EXHIBIT 10.9
SECURITY AGREEMENT
(Braintech, Inc.)
THIS SECURITY AGREEMENT (the "Agreement") is made the 27th day of March,
2009, by BRAINTECH, INC., a Nevada corporation (the "Debtor"), in favor of ROYAL
BANK OF CANADA and its assigns (the "Secured Party") to induce the Secured Party
to extend or continue credit facilities (collectively the "Loans") to the
Debtor. For valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by the Debtor), including without limitation the agreement
of the Secured Party to make or continue any one or more of the Loans, the
Debtor hereby represents, warrants and agrees as follows for the benefit of the
Secured Party:
1. Grant of Security Interest. The Debtor hereby grants to the Secured Party a
security interest in all of its now owned or hereafter acquired goods and other
personal property, including all tangible and intangible items and including
without limitation the following:
(a) Equipment, Etc. All of the Debtor's right, title and interest (if any)
in equipment, supplies, fittings, furnishings and other items of any
kind ordered, obtained, or possessed by the Debtor or for its account,
whether held by the Debtor, by sellers under any contracts for the
purchase of equipment or by others, together with any product into
which such equipment may be processed, manufactured or assembled and
together with all substitutions for said equipment and all parts,
instruments, accessories, alterations, modifications, replacements,
additions and accessions to said equipment (collectively, the
"Equipment");
(b) Inventory, Etc. All of the Debtor's right, title and interest in
inventory and stock in trade of the Debtor including, without
limitation, all computer hardware and software products wherever
located, raw materials, work in progress, materials used or consumed
in the Debtor's business, finished goods, returned goods and goods
traded in (collectively, the "Inventory");
(c) Accounts, Contract Rights, Deposits, Etc. All of the Debtor's right,
title and interest in (i) all accounts, (ii) all contract rights,
(iii) all chattel paper, (iv) all documents, documents of title,
drafts, checks, acceptances, bonds, letters of credit, notes or other
negotiable and non-negotiable instruments, bills of exchange,
deposits, certificates of deposit, insurance policies and any other
writings evidencing a monetary obligation or security interest in or a
lease of personal property, (v) all licenses, leases, contracts or
agreements, (vi) all letter of credit rights, (vii) all general
intangibles, including without limitation, all payment intangibles,
judgments, choses in action, patents, trademarks, trade names, service
marks, licenses, copyrights and the like whether registered or not,
and whether or not used or to be used by the Debtor, including, with
respect to all of said property, without limitation, all rights
corresponding thereunder throughout the world, all renewals thereof,
all license royalties with respect thereto, all claims for damages,
profits and proceeds by reason of past, present and future
infringements, and all rights to ▇▇▇ therefor; (viii) all guarantees
and other personal property securing the payment or performance of any
of the foregoing (collectively, the "Accounts") and (ix) all balances,
credits, deposits, accounts or monies of or in the name of the Debtor
in the possession or control of, or in transit to, the Secured Party
(the "Deposits");
(d) Documents. All of the Debtor's right, title, and interest in and to
books, correspondence, credit files, records, invoices, and other
documents, including, without limitation, all tapes, disks, cards,
computer runs and other papers or documents in the possession or
control of the Debtor; all records and data relating to the Collateral
(as hereinafter defined), whether in the form of writings,
photographs, microfilm, microfiche, or electronic media, together with
all of the Debtor's right, title and interest in and to all computer
software necessary to use, create, maintain and process such records
or data on electronic media, and including correspondence, invoices,
shipping documents and records, sales slips, orders and order
acknowledgements, and sales contracts (collectively, the "Documents");
(e) Fixtures. All of the Debtor's right, title, and interest in and to all
fixtures affixed to or to become affixed to any real property owned,
leased or operated by the Debtor or otherwise used in connection with
the business or operations of the Debtor (collectively, the
"Fixtures");
(f) Investment Property. All of the Debtor's right, title and interest in
and to investment property and financial assets including, without
limitation, all stocks, bonds, debentures, notes, bills, certificates,
options, rights, shares, or other securities now or hereafter owned or
acquired, all dividends or distributions in respect thereof and all
brokerage or commodities accounts (collectively, the "Investment
Property"); and
(g) Proceeds and Products. All cash and noncash proceeds (including rents,
royalties, and insurance proceeds) and products of any of the Debtor's
now owned or hereafter acquired goods and other real and personal
property including without limitation the items of property described
in paragraphs (a) through (f) above.
