EXHIBIT 10(v)
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (the "Agreement") is entered into this ______ day
of August, 1997 by and between LOOPER, REED, ▇▇▇▇ & ▇▇▇▇▇▇ INCORPORATED, a
Texas corporation (the "▇▇▇▇▇▇ ▇▇▇▇"), and COMPUTERIZED THERMAL IMAGING,
INC., a Nevada corporation ("CTI").
W I T N E S S E T H:
WHEREAS, CTI and ▇▇▇▇▇▇ ▇▇▇▇ have entered into that certain engagement
agreement dated February 28, 1995 (the "Engagement Agreement") wherein ▇▇▇▇▇▇
▇▇▇▇ was hired to provide various legal services to CTI under the terms and
conditions of the Engagement Agreement; and
WHEREAS, CTI has an outstanding account balance ("Account Balance") under
the terms of the Engagement Agreement representing unpaid fees, expenses and
accrued interest; and
WHEREAS, CTI has requested that ▇▇▇▇▇▇ ▇▇▇▇ continue to provide ongoing
legal services to CTI; and
WHEREAS, CTI is the record owner of thirty million four hundred fifty
thousand (30,450,000) shares of common stock of THERMAL MEDICAL IMAGING,
INC., a Nevada corporation ("TMI"), and owns or claims rights in intellectual
property relating to certain thermal imaging technology; and
WHEREAS, CTI intends to pledge such property as security for the payment of
all present and future indebtedness evidenced in the Account Balance.
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties agree as follows:
1. SCOPE. The purpose of the security interest granted hereby is to
secure the payment of any and all indebtedness and liabilities of CTI to
▇▇▇▇▇▇ ▇▇▇▇ arising out of or relating to the Engagement Letter or the
performance of legal services or as evidenced in the Account Balance, whether
direct or indirect, absolute or contingent, due or to become due, and whether
now existing or hereafter arising and howsoever evidenced or acquired, and
any and all modifications, renewals, rearrangements, and extensions thereof
(all of which are hereinafter sometimes referred to collectively as the
"Obligations" and individually as an "Obligation").
2. SECURITY INTEREST. CTI hereby grants, transfers, assigns and
conveys to ▇▇▇▇▇▇ ▇▇▇▇ a sole first priority security interest in all of the
right, title and interest of CTI in and to the following types (or items) of
property now owned or hereafter acquired by CTI, and all ascensions and
substitutions therefor, and all products and proceeds thereof:
(a) SECURITIES. Thirty million four hundred fifty thousand
(30,450,000) shares of common stock, $.001 par value, in TMI (the
"Securities"), together with all instruments and general intangibles related
thereto and all benefits attributable or accruing to the Securities,
including, but not limited to, all monies, income, proceeds, stock rights,
options, rights to subscribe, dividends, liquidating dividends, stock
dividends, dividends paid in stock, new security or other properties or
benefits to which the Debtor is or may hereafter become entitled to receive
on account of said property. CTI shall retain all voting rights relating to
the Securities unless otherwise provided.
(b) INTELLECTUAL PROPERTY. All intellectual property, including,
without limitation, inventions, discoveries, improvements, creations, trade
secrets, know-how, patents, applications for patents, FDA pre-market
approvals (#3023197 and FDA #K897191 register #21CFR884.2980(a)), licensing
rights, research data, copyrights, trademarks and other proprietary
information, arising out of or relating to (i) the CTI System, or any
component thereof, or (ii) the thermal imaging technology, and any rights
relating thereto, which is owned by, claimed by or accruing to CTI.
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(c) COLLATERAL. The term "Collateral" shall mean and include all
of the foregoing property, as well as, any accessions, additions and
attachments thereto and the proceeds and products thereof, including without
limitation, all cash, general intangibles, accounts, inventory, equipment,
fixtures, farm products, notes, drafts, acceptances, securities, instruments,
chattel paper and insurance proceeds payable because of loss or damage,
certificates of deposit, or other property, benefits or rights arising
therefrom, arising from or relating to any of the property described herein
or other proceeds of any sale or other disposition of such property.
