Exhibit No. 5
Form 10-SB
Cluster Technology Corp.
DISTRIBUTION, MARKETING AND LICENSING AGREEMENT
THIS AGREEMENT made effective the 11th day of November,
1998, by and between CLUSTER TECHNOLOGY CORP., a Delaware
corporation (hereinafter referred to as the "Company", and XXXX
XXXXXXX (hereinafter referred to as the "Company", and XXXX
XXXXXXX (hereinafter referred to as "Xxxxxxx").
WITNESSETH:
WHEREAS, the Company and/or its subsidiaries is the owner
and/or has certain proprietary rights, interests, contract
rights, and license rights with regard to the Xxxxxx Pain
Program, the Xxxxxx DRS System and the Xxxxxx PCU Unit,
including, but not limited to, franchise rights, advertising,
technology, manufacturing and/or distribution rights of related
products (including the DRS machine), licensing rights, working
drawings and specifications, research, testing results and
materials, design patents, patents, trademarks and service marks,
(collectively, the "concepts and/or products"), and
WHEREAS, the Company has the exclusive right to manufacture,
market, distribute, franchise and license the Xxxxxx concepts
and/or products described above, worldwide, and
WHEREAS, the Company may from time to time develop,
manufacture and/or distribute concepts and/or products which are
related, derived or evolved from the existing above described
concepts and/or products, and
WHEREAS, the Company and/or its subsidiaries may from time
to time manufacture and/or distribute other products, and
WHEREAS, Xxxxxxx is knowledgeable and experienced with
regard to international licensing, franchising, manufacturing,
marketing and distribution, and
WHEREAS, the Company is desirous of granting to Xxxxxxx the
right and license Worldwide (excluding the United States of
America, Canada and Greece) to market, distribute, franchise and
license the above described concepts and/or products, and other
products manufactured and/or distributed by the Company and/or
its subsidiaries, and
WHEREAS, Xxxxxxx is desirous of accepting said grant, and
WHEREAS, the parties anticipate a long term relationship due
to the nature of the concepts and/or products to be marketed, and
due to anticipated continued revenues derived from individual
sales, and
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WHEREAS, the parties have reached certain agreements with
regard to said sole and exclusive right to market, distribute,
franchise and license said concepts and/or products, and
WHEREAS, the parties are desirous of setting forth said
agreements in writing hereinbelow, it is, therefore,
IN CONSIDERATION of the mutual covenants set forth below,
and other valuable consideration acknowledged,
MUTUALLY AGREED as follows:
1. Recitals. The recitals set forth above are true and
correct as applicable to the respective parties, and are
incorporated by reference herein as a material part hereof.
2. Grant of Rights. The Company hereby grants to Xxxxxxx the
sole and exclusive right worldwide (excluding the United States
of America, Canada and Greece) to market, distribute, franchise
and license all of the above described concepts and/or products,
and other products, now existing or hereafter developed,
improved, substituted, derived or evolved. Xxxxxxx may market,
distribute, franchise and license said concepts and products, and
other products, approved by the Company, which approval shall not
be unreasonable withheld, by any method permissible under the
laws and customs of any country or territory in which said
marketing efforts are made.
3. Acceptance. Xxxxxxx hereby accepts said grant of rights
by the Company, and shall perform pursuant to the terms of this
Agreement.
4. Term of Agreement and Termination. Subject to the quotas
set forth below, this Agreement shall be for a term of Ten (10)
years from the effective date of this Agreement. Either party, at
its discretion, may terminate this Agreement if Xxxxxxx fails to
produce minimum sales, which are defined as delivered and paid
for, of the Company's DRS machine as follows:
a. Fifty (50) DRS machines shall be purchased by Xxxxxxx by
the end of the first year from the effective date of this
Agreement.
b. One Hundred (100) DRS machines shall be purchased by
Xxxxxxx. During the second full year of this Agreement.
c. One Hundred and Fifty (150) DRS machines shall be
purchased by Xxxxxxx during the third full year of this
Agreement.
d. Thereafter, no quotas shall apply, as the parties
anticipate continuing usage revenues
from each individual DRS machine sold shall be paid to the
Company by Xxxxxxx.