The items of property described in this Section 1 are herein referred to
collectively as the "Collateral." All terms used and not otherwise defined
herein shall have the meaning set forth in Article 9 of the Uniform
Commercial Code as in effect from time to time in the State of Nevada.
2. Obligations Secured. The security interest in the Collateral is given as
general and continuing security for the payment, performance and satisfaction of
any and all indebtedness and liability of the Debtor to the Secured Party
(including interest thereon), present or future, direct or indirect, absolute or
contingent, matured or not, extended or renewed, wheresoever and howsoever
incurred and any ultimate unpaid balance thereof, including all advances on
current or running account and all future advances and re-advances, and whether
the same is from time to time reduced and thereafter increased or entirely
extinguished and thereafter incurred again and whether the Debtor be bound alone
or with another or others, and including without limitation, the indebtedness
and liability of the Debtor to the Secured Party under or arising in connection
with the following:
(a) the Debtor's payment obligations with respect to the Loans;
(b) the Debtor's obligations with respect to payment of any costs and
expenses incurred or advances made by the Secured Party pursuant to
this Agreement or any other documents executed by the Debtor securing
or relating to the Loans and/or the Collateral, whether executed prior
to, contemporaneously with or subsequent to this Agreement (this
Agreement, the commitment letters relating to the Loans and such other
documents are herein collectively referred to as the "Loan Documents")
to protect the Collateral or fulfill the Debtor's obligations under
the Loan Documents, together with interest thereon from the time such
costs and expenses are incurred or advances made, at a per annum rate
equal to:
(i) with respect to the portion or portions of the Loans payable in
Canadian currency, the sum of the Canadian Prime Rate (as
hereinafter) plus 5% per annum (the "Canadian Default Rate"); and
(ii) with respect to the portion or portions of the Loans payable in
U.S. currency, the sum of the U.S. Base Rate (as hereinafter)
plus 5% per annum (the "U.S. Default Rate");
but in either case not in excess of the maximum rate permitted by
applicable law. The Canadian Default Rate and the U.S. Default Rate
are collectively referred to as the "Default Rates";
As used herein, "Canadian Prime Rate" means, for any day, the annual
rate of interest determined and announced from time to time by the
Secured Party as its reference rate then in effect for determining
interest rates on commercial loans made in Canadian currency in Canada
and "U.S. Base Rate" means, for any day, the annual rate of interest
determined and announced from time to time by the Secured Party as its
reference rate then in effect for determining interest rates on
commercial loans made in US currency in Canada;
Any change in the Canadian Prime Rate or the U.S. Base Rate shall be
effective on the date such change becomes effective;
(c) Performance of each agreement, term and condition set forth or
incorporated by reference herein or in any other Loan Document;
(d) Payment and performance of any additional existing or future
obligations of the Debtor to the Secured Party; and
(e) any and all amendments, modifications, renewals and/or extensions of
any of the foregoing including, but not limited to, amendments,
modifications, renewals or extensions which are evidenced by new or
additional instruments, documents or agreements or which change the
rate of interest on any obligation secured hereby,
(collectively the "Obligations").
3. Representations, Warranties and Covenants. The Debtor hereby represents,
warrants and covenants as follows:
(a) The Debtor is a corporation duly incorporated under the laws of the
State of Nevada. The Debtor's principal place of business and chief
executive office is at the address set forth under the Debtor's
signature below. The Debtor's organization identification number is
also set forth under the signature below. The Debtor will not change
its form or jurisdiction of organization without giving at least
fifteen (15) days' prior written notice thereof to the Secured Party
and taking, at the Debtor's sole expense, all actions requested by the
Secured Party to maintain and preserve the Secured Party's security
interest in the Collateral as a valid, enforceable, perfected, first
priority security interest, including, but not limited to, filing
financing statements specified by the Secured Party.
(b) The Debtor has full power and authority to enter into this Agreement,
grant to the Secured Party a valid security interest in the Collateral
and perform all of its obligations under this Agreement. The
execution, delivery and performance by the Debtor of this Agreement do
not contravene the Debtor's constating documents, or violate any
provision of any statute, law, rule, regulation, judgment, order or
decree and will not conflict with, or constitute a breach or default
under, any indenture, loan agreement, contract or other agreement or
instrument to which the Debtor is a party or by which the Debtor or
any of its property is bound.