(d) REQUIRED DOCUMENTATION. CTI agrees to execute such stock
powers, endorse such instruments, or execute such additional collateral
agreements or assignments, security agreements, pledge agreements, financing
agreements or other documents as may be requested by ▇▇▇▇▇▇ ▇▇▇▇ in order to
effectively ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ the security interest in the Collateral. CTI
shall execute, contemporaneously with the execution of this Agreement, the
following documents: (i) an Irrevocable Stock Power, executed in blank,
attached as EXHIBIT A, to be used to effect any transfer of the Securities as
provided for hereunder, (ii) financing statements, attached as EXHIBIT B, and
(iii) a Board of Directors resolution, attached as EXHIBIT C, confirming
authorization for the transaction.
3. GENERAL COVENANTS
(a) The security interest granted hereby shall in no way be
affected by any indulgence or indulgences, extension or extensions, change or
changes in the form, evidence, maturity, rate of interest or otherwise of any
of the Obligations secured hereby, nor by want of presentment, notice,
protest, suit or indulgence upon any of such Obligations, nor shall any
release of, or failure to perfect the security interest or lien in, any
security for or of any of the parties liable for the payment of any of the
Obligations secured hereby in any manner affect or impair CTI's obligations
hereunder; the same shall continue in full force and effect in accordance
with the terms hereof until all of the Obligations have been fully paid;
(b) Any and all securities and other properties heretofore, now or
hereafter delivered to ▇▇▇▇▇▇ ▇▇▇▇ to secure payment and/or performance of
the Obligations shall be held and construed to be a part of the Collateral
hereunder to the same extent as fully described herein;
(c) ▇▇▇▇▇▇ ▇▇▇▇ shall have the power to endorse and is hereby
appointed CTI's agent and attorney in fact for the purpose of endorsing, in
the name of CTI, any instrument or documents constituting Collateral or which
may be received in payment of or on account of the Collateral, and CTI shall
furnish to ▇▇▇▇▇▇ ▇▇▇▇ such stock powers and other instruments as may be
required by ▇▇▇▇▇▇ ▇▇▇▇ to assure the transferability of the Collateral when
and as often as may be reasonably requested by ▇▇▇▇▇▇ ▇▇▇▇;
(d) CTI agrees that in the event of a default ▇▇▇▇▇▇ ▇▇▇▇ may, in
its sole discretion, surrender for payment, and obtain payment of, any
portion of the Collateral, whether such have matured or the exercise of
▇▇▇▇▇▇ ▇▇▇▇'▇ rights results in loss of interest or principal, and even
though there may be a substantial interest penalty for early withdrawal, and
in connection therewith, cause payment to be made directly to ▇▇▇▇▇▇ ▇▇▇▇;
4. WARRANTIES AND COVENANTS OF CTI
CTI hereby represents, warrants, covenants and agrees that:
(a) CTI is the owner of the Collateral free of any adverse claim,
lien, security interest, encumbrance or restriction on transfer of any type;
(b) CTI will not sell, offer to sell, assign, pledge, hypothecate,
encumber or otherwise transfer the Collateral or any interest therein without
the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇;
(c) CTI will keep the Collateral free from any and all adverse liens,
security interests and encumbrances;
(d) CTI will defend the Collateral against all claims and demands of
all persons at any time claiming the same or any interest therein other than
▇▇▇▇▇▇ ▇▇▇▇;
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(e) CTI agrees to pay ▇▇▇▇▇▇ ▇▇▇▇ all expenses and expenditures,
including reasonable attorneys' fees and legal expenses, incurred or paid by
▇▇▇▇▇▇ ▇▇▇▇ in exercising or protecting its interests, rights and remedies under
this Agreement. CTI additionally agrees to pay interest on such amounts on the
same terms as set forth in the Engagement Letter;
(f) All Securities and certificates representing the Securities are
genuine, duly and validly authorized, issued, and outstanding, fully paid, and
nonassessable, and all the Collateral is hereby duly and validly pledged and
hypothecated to ▇▇▇▇▇▇ ▇▇▇▇ in accordance with applicable law;
(g) The Collateral is not subject to any interest, option, or right
of any third person, and is in compliance with applicable law concerning form,
content, manner of preparation and execution, and CTI granting interests in the
Collateral acquired and hold the Collateral in compliance with all applicable
laws and regulations;
(h) CTI agrees to notify ▇▇▇▇▇▇ ▇▇▇▇ of any change in the location or
status of the Collateral;
(i) This Agreement is legal, valid, and binding, and enforceable
against CTI and the Collateral in accordance with its terms.
