SECURITY AGREEMENT
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SECURITY AGREEMENT (the "Security Agreement") dated as of March 31,
2003 by and among eClickMD, Inc., a Nevada corporation (the "Debtor") and
Gryphon Opportunities Fund I, LLC, a Delaware limited liability company (the
"Secured Party").
W I T N E S S E T H
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WHEREAS, the Debtor is a development stage entity with an accumulated
unaudited deficit of $11,283,580 as of December 31, 2002, limited revenues, no
income and/or assets;
WHEREAS, Debtor has borrowed an aggregate principal amount of
$1,403,403.38 from the Secured Party (such amount plus all accrued but unpaid
interest thereon shall sometimes collectively be referred to as set forth in
Schedule I hereto as the "Secured Party Debt");
WHEREAS, following demand by the Secured Party for the repayment of the
Secured Party Debt, the Company informed the Secured Party that it was,
currently is and in the future will not be able to repay the Secured Party Debt;
WHEREAS, the Debtor has informed the Secured Party that it has no
remaining funds to continue its operations and unless it receives an immediate
infusion of capital, it will be required to cease operations;
WHEREAS, the Debtor has attempted to raise funds from a number of
different sources but is unable to obtain any debt, equity and/or other
financing;
WHEREAS, pursuant to an Agreement dated as of March 31, 2003 by and
among the Debtor, the Secured Party and York Avenue Holding Corp., an affiliate
of the Secured Party ("York"), (the "Agreement"), the parties thereto agreed
that in consideration for (i) York converting $143,000 of indebtedness owed by
the Secured Party to York into securities of the Debtor, and (ii) the Secured
Party loaning to the Debtor Fifty Thousand ($50,000) Dollars (the "$50,000
Loan"), as evidenced by the form of promissory note annexed hereto as Exhibit 2
(the "Note"), so that the Debtor may continue in operation, the Debtor shall
secure the $50,000 Loan (plus all accrued but unpaid interest) and the Secured
Party Debt by entering into this Security Agreement;
WHEREAS, subject only the encumbrances set forth in Schedule II hereto,
Debtor agrees to grant the Secured Party a first priority security interest in
the Collateral (as hereinafter defined) as security for the repayment of the
$50,000 Loan and the Gryphon Debt (and all accumulated but unpaid interest
thereon); and
WHEREAS, the Company has been duly authorized to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing, Debtor and the
Secured Party agree as follows:
SECTION 1. Definitions.
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1.1 Certain Defined Terms. The following terms, as used herein,
have the meanings set forth below:
"Accounts" means all "accounts" (as defined in the UCC) now owned or
hereafter created or acquired by Debtor including all of the following now owned
or hereafter created or acquired by Debtor: (a) accounts receivable, contracts,
contract rights, book debts, notes, drafts and other obligations or indebtedness
owing to Debtor arising from the sale, lease or exchange of goods or other
property or the performance of services; (b) Debtor's rights in, to and under
all purchase orders for goods, services or other property; (c) Debtor's rights
to any goods, services or other property represented by any of the foregoing
(including returned or repossessed goods and unpaid sellers' rights of
rescission, repletion, reclamation and rights to stoppage in transit); (d)
monies due to or to become due to Debtor under all contracts for the sale, lease
or exchange of goods or other property or the performance of services (whether
or not yet earned by performance on the part of Debtor); and (e) Proceeds of any
of the foregoing and all collateral security and guaranties of any kind given by
any Person with respect to any of the foregoing.
"Collateral" has the meaning assigned to that term in Section 2.
"Computer Software" or "Software" means a computer program and any
supporting information provided in connection with a transaction relating to the
program.
"Copyright License" means any literary work which is subject to
copyright, including analog or digital versions of film, video clips, video
programs and related materials, regardless of the means of storage (i.e., tape,
disk, or otherwise).