(c) No authorization, consent or approval or other action by, and no
notice to or other filing with, any governmental authority or
regulatory body is required for the grant by the Debtor of the
security interest granted hereby, the due execution and delivery by
the Debtor of this Agreement or the performance by the Debtor of any
of its obligations hereunder, except filing of a financing statement
in the office of the Secretary of State of the State of Nevada.
(d) This Agreement has been duly executed and delivered by the Debtor and
is the Debtor's legal, valid and binding obligation, enforceable
against the Debtor in accordance with its terms, subject only to
bankruptcy, insolvency, reorganization, moratorium or similar laws now
or hereafter in effect relating to or affecting the enforceability of
rights of creditors generally and to general equitable principles that
may limit the right to obtain equitable remedies. This Agreement
creates in the Secured Party's favor a valid and, upon the filing of
an appropriate financing statement in the office of the Secretary of
State of the State of Nevada, perfected (to the extent perfection is
obtained by the filing of such financing statement) lien on and
security interest in the Collateral, enforceable against the Debtor
and all third parties and superior in right to all other existing
security interests, liens, encumbrances or charges, existing or
future. Upon such filing, no filing or recording of any other
financing statement or other instrument and no recording, filing or
indexing of this Agreement is necessary in order to preserve and
protect the Secured Party's security interest in the Collateral as a
legal, valid and enforceable, perfected (to such extent) security
interest in the Collateral, except filing of appropriate continuation
statements with respect to financing statements.
(e) Except for the security interest granted hereby and the security
interest granted to the providers of letters of credit in support of
the Secured Party's loan(s) to the Debotr, the Debtor is, and as to
any Collateral acquired by the Debtor after the date hereof will be,
the owner and holder of all the Collateral free and clear of any
security interest, lien, charge, encumbrance or other adverse claim,
and the Debtor will defend all of the Collateral, whether now owned or
hereafter acquired, against all claims and demands of all persons at
any time claiming the same or any interest therein, and will take all
steps to maintain the security interest of the Secured Party as a
valid and fully perfected lien of first priority.
(f) The Debtor has not changed its name since 1994 nor has it been the
surviving entity in a merger or acquired the assets of any other
business prior to the date hereof. The Debtor has not utilized any
trade names in the conduct of its business. The Debtor will not change
its name or the location of its principal place of business or chief
executive office without giving at least fifteen (15) days' prior
written notice to the Secured Party of any such proposed change or
utilization and taking, at the Debtor's sole expense, all actions
requested by the Secured Party to maintain and preserve the Secured
Party's security interest in the Collateral as a valid, enforceable,
perfected, first priority security interest including, but not limited
to, filing financing statements specified by the Secured Party.
(g) No financing statement covering any of the Collateral or any proceeds
thereof is on file in any public office in any jurisdiction, other
than financing statements in favor of the Secured Party. The Debtor
authorizes the Secured Party to prepare and file financing statements
without the signature of the Debtor where permitted by law and, if the
Debtor's signature shall be required, the Debtor irrevocably appoints
the Secured Party as the Debtor's agent for the purpose of signing and
filing such financing statements. The Debtor further authorizes
description of the Collateral on financing statements and other public
filings using generic terms such as "all assets" and "all personal
property". The Debtor promises to pay to the Secured Party all fees
and expenses incurred in filing financing statements and any
continuation statements or amendments thereto, which fees and expenses
shall become a part of the Obligations secured by this Agreement. A
carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall
be sufficient as a financing statement and may be filed by the Secured
Party in accordance with the provisions of this Section.
(h) On the request of the Secured Party from time to time, the Debtor
shall duly endorse and deliver to the Secured Party all instruments or
documents, the possession of which is necessary to perfect the Secured
Party's interest in any of the Collateral hereunder and take, at the
Debtor's sole expense, all actions requested by the Secured Party to
maintain and preserve the Secured Party's security interest in the
Collateral as a valid, enforceable, perfected, first priority security
interest.
