, as that term is defined in Article 9
of the UCC;
E. "Equipment" means all equipment, as that term is defined in Article 9
of the UCC and, in any event, shall include, without limitation, all healthcare
and diagnostic related equipment, furnishings, and computers and other
electronic data processing and other office equipment, including, but not
limited to, the items of Equipment listed on Schedule 2E attached hereto and
made a part hereof, any and all additions, substitutions and replacements of any
of the foregoing, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed thereto, and all
Contracts, contract rights and Chattel Paper arising out of any lease of any of
the foregoing;
F. "Fixtures" means all fixtures, as that term is defined in Article 9
of the UCC;
G. "General Intangibles" means all general intangibles, as that term is
defined in Article 9 of the UCC, and, in any event, shall include all right,
title and interest which the Debtor may now or hereafter have in or under any
Contract, all customer lists, trademarks, patents, rights in intellectual
property, interests in corporations, limited liability companies, partnerships,
joint ventures and other business associations, licenses, permits, copyrights,
trade secrets, proprietary or confidential information, inventions (whether or
not patented or patentable), technical information, procedures, designs,
knowledge, know-how, software, data bases, data, skill, expertise, recipes,
experience, processes, models, drawings, blueprints, catalogs, materials and
records, FDA approvals, permits and authorizations, unfilled customer purchase
orders, goodwill (including, without limitation, the goodwill associated with
any trademark, trademark registration or trademark licensed under any trademark
license), claims in or under insurance policies, including unearned premiums,
uncertificated securities, deposit accounts, rights to receive tax refunds and
other payments and rights of indemnification;
H. "Goods" means all goods, as that term is defined in Article 2 of the
UCC;
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I. "Instruments" means all instruments, as that term is defined in
Article 9 of the UCC, and, in any event, shall include any negotiable instrument
or certificated security, as defined in Article 8 of the UCC, or any other
writing which evidences a right to the payment of money and is not itself an
instrument that constitutes, or is a part of a group or writings that
constitute, Chattel Paper, and is of a type which, in the ordinary course of
business, is transferred by delivery with any necessary endorsement or
assignment, whether now or hereafter held by the Debtor;
J. "Inventory" means all inventory, as that term is defined in Article 9
of the UCC, wherever located, and, in any event, shall include all inventory,
merchandise, goods and other personal property which are held by or on behalf of
the Debtor for sale or lease or are furnished or are to be furnished under a
contract of service or which constitute raw materials, work in process or
materials used or consumed or to be used or consumed in the Debtor's business,
or the processing, packaging, promotion, delivery or shipping of the same, and
all finished goods, whether or not the same is in transit or in the
constructive, actual or exclusive occupancy or possession of the Debtor or is
held by the Debtor or by others for the Debtor's account, including, without
limitation, all goods covered by purchase orders and contracts with suppliers
and all goods billed and held by suppliers and all inventory which may be
located on premises of the Debtor or of any carriers, forwarding agents,
truckers, warehousemen, vendors, selling agents or other Persons;
K. "Loan Documents" means the Security Agreement, and any and all
agreements, notes, guaranties, instruments, security agreements, mortgages,
assignments, and documents evidencing, governing, securing or relating in any
way to any of the Obligations, including without limitation, that certain Note
in the original principal amount of $631,513.37 from the Debtor in favor of the
Secured Party of even date herewith and that certain Form UCC-1 Financing
Statement executed by the parties of even date herewith;
L. "Obligations" means any and all indebtedness, obligations,
liabilities, contracts, indentures, agreements, warranties, covenants,
guaranties, representations, provisions, terms and conditions of whatever kind
with regard to the Loan Documents, whether due or to become due, absolute or
contingent, now existing or hereafter incurred or arising, whether or not
otherwise guaranteed or secured and whether evidenced by any note or draft or
documented on the books and records of the Secured Party or otherwise on open
account, including without limitation, all costs, expenses, fees, charges and
attorneys' and other professional fees incurred by the Secured Party in
connection with, involving or related to the administration, protection,
modification, collection, enforcement, preservation or defense of any of the
Secured Party's rights with respect to any of the Obligations, the Collateral or
any agreement, instrument or document evidencing, governing, securing or
relating to any of the foregoing, including without limitation, all costs and
expenses incurred in inspecting or surveying mortgaged real estate, if any, or
conducting environmental studies or tests, and in connection with any "workout"
or
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default resolution negotiations involving legal counsel or other professionals
and any renegotiation or restructuring of any of the Obligations; and
M. "Proceeds" means all proceeds, as that term is defined in Article 9
of the UCC, and, in any event, shall include (a) any and all Accounts, Chattel
Paper, Instruments, cash and other proceeds payable to the Debtor from
time-to-time in respect of any of the foregoing collateral security, (b) any and
all proceeds of any insurance, indemnity, warranty or guaranty payable to the
Debtor from time-to-time with respect to any of the collateral security, (c) any
and all payments (in any form whatsoever) made or due and payable to the Debtor
from time-to-time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the collateral
security by any governmental body, authority, bureau or agency (or any person
acting under color of governmental authority), and (d) any and all other amounts
from time-to-time paid or payable under or in connection with any of the
collateral security.
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