"Copyrights" means collectively all of the following now owned or
hereafter created or acquired by Debtor: (a) all literary works (including
computer software), derivative works, works for hire, compositions, compilations
of all or some of the foregoing, whether published or unpublished, all
registrations or recordings thereof, and all applications in connection
therewith including registrations, recordings and applications in the Copyright
Office of the United States, or any other country; (b) all reissues, extensions
or renewals thereof; (c) all income, royalties, damages and payments now or
hereafter due or payable under any of the foregoing or with respect to any of
the foregoing including damages or payments for past or future infringements of
any of the foregoing; (d) the right to xxx for past, present and future
infringements or any of the foregoing; and (e) all rights corresponding to any
of the foregoing throughout the world.
"Debtor" has the meaning assigned to that term in the introduction to
this Security Agreement.
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"Documents" means all "documents" (as defined in the UCC) or other
receipts covering, evidencing or representing goods now owned or hereafter
acquired by Debtor.
"Equipment" means all "equipment" (as defined in the UCC) now owned or
hereafter acquired by Debtor including all machinery, motor vehicles, trucks,
trailers, vessels, aircraft and rolling stock and all parts thereof and all
additions and accessions thereto and replacements therefor.
"Event of Default" has the meaning assigned to that term in Section
9(a).
"Fixtures" means all of the following now owned or hereafter acquired
by Debtor: plant fixtures; business fixtures; other fixtures and storage office
facilities, wherever located; and all additions and accessions thereto and
replacements therefor.
"General Intangibles" means all "general intangibles" (as defined in
the UCC) now owned or hereafter acquired by Debtor including all right, title
and interest of Debtor in and to: (a) all software of the Debtor, including all
source code and object code thereto; (b) all agreements, leases, licenses and
contracts to which Debtor is or may become a party; (c) all obligations or
indebtedness owing to Debtor (other than Accounts) from whatever source arising;
(d) all tax refunds; (e) Intellectual Property; and (f) all trade secrets and
other confidential information relating to the business of Debtor.
"Instruments" means all "instruments" "chattel paper" or "letters of
credit" (each as defined in the UCC) including promissory notes, drafts, bills
of exchange and trade acceptances, now owned or hereafter acquired by Debtor.
"Intellectual Property" means collectively all of the following:
Copyrights, Copyright Licenses, Patents, Trademarks and Trademark Licenses.
"Inventory" means all "inventory" (as defined in the UCC), now owned or
hereafter acquired by Debtor, wherever located including finished goods, raw
materials, work in process and other materials and supplies (including packaging
and shipping materials) used or consumed in the manufacture or production
thereof and goods which are returned to or repossessed by Debtor.
"Patents" means all letters patent of the United States or any other
country, all right, title and interest therein and thereto, and (a) all
registrations and recordings thereof including, without limitation, applications
(including pending patent applications), registrations and recordings in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, and state thereof or any other country or any political
subdivision thereof, all whether now owned or hereafter acquired by Debtor, and
(b) all reissues, continuations, continuations-in-part or extensions thereof and
all licenses thereof, and (c) all of Debtor's other general intangibles of every
kind and description, whether now existing or hereafter arising including,
without limitation, copyrights and federal, state and local tax refund claims of
all kinds.
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"Proceeds" means all proceeds of, and all other profits, rentals or
receipts, in whatever form, arising from the collection, sale, lease, exchange,
assignment, licensing or other disposition of, or realization upon, any
Collateral including all claims of Debtor against third parties for loss of,
damage to or destruction of, or for proceeds payable under, or unearned premiums
with respect to, policies of insurance with respect to any Collateral, and any
condemnation or requisition payments with respect to any Collateral, in each
case whether now existing or hereafter arising.
"Secured Obligations" has the meaning assigned to that term in Section
3.
"Security Agreement" means this Security Agreement as it may be
amended, supplemented or otherwise modified from time to time.
"Security Interests" means the security interest granted pursuant to
Section 2, as well as all other security interests created or assigned as
additional security for the Secured Obligations pursuant to the provisions of
this Security Agreement.
"Trademark License" means any written agreement now or hereafter in
existence granting to Debtor any right to use any Trademark.