(i) Except for sales of inventory and expenditures made in the ordinary
course of the Debtor's business prior to an Event of Default
hereunder, the Debtor will not sell, assign or offer to sell or assign
or otherwise transfer the Collateral, either in whole or in part, or
any interest therein without the prior written consent of the Secured
Party. The Debtor will not, without the prior written consent of the
Secured Party, create or permit to exist any security interest, lien,
charge, encumbrance or other adverse claim on any of the Collateral,
other than the security interest in favour of the Secured Party
created by this Agreement.
(j) The Debtor will fully and punctually perform any duty required of it
in connection with the Collateral and will not take any action,
including the amendment of any contract or the waiver of any contract
rights, which will impair, damage or destroy the Secured Party's
rights with respect to the Collateral or hereunder or the value
thereof.
(k) The Debtor will take such action as may be requested from time to time
by the Secured Party to ensure the Secured Party's "control" over all
deposit accounts, securities accounts, letters of credit and
electronic chattel paper included in the collateral. The Debtor will
deliver, on request, to the Secured Party originals of (i) all
instruments or tangible chattel paper in excess of $50,000 and (ii)
all certificated securities, in each case, duly indorsed to the
Secured Party or indorsed in blank (or accompanied by stock or bond
powers duly indorsed in blank).
4. Taxes. The Debtor will pay before delinquency any taxes which are or may
become through assessment or distraint or otherwise a lien or charge on the
Collateral and will pay any tax which may be levied on any Obligation secured
hereby.
5. Maintenance of Collateral; Inspection of Books and Records. The Debtor will
keep the Collateral in good repair and the Secured Party may inspect the
Collateral at reasonable times and intervals and with reasonable notice to the
Debtor and may for this purpose enter any premises upon which the Collateral is
located, including, but not limited to, the Debtor's facilities within normal
business hours. The Debtor will furnish to the Secured Party from time to time
statements and schedules further identifying and describing the Collateral and
detailing sales or other transfers of the Collateral and payments received or
accounts owing with respect to the Collateral for the periods specified by the
Secured Party and such other reports in connection with the Collateral as the
Secured Party may reasonably request, in writing, all in reasonable detail. Upon
the Secured Party's written request, the Debtor will permit the Secured Party or
its duly authorized representatives to examine its books and records during the
Debtor's regular business hours and shall furnish to the Secured Party such
financial statements and other financial data as the Secured Party may
reasonably request from time to time.
6. Tangible Collateral. With respect to the Equipment, Inventory, Documents, and
Fixtures (collectively, the "Tangible Collateral"):
(a) The Tangible Collateral is and will be used primarily for business
purposes.
(b) All Tangible Collateral is and will be kept at the address set forth
next to the Debtor's signature hereto or at Debtor's other offices.
(c) The Debtor has and will maintain insurance on and with respect to the
Tangible Collateral against loss or damage by fire, theft and such
other risks as are customarily insured against by persons similarly
situated to the Debtor, in such amounts, with such insurers and under
policies in such form as shall be satisfactory to the Secured Party.
The Secured Party shall be named as a loss payee on all such policies,
and all such policies shall provide that they are not cancellable
without thirty (30) days' prior written notice to the Secured Party.
The Debtor shall, if requested by the Secured Party, obtain and
deliver to the Secured Party, from time to time, satisfactory original
or duplicate policies or certificates of insurance, including any
endorsements, to evidence the Debtor's satisfaction of the insurance
requirements hereunder. In the event of loss or damage with respect to
any or all of the Tangible Collateral, the Secured Party shall have
the right to collect any and all insurance upon the Tangible
Collateral and to apply the same at its option to any of the
Obligations, whether or not matured, or to the replacement,
restoration or repair of any or all of the Tangible Collateral.
(d) None of the Collateral is or will be affixed to real estate unless the
Debtor has furnished to the Secured Party such consents, waivers or
disclaimers as are necessary to make the Secured Party's security
interest in such of the Collateral valid against persons or entities
holding an interest in such real estate.
7. Intangible Collateral. With respect to the Accounts, Deposits and Investment
Property (collectively, the "Intangible Collateral"):
(a) The Debtor's records concerning all Intangible Collateral since
November 15, 2008 have been kept at the address set forth below the
Debtor's signature hereto.
