AMENDED AND RESTATED
SECURITY AGREEMENT
BY AND BETWEEN
ELECTRONIC TRANSACTIONS & TECHNOLOGIES
AND XXXXXX X. XXXXXX,
AND
ECONNECT
eConnect, a Nevada corporation ("Secured Party"), and Electronic
Transactions & Technologies, a Nevada corporation and Xxxxxx X.
Xxxxxx (collectively, "Debtor") agree as follows:
1. GRANT OF SECURITY INTEREST.
1.1 The Debtor, jointly and severally, hereby grant to the
Secured Party a security interest in shares of common stock in
Secured Party owned by Debtor in the amount of 9,400,000 as
collateral security for:
1.1.1 The satisfaction and the prompt and full performance of
all of Debtor's obligations under that certain Promissory Note of
even date herewith in the principal amount of Three Million Eight
Hundred Fifty-Seven Thousand Nine Hundred Eleven Dollars
($3,857,911) plus interest at the legal rate of ten percent (10%)
annually beginning July 1, 1999 (March 31, 2000 for the sum of
One Million Twenty-One Thousand Five Hundred Dollars
($1,021,500)) ("Note"), as the Note may be amended, modified, or
extended from time to time (including, without limitation, the
obligation to make payments of principal and interest thereon);
and
1.1.2 The full, faithful, true and exact performance and
observance of all of the obligations, covenants and duties of
Debtor under this Security Agreement, as the same may be amended,
modified, or extended from time to time.
2. DEFAULT. Any of the following events shall constitute an
event of default hereunder:
2.1 The failure by Debtor to make full and timely payment when
due of any sum as required to be paid to Secured Party under the
Note after any applicable notice of non-payment provided for in
the Note has been given, and any period within which to cure the
non-payment has elapsed, if applicable. A true and correct copy
of the Note is attached hereto as Exhibit C and incorporated
herein by this reference.
2.2 The failure by Debtor to fully and timely perform any
covenant, agreement, obligation or duty imposed on Debtor by this
Security Agreement or any other agreement by and between Debtor
and Secured Party now existing or hereinafter made.
2.3 The filing by Debtor of any petition, or commencement by
Debtor of any proceeding, under the Bankruptcy Act or any state
insolvency law.
2.4 The making by Debtor of any general assignment for the
benefit of creditors.
2.5 The filing of any petition, or commencement of any
proceeding, under the Bankruptcy Act or any state insolvency law,
against Debtor, or the appointment of any receiver or trustee,
which petition, proceeding or appointment is not fully and
completely discharged, dismissed or vacated within sixty (60)
days.
2.6 Any warranties made by Debtor are untrue in any material
respect, or any schedule, statement, report, notice, or writing
furnished by Debtor to the Secured Party are untrue in any
material respect on the date as of which the facts set forth are
stated or certified.
3. INSPECTION OF RECORDS. Secured Party shall have the right
without notice to inspect all financial books, records and
reports of Debtor at Debtor's premises or wherever the same may
be maintained during normal business hours.
4. REMEDIES UPON DEFAULT.
4.1 Upon the occurrence of an event of default, in addition to
any and all other remedies at law or in equity available to
Secured Party, Debtors hereby authorize and empower Secured
Party, at Secured Party's option and without notice to Debtor,
except as specifically provided herein (and, to the extent
necessary, hereby irrevocably appoint Secured Party as Debtor's
attorney-in-fact for such purposes):
4.1.1 To require Debtor to assemble any and all of the
Collateral and make the same available to Secured Party at the
premises wherein the same is located, or any other place
designated by Secured Party; Secured Party may enter upon any
premises where any of the Collateral is located and may take
possession of the same without judicial process and without the
need to post any bond or security as an incident thereto; and
4.1.2 To sell, assign, transfer and deliver the whole or any
part of the Collateral on any securities market on which the
Collateral is trading, at such prices and upon such terms as are
commercially reasonable, given the nature of the Collateral and
the market therefor, with or without warranties, demand for
performance, protest, notice of protest, or notice of dishonor
except as set forth herein, any other such advertisement,
presentment, demand or notice being expressly waived by Debtors
to the extent permitted by law. At any public sale or sales of
the Collateral, Secured Party or Secured Party's assigns may bid
for and purchase all or any party of the Collateral offered for
sale and upon compliance with the terms of such sale, may hold,
exploit and dispose of such Collateral discharged from all claims
of Debtor, except to the extent that Debtor have rights in the
proceeds of such sale or sales, and free from any right or
redemption, all of which are hereby expressly waived and
released, and may in paying the purchase price thereof, in lieu
of cash assignment at the face amount thereof, together with any
interest accrued thereon, all or any part of unpaid principal or
interest or both, payable under the Note.