"Trademarks" means collectively all of the following now owned or
hereafter created or acquired by Debtor: (a) all trademarks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, service marks, logos, domain names and domain name registrations, other
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, all registrations and recordings thereof (to the extent
Debtor can register such corporate, company or business name as a trademark),
and all applications in connection therewith including registrations, recordings
and applications in the Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country or any political
subdivision thereof; (b) all reissues, extensions or renewals thereof; (c) all
income, royalties, damages and payments now or hereafter due or payable under
any of the foregoing or with respect to any of the foregoing including damages
or payments for past or future infringements of any of the foregoing; (d) the
right to xxx for past, present and future infringements of any of the foregoing;
(e) all rights corresponding to any of the foregoing throughout the world; and
(f) all goodwill associated with and symbolized by any of the foregoing.
"UCC" means the Uniform Commercial Code as in effect on the date hereof
in the State of New York, as amended from time to time, and any successor
statute; provided that if by reason of mandatory provisions of law, the
perfection or the effect of perfection or non-perfection of the Security
Interest in any Collateral is governed by the Uniform Commercial Code as in
effect on or after the date hereof in any other jurisdiction, "UCC" means the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provision hereof relating to such perfection or effect of perfection or
non-perfection.
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1.2 Other Definition Provisions. References to "Sections"
"subsections," "Exhibits" and "Schedules" shall be to Sections, subsections,
Exhibits and Schedules, respectively, of this Security Agreement unless
otherwise specifically provided. References to the words "including," "includes"
and "include" shall be deemed to be followed by the words "without limitation;"
and the term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." Any of the terms defined in subsection 1.1
may, unless the context otherwise requires, be used in the singular or the
plural depending on the reference. All references to statutes and related
regulations shall include any amendments of same and any successor statutes and
regulations.
SECTION 2. Grant of Security Interest.
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In order to secure the payment and performance of the Secured
Obligations in accordance with the terms thereof, Debtor hereby grants to the
Secured Party a continuing security interest in and to all right, title and
interest of Debtor in the following property, whether now owned or existing or
hereafter acquired or arising and regardless of where located (all being
collectively referred to as the "Collateral").
(a) Accounts;
(b) Inventory;
(c) Computer Software;
(d) General Intangibles;
(e) Documents;
(f) Instruments;
(g) Equipment;
(h) Fixtures;
(i) All deposit accounts of Debtor maintained with any
bank or financial institution;
(j) All books, records, ledger cards, files,
correspondence, computer programs, tapes, disks and related data processing
software that at any time evidence or contain information relating to any of the
property described in subparts (a) - (i) above or are otherwise necessary or
helpful in the collection thereof or realization thereon; and
(k) Proceeds of all or any of the property described in
subparts (a) - (j) above.
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Notwithstanding the foregoing, so long as no Event of Default has occurred and
is continuing, Debtor shall have the exclusive, non-transferable right and
license to use the Intellectual Property and the exclusive right to grant to
other Persons licenses and sublicenses with respect to the Intellectual
Property.
SECTION 3. Security for Obligations.
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This Security Agreement secures the payment and performance of all
obligations of Debtor to the Secured Party including, but not limited to, the
$50,000 Loan, the Note and the Secured Party Debt (plus any and all accrued (and
accruing) but unpaid interest on all such indebtedness), and all other
obligations of Debtor to the Secured Party now or hereafter existing and all
renewals, extensions, restructurings and refinancings of any of the above (all
such debts, obligations and liabilities of Debtor being collectively called the
"Secured Obligations").
SECTION 4. Debtor Remains Liable.
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Anything herein to the contrary notwithstanding: (a) Debtor shall
remain liable under the contracts and agreements included in the Collateral to
the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Security Agreement had not been
executed; (b) the exercise by the Secured Party of any of the rights hereunder
shall not release Debtor from any of its duties or obligations under the
contracts and agreements included in the Collateral; and (c) the Secured Party
shall not have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Security Agreement, nor shall the
Secured Party be obligated to perform any of the obligations or duties of Debtor
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
SECTION 5. Representations and Warranties.
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Debtor represents and warrants as follows:
5.1. Binding Obligation; Authorization. This Security Agreement and
the Note are legally valid and binding obligation of Debtor, enforceable against
it in accordance with its terms. The execution, delivery and performance of this
Agreement and the Note by the Debtor has been duly approved by the Board of
Directors of the Debtor and all other actions required to authorize and effect
the granting of the Security Interest and the issuance of the Note has been duly
taken and approved by the Company.