(b) Each item of Intangible Collateral is, or at such time as it becomes
part of the Collateral will be, a bona fide, valid and legally
enforceable obligation of the account debtor or other obligor in
respect thereof, subject to no defense, setoff or counterclaim against
the Debtor and in connection with which there is no default with
respect to any payment or performance on the part of the Debtor or any
other party.
(c) The Debtor will at all times keep accurate and complete records of
payment and performance by the Debtor, the respective account debtors
and all other parties obligated on Intangible Collateral.
(d) The Debtor will keep the Secured Party immediately informed of any
material default in payment or performance by the Debtor or any
account debtor or other parties obligated on, or of material claims
made by others in regard to, Intangible Collateral having,
individually or in the aggregate, a value of US$100,000 or more and
shall not change the terms thereof (or terminate or permit the
impairment of any of its rights thereunder) in any material way
without the prior written consent of the Secured Party. The Debtor
will make all payments and perform all undertakings on the Debtor's
part to be paid or performed with respect to Intangible Collateral
when due. The Debtor hereby authorizes the Secured Party to cure any
default in payment or performance by the Debtor with respect to
Intangible Collateral; provided, however, that the Secured Party shall
be under no obligation to do so and, provided, further, that the
curing by the Secured Party of any default shall not constitute a
waiver by the Secured Party of any default hereunder. The Debtor
agrees to reimburse the Secured Party on demand with interest at the
Default Rates for any payment made or any expense incurred by the
Secured Party pursuant to the foregoing authorization, and any payment
made or expense incurred by the Secured Party pursuant to the
foregoing authorization shall be part of the Obligations secured
hereunder.
(e) The Secured Party may, in the name of the Secured Party, at any time
after the occurrence of an Event of Default hereunder notify the
account debtor or other obligor on any item of Intangible Collateral
of the Secured Party's security interest. The Secured Party may, in
its own name or the name of the Debtor, at any time after the
occurrence and during the continuation of an Event of Default
hereunder, demand, ▇▇▇ for, collect or receive any money or property
payable, or receive any money or property payable or receivable on any
Intangible Collateral and settle, release, compromise, adjust, ▇▇▇
upon, foreclose, realize upon or otherwise enforce any item of
Intangible Collateral as the Secured Party may determine, and for the
purpose of realizing the Secured Party's rights herein, the Secured
Party may receive, open and dispose of mail addressed to the Debtor
and endorse notes, checks, drafts, money orders, documents of title or
other forms of payment on behalf of and in the name of the Debtor. At
any time after the occurrence and during the continuance of an Event
of Default hereunder, the Secured Party may at any time in its
discretion transfer any notes, securities or other Intangible
Collateral into its own name or that of its nominee and receive the
income thereon and hold the same as Collateral for the Obligations or
apply the same to the payment of amounts due in respect of the
Obligations. The Debtor agrees to reimburse the Secured Party on
demand with interest at the applicable Default Rates for any payment
made or any expense incurred by the Secured Party pursuant to the
foregoing authorization, and any payment made or expense incurred by
the Secured Party pursuant to the foregoing authorization shall be
part of the Obligations secured hereunder.
(f) Subject to licensing rights existing on the date hereof and licenses
to which the Secured Party gives its consent, for the purpose of
enabling the Secured Party to exercise rights and remedies hereunder,
only at such time as the Secured Party, without regard to this
paragraph (f), shall be lawfully entitled to exercise such rights and
remedies and for no other purpose, the Debtor hereby grants to the
Secured Party an irrevocable, exclusive license, exercisable at the
time of and in accordance with the exercise of such rights and
remedies and without present or future payment of royalty or other
compensation to the Debtor, to use, assign, license or sublicense any
of the trademarks now owned or hereafter acquired by the Debtor and
wherever the same may be located, including in such license reasonable
access to all media in which any of the licensed items may be recorded
or stored and to all computer programs used for the compilation or
printout thereof.
(g) The Debtor will not enter into, or permit any securities intermediary,
commodity intermediary, bank, letter of credit issuer or issuer of
uncertificated securities to enter into, any control agreement with
any person other than the Secured Party with respect to any of, and
the Debtor shall not otherwise grant any person other than the Secured
Party control of, any Investment Property, Deposit or letter of credit
right.