At the conclusion of the initial ten (10) year term of this
Agreement, either party may renew this Agreement for an additional
term of five (5) years.
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5. Supply of Product. During the term of this Agreement, the
Company shall supply the DRS machine, and any other product which
is the subject of this Agreement, to Xxxxxxx as requested by
Xxxxxxx, and Xxxxxxx shall pay to Company the purchase price set
forth below, as follows:
a. The price for the DRS machine shall be Sixty-Thousand
Dollars ($60,000.00) F.O.B for each complete unit, based on
present design. On each yearly anniversary date of this
Agreement, subject to the agreement of the parties, the purchase
price per unit may be increased by a percentage equal to the
lesser of the then current rate of inflation in the United
States of America, or five percent (5 %) over the price per unit
for the immediately preceding year, which said price shall
remain in effect until the next said anniversary date.
Otherwise, the parties may mutually agree upon any adjustments in
the purchase price.
b. Beginning the sixth (6th) month after the installation of
each DRS machine, Xxxxxxx shall pay to the Company the sum of
Two Hundred and Fifty Dollars ($250.00) per month for each
such machine on a continuing monthly basis.
c. The price for any other product shall be established by
the parties on a per product basis, and shall be evidenced by
a written document executed by each party confirming said
product price.
x. Xxxxxxx shall insure the products so purchased for their
full insurable value during all segments of shipment.
6. Payments for Product. Xxxxxxx shall pay in full all
balance owing the Company for all products delivered within forty-
eight business hours of the arrival of any such product in the
Country where the same are to be installed or delivered to a
customer.
7. Responsibilities of Company. The Company shall be
responsible under this Agreement as follows:
a. To perform in accordance with all of the terms and
provisions of this Agreement.
b. To process orders made by Xxxxxxx in a timely manner for
dispatch from works no later than forty-five (45) days of
receipt of an accepted purchase order from Xxxxxxx, to be
processed within five (5) days, or for such other delivery
date as may be set forth in any such purchase, order as
agreed by the parties.
c. To manufacture and produce the DRS machine within the
standards of quality and workmanship established as of the
effective date of this Agreement, and any future
improvements and/or modifications, and to manufacture and
produce any other product consistent with high standards of
quality and workmanship.
d. To immediately, as far as reasonable, repair or replace
any defective DRS machine or other product at the expense of
the Company, including the shipping costs of any such
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returned product and any such replaced product, providing
damage has not been caused by unpacking: erection or misuse.
e. To warranty the quality, workmanship and operation of
each DRS machine and/or other product, and to indemnify and
hold Xxxxxxx harmless from any claim, damage, liability,
suit or other expense resulting from any breach of any such
warranty.
f. To provide to Xxxxxxx on a continuing basis an y
advertising materials, product videos,
brochures, leaflets, etc. for any such product, whether
existing or later developed, (which
Xxxxxxx shall reproduce at his own expense), for use by
Xxxxxxx in marketing any of the
said concepts and/or products.
g. To provide to Xxxxxxx, on a continuing basis any product
test results, product research, customer testimonials.
h. To continue with ongoing trials of products, and the
development of protocols, and to supply all information with
regard to the same to Xxxxxxx., as felt appropriate by the
Company.
i. To provide adequate and appropriate training to selected
personnel and/or engineers selected by Frankum from time to
time. Travel and accommodations shall be paid by Xxxxxxx.
j. To keep all ownership and/or proprietary rights in and to
the Xxxxxx concepts set forth above, any later acquired
Xxxxxx concept, any and all DRS machines and/or other
related products, all related intellectual property,
trademarks, service marks, patents, design patents, working
drawings and specifications, technology, contracts, licenses
and other related items, free and clear from all liens,
claims, pledges or encumbrances of any nature, except for
any security interest granted to Xxxxxxx pursuant to this
Agreement or otherwise.
k. To make its best efforts to make Xx. Xxxxxx available for
lectures, presentations, appearances and promotions in
connection with Xxxxxxx'x marketing efforts, with travel and
expenses to be paid by Xxxxxxx.