5.2. Location of Equipment and Inventory. All of the Equipment and
Inventory is located at the places specified on Schedule III.
5.3. Ownership of Collateral. Except for matters disclosed on
Schedule II, and the Security Interest, Debtor owns the Collateral free and
clear of any lien or encumbrance. No financing statement or other form of lien
notice covering all or any part of the Collateral is on file in any recording
office, except for those in favor of the Secured Party and as disclosed on
Schedule II. The Debtor does not own any interest in Fixtures, but agrees to
notify the Secured Party upon Debtor's acquisition of any Fixtures and to take
prompt action to perfect a security interest in such Collateral under the UCC.
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5.4. Office Locations; Fictitious Names. The chief place of
business, the chief executive office and the office where Debtor keeps its books
and records are located at the places specified on Schedule III.
5.5. Perfection. This Security Agreement creates a valid, perfected
and first priority security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken (or
will be taken immediately by the Debtor at the request of the Secured Party);
provided, nothing herein constitutes a representation as to actions that must be
taken, if any, to perfect a security interest in any item of Equipment, the
ownership of which is evidenced by a certificate of title.
5.6. Governmental Authorizations. No authorization, approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required either (a) for the grant by Debtor of the security
interest granted hereby or for the execution, delivery or performance of this
Security Agreement and/or the Note by Debtor or (b) for the perfection of or the
exercise by the Secured Party of its rights and remedies hereunder (except as
may have been taken by or at the direction of Debtor or the Secured Party).
5.7. Acknowledgment of Secured Party Debt and $50,000 Loan. The
Debtor hereby expressly acknowledges and agrees that the $50,000 Loan and the
Secured Party Debt (and all accrued but unpaid interest thereon, and such future
accrued and unpaid interest), are valid and legal obligations of the Debtor
representing funds borrowed by the Debtor from the Secured Party, that such debt
was duly authorized by all required legal action of the Debtor and Debtor hereby
expressly acknowledges and confirms all such debt.
5.8. Accurate Information. All information heretofore, herein or
hereafter supplied to the Secured Party by or on behalf of Debtor with respect
to the Collateral is and will be accurate and complete in all material respects.
SECTION 6. Further Assurances; Covenants.
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6.1. Other Documents and Actions. Debtor will, from time to time,
at its expense, immediately execute and deliver all further instruments and
documents and take all further action that may be necessary or desirable, or
that the Secured Party may request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the Secured
Party to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, Debtor will
immediately upon request of the Secured Party: (a) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Secured
Party may request, in order to perfect and preserve the security interests
granted or purported to be granted hereby (in such jurisdictions and with such
officers as Secured Party so requests); (b) upon demand by the Secured Party
exhibit the Collateral to allow inspection of the Collateral by the Secured
Party or persons designated by the Secured Party; and (c) upon the Secured
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Party' request, appear in and defend any action or proceeding that may affect
Debtor's title to or the Secured Party' security interest in the Collateral.
6.2. Business Locations. Debtor will keep the Collateral at the
locations specified on Schedule III hereto.
6.3. Insurance. At its sole expense, the Debtor shall insure the
Collateral at all times for the full insurable value thereof against casualty
and theft and against such other risks, in such form and with such insurers, as
may be satisfactory to the Secured Party from time to time. In addition, each
such policy shall (i) name the Secured Party as mortgagee and loss payee as its
interest may appear and name the Secured Party as an additional insured relating
to liability risks, (ii) provide that no act of omission or commission or
misrepresentation or breach of warranty by the Debtor shall affect the Secured
Party' rights thereunder, (iii) provide that the Secured Party shall not be
liable for any premiums or other amounts and (iv) provide that the insurer shall
give the Secured Party not less than twenty (20) days' prior written notice of
cancellation or lapse. If the Debtor shall fail at any time to maintain such
insurance, the Secured Party may obtain such insurance coverage and the Debtor
agrees to reimburse the Secured Party therefor on demand with interest thereon
at the rate specified in the Notes. The Debtor shall notify the Secured Party
promptly if any loss or casualty relating to the Collateral occurs.