4.2 In the event of any such sale by Secured Party of all or any
of said Collateral on credit, or for future delivery, such
property so sold may be retained by Secured Party until the
selling price is paid by the purchaser. Secured Party shall
incur no liability in case of the failure of the purchaser to
take up and pay for the property so sold. In case of any such
failure, said Collateral may be again, and from time to time,
sold.
4.3 In the event of any such sale or disposition, the proceeds
thereof shall be applied first to the payment of the expenses of
the sale, commissions, actual attorneys' fees, and all other
charges paid or incurred by Secured Party in taking, holding,
selling , advertising, or otherwise preparing such Collateral for
sale or otherwise in connection with maintaining the security of
such Collateral, including any taxes or other charges imposed by
law upon the Collateral and/or the ownership, holding or transfer
thereof; secondly, to pay, satisfy and discharge all indebtedness
of Debtor to Secured Party secured hereby then due and payable
pursuant to the Note; thirdly, to the extent that Debtor may
still have monetary obligations to Secured Party not yet due and
payable, Secured Party may retain any surplus as collateral for
the payment of such sums when due; and fourthly, if all of the
secured obligations are then discharged and satisfied, to pay the
surplus, if any, to Debtor. Secured Party shall look only to the
assets of the business then operated and/or owned by Debtor to
satisfy any and all claims, defaults or breaches regarding the
Note and shall not in any event, look to any other assets of
Debtor to satisfy same.
4.4 Secured Party shall not be liable or responsible for
safeguarding the Collateral, or any portion thereof, or
maintaining the condition thereof, or for any loss or damage
thereto and diminution in value of the Collateral either through
loss or non-collection. Secured Party shall not be liable or
responsible for any act or default of any carrier or warehouseman
or of any other person, other than that occasioned by the gross
negligence and willful misconduct of Secured Party.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and
warrants that this Security Agreement has been duly and validly
authorized, executed and delivered by Debtor and constitutes a
valid and binding agreement, enforceable in accordance with its
terms, and the execution and delivery of this Security Agreement
do not violate, or constitute a default (with or without the
giving of notice, the passage of time, or both) under any order,
judgment, agreement, contract, or instrument to which Debtor are
a party or by which Debtor are affected or may be bound. Debtor
represents that Debtor will at all times maintain the Collateral
in good state of repair and condition consistent with good
business practice, will pay any and all taxes thereon or
applicable thereto prior to delinquency.
6. INDEMNITY. In the case of any adverse claim with respect to
the Collateral or any portion thereof arising out of any act done, or
permitted or acquiesced in by Debtor, Debtor indemnifies and agrees to
hold Secured Party harmless from and against any and all claims,
losses, liabilities, damages, expenses, costs and actual
attorneys' fees incurred by Secured Party in or by virtue of
exercising any right, power or remedy of Secured Party hereunder
or defending, protecting, enforcing or prosecuting the security
interest hereby created. Any such loss, cost, liability, damage
or expense so incurred shall be repaid upon demand by Secured
Party and until so paid shall be deemed a secured obligation
hereunder.
7. NO WAIVER BY SECURED PARTY. Any forbearance, failure, or
delay by Secured Party in exercising any right, power or remedy hereunder
shall not be deemed to be a waiver of such right, power, or
remedy, and any single or partial exercise of any right, power,
or remedy of Secured party shall not preclude the later exercise
of any other right, power, or remedy, each of which shall
continue in full force and effect until such right, power, or
remedy is specifically waived by an instrument in writing,
executed by Secured Party.
8. EFFECTIVENESS OF AGREEMENT. This Security Agreement and
Debtors' duties and obligations and Secured Party's powers to dispose of
the Collateral, and all other rights, powers and remedies granted
to Secured Party hereunder shall remain in full force and effect
until Debtor has satisfied and discharged all of Debtor's
obligations to Secured Party secured thereby.