1. To allow Xxxxxxx. To utilize signage or other designs of
the Company related to said concepts and/or products, and to
utilize Xx. Xxxxxx'x likeness, in connection with Xxxxxxx'x
marketing efforts.
8. Responsibilities of Xxxxxxx. Xxxxxxx shall be responsible
under this Agreement as follows:
a. To perform in accordance with all of the terms and
provisions of this Agreement.
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b. To make best efforts to evaluate and give to the Company
a continuing forecast of purchase order quantities and
schedules of deliveries as distribution is developed.
c. To register all appropriate trademarks and/or service
marks regarding said concepts and/or products in any and all
Countries where Xxxxxxx is engaged in active marketing
efforts, and any other Country in which, in Xxxxxxx'x sole
discretion, such registration prior to marketing efforts
being made would be beneficial, all at Xxxxxxx'x own
expense.
d. To provide to the Company any product test results,
product research or customer testimonials on a continuing
basis.
e. To conduct trials of products as deemed appropriate, and
to develop protocols as deemed appropriate, and to supply
all information with regard to the same to the Company. Any
proposed trial or protocol development shall require the
Company's prior written approval.
9. Xxxxxxx as Independent Contractor. It is specifically
understood and agreed that Xxxxxxx is acting as an independent
contractor, and that Xxxxxxx is not an agent, partner or
coventurer of the Company.
10. Delays. The Company shall not be deemed to be in default
under this Agreement where the Company's delays or inability to
perform is occasioned by strikes, boycotts, lockouts, shortages,
Acts of God, Governmental regulations, or other occurrences
beyond the control of the Company with respect to agreed
manufacturing and delivery schedules, providing the Company is
acting in good faith.
11. Non-Competition/Non-Interference. During the term of
this Agreement, and during any renewal or extension thereof, the
Company shall not, directly or indirectly, through any
subsidiary, joint venturer, partner, or as a Shareholder, through
any agent, nor in any other* manner, or method, engage in the
business of the marketing, distribution, franchising or licensing
of the above described concepts and/or products, or any other
product which Xxxxxxx has the sole and exclusive right to so
market, nor shall it engage in the sale of evolutions,
derivations, or imitations of the same, nor in the sale of like
or similar concepts and/or products in any geographical area for*
which Xxxxxxx has the sole and exclusive rights pursuant to this
Agreement. In addition to any other remedies available to
Xxxxxxx. As a result of a breach or violation of this Xxxxxxxxx
00, Xxxxxxx shall have the right to seek and receive injunctive
relief.
12. All of the Company's obligations under this Agreement
shall be secured by an appropriate security interest executed by
the Company and each of its subsidiaries, granting to Xxxxxxx a
security interest in any and all proprietary interest, contracts,
licenses and/or rights in and to the Xxxxxx Pain Program, the
Xxxxxx DRS System, the Xxxxxx PCU Unit, or and additions,
replacements, accessions, improvements, extension, or
substitutions thereto, including, without limitation,
intellectual property related to the same, copyright, trademarks,
patents, design patents, technology, working drawings and
specifications, test reports, research, advertising materials,
franchise rights, and all related assets, whether now existing,
later developed or later acquired. The Company shall execute, and
cause all of its subsidiaries to executed, and deliver to
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Xxxxxxx
any documents or instruments necessary to enable Xxxxxxx to
perfect and otherwise establish and protect the security interest
granted herein, including, but not limited to documents for
filing with the United States Trademark and Patent Office, UCC-1
Financing Forms, and the Security Agreement attached to this
Agreement as Exhibit "A". Should the Company, or any of its
subsidiaries, fail or refuse to execute any such document, the
Company hereby irrevocably grants Xxxxxxx its power of attorney
to execute any such document on behalf of the Company, and to
bind the Company, and/or its subsidiaries, as fully thereby as if
the Company had so executed any such document.