6.4. Taxes and Claims. Debtor will pay promptly when due all
property and other taxes, assessments and governmental charges or levies imposed
upon, and all claims against, the Collateral (including claims for labor,
materials and supplies), except to the extent the validity thereof is being
contested in good faith.
6.5. Use of Collateral. Debtor will not use or permit any
Collateral to be used unlawfully or in violation of any provision of this
Security Agreement or any applicable statute, regulation or ordinance or any
policy of insurance covering any of the Collateral.
6.6. Condition of Collateral. The Debtor shall maintain the
Collateral in good condition and operate the Collateral with reasonable care and
caution and the Debtor hereby indemnifies and holds the Secured Party harmless
from any and all loss, damage and liability suffered, incurred or asserted by or
against the Secured Party as a result of the use and operation of the
Collateral.
6.7. Other Information. Debtor will, promptly upon request, provide
to the Secured Party all information and evidence it may reasonably request
concerning the Collateral, and in particular the Accounts, to enable the Secured
Party to enforce the provisions of this Security Agreement.
SECTION 7. Secured Party Appointed Attorney-In-Fact.
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Debtor hereby irrevocably appoints the Secured Party as Debtor's
attorney-in-fact, with full authority in the place and stead of Debtor and in
the name of Debtor to take any action and to execute any instrument that the
Secured Party may deem necessary and/or advisable as follows:
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(a) to obtain and adjust insurance required to be paid to
the Secured Party if Debtor has not done so in the ordinary course of its
business;
(b) to ask, demand, collect, xxx for, recover, compound,
receive and give receipts for moneys due and to become due under or in respect
of any of the Collateral upon the occurrence of an Event of Default;
(c) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clauses (a) and (b)
above upon the occurrence of an Event of Default;
(d) to file any claims or take any action or institute
any proceedings that the Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Secured Party with respect to any of the Collateral if Debtor has not done so in
the ordinary course of its business;
(e) to pay or discharge taxes or liens, levied or placed
upon or threatened against the Collateral, the legality or validity thereof and
the amounts necessary to discharge the same to be determined by the Secured
Party in its sole discretion, and such payments made by the Secured Party to
become obligations of Debtor to the Secured Party, due and payable immediately
without demand if Debtor has not done so in the ordinary course of its business;
(f) to sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, assignments,
verifications and notices in connection with Accounts and other documents
relating to the Collateral upon the occurrence of an Event of Default;
(g) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though the Secured Party were the absolute owner thereof for
all purposes, and to do, at the Secured Party's option and Debtor's expense, at
any time or from time to time, all acts and things that the Secured Party deems
necessary to protect, preserve or realize on the Collateral upon the occurrence
of an Event of Default; and
(h) to accomplish the purposes of this Security Agreement
if Debtor has not done so in the ordinary course of its business.
Neither the Secured Party nor any person designated by the Secured
Party shall be liable for any acts or omissions or for any error of judgment or
mistake of fact or law. This power, being coupled with an interest, is
irrevocable so long as this Security Agreement shall remain in force.
SECTION 8. Transfers and Other Liens.
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Except as otherwise permitted by the Agreement, Debtor shall not:
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(a) Sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the
Collateral; or
(b) Create or suffer to exist any lien, security interest
or other charge or encumbrance upon or with respect to any of the Collateral to
secure indebtedness of any Person except for the security interest created by
this Security Agreement.
