gthp_ex1041





 






 



Exhibit 10.41


 


 SECURlTY
AGREEMENT


THIS
SECURlTY AGREEMENT (this "Agreement"), is entered into as of
December 17, 2019, by and between GUIDED THERAPEUTICS, INC., a
Delaware corporation (the "Borrower"), and Auctus Fund, LLC, a
Delaware limited liability company (the "Secured ~" or "Secured
Parties"). All capitalized terms not otherwise defined herein shall
the meanings ascribed to them in that certain Securities Purchase
Agreement and Note (as defined below) by and between Borrower and
the Secured Party of even date (the "Securities Purchase
Agreement").



RECITALS


WHEREAS,
the Secured Parties have loaned monies to Borrower, as more
particularly described in the Securities Purchase Agreement and as
evidenced by the 10% senior secured convertible promissory note in
the principal amount of $700,000.00 (the "Note") issued by Borrower
to the Secured Party on December 17, 2019;


WHEREAS,
the term "Secured Party" as used in this Agreement shall mean,
collectively, all holders of the Note, including those persons who
become holders of Note subsequent to the date hereof;
and


WHEREAS,
this Agreement is being executed and delivered by Borrower to
secure the Note.


NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties
hereto hereby agrees as follows:


1.
Obligations Secured. This Agreement secures, in part, the prompt
payment and performance of all obligations of Borrower under the
Note, and all renewals, extensions, modifications, amendments,
and/or supplements thereto (collectively, the "Secured
Obligations").


2.
Grant of Security.


a.
Collateral. Borrower hereby grants, pledges, and assigns for the
benefit of the Secured Parties, and there is hereby created in
favor of each of the Secured Parties, a security interest in and to
all of Borrower's right, title, and interest in, to, and under all
of the collateral set forth on Exhibit A hereto (collectively,
"Collateral").


b.
Effective Date. This grant of security shall be effective as of the
date hereof.


c.
Subordination. The Note and the Secured Obligations shall not be
subordinated, or junior in interest, to any other obligations of
Borrower, except with respect to the Borrower's obligations to GPB
Debt Holdings II LLC as of the date ofthis Agreement.


 


d.
Filings to Perfect Security. The Company shall (and is hereby
authorized to) file with the applicable filing office(s) such
financing statements, amendments, addenda, continuations,
terminations, assignments and other records (whether or not
executed by Borrower) to perfect and to maintain perfected security
interests in the Collateral by the Secured Parties, including but
not limited to (a) promptly upon the execution of this Agreement, a
Financing Statement on Form UCC-l (the "Financing Statement") shall
be filed with the Delaware Secretary of State and in all other
applicable jurisdictions on behalf of the Secured Parties with
respect to the Collateral; The Financing Statement shall designate
each of the Secured Parties as a Secured Party and Borrower as the
debtor, shall identify the security interest in the Collateral, and
contain any other items required by law. The Financing Statement
shall contain a description of collateral consistent with the
description set forth herein.


3.
Transfers and Other Liens. Except as set forth herein or in the
Note, Borrower shall not, without the prior written consent of all
of the Secured Parties, at their sole and absolute
discretion:


a.
Sell, transfer, assign, or dispose of (by operation of law or
otherwise), any of the Collateral outside of the ordinary course of
business;


b.
Create or suffer to exist any lien, security interest, or other
charge or encumbrance upon or with respect to any of the
Collateral, except the security interests created hereby;
or


c.
Permit any of the Collateral to be levied upon under any legal
process.


 


4.
Representatio1L~ and Warranties. Borrower hereby represents and
warrants to the Secured Parties as follows: (a) to Borrower' s
knowledge, Borrower is the owner of the Collateral (or, in the case
of after-acquired Collateral, at the time Borrower acquires rights
in the Collateral, will be the owner thereat) and that, except as
expressly provided herein, no other person has (or, in the case of
after-acquired Collateral, at the time Borrower acquires rights
therein, will have) any right, title, claim or interest (by way of
Lien or otherwise) in, against or to the Collateral; (b) to
Borrower's knowledge, except as expressly provided herein, upon the
filing of a Financing Statement with the Delaware Secretary of
State, the Secured Parties (or in the case of after-acquired
Collateral, at the time Borrower acquires rights therein, will
have) will have a perfected security interest in the Collateral to
the extent that a security interest in the Collateral can be
perfected by such filing; (c) all Accounts Receivable (as defined
in Exhibit A) are genuine and enforceable against the party
obligated to pay the same; (d) Borrower has full power and
authority to enter into the transactions provided for in this
Agreement and the Note; (e) this Agreement and the Note, when
executed and delivered by Borrower, will constitute the legal,
valid and binding obligations of Borrower enforceable in accordance
with their terms; (t) the execution and delivery by Borrower of
this Agreement and the Note and the performance and consummation of
the transactions contemplated hereby and thereby do not and will
not violate Borrower's Certificate of Incorporation or Bylaws or
any material judgment, order, writ, decree, statute, rule or
regulation applicable to Borrower (g) there does not exist any
default or violation by Borrower of or under any of the terms,
conditions or obligations of (i) any indenture, mortgage, deed of
trust, franchise, permit, contract, agreement, or other instrument
to which Borrower is a party or by which Borrower is bound, or (ii)
any law, ordinance, regulation, ruling, order, injunction, decree,
condition or other requirement applicable to or imposed upon
Borrower by any law, the action of any court or any governmental
authority or agency; and the execution, delivery and performance of
this Agreement will not result in any such default or violation;
(h) there is no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand pending or, to the knowledge of
Borrower, threatened which adversely affects Borrower' s business
or financial condition and there is no basis known to Borrower for
any action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand which could result in the same; and (i)
this Agreement and the Note do not contain any untrue statement of
material fact or omit to state a material fact necessary in order
to make the statements contained in this Agreement and the Note not
misleading.