13. Default. Upon any default by the Company of the terms
and provisions of this Agreement which has not been cured by the
Company within one hundred and eighty (180) days of receipt of
written notice thereof by Xxxxxxx, in additions to any remedy
available to Xxxxxxx in law or equity, Xxxxxxx shall have the
right to manufacture the DRS machine and/or other related
products, and continue to market the above described concepts
and/or products worldwide (exclusive of the United States of
America, Canada and Greece), and to continue to utilize all
trademarks, service marks and other intellectual property,
designs, patents, advertising, and other materials in connection
with Xxxxxxx'x marketing efforts for a period of time equal to
the balance of the original term hereof, and any extension. The
Company shall continue to receive continuing usage revenues for
DRS machines installed prior to the date of 180 days subsequent
to written notice of such default, but shall receive no such
revenues for DRS machines installed after said date. The Company
shall promptly deliver all working drawings and specifications,
technology, and all other materials and/or information necessary
to enable Xxxxxxx to manufacture said products.
14. Amendments. This Agreement may be amended, altered or
modified only by a written instrument executed by the parties
hereto.
15. Sale of Assets, Merger or Reorganization by Company. The
Company and Xxxxxxx agree that the long term nature of this
Agreement is a major consideration received by Xxxxxxx for entry
by Xxxxxxx into this Agreement, consequently, the Company shall
not sell, transfer, assign or otherwise dispose of its ownership
and proprietary interests in the concepts and/or products, all as
described above, including merger and/or reorganization, without
disclosing the existence, terms and provisions of this Agreement
to any such proposed transferee, and requiring that the
continuation of this Agreement, by way of assignment to and
acceptance by any such transferee, pursuant to all its terms, be
a condition of any such assignment, sale or other transfer, and,
further, that this said requirement be binding upon any such
transferee and any and all subsequent transferee, surviving
corporation or entity, or successor entity, and/or successors in
interest.
16. Assignability.
a. It is anticipated that Xxxx Xxxxxxx will assign this
Agreement to an entity wholly owned by him, and said
assignment is approved, and all references to "Xxxxxxx"
herein shall apply to Xxxx Xxxxxxx or his wholly owned
successor in interest, as the case may be.
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b. Otherwise, this Agreement is fully assignable by Xxxxxxx,
with the prior approval of the Company, which shall not be
unreasonably withheld.
c. Except as set forth in Paragraph 15, above, the Company
may not assign this Agreement without the prior written
consent of Xxxxxxx.
17. Notices. All notices herein provided shall be deemed to
be duly given when sent by registered or certified mail, return
receipt requested, or by overnight courier, return receipt
requested, or by hand delivery, at such address as may be
designated by the parties, or at an actual or operative address
of any such party.
18. Interpretation. To the extend possible, this Agreement
shall be governed by the Laws of the State of Florida.
19. Venue. Venue for any litigation, arbitration or other
proceeding arising out of this Agreement shall be in the United
States of America, or an international arbitration court as
agreed by the parties.
20. Attorneys Fees and Costs. In the event any action or
proceeding is instituted to enforce the terms and provisions of
this Agreement, or in the event of breach hereof, the prevailing
party shall recover reasonable fees and costs incurred as a
result thereof, including all appeals, from the non-prevailing
party.
21. Facsimile and/or Counterpart Execution. The parties
agree that this Agreement may
be executed in multiple counterparts, and such counterparts when
executed by all parties shall be
considered to constitute a valid binding agreement. The parties
further agree that this Agreement,
or any such counterparts, may be executed by an original
signature of a party, or by a facsimile
(telefax) signature, which shall be considered to be an original
signature, and shall be valid and
binding.
22. Entire Agreement. This Agreement contains the entire
agreement between the parties regarding the subject matter
herein, and supercedes all previous agreements, whether written,
oral or otherwise, with regard to said subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
below, effective the
date and year first set forth above.
WITNESSES:
/s/ /s/ Xxxx Xxxxxxx
Cluster Technology Corp. and its
subsidiaries, Universal Pain
Technology, Inc., Universal Pain
Clinics, Inc., and Professional
Distribution Systems, Inc.