(h) If the Collateral at any time includes securities or other Investment
Property, the Debtor authorizes the Secured Party to transfer the same
or any part thereof into its own name or that of its nominee(s) so
that the Secured Party or its nominee(s) may appear of record as the
sole owner thereof; provided that, until the Debtor is in default
hereunder, the Secured Party shall deliver promptly to the Debtor all
notices or other communications received by the Secured Party or its
nominee(s) as such registered owner and, upon demand and receipt of
payment of any necessary expenses thereof, shall issue to the Debtor
or its order a proxy to vote and take all action, consistent with the
terms hereof and of the other Loan Documents, with respect to such
Investment Property. The Debtor waives all rights to receive after it
is in default hereunder any notices or communications received by the
Secured Party or its nominee(s) as such registered owner and agrees
that no such proxy issued by the Secured Party to the Debtor or its
order shall thereafter be effective.
8. Compliance with Laws. The Debtor will ensure that its use of the Collateral
will comply with all applicable laws, ordinances, and regulations of
governmental authorities.
9. Waivers. This Agreement shall not be qualified or
supplemented by course of dealing. No waiver or modification by the Secured
Party of any of the terms and conditions hereof shall be effective unless in
writing signed by the Secured Party. No waiver or indulgence by the Secured
Party as to any required performance by the Debtor shall constitute a waiver as
to any required performance or other obligations of the Debtor hereunder. No
modification or amendment of this Agreement shall be valid unless in writing
signed by the Debtor and the Secured Party.
10. Release of Collateral, Etc. The obligations of the Debtor shall not be
affected by the release or substitution of any collateral or by the release of
or any renewal or extensions of time to any party to any instrument, obligation
or liability secured hereby or to which the Debtor is a party. The Secured Party
shall not be bound to resort to or exhaust its recourse or to take any action
against other parties or other collateral. The Debtor hereby waives presentment,
demand, protest, notice of protest and notice of non-acceptance or non-payment
with respect to any indebtedness, obligation or liability secured hereby.
11. Further Assurances. The Debtor, at its sole cost and expense, will at any
time and from time to time hereafter (a) give the Secured Party at least fifteen
(15) days' prior written notice of any proposed change in the Debtor's name,
identity or form or jurisdiction of organization, or the adoption or change of
any trade names under which the Debtor operates or intends to operate the
Collateral; (b) execute such financing statements and other instruments and
perform such other acts as may be necessary or as the Secured Party may
reasonably request in writing to establish and maintain the security interests
herein granted by the Debtor to the Secured Party and the priority and continued
perfection thereof; (c) obtain and promptly furnish to the Secured Party
evidence of all government approvals that may be required to enable the Debtor
to comply with its obligations under this Agreement; and (d) execute and deliver
all such other instruments and perform all such other acts as the Secured Party
may reasonably request to carry out the transactions contemplated by this
Agreement and to maintain and preserve the Secured Party's security interest in
the Collateral as a valid, enforceable, perfected, first priority security
interest. Without limiting the foregoing, to effectuate the rights and remedies
of the Secured Party hereunder, at any time after occurrence and during the
continuance of an Event of Default hereunder, the Debtor hereby irrevocably
appoints the Secured Party attorney-in-fact for the Debtor in the name of the
Debtor or the Secured Party, with full power of substitution, to sign, execute
and deliver any and all instruments and documents and do any and all acts and
things to the same extent as the Debtor could do, to sell, assign and transfer
any in tangible Collateral, including, but not limited to, taking all action
necessary or desirable to obtain the approval of any governmental body to the
transfer or issuance to the Secured Party or any other person of any intangible
Collateral. The Debtor hereby authorizes the filing of any financing statements
or continuation statements, and amendments to financing statements, in any
jurisdictions and with any filing offices as the Secured Party may determine, in
its sole discretion, are necessary or advisable to perfect the security interest
granted to the Secured Party in connection herewith. Such financing statements
may describe the collateral in the same manner as described in any security
agreement or pledge agreement entered into by the parties in connection herewith
or may contain an indication or description of collateral that describes such
property in any other manner as the Secured Party may determine, in its sole
discretion, is necessary, advisable or prudent to ensure the perfection of the
security interest in the collateral granted to the Secured Party in connection
herewith, including, without limitation, describing such property as "all
assets" or "all personal property" whether now owned or hereafter acquired.