 



 

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5.
Events of Default. For purposes of this Agreement, the term "Event
of Default" shall mean and refer to any of the
following:


a.
Failure of Borrower to perform or observe any covenant set forth in
this Agreement, or to perform or observe any other term, condition,
covenant, warranty, agreement or other provision contained in this
Agreement, where such failure continues for fifteen (15) days after
receipt of written notice from Lender specifying such
failure;


b.
Any representation or warranty made or furnished by Borrower in
writing in connection with this Agreement and the Note or any
statement or representation made in any certificate, report or
opinion delivered pursuant to this Agreement or in connection with
this Agreement is false, incorrect or incomplete in any material
respect at the time it is furnished; or


c.
Occurrence of any other Event of Default as defined in the
Note.


 


6.
Remedies. Upon the occurrence and during the continuance of an
Event of Default (subject to the notice and cure provisions
provided for herein, if any), each Secured Party shall have the
rights of a secured creditor under the Uniform Commercial Code of
the applicable jurisdiction, all rights granted by the Note, this
Security Agreement and by law, including the right to require
Borrower to assemble the Collateral and make it available to the
Secured Parties at a place to be designated by Borrower. The rights
and remedies provided in this Agreement and the Note are cumulative
and may be exercised independently or concurrently, and are not
exclusive of any other right or remedy provided at law or in
equity. No failure to exercise or delay by the Secured Parties in
exercising any right or remedy under this Agreement or the Note
shall impair or prohibit the exercise of any such rights or
remedies in the future or be deemed to constitute a waiver or
limitation of any such right or remedy or acquiescence therein.
Every right and remedy granted to the Secured Parties under this
Agreement and the Note or by law or in equity may be exercised by
any Secured Party at any time and from time to time.


7.
Further Assurances. Borrower agrees that, from time to time, at its
own expense, it will:


a.
Protect and defend the Collateral against all claims and demands of
all persons at any time claiming the same or any interest therein,
and preserve and protect Secured Party's security interest in the
Collateral.


b.
Promptly execute and deliver to Secured Parties all instruments and
documents, and take all further action necessary or desirable, as
any Secured Party may reasonably request to (i) continue, perfect,
or protect any security interest granted or purported to be granted
hereby, and (ii) enable a Secured Party to exercise and enforce any
of Secured Party's rights and remedies hereunder with respect to
any Collateral.


c.
Permit a Secured Party's representatives to inspect and make copies
of all books and records relating to the Collateral, wherever such
books and records are located, and to conduct an audit relating to
the Collateral at any reasonable time or times.


 


8.
Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified, (b) when sent by confirmed
telex, e-mail or facsimile if sent during normal business hours of
the recipient, if not, then on the next business day, (c) five (5)
days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (I) day after
deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All
communications shall be sent as follows:


If
to the Borrower, to:


GUIDED
THERAPEUTICS, INC. 5835 Peachtree Comers East, Suite D Norcross, GA
30092


Attn:
Gene Cartwright


E-mail:
info@guidedinc.com


If
to the Secured Party:


Auctus
Fund, LLC


545
Boylston Street, 2nd Floor


Boston,
MA 02116


Attn:
Lou Posner


Facsimile:
(617) 532-6420


or
to such other address or telecopy number as the party to whom
notice is to be given may have furnished to the other party in
writing in accordance herewith.


10. Amendments and Waivers. No modification,
amendment or waiver of any provision of, or consent required by,
this Agreement, nor any consent to any departure here from, shall
be effective unless it is in writing and signed by each of the
parties hereto. Such modification, amendment, waiver
or consent shall be effective only in the specific instance
and for the purpose for which
given.


 



 

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II.
Exclusivity and Waiver of Rights. No failure to exercise and no
delay in exercising on the part of any party, any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege
preclude any other right, power or privilege. The rights and
remedies herein provided are cumulative and are not exclusive of
any other rights or remedies provided by law.


12.
Invalidity. Any term or provision of this Agreement shall be
ineffective to the extent It IS declared invalid or unenforceable,
without rendering invalid or enforceable the remaining terms and
provisions of this Agreement.