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/s/ /s/ Xxxxxx Xxxxxxx, Director
/s/ Xxxxx Xxxxxxxx, Director
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ADDENDUM TO DISTRIBUTION, MARKETING AND LICENSING AGREEMENT,
AND SECURITY AGREEMENT
THIS ADDENDUM to Agreement made by and between CLUSTER
TECHNOLOGY CORP., a Delaware corporation (hereinafter "Company"),
and XXXX XXXXXXX (hereinafter "Xxxxxxx").
WITNESSETH:
WHEREAS, the parties entered into that certain DISTRIBUTION,
MARKETING AND LICENSING Agreement dated effective November 11,
1998, which provided, among other things, for the grant to
Xxxxxxx of the right and license worldwide (excluding the United
States of America, Canada and Greece) to market, distribute,
franchise and license certain defined concepts and/or products
manufactured and/or distributed by Cluster, the grant of a
security interest in favor of Xxxxxxx in certain defined assets
of Cluster, and other matters and obligations of the parties, and
WHEREAS, said Security Agreement was executed by the parties
to be effective November 11, 1998, and
WHEREAS, certain events have occurred which cause the
parties to desire to amend the effective date of said Agreement
and said Security Agreement, and
WHEREAS, the parties have reached certain agreements with
regard to the effective date of said Agreement, and with regard
to a certain force majeure provision, and are desirous of setting
forth the same in writing below, it is, therefore,
IN CONSIDERATION of the Distribution, Marketing and
Licensing Agreement, the
covenants set forth herein, and other valuable consideration
acknowledged,
MUTUALLY AGREED as follows:
1. Recitals. The foregoing recitals are true and correct as
applicable to the respective parties, and the same are
incorporated herein as a material part hereof.
2. Merger. This Addendum and said Distribution, Marketing
and Licensing Agreement are hereby merged and shall be deemed to
be one document; in the event of conflict between the provisions
of said Agreement and those of this Addendum, this Addendum shall
be controlling.
3. Effective Date. The effective date of said Distribution,
Marketing and Licensing Agreement shall for all purposes be
considered to be November 17, 1998.
4. Security Agreement. The effective date of said Security
Agreement, executed as provided in said Agreement, shall for all
purposes be deemed to be November 17, 1998, rather than November
11, 1998.
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5. Delays. Paragraph 10 of said Distribution, Marketing and
Licensing Agreement is hereby amended by adding to the end of
said Paragraph 10 the following provision:
"Xxxxxxx shall not be deemed to be in default under this
Agreement where Xxxxxxx'x delays or inability to perform is
occasioned by strikes, boycotts, lockouts, shortages, Acts
of God, Governmental regulations, or other occurrences
beyond the control of Xxxxxxx, except in regard to all
matter of payment pursuant to this Agreement".
6. Agreement Effective. Except as modified by this Addendum,
said Distribution, Marketing and Licensing Agreement, and
Security Agreement shall remain in full force and effect in all
respects, and the parties remain fully bound thereby.
IN WITNESS WHEREOF, the parties have executed this Addendum
effective the 24th day of November, 1998.
WITNESSES:
/s/ /s/Xxxx Xxxxxxx
Cluster Technology Corp. and its
subsidiaries, Universal Pain
Technology, Inc., Universal Pain
Clinics, Inc., and Professional
Distribution Systems, Inc.
/s/ /s/ Xxxxxx Xxxxxxx, Director
/s/ /s/ Xxxxx Xxxxxxxx, Director
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SECURITY AGREEMENT
CLUSTER TECHNOLOGY CORP., a Delaware corporation, and its
wholly owned subsidiaries, UNIVERSAL PAIN TECHNOLOGY, Inc., a
Florida corporation; UNIVERSAL PAIN CLINICS, INC., a Florida
corporation; and PROFESSIONAL DISTRIBUTION SYSTEMS, INC., jointly
and severally, whose addresses are 000 Xxxxxxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, referred to herein jointly
and severally as the "Obligor" and XXXX XXXXXXX whose address is
0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, referred to herein
as the "Secured Party", do hereby agree effective the 11th day of
November, 1998, as follows:
1. Security Interest. Obligor, and each of them, hereby
grants to Secured Party a continuing and unconditional security
interest (the "Security Interest") in the following (all of which
is collectively referred herein as the "Collateral"):
Any and all proprietary interest, contracts creating
proprietary interests, licenses and/or rights in and to
the Xxxxxx Pain Program, the Xxxxxx DRS System, the
Xxxxxx PCU Unit, or any additions, replacements,
accessions, improvements, extensions, or substitutions
thereto, including, without limitation, intellectual
property related to the same, copyrights, trademarks,
patents, technology, working drawings and
specifications, test reports, research, advertising
materials, franchise rights, and all related assets,
whether now existing, later developed or later
acquired.