12. Expenses Incurred by the Secured Party. The Secured Party is not required
to, but may, at its option, pay any tax, insurance premium, filing or recording
fees, or other charges payable by the Debtor hereunder, and any such amount paid
shall bear interest from the date of payment until repaid at the applicable
Default Rates. Such amounts shall be repayable by the Debtor on demand, and the
Debtor's obligation to make such repayment shall constitute an additional
Obligation secured hereby.
13. Assignment. The Secured Party may assign or transfer the whole or any part
of the Obligations and may transfer therewith as collateral security the whole
or any part of the Collateral and all obligations, rights, powers and privileges
herein provided shall inure to the benefit of the assignee to the extent of such
assignment.
14. Events of Default. All sums secured hereby shall become immediately due and
payable, at the option of the Secured Party, without further demand or notice,
after any of the following occur, each of which shall be an "Event of Default":
(a) Failure by the Debtor to make any payment (whether of principal,
interest, expenses, fees or otherwise) required to be made under the
Loan Documents, when due, by acceleration or otherwise; or
(b) Failure by the Debtor to observe or perform any other covenant,
condition or agreement contained herein or in the Loan Documents when
such observance or performance is due (subject to any applicable cure
period); or
(c) Any representation or warranty made by the Debtor contained herein or
in any other Loan Document shall be untrue in any material respect; or
(d) The Debtor commences, or there is commenced against it, any case,
proceeding or other action or takes, or there is taken against it, any
other action in bankruptcy or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition, compromise,
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, compromise, readjustment of debt or similar act or law of
any jurisdiction, now or hereafter existing, or takes any action
indicating its consent to, approval of, or acquiescence in, any such
case, proceeding or other action; the Debtor applies for, or there is
appointed, a receiver, interim receiver, sequestrator, trustee or
custodian of it or for all or a substantial part of its property; the
Debtor makes an assignment for the benefit of creditors; the Debtor
fails generally to pay its debts as they mature or admits in writing
its inability to pay its debts as they mature; the Debtor is
adjudicated insolvent or bankrupt; or there is issued a warrant of
attachment, execution or similar process against any substantial part
of the Debtor's property; and in the case of any such event not
initiated by the Debtor, such event continues for 60 days undismissed,
unbonded and undischarged; or
(e) The occurrence of any loss, theft, damage or destruction of any
material portion of the Collateral in excess of insurance coverage.
15. Remedies. If an Event of Default shall occur, the Secured Party shall have
all remedies provided by law and, without limiting the generality of the
foregoing or the remedies provided in any other Section hereof or in any other
Loan Document, shall have the following remedies:
(a) The remedies of a secured party under the Uniform Commercial Code; and
(b) The right, at the Secured Party's option, to sell in a commercially
reasonable manner all or part of the Collateral and make application
of all proceeds or sums due on the Collateral; and
(c) The right to enter any premises where any of the Collateral is
situated and take possession of such Collateral without notice or
demand and without legal proceedings; and
(d) The right to exercise and enforce all of the Debtor's rights under any
contracts or any other agreement to which the Debtor is a party or of
which the Debtor is a beneficiary; and
(e) All other remedies which may be available in law or equity. At the
request of the Secured Party, the Debtor will assemble the Collateral
and make it available to the Secured Party at a place designated by
the Secured Party. To the extent that notice of sale shall be required
by law to be given, the Debtor agrees that a period of ten (10) days
from the time the notice is sent shall be a reasonable period of
notification of a sale or other disposition of Collateral by the
Secured Party and that any notice or other communication from the
Secured Party to the Debtor pursuant to this Agreement or required by
any statute may be given to the Debtor at the address set forth under
its name on the signature page hereof. The Debtor agrees to pay on
demand the amount of all expenses incurred by the Secured Party in
protecting and realizing on the Collateral, and the Debtor further
agrees that if this Agreement or any Obligation is referred to an
attorney for protecting or defending the priority of the Secured
Party's interest in the Collateral or for collecting or realizing
thereon, the Debtor shall pay all of the Secured Party's expenses
including, without limitation, all reasonable attorneys' fees and
costs and expenses of title search and all court costs and costs of
public officials, and the Debtor further agrees that its obligation to
pay such amounts shall bear interest from the date such expenditures
are made by the Secured Party until repaid at the Default Rates and
shall be secured hereby. The Secured Party shall have no duty as to
the collection or protection of the Collateral or any income thereon,
nor as to the preservation of rights against prior parties, nor as to
the preservation of any rights pertaining to the Collateral beyond
reasonable care in the custody or preservation thereof. The Debtor
agrees to pay any deficiency remaining after collection or realization
by the Secured Party on the Collateral.