5. ADDITIONAL PROVISIONS REGARDING SECURITIES. The following provisions
shall apply to the Securities included within the Collateral:
(a) As to the Securities (including securities hereafter acquired
that are part of the Collateral), CTI further represents and warrants (as of the
time of delivery of same to ▇▇▇▇▇▇ ▇▇▇▇) as follows: (a) such securities are
genuine, validly issued and outstanding, fully paid and nonassessable, and are
not issued in violation of the preemptive rights of any person or of any
agreement by which the issuer or obligor thereof or CTI is bound; (b) such
securities are not subject to any interest, option or right of any third person;
(c) such securities are in compliance with applicable law concerning form,
content, and manner of preparation and execution; and (d) CTI acquired and holds
the securities in compliance with all applicable laws and regulations.
(b) Any and all payments, dividends, other distributions (including
stock redemption proceeds), or other securities in respect of or in exchange for
the Collateral, whether by way of dividends, stock dividends, recapitalizations,
mergers, consolidations, stock splits, combinations or exchanges of shares or
otherwise, received by CTI shall be held by CTI in trust for ▇▇▇▇▇▇ ▇▇▇▇ and CTI
shall immediately deliver same to ▇▇▇▇▇▇ ▇▇▇▇ to be held as part of the
Collateral.
(c) ▇▇▇▇▇▇ ▇▇▇▇ shall have the right at any time and from time to
time (whether before or after default) to notify and direct the issuer or
obligor to make all payments, dividends, and distributions regarding the
Collateral directly to ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇ shall have the authority to
demand of the issuer or obligor, and to receive and receipt for, any and all
payments, dividends, and other distributions payable in respect thereof,
regardless of the medium in which paid and whether they are ordinary or
extraordinary. Each issuer and obligor making payment to ▇▇▇▇▇▇ ▇▇▇▇ hereunder
shall be fully protected in relying on the written statement of ▇▇▇▇▇▇ ▇▇▇▇ that
it then holds a security interest which entitles it to receive such payment, and
the receipt by ▇▇▇▇▇▇ ▇▇▇▇ for such payment shall be full acquittance therefor
to the one making such payment.
(d) Upon Default, or if ▇▇▇▇▇▇ ▇▇▇▇ deems itself insecure, ▇▇▇▇▇▇
▇▇▇▇ shall have the right, at its sole discretion, to transfer to or register in
its name or the name of its nominee, the Securities hereby pledged, or any part
thereof, and to thereafter exercise all voting rights with respect to such
Securities so transferred and to receive the proceeds, payments, moneys, income
or benefits attributable or accruing thereto and to hold the same as security
for the Obligations hereby secured, or at ▇▇▇▇▇▇ ▇▇▇▇'▇ election, to apply such
amounts to the Obligations, whether or not then due, in such order as ▇▇▇▇▇▇
▇▇▇▇ may elect, or, ▇▇▇▇▇▇ ▇▇▇▇ has the right, at its option, without
transferring such securities or property to its nominee, to exercise all voting
rights with respect to the securities pledged hereunder and vote all or any part
of such securities at any regular or special meeting of shareholders, and the
undersigned does hereby name, constitute and appoint as a proxy of the
undersigned ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇, in the undersigned's name, place
and stead to vote any and all such securities, as said proxy may elect, for and
in the name, place and stead of the undersigned, such proxy to be irrevocable
and deemed coupled with an interest.
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(e) ▇▇▇▇▇▇ ▇▇▇▇ shall never be liable for its failure to give
notice to CTI of default in the payment of or upon the Collateral. ▇▇▇▇▇▇
▇▇▇▇ shall have no duty to fix or preserve rights against prior parties to
the Collateral and shall never be liable for its failure to use diligence to
collect any amount payable in respect to the Collateral, but shall be liable
only to account to CTI for what it may actually collect or receive thereon.