SECTION 9. Events of Default; Remedies
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(a) Each of the following events shall be an "Event of
Default" (i) the non-payment of any of the Secured Obligations (including, but
not limited to, the payment when due of any principal and/or accrued but unpaid
interest on the $50,000 Loan, the Note and/or the Secured Party Debt), or (ii)
the failure of the Debtor to observe or perform any other term, provision or
condition of the Agreement, the Note, any document evidencing the Secured Party
Debt and/or this Security Agreement, and/or any other document executed and
delivered by Debtor to the Secured Party, or (iii) dissolution or termination of
existence of, or the suspension or termination of operations of, the Debtor, or
(iv) the inability of the Debtor, or the Debtor's admission that it is unable,
to pay its debts as they become due or any petition in bankruptcy is filed by or
against the Debtor, or any proceeding in bankruptcy, or under any other laws of
any jurisdiction relating to the relief of debtors is commenced against the
Debtor for the relief or readjustment of any indebtedness of the Debtor, either
through reorganization, composition, extension or otherwise, or (v) the
appointment of a receiver of any property of the Debtor, or (vi) the making by
the Debtor of any assignment for the benefit of creditors or the taking
advantage of any insolvency law, or (vii) any seizure, vesting, or intervention
by or under authority of a government, by which the management of the Debtor is
displaced or its authority in the conduct of its business is curtailed, or
(viii) the attachment or restraint of any funds or other property of the Debtor
which may be in or come into the Secured Party's possession or under the Secured
Party's control, or that of any third party acting for the Secured Party, or of
the same becoming subject at any time to any mandatory order of court or other
legal process, or (ix) any representation or warranty contained herein, in the
Agreement, the Note or any document evidencing the Secured Party Debt shall
prove to be materially false when made, or (x) the Secured Party believes in
good faith that the prospect for payment of the Secured Obligations out of the
Collateral or otherwise has become materially impaired or (xi) the loss, theft,
damage, destruction of any of the Collateral which casualty is not fully covered
by insurance or the attachment, levy or seizure of any Collateral, or (xii) the
Debtor fails to make any payment of amount when due (whether at stated maturity,
required prepayment, by acceleration, on demand or otherwise) on any other
indebtedness of any kind owed to any third party or the Debtor's failure to
perform or observe any term, covenant, or condition to be performed or observed
by it under any agreement or instrument, if the such failure permits the obligee
to accelerate the maturity of the indebtedness so owed.
(b) If any Event of Default shall have occurred and be
continuing, the Secured Party may exercise in respect of the Collateral, in
addition to all other rights and remedies provided for herein or otherwise
available to it, all the right and remedies of a secured party on default under
the UCC (whether or not the UCC applies to the affected Collateral) and also
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may: (a) require Debtor to, and Debtor hereby agrees that it will, at its
expense and upon request of the Secured Party forthwith, assemble all or part of
the Collateral as directed by the Secured Party and make it available to the
Secured Party at a place to be designated by the Secured Party which is
reasonably convenient to both parties; (b) without notice or demand or legal
process, enter upon any premises of Debtor and take possession of the
Collateral; and (c) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at the Secured Party' offices or elsewhere, at such time or times, for cash, on
credit or for future delivery, and at such price or prices and upon such other
terms as the Secured Party may deem commercially reasonable. Debtor agrees that,
to the extent notice of sale shall be required by law, at least two (2) days'
notice to 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.
At any sale of the Collateral, if permitted by law, the Secured Party may bid
(which bid may be, in whole or in part, in the form of cancellation of
indebtedness) for the purchase of the Collateral or any portion thereof for the
account of the Secured Party. The Secured Party shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Secured Party 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. To
the extent permitted by law, Debtor hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law now
existing or hereafter enacted. All cash proceeds received by the Secured Party
resulting from the disposition of or collection from the Collateral may be held
by the Secured Party as collateral for the Secured Obligations and/or then or at
any time thereafter applied in payment of all or any of the Secured Obligations
in such order as the Secured Party shall elect. The balance of such cash
proceeds held by the Secured Party and remaining after payment in full of the
Secured Obligations shall be paid over to the Debtor or to the person who may be
lawfully entitled to such balance. The remedies provided in this Agreement are
cumulative and not exclusive of any other remedies provided by law including,
without limitation, any rights of setoff available to the Secured Party.
SECTION 10. Limitation on Duty of the Secured Party with Respect to Collateral.