2. Indebtedness Secured. This Agreement and the Security
Interest shall secure the performance of all obligations, of
Obligor pursuant to that certain Distribution, Marketing and
Licensing Agreement (hereinafter the "DML Agreement") by and
between Obligor and Secured Party, dated effective November 11,
1998.
3. Warranties of Obligor. The Obligor and each of them,
wan-ants, and so long as this Agreement remains in force, shall
be deemed continuously to warrant as follows:
(a) Obligor has no knowledge of any liens or encumbrances
which could attach the collateral, except for the security
interest created hereby;
(b) Obligor has full power and authority to enter into this
agreement and any person signing it on behalf of Obligor does so
with obligor's full authority;
(c) Information which the obligor has supplied or hereafter
supplies to the Secured Party is true and correct.
(d) Cluster Technology Corp. is a lawfully established
Delaware corporation in good standing, and all of its wholly
owned subsidiaries are corporations in good standing in the State
of their respective incorporation.
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4. Covenants of Obligor. For so long as this Agreement is
in force, and the Obligor's obligations pursuant to the DML
Agreement remain in force, Obligor and each of them, does
covenant with the Secured Party as follows:
(a) Obligor will defend the Collateral against the claims
of all other persons;
(b) Obligor will keep the Collateral free from all other
liens and encumbrances which are superior in priority to that of
the Secured Party.
(c) Obligor will not sell, transfer, lease or otherwise
dispose of the Collateral or any interest therein, unless said
sale, transfer, lease or other transfer is subject to the terms
and provisions of this Security Agreement and the DML Agreement.
(d) Obligor will keep the Collateral in force and in good
standing with all governing authorities;
(e) Obligor will not use the Collateral in violation of any
provision of this Agreement any insurance policy affecting the
Collateral, or any applicable law or regulation;
(f) Obligor will permit the Secured Party or its agents to
inspect the Collateral and the premises in which it is used, at
all reasonable times and in any reasonable manner;
(g) Obligor will execute and deliver the Secured Party any
financing statements or other documents reasonably requested by
Secured Party if Obligor defaults on payments when due;
(h) Obligor will pay all taxes, and other charges of every
nature which may be levied or assessed against the Collateral,
before any interest or penalties accrue;
(i) Obligor will do all things necessary to keep the
Collateral operational and to maintain this Security Agreement;
(j) Obligor will maintain adequate broad-form casualty
insurance on the insurable Collateral and shall deliver certified
copies of required insurance policies to the Secured Party;
(k) Obligor will pay its obligations to secured party
promptly when due. Obligor will also repay to secured party
immediately and without demand, all of the expenses incurred by
secured party, including reasonable attorney's fees and legal
expenses, which the secured party incurs under this agreement,
together with interest at the highest legal rate from the date of
expenditure, including all appellate proceedings.