Without limiting the foregoing, it is specifically understood and agreed that
▇▇▇▇▇▇ ▇▇▇▇ shall have no responsibility for ascertaining any maturities,
calls, conversions, exchanges, offers, tenders, or similar matters relating
to any of the Collateral or for informing CTI with respect to any of such
matters (irrespective of whether ▇▇▇▇▇▇ ▇▇▇▇ actually has, or may be deemed
to have, knowledge thereof). The foregoing provisions of this paragraph shall
be fully applicable to all Securities or similar property held in pledge
hereunder, irrespective of whether ▇▇▇▇▇▇ ▇▇▇▇ may have exercised any right
to have such Securities or similar property registered in its name or in the
name of a nominee.
(f) CTI hereby agrees to cooperate fully with ▇▇▇▇▇▇ ▇▇▇▇ in order
to permit ▇▇▇▇▇▇ ▇▇▇▇ to sell, at foreclosure or other private sale, the
Collateral pledged hereunder. Specifically, CTI agrees to fully comply with
the securities laws of the United States and of any relevant state
jurisdiction and to take such action as may be necessary to permit ▇▇▇▇▇▇
▇▇▇▇ to sell or otherwise transfer the securities pledged hereunder in
compliance with such laws. Without limiting the foregoing, CTI, at its own
expense, upon request by ▇▇▇▇▇▇ ▇▇▇▇, agrees to effect and obtain such
registrations, filings, statements, rulings, consents and other matters as
▇▇▇▇▇▇ ▇▇▇▇ may request.
(g) CTI hereby makes, constitutes, and appoints ▇▇▇▇▇▇ ▇▇▇▇ or its
nominee, as its true and lawful attorney in fact and in its name, place and
stead, and on its behalf, and for its use and benefit to complete, execute
and file with the United States Securities and Exchange Commission one or
more notices of proposed sale of securities pursuant to Rule 144 under the
Securities Act of 1933 and/or any similar filings or notices with any
applicable state agencies or other parties, and said attorney in fact shall
have full power and authority to do, take and perform all and every act and
thing whatsoever requisite, proper or necessary to be done, in the exercise
of the rights and powers herein granted, as fully to all intents and purposes
as CTI might or could do if personally present. This power shall be
irrevocable and deemed coupled with an interest. The rights, powers and
authority of said attorney in fact herein granted shall commence and be in
full force and effect from the date of this Agreement, and such rights,
powers and authority shall remain in full force and effect, and this power of
attorney shall not be rescinded, revoked, terminated, amended or otherwise
modified, until all Obligations have been fully satisfied.
(h) The Securities Act of 1933, as amended, and other laws or
regulations may provide legal restrictions or limitations affecting ▇▇▇▇▇▇
▇▇▇▇ in any attempts to dispose of certain portions of the Collateral and/or
enforce its rights and remedies hereunder. For these reasons ▇▇▇▇▇▇ ▇▇▇▇ is
hereby authorized by CTI, but not obligated, in the event of any default
hereunder, to sell all or any part of the Collateral at private sale, subject
to investment letter or in any other manner which will not require the
Collateral, or any part thereof, to be registered in accordance with the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder, or any other law or regulation. ▇▇▇▇▇▇ ▇▇▇▇ is also hereby
authorized by CTI, but not obligated, to take such actions, give such
notices, obtain such rulings and consents, and do such other things as ▇▇▇▇▇▇
▇▇▇▇ may deem appropriate in the event of a sale or disposition of any of the
Collateral. CTI clearly understands that ▇▇▇▇▇▇ ▇▇▇▇ may in its discretion
approach a restricted number of potential purchasers and that a sale under
such circumstances may yield a lower price for the Collateral or any part or
parts thereof than would otherwise be obtainable if same were registered and
sold in the open market, and CTI agrees that such private sales shall
constitute a commercially reasonable method of disposing of the Collateral.
6. EVENTS OF DEFAULT
Default under this Pledge Agreement shall occur upon the happening of any
of the following events or conditions ("Defaults" or "Events of Default"):
(a) Failure to make payments to ▇▇▇▇▇▇ ▇▇▇▇ based on the following
schedule:
(i) Full payment of the Account Balance as of August 30, 1997
(estimated to be in excess of $260,000.00, plus accrued
interest) by September 15, 1997; or
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(ii) After August 30, 1997, failure to pay any invoices presented
by ▇▇▇▇▇▇ ▇▇▇▇ to CTI, pursuant to the Engagement Agreement,
which evidence the Account Balance and are not paid within
sixty (60) days of receipt.