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Beyond the safe custody thereof, the Secured Party shall have no duty
with respect to any Collateral in its possession or control (or in the
possession or control of any the Secured Party or bailee) or with respect to any
income thereon or the preservation of rights against prior parties or any other
rights pertaining thereto. The Secured Party shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which it accords its own property. The Secured Party shall not be liable or
responsible for any loss or damage to any of the Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee or other agent or bailee
selected by the Secured Party in good faith.
SECTION 11. Expenses.
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Debtor shall pay all insurance expenses and all expenses of protecting,
storing, warehousing, appraising, insuring, handling, maintaining and shipping
the Collateral, all costs, fees and expenses of perfecting, and maintaining the
Security Interest, any and all excise, property, sales and use taxes imposed by
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any state, federal or local authority on any of the Collateral, or with respect
to periodic appraisals and inspections of the Collateral, or with respect to the
sale or other disposition thereof. If Debtor fails to promptly pay any portion
of the above expenses when due or to perform any other obligation of Debtor
under this Security Agreement, the Secured Party may, at its option, but shall
not be required to, pay or perform the same and charge Debtor's account for all
costs and expenses incurred therefor, and Debtor agrees to reimburse the Secured
Party therefor on demand. All sums so paid or incurred by the Secured Party for
any of the foregoing, any and all other sums for which Debtor may become liable
hereunder and all costs and expenses (including attorneys' fees, legal expenses
and court costs) incurred by the Secured Party in enforcing or protecting the
Security Interests or any of its rights or remedies under this Security
Agreement, the Agreement, the Note and/or any document evidencing the Secured
Party Debt shall be payable on demand, shall constitute Secured Obligations and
shall be secured by the Collateral.
SECTION 12. Termination of Security Interests; Release of Collateral.
--------------------------------------------------------
Upon payment in full of all Secured Obligations, the Security Interests
shall terminate and all rights to the Collateral shall revert to Debtor. Upon
such termination of the Security Interest or release of any Collateral, the
Secured Party will, at the expense of Debtor, execute and deliver to Debtor such
documents as Debtor shall reasonably request to evidence the termination of the
Security Interest or the release of such Collateral, as the case may be.
SECTION 13. Notices.
-------
All notices, approvals, requests, demands and other communications
hereunder shall be given in accordance with the notice provision of the
Agreement.
SECTION 14. Waivers, Non-Exclusive Remedies.
-------------------------------
No failure on the part of the Secured Party to exercise, and no delay
in exercising and no course of dealing with respect to, any right under the
Agreement, the Note, any instrument evidencing any portion of the Secured Party
Debt or this Security Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise by the Secured Party of any right under the
Agreement, the Note, any instrument evidencing any portion of the Secured Party
Debt or this Agreement preclude any other or further exercise thereof or the
exercise of any other right. The rights in this Security Agreement, the Note,
and/or any document evidencing any portion of the Secured Party Debt and/or the
Agreement are cumulative and are not exclusive of any other remedies provided by
law.
SECTION 15. Successors and Assigns.
----------------------
This Agreement is for the benefit of the Secured Party and its
successors and assigns, and in no event shall the Debtor without the prior
express written consent of the Secured Party assign all or any portion of the
Secured Obligations, the rights hereunder, the Agreement, the Note, or any
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document evidencing the Secured Party Debt. This Security Agreement shall be
binding on Debtor and its successors and all permitted assigns.
SECTION 16. Changes in Writing.
------------------
No amendment, modification, termination or waiver of any provision of
this Security Agreement or consent to any departure by Debtor therefrom, shall
in any event be effective without the written concurrence of the Secured Party
and Debtor.
SECTION 17. Applicable Law, Etc.
-------------------
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without regard to the conflicts of
laws principles thereof. The parties hereto hereby expressly and irrevocably
agree that any suit or proceeding arising directly and/or indirectly pursuant to
or under this Security Agreement, shall be brought solely in a federal or state
court located in the City, County and State of New York. By its execution
hereof, the parties hereby covenant and expressly and irrevocably submit to the
in personam jurisdiction of the federal and state courts located in the City,
County and State of New York and agree that any process in any such action may
be served upon any of them personally, or by certified mail or registered mail
upon them or their agent, return receipt requested, with the same full force and
effect as if personally served upon them in New York City. The parties hereto
waive any claim that any such jurisdiction is not a convenient forum for any
such suit or proceeding and any defense or lack of in personam jurisdiction with
respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
its reasonable counsel fees and disbursements.