16. Hold Harmless. The Debtor will indemnify and hold the Secured
Party harmless from all liability, loss, damage or expense including, but not
limited to, all reasonable attorneys' fees and costs, that the Secured Party
incurs resulting from, arising out of or relating to the Secured Party's efforts
to comply with or enforce the terms of this Agreement or the Obligations. The
covenants set forth in this Section 16 shall survive the termination of this
Agreement.
17. Severability. In case any one or more of the provisions contained in this
Agreement is invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality and enforceability of such provision or
provisions will not in any way be affected or impaired thereby in any other
jurisdiction; and the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.
18. Successors. This Agreement inures to the benefit of the Secured Party and
its successors and assigns, and shall bind the successors and assigns of the
Debtor. The Debtor may not assign its rights and obligations hereunder without
the prior written consent of the Secured Party.
19. Other Agreements. The terms of this Agreement are intended to supplement and
not to replace or be replaced by the terms of the other Loan Documents and the
rights and remedies herein provided to the Secured Party are intended to be
cumulative of and in addition to all rights and remedies conferred by the other
Loan Documents.
20. Notices. Notices and other communications with respect to this Agreement
shall be in writing (including telecommunications) and made or delivered to the
party to which such notice or other communication is required or permitted to be
given or made at the address shown on the signature pages of this Agreement, or
at such other address as shall be designated by such party in a written notice
to the other party given in accordance with this Section and shall be considered
delivered on receipt if telecommunicated or delivered by messenger or courier
service or five days after mailing, postage prepaid. All mailed notices shall be
by certified or registered mail.
21. Judgment Currency. If for the purposes of obtaining judgment in any court in
any jurisdiction or for any other purpose hereunder it becomes necessary to
convert into the currency of such jurisdiction (the "Judgment Currency") any
amount due hereunder in any currency other than the Judgment Currency, then such
conversion shall be made in accordance with the normal banking procedures of the
Secured Party at the rate of exchange prevailing on the last business day before
the day on which judgment is given. In the event that there is a change in the
rate of exchange prevailing between the last business day before the day on
which the judgment is given and the date of payment of the amount due, the
Debtor shall, on the date of payment, pay such additional amounts (if any) as
may be necessary to ensure that the amount paid on such date is the amount in
the Judgment Currency which, when converted at the rate of exchange prevailing
on the date of payment, is the amount then due under this Agreement in such
other currency. Any additional amount due from the Debtor under this paragraph
21 shall be due as a separate debt and shall not be affected by judgment being
obtained for any other sums due under or in respect of this Agreement.
22. Withholding Taxes. Any and all payments by the Debtor hereunder shall be
made free and clear of, and without deduction for, any and all present and or
future taxes. If the Debtor is required by law to deduct any taxes from or in
respect of any sum payable hereunder to the Secured Party, (a) the sum payable
shall be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 22) the Secured Party will receive an amount equal to the sum it
would have received had no such deductions been made; (b) the Debtor shall make
such deductions; and (c) the Debtor shall pay the full amount deducted to the
relevant taxing authority or other governmental authority in accordance with
applicable law and promptly forward to the Secured Party an official receipt or
other documentation acceptable to the Secured Party evidencing such payment.
23. Governing Law and Venue; Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Nevada.
THE DEBTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR NEVADA STATE COURT SITTING IN RENO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM.
[INTENTIONALLY LEFT BLANK]
24. Waiver of Jury Trial. THE DEBTOR AND, BY ITS ACCEPTANCE OF THIS AGREEMENT,
THE SECURED PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A
JURY TRIAL OF ANY DISPUTE RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the Debtor has executed this Agreement as of the date first
above written.
DEBTOR: Braintech, Inc., a Nevada corporation
By: _______________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman, President & CEO
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
U.S. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
Nevada Corp. No.: C1515-1987
Secured Party Address for Notices:
Royal Bank of Canada
36th Floor, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