(b) Any deterioration or impairment of the Collateral or any part
thereof or any decline or depreciation in the market price thereof (whether
actual or reasonably anticipated) which, in the reasonable judgment of ▇▇▇▇▇▇
▇▇▇▇, causes the Collateral to become unsatisfactory as to value or character
and which is not replaced by other suitable collateral within ten (10) days
after CTI's receipt of written notice from ▇▇▇▇▇▇ ▇▇▇▇ of such deterioration
or impairment;
(c) The prosecution of any material lawsuit, arbitration, injunctive
order, attachment, execution, garnishment or other process against CTI or any of
the Collateral in connection with any material liability, tax lien, debt,
judgment, assessment or obligation of CTI that is not dismissed within thirty
(30) days from the date of such filing;
(d) Death, dissolution, termination of existence, insolvency or
business failure of CTI, or any endorser, guarantor or surety of any of the
Obligations, or the commission of an act of bankruptcy by, or the appointment of
a receiver or other legal representative for any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceedings under any bankruptcy or insolvency law by or against CTI, or any
endorser, guarantor or surety for any of the Obligations;
(e) Default in the performance of any other covenant or agreement of
CTI to ▇▇▇▇▇▇ ▇▇▇▇ and such default continues unremedied beyond the expiration
of any applicable grace period which may be expressly allowed, whether under
this Agreement or otherwise;
(f) The occurrence of any event which under the terms of any
promissory note, indenture, loan agreement, security agreement or similar
instrument permits the acceleration of maturity of any indebtedness of CTI to
▇▇▇▇▇▇ ▇▇▇▇; or the receipt by ▇▇▇▇▇▇ ▇▇▇▇ of notice that another person has or
expects to acquire a security interest in the Collateral or any part thereof.
7. REMEDIES
In the event of a Default under this Agreement, or any modification,
renewal, extension, or rearrangement thereof, and at any time thereafter, at
the option of ▇▇▇▇▇▇ ▇▇▇▇, any or all of the Obligations shall become
immediately due and payable without presentment, demand, notice of intention
to accelerate, notice of acceleration, notice of non-payment, protest, notice
of dishonor, or any other notice whatsoever to CTI or any person obligated
thereon, and ▇▇▇▇▇▇ ▇▇▇▇ shall have and may exercise with reference to the
Collateral and Obligations any and all of the rights and remedies of a
secured party under the Uniform Commercial Code as then in effect in the
State of Texas, and as otherwise granted or under any other applicable law or
under any other agreement executed by CTI (all of which rights and remedies
shall be cumulative), including, without limitation, the right and power to
sell, at public or private sale or sales, or otherwise dispose of or utilize
the Collateral and any part or parts thereof in any manner authorized or
permitted under this Agreement or under the Uniform Commercial Code after
default, and to apply the proceeds thereof toward payment of any costs and
expenses and reasonable attorneys' fees and legal expenses thereby incurred
by ▇▇▇▇▇▇ ▇▇▇▇ and toward payment of the Obligations, except as otherwise
provided herein, in such order or manner as ▇▇▇▇▇▇ ▇▇▇▇ may elect. To the
extent permitted by law, CTI expressly waives any notice of sale or other
disposition of the Collateral and any other rights or remedies of CTI or
formalities prescribed by law relative to sale or disposition of the
Collateral or exercise of any other right or remedy of ▇▇▇▇▇▇ ▇▇▇▇ existing
after default hereunder, and to the extent any such notice is required and
cannot be waived, CTI agrees that if such notice is mailed, postage prepaid,
to CTI at the address shown hereinbelow at least five (5) days before the
time of the sale or disposition or transmitted via confirmed telefax to CTI
at least five (5) days before the time of sale or disposition, such notice
shall be deemed reasonable and shall fully satisfy any requirement for giving
of said notice.
Notwithstanding any provision hereof to the contrary, ▇▇▇▇▇▇ ▇▇▇▇ is
hereby authorized by CTI, but not obligated, to sell all or any part of the
Collateral at one or more private sales, restricting the prospective bidders
or purchasers of the Stock to persons who will represent and agree that they
are purchasing the Stock for their own
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account for investment and not with a view to distribution or resale of any
of the Stock or in any manner which will require the Stock or any part
thereof, to be registered in accordance with the Securities Act of 1933, as
amended, or the rules and regulations promulgated thereunder, or any other
law or regulation.