5. Default. Any of the following shall constitute an event
of default ("Default"):
(a) the failure to perform any obligation of Obligor under
the DML Agreement referenced above, or this Security Agreement;
(b) the filing by or against the Obligor or any of them, of
a petition in bankruptcy;
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(c) any attachment or levy against the Collateral or
any other occurrence which inhibits the Secured Party's free
access to the Collateral or jeopardizes the Secured Party's
interest in the Collateral;
6. Rights of Secured RM. The nature of the Collateral is
such that delays in asserting the rights of the Secured Party in
the event of Default may seriously impair the value of the
Collateral. Therefore, to the maximum extent permitted by law, as
may be liberally construed, Obligor does hereby grant to Secured
Party the following rights:
(a) Secured Party may file any financing statement or other
document relating to the Collateral which the Secured Party deems
appropriate, without Obligor's signature thereon;
(b) Obligor hereby appoints the Secured Party as Obligor's
attorney-in-fact to execute such documents and to perform all
other acts which the Secured Party deems appropriate to perfect
and to continue perfection of the Security Interest and to do any
act which the obligor is obligated to do under this agreement and
to exercise rights under this agreement which the obligor is
entitled to exercise;
(c) Upon any Default the Secured Party may (but shall not
be obligated to) perform any duty of Obligor hereunder, and
Obligor shall immediately reimburse the Secured Party upon demand
for any expenses incurred by the Secured Party thereby;
(d) Secured Party may declare any part of the Indebtedness
to be due immediately, without notice, upon the happening of any
Default;
(e) Upon the happening of any Default, the Secured Party's
rights with respect to the Collateral shall be those of a Secured
Party under the Uniform Commercial Code and/or any other
applicable law of the United States or the State of Florida; and,
(f) The Secured Party may assign any or all of its rights
or interests under the DML Agreement or this Security Agreement
with the approval of the Obligor, which shall not bv unreasonably
withheld..
7. Notice. Any notice hereunder shall be sufficient if
mailed by or certified mail (return receipt requested) or hand-
delivered to Obligor or Creditor at either of the addresses set
forth above.
8. Costs. Obligor shall pay all costs and expenses
incurred by Secured Party in enforcing this Agreement, including
(but not limited to) reasonable attorney fees, whether suit is
brought or not and whether incurred in connection with
collection, trial, appeal or otherwise.
9. Repossession. Obligor hereby expressly grants to
Secured Party the right to physically repossess the Collateral,
by any reasonable means.
10. Waiver of Notice and Hearing. If any default by Obligor
hereunder is not cured within One Hundred and Eighty (180) days
after receipt of written notice thereof, Obligor hereby
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waives
any other or further rights Obligor may have to notice and a
hearing before possession of Collateral, or any part thereof, is
sought by the Secured Party whether by self-help replevin,
attachment, foreclosure, or otherwise.
11. Miscellaneous Provisions:
(a) No delay or omission by the Secured Party in exercising
any right hereunder shall operate as a waiver of that or any
other right.
(b) The terms "Secured Party" and "Obligor" as used in this
Agreement shall include the heirs, personal representatives, and
successors or assigns (if permitted) of those parties.
(c) This Agreement may not be modified or amended except in
writing signed by the Obligor and by the Secured Party.
(d) This Agreement shall be construed under the laws of the
State of Florida. Venue shall be in Seminole County, Florida.
(e) This Security Agreement is a continuing Agreement which
shall remain in force until all obligations of Obligors pursuant
to the DML Agreement referenced above have been performed.
(f) No party to this agreement shall be discharged by any
extension of time, additional advances and notes, renewals and
extensions of the taking of further security, releasing security,
extinguishment of the security interest as to all or any party of
the Collateral, or any other act except a release or discharge of
the secured interest upon the full payment of the obligations
secured by this agreement including charges, expenses, fees,
costs and interest.
(g) Any failure by the Secured Party to exercise any right
set forth in this agreement shall not constitute a waiver
thereof. Nothing in this agreement or in the obligations secured
by it shall preclude any other remedy by action or otherwise for
the enforcement of this agreement or the payment in full of the
obligations secured by it.
OBLIGORS: WITNESSES:
CLUSTER TECHNOLOGY CORP.
and its subsidiaries, Universal Pain Technology,
Universal Pain Clinics, Inc., and Professional
Distribution Systems, Inc.
/s/ Xxxxxx Xxxxxxx, Director /s/ Xxxxxx X. Xxxxx
/s/ Xxxxx Xxxxxxxx, Director
"SECURED PARTY" WITNESSES:
/s/ Xxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx
E-54