13.
Headings. Headings used in this Agreement are inserted for
convenience only and shall not affect the meaning of any term or
provision of this Agreement.


14.
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument,
but all of which collectively shall constitute one and the same
agreement.


15.
Assignment. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable by the any of the parties
without the prior written consent of all Secured Parties, at their
sole and absolute discretion.


16.
Survival. Unless otherwise expressly provided herein, all
representations warranties, agreements and covenants contained in
this Agreement shall survive the execution hereof and shall remain
in full force and effect until the earliest to occur of (a) the
payment in full of the Note, and (b) the conversion of the
principal and accrued and unpaid interest and all other amounts
owing under the Note into common stock of Borrower.


17.
Miscellaneous. This Agreement shall inure to the benefit of each of
the parties hereto and all their respective successors and
permitted assigns. Nothing in this Agreement is intended or shall
be construed to give to any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained.


18.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA (WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAWS PROVISIONS).


19.
CONSENT TO JURlSDICTION. ANY ACTION BROUGHT BY EITHER PARTY AGAINST
THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE
COMMENCED ONLY IN THE STATE OR FEDERAL COURTS OF GENERAL
JURISDICTION LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS, EXCEPT
THAT ALL SUCH DISPUTES BETWEEN THE PARTIES SHALL BE SUBJECT TO
ALTERNATIVE DISPUTE RESOLUTION THROUGH BINDING ARBITRATION AT THE
HOLDER'S SOLE DISCRETION AND ELECTION (REGARDLESS OF WHICH PARTY
INITIATES THE LEGAL PROCEEDINGS).


20.
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THISAGREEMENT. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEKTO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND EACH OF THE OTHER PARTIES
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
20.


21.
Attorneys' Fees. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all
fees, costs and expenses of enforcing any right of such prevailing
party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.


22.
Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the transactions contemplated by
this Agreement and supersedes all prior agreements or
understandings among the parties with respect to the subject matter
hereof.


  





[SIGNATURE
PAGE(S) FOLLOW]



 

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IN
WITNESS THEREOF, the undersigned Buyer and the Company have caused
this agreement to be duly executed as of date first above
written.


 


 


 


 


 



GUIDED THERAPEUTICS, INC.


/s/
Gene S. Cartwright


Gene
S. Cartwright


Chef
Executive Officer


 


 


 



AUCTUS FUND, LLC


/s/
Lou Posner


Lou
Posner


Managing
Director


 


 


 




 

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EXHIBIT
A


COLLATERAL


Borrower
hereby grants, pledges, and assigns for the benefit of each Secured
Party, and there is hereby created in favor of the Secured Parties,
a security interest in and to all of Borrower's right, title, and
interest in, to, and under all assets and all personal property of
Borrower and the Borrower's subsidiaries (including but not limited
to Interscan, Inc.), whether now or hereafter existing, or now
owned or hereafter acquired, including but not limited to the
following (collectively, "Collateral "):




1.

All
accounts, chattel paper, contracts, contract rights, accounts
receivable, tax refunds, Note receivable, documents, other choses
in action and general intangibles, including, but not limited to,
proceeds of inventory and returned goods and proceeds from the sale
of goods and services, and all rights, liens, securities,
guaranties, remedies and privileges related thereto, including the
right of stoppage in transit and rights and property of any kind
forming the subject matter of any of the foregoing ("Accounts
Receivable");








2.

All
time, savings, demand, certificate of deposit or other accounts in
the name of Borrower or in which Borrower has any right, title or
interest, including but not limited to all sums now or at any time
hereafter on deposit, and any renewals, extensions or replacements
of and all other property which may from time to time be acquired
directly or indirectly using the proceeds of any of the
foregoing;








3.

All
inventory and equipment of every type or description wherever
located, including, but not limited to all raw materials, parts,
containers, work in process, finished goods, goods in transit,
wares, merchandise furniture, fixtures, hardware, machinery, tools,
parts, supplies, automobiles, trucks, other intangible property of
whatever kind and wherever located associated with the Borrower's
business, tools and goods returned for credit, repossessed,
reclaimed or otherwise reacquired by Borrower;








4.

All
documents of title and other property from time to time received,
receivable or otherwise distributed in respect of, exchange or
substitution for or addition to any of the foregoing including, but
not limited to, any documents of title;








5.

All
know-how, information, permits, patents, copyrights, goodwill,
trademarks, trade names, licenses and approvals held by Borrower,
including all other intangible property of Borrower;








6.

All
assets of any type or description that may at any time be assigned
or delivered to or come into possession of Borrower for any purpose
for the account of Borrower or as to which Borrower may have any
right, title, interest or power, and property in the possession or
custody of or in transit to anyone for the account of Borrower, as
well as all proceeds and products thereof and accessions and
annexations thereto; and








7.

All
proceeds (including but not limited to insurance proceeds) and
products of and accessions and annexations to any of the
foregoing.








 








 








 

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