CTI hereby agrees to cooperate fully with ▇▇▇▇▇▇ ▇▇▇▇ in order to permit
▇▇▇▇▇▇ ▇▇▇▇ to sell, at foreclosure or other private sale, the Collateral
pledged hereunder. Specifically, CTI agrees to fully comply with the securities
laws of the United States and of the State of Texas and to take such action as
may be necessary to permit ▇▇▇▇▇▇ ▇▇▇▇ to sell or otherwise transfer the
securities pledged hereunder in compliance with such laws.
8. APPLICATION OF PROCEEDS
The proceeds of sale of Collateral sold pursuant to the terms hereof, shall
be applied by ▇▇▇▇▇▇ ▇▇▇▇ as follows:
FIRST: To payment of the costs and expenses of such sale, including the
out-of-pocket costs and expenses of ▇▇▇▇▇▇ ▇▇▇▇ and the reasonable fees and
out-of-pocket costs and expenses of counsel employed in connection therewith,
and to the payment of all advances made by ▇▇▇▇▇▇ ▇▇▇▇ for the account of CTI
and the payment of all costs and expenses incurred by ▇▇▇▇▇▇ ▇▇▇▇ in
connection with the administration and enforcement of this Agreement, to the
extent that such advances, costs, and expenses shall not have been reimbursed
to ▇▇▇▇▇▇ ▇▇▇▇;
SECOND: To the payment in full of Obligations; and
THIRD: The balance, if any, of such proceeds shall be paid pro rata to
CTI, its successors and assigns, or as a court of competent jurisdiction may
direct.
No one of CTI shall be subrogated to any rights of ▇▇▇▇▇▇ ▇▇▇▇ until the
Obligations are paid in full.
9. MISCELLANEOUS
▇▇▇▇▇▇ ▇▇▇▇, may at its option, demand, ▇▇▇ for, collect or make any
compromise or settlement it deems desirable with reference to the Collateral.
▇▇▇▇▇▇ ▇▇▇▇ shall not be obligated to take any steps necessary to preserve any
rights in the Collateral against prior parties, which CTI hereby agrees to do.
CTI hereby authorizes ▇▇▇▇▇▇ ▇▇▇▇ to apply all or any part of the
Collateral to the payment of any or all of the indebtedness secured hereby in
such manner and such order as ▇▇▇▇▇▇ ▇▇▇▇ in its reasonable discretion may
elect.
No delay or omission on the part of ▇▇▇▇▇▇ ▇▇▇▇ in exercising any rights
hereunder shall operate as a waiver of any such right or any other right. A
waiver on any one or more occasions shall not be construed as a bar to or
waiver of any right or remedy on any future occasion.
It is the intention of the parties hereto to comply with applicable
usury laws; accordingly, it is agreed that notwithstanding any provision to
the contrary in this Agreement, or in any of the documents evidencing the
Obligations or otherwise relating thereto, no such provision shall require
the payment or permit the collection of interest in excess of the maximum
permitted by such laws. If any excess of interest in such respect is
provided for, or shall be adjudicated to be so provided for, in this
Agreement, or in any of the documents evidencing the Obligations or otherwise
relating thereto, then in such event (a) neither CTI, any guarantors, nor
their respective heirs, executors, administrators, legal representatives,
successors or assigns or any other party liable for the payment hereof, shall
be obligated to pay the amount of such interest to the extent that it is in
excess of the maximum amount permitted by such laws, (b) any such excess
which may have been collected shall be, at the option of ▇▇▇▇▇▇ ▇▇▇▇, either
applied as a credit against the then unpaid principal amount thereof or
refunded to the party paying such excess, and (c) the effective rate of
interest shall be automatically subject to reduction to the maximum lawful
rate allowed to be lawfully contracted for by CTI under applicable usury laws
as now or hereafter construed by the courts having jurisdiction.