9. WAIVER BY DEBTOR. All provisions of law, in equity and by
statute providing for providing for, relating to, or pertaining
to pledges or security interests and the sale of pledged property
or property in which a security interest is granted, or which
prescribe, prohibit, limit or restrict the right to, or
conditions, notice or manner of sale, together with all
limitations of law, in equity, or by statute, on the right of
attachment in the case of secured obligations, are hereby
expressly waived by Debtor to the fullest extent Debtor may
lawfully waive same.
10. RELEASE OF COLLATERAL. Upon payment in full by Debtor, in
lawful money of the United States of America, to Secured Party at
the address set forth in the Note of all amounts secured hereby,
and performance of all other obligations of Debtor under this
Security Agreement, together with any interest thereon and any
costs and expenses incurred by Secured Party in the enforcement
of this Security Agreement or of any of Secured Party's rights
hereunder, or in the enforcement of any other agreements (whether
heretofore or hereafter entered into) between Debtor and Secured
Party, or any of the rights of Secured Party thereunder, and upon
the request of Debtor therefor, Secured Party will deliver to
Debtor, at Debtor's sole cost and expense, such termination
statements and such other documents of release, reconveyance and
reassignments as shall be sufficient to discharge Debtor of the
liabilities secured hereby and to terminate and release the
security interest in the Collateral created hereby.
11. MISCELLANEOUS.
11.1 This Security Agreement and all of the rights and duties in
connection herewith shall be governed by and construed in
accordance with the laws of the State of California.
11.2 This Security Agreement and all of its terms and provisions
shall be binding upon the heirs, successors, transferees and
assigns of each of the parties hereto.
11.3 In the event any portion of this Security Agreement is held
invalid, the remaining portions shall remain in full force and
effect as if that invalid portion had never been a part hereof.
11.4 In the event litigation is commenced to enforce or
interpret this Security Agreement, or any provision hereof, the
prevailing party shall be entitled to recover its actual costs
and attorneys' fees.
11.5 This Security Agreement may be amended only by written
consent of each of the parties hereto.
11.6 Any and all notices, demands, requests, or other
communications required or permitted by this Security Agreement
or by law to be served on, given to, or delivered to any party
hereto by any other party to this Security Agreement shall be in
writing and shall be deemed duly served, given, or delivered when
personally delivered to the party, or in lieu of such personal
delivery, when deposited in the United States mail, first-class
postage prepaid addressed to the party at the address herein
appearing.
11.7 This Security Agreement constitutes the entire security
agreement between the parties pertaining to the subject matter
contained herein and supercedes all prior and contemporaneous
agreements, representations and understandings of the parties.
No waiver of any of the provisions of this Security Agreement
shall be deemed, or shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
11.8 This Security Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. The exhibits attached hereto are made a part
hereof and incorporated herein.
11.9 Nothing in this Security Agreement, whether express or
implied, is intended to confer any rights or remedies under or by
reason of this Security Agreement on any persons other than the
parties to it and their respective successors and assigns, nor is
anything in this Security Agreement intended to relieve or
discharge the obligations or liability of any third persons to
any party to this Security Agreement, nor shall any provision
give any third person any right of subrogation or action against
any party to this Security Agreement.
11.10 Each party's obligations under this Security
Agreement is unique. If any party should default in its
obligations under this Security Agreement, the parties each
acknowledge that it would be extremely impracticable to measure
the resulting damages; accordingly, the nondefaulting party, in
addition any other available rights or remedies, may xxx in
equity for specific performance without the necessity of posting
a bond or other security, and the parties each expressly waive
the defense that a remedy in damages will be adequate.
11.11 All representations, warranties and agreements of the
parties contained in this Security Agreement, or in any
instrument, certificate, opinion or other writing provided for in
it, shall survive the completion of all acts contemplated herein.
11.12 Whenever the context of this Security Agreement requires,
the masculine gender includes the feminine or neuter gender, and
the singular number includes the plural.
11.13 As used herein, the word "days" shall refer to calendar
day, including holidays, weekends, non-business days, etc.
11.14 The captions contained herein do not constitute part of
this Security Agreement and are used solely for convenience and
shall in no way be used to construe, modify, limit otherwise
affect this Security Agreement.
IN WITNESS WHEREOF, this Security Agreement is executed on March
31, 2000 at San Xxxxx, California.
Debtor:
Electronic Transactions & Technologies
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, an individual
Secured Party:
eConnect
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