SECTION 18. Headings.
--------
Section and subsection headings in this Security Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Security Agreement for any other purpose or be given any substantive effect.
SECTION 19. Counterparts.
------------
This Security Agreement may be executed in any number of counter-parts,
all of which taken together shall constitute one and the same instrument and any
of the parties hereto may execute this Security Agreement by signing any such
counterpart.
SECTION 20. WAIVER OF JURY TRIAL.
--------------------
DEBTOR AND SECURED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS SECURITY
AGREEMENT. DEBTOR AND SECURED PARTY ALSO WAIVE ANY BOND OR INDEMNITY OR SECURITY
UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SECURED PARTY.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
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DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF
THIS TRANSACTION INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. DEBTOR AND SECURED PARTY
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
SECURITY AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. DEBTOR AND SECURED PARTY FURTHER WARRANT AND REPRESENT
THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SECURITY AGREEMENT. IN THE EVENT
OF LITIGATION. THIS SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
[Signature page follows]
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WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the day first above written.
DEBTOR:
eCLICKMD, INC.
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
SECURED PARTY:
GRYPHON OPPORTUNITIES FUND I, LLC
By:
-------------------------------------
Name:
Title:
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EXHIBIT 1
---------
THE NOTE
--------
SCHEDULE I TO SECURITY AGREEMENT
--------------------------------
OUTSTANDING LOANS (AND ACCRUED BUT UNPAID
INTEREST) MADE BY GRYPHON TO THE COMPANY
WILL BE SECURED PURSUANT TO THE SECURITY AGREEMENT
--------------------------------------------------------------------------------
Principal Amount of Accrued But Unpaid
Loan and Interest Interest as of
Date Loan Made Rate March 31, 2003 Maturity Date
--------------------------------------------------------------------------------
On Closing pursuant $50,000 --
to this Agreement 5% per annum On Demand
--------------------------------------------------------------------------------
$125,000
10/04/01 5% per annum $ 9,374.50 Matured
--------------------------------------------------------------------------------
$125,000
10/04/01 5% per annum $ 9,374.50 Matured
--------------------------------------------------------------------------------
$141,304
11/30/01 5% per annum $ 9,419.83 Matured
--------------------------------------------------------------------------------
$12,649.08
11/30/01 No interest Waived Matured
--------------------------------------------------------------------------------
$217,391.30
12/21/01 5% per annum $14,453.75 Matured
--------------------------------------------------------------------------------
$100,000
04/10/02 5% $ 5,834.00 Matured
--------------------------------------------------------------------------------
$100,000
05/07/02 6% per annum $ 5,383.33 Matured
--------------------------------------------------------------------------------
$60,000
06/07/02 7.5% per annum $ 3,662.50 Matured
--------------------------------------------------------------------------------
$148,000
06/17/02 7.5% per annum $ 8,664.17 Matured
--------------------------------------------------------------------------------
$100,000
07/02/02 7.5% per annum $ 5,604.17 Matured
--------------------------------------------------------------------------------
$86,599
07/18/02 7.5% per annum $ 4,562.38 Matured
--------------------------------------------------------------------------------
$101,900
08/08/02 7.5% per annum $ 4,925.17 Matured
--------------------------------------------------------------------------------
$85,600
08/28/02 7.5% per annum $ 3,780.67 Matured
--------------------------------------------------------------------------------
TOTALS: $1,453,443.30 $85,038.97 Matured
=============
--------------------------------------------------------------------------------
SCHEDULE II TO SECURITY AGREEMENT
---------------------------------
Other Liens, Security Interests and Financing Statements
SCHEDULE III TO SECURITY AGREEMENT
----------------------------------
Locations of Equipment, Inventory, Books and Records, Chief Executive Office,
Other Locations
Locations of Equipment and Inventory:
------------------------------------
[TO COME]
Location of Books and Records and Chief Executive Office:
--------------------------------------------------------
(same as above)