All rights of ▇▇▇▇▇▇ ▇▇▇▇ hereunder shall inure to the benefit of its
successors and assigns; and all obligations of CTI shall bind its respective
heirs, executors, administrators, successors or permitted assigns. The
rights and
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remedies of ▇▇▇▇▇▇ ▇▇▇▇ hereunder are cumulative, and the exercise of any one
or more of the remedies provided herein shall not be construed as a waiver of
any of the other remedies of ▇▇▇▇▇▇ ▇▇▇▇.
In no event shall CTI be deemed to have any right to a release of any of
the liens or security interests covering the Collateral until the Obligations
have been paid in full.
This Agreement and the security interests herein granted are in addition
to, and not in substitution, novation or discharge of, any and all prior or
contemporaneous collateral agreements, security agreements and security
interests in favor of ▇▇▇▇▇▇ ▇▇▇▇ or assigned to ▇▇▇▇▇▇ ▇▇▇▇ by others. All
rights, powers and remedies of ▇▇▇▇▇▇ ▇▇▇▇ in all such collateral agreements
or security agreements are cumulative, but in the event of actual conflict in
terms and conditions, the terms and conditions of the latest agreement shall
govern and control.
Any provision found to be invalid under the laws of the State of Texas,
or any other State having jurisdiction or other applicable law, shall be
invalid only with respect to the offending provision. All words used herein
shall be construed of such gender or number as the circumstances require.
The law of the State of Texas and the United States of America shall apply to
this Agreement and its construction and interpretation.
CTI hereby acknowledges that it has been given a reasonable opportunity
to seek to advice of independent counsel to advise CTI on this matter, and
that ▇▇▇▇▇▇ ▇▇▇▇ has recommended that CTI seek such advice.
CTI hereby waives (a) notice of acceptance hereof (which acceptance is
conclusively presumed by delivery to ▇▇▇▇▇▇ ▇▇▇▇); (b) notice of and/or any
right to grace, demand, presentment, and protest with respect to the
Obligations or to any instrument, agreement or document evidencing or
creating same; (c) notice of nonpayment or other default under the
Obligations or intention to accelerate or actual acceleration of the
Obligations; (d) notice of and/or any right to consent or object to (i) the
assignment of any interest in the Obligations, (ii) the creation,
advancement, accrual, renewal, increase, extension, or rearrangement of the
Obligations, or (iii) the amendment and/or modification of any of the
instruments, agreements or documents executed in connection with the
Obligations; (e) filing of suit or diligence by ▇▇▇▇▇▇ ▇▇▇▇ in collection or
enforcement of the Obligations; (f) any other notice regarding the
Obligations; and (g) all rights of redemption in and to the Collateral in the
event any of the Collateral is sold at public or private sale after any
Default hereunder.
CTI hereby agrees that ▇▇▇▇▇▇ ▇▇▇▇ may at any time, and from time to
time, at ▇▇▇▇▇▇ ▇▇▇▇'▇ discretion and with or without notice or consideration
to or consent from any party: (a) allow substitution or withdrawal of any
collateral or other security for the Obligations; (b) sell, exchange,
release, subordinate its lien on, surrender, release upon or otherwise deal
with in any manner and in any order any property at any time pledged or
mortgaged to secure or securing the Obligations or any liabilities incurred
directly or indirectly hereunder or any offset against any of said
liabilities; (c) release any party liable on the Obligations including CTI or
any other guarantor; (d) extend, renew, or rearrange all or any part of the
Obligations at any time and from time to time, whether or not for a term or
terms in excess of the original term thereof; (e) modify or amend any of the
instruments, agreements, or documents executed in connection with the
Obligations; or (f) exercise or refrain from exercising any rights against
CTI or others, or otherwise act or refrain from acting. Any of such actions
may be taken without impairing or diminishing the Obligations of CTI
hereunder.
This Agreement is intended for and shall inure to the benefit of ▇▇▇▇▇▇
▇▇▇▇ and each and every person who shall from time to time be or become the
holder or owner of all or any part of the Obligations, and each and every
reference hereto to "▇▇▇▇▇▇ ▇▇▇▇" shall include and refer to each and every
successor or assignee of ▇▇▇▇▇▇ ▇▇▇▇ at any time holding or owning any part
of or interest in any part of the Obligations. This Agreement shall be
transferable and negotiable with the same force and effect, and to the same
extent, that the Obligations are transferable and negotiable, it being
understood and stipulated that upon assignment or transfer by ▇▇▇▇▇▇ ▇▇▇▇ of
any of the Obligations, the legal holder or owner of said Obligations (or a
part thereof or interest therein thus transferred or assigned) shall (except
as otherwise stipulated by ▇▇▇▇▇▇ ▇▇▇▇ in its assignment) have and may
exercise all of the rights granted to ▇▇▇▇▇▇ ▇▇▇▇ under this Agreement to the
extent of that part of or interest in the Obligations thus assigned or
transferred. CTI expressly waives notice of transfer or assignment of the
Obligations, or any part thereof, or of the rights of ▇▇▇▇▇▇ ▇▇▇▇ hereunder.
7
This Agreement may be executed in one or more counterparts, with each
counterpart being deemed an original, and all of which together shall
constitute one and the same document.
THIS AGREEMENT, AND ALL DOCUMENTS AND INSTRUMENTS CONTEMPLATED THEREIN
REPRESENT THE FINAL AGREEMENT BETWEEN CTI AND ▇▇▇▇▇▇ ▇▇▇▇ AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
EXECUTED as of the day and year first written above.
COMPUTERIZED THERMAL IMAGING, INC.
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Operating Officer
LOOPER, REED, ▇▇▇▇ & ▇▇▇▇▇▇
INCORPORATED
Address:
Nine ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
8
EXHIBIT "A"
IRREVOCABLE STOCK POWER
KNOW ALL MEN BY THESE PRESENTS,
THAT COMPUTERIZED THERMAL IMAGING, INC., FOR VALUE RECEIVED has
bargained, assigned and transferred and by these presents does bargain,
assign and transfer unto ___________________________ ( _________________ )
Shares of the Common Stock, $0.001 par value per share, of THERMAL MEDICAL
IMAGING, INC., a Nevada corporation, standing in its name on the books of
said Corporation, represented by Certificate Nos._________ herewith AND it
does hereby constitute and appoint ____________________________ , as its
true and lawful attorney, IRREVOCABLY, for it and in its name and stead, to
sell, assign, transfer, hypothecate, pledge and make over all or any part of
the said stock and for that purpose to make and execute all necessary acts of
assignment and transfer thereof, and to substitute one or more persons with
like full power, hereby ratifying and confirming all that its said Attorney
or his substitute or substitutes shall lawfully do by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand effective as of the
________ day of ___________________ , 199__ .
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
SIGNATURE GUARANTEED
Company:
--------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT "B"
FINANCING STATEMENTS
EXHIBIT "C"
UNANIMOUS CONSENT OF BOARD OF DIRECTORS
OF
COMPUTERIZED THERMAL IMAGING, INC.
August , 1997
-----
The undersigned, being all the Directors of Computerized Thermal Imaging,
Inc. ("Corporation"), do hereby approve and consent to the adoption of the
following resolutions which shall have the same force and effect as if adopted
by a unanimous vote of the Directors at a formal meeting of the Board of
Directors of the Corporation.
RESOLVED, that the Chief Executive Officer and/or the Chief Operating
Officer of the Corporation be, and hereby are, authorized and directed
to pursue, negotiate and execute a Pledge Agreement, in substantially
the same form attached hereto as EXHIBIT A, with Looper, Reed, ▇▇▇▇ &
McGraw Incorporated ("▇▇▇▇▇▇ ▇▇▇▇") securing all present and future
indebtedness related to the performance of legal services by ▇▇▇▇▇▇
▇▇▇▇ for the Corporation; and
RESOLVED FURTHER, that the Chief Executive Officer and/or the Chief
Operating Officer of the Corporation be and hereby are, authorized, in
the name and on behalf of this Corporation, and under its corporate
seal or otherwise, to execute and deliver any and all agreements,
certificates, instruments and documents and to do and perform, or
cause to be done and performed, all such acts and things as may be
necessary or appropriate, as they deem advisable, to carry out the
intent and accomplish the purposes of the foregoing resolutions and
the transaction contemplated thereby.
IN WITNESS wherefor, the undersigned have executed this ConsEnt of the
Board of Directors, either in a single instrument or in multiple counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one in the same instrument, effective as of the date first mentioned
above.
BOARD OF DIRECTORS:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