LIQUIDATION AGREEMENT
Exhibit
10.96
This
Liquidation Agreement (hereinafter, this “Agreement”) is made as of this
4th day of December, 2008 by and among:
YA GLOBAL INVESTMENTS, L.P.,
f/k/a Cornell Capital Partners, L.P., a Cayman Island exempt limited
partnership as collateral agent (hereinafter, the “Collateral
Agent”);
YA GLOBAL INVESTMENTS, L.P.,
f/k/a Cornell Capital Partners, L.P., a Cayman Island exempt limited
partnership (“YA
Global”), XENTENIAL
HOLDINGS LIMITED (“Xentenial”), a corporation
incorporated under the laws of the Republic of Cyprus, and STARAIM ENTERPRISES LIMITED
(“Staraim”), a
corporation incorporated under the laws of the Republic of Cyprus, each having
an office at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and
STAROME INVESTMENTS LIMITED
(“Starome”), a
corporation incorporated under the laws of the Republic of Cyprus, having an
office at Athalassas, 47, 2nd Floor,
Flat Office 202, Xxxxxxxxx, X.X. 0000, Xxxxxxx, Xxxxxx (hereinafter,
collectively, the “Lenders”);
SMARTIRE SYSTEMS INC.
(hereinafter the “Company”), a corporation
incorporated under the laws of the Province of British Columbia with its
principal place of business located at Suite #150 - 00000 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0; and
SMARTIRE TECHNOLOGIES INC., a
corporation incorporated under the laws of the Province of British Columbia and
SMARTIRE USA, INC., a
corporation incorporated under the laws of the State of Delaware (hereinafter,
collectively, the “Subsidiaries”), each with its
principal place of business located at Suite #150 - 13151 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0.
Background
Reference
is made to certain financing arrangements entered into by and between the
Lenders and the Company evidenced by, among other things, the documents,
instruments, and agreements set forth on Exhibit “A” attached hereto and
incorporated herein by reference (collectively, together with all other
documents, instruments, and/or agreements executed in connection therewith or
related thereto, the “Financing
Documents”).
One or
more defaults have occurred under the Financing Documents prior to the date
hereof, and certain of the obligations under the Financing Documents have
matured and remain unpaid by the Company (hereinafter, the “Existing
Defaults”). The Company has informed the Lender that the
Company and its Subsidiaries (collectively, jointly, and severally, the “Vendors”) have located a
purchaser for the Vendors’ assets and have requested that the Lenders consent to
the proposed sale (the “Sale”) upon the terms and
conditions set forth in the asset purchase agreement in the form attached hereto
as Exhibit “B” (the “APA”), and agree to allow the
Company to use its existing cash and proceeds of the Lenders’ collateral, and/or
certain proceeds of the Sale to pay certain costs and expenses of the Sale and
certain costs and expenses of the Vendors’ wind-down after consummation of the
Sale, and the Lenders have agreed to do so, but only on the express terms and
conditions set forth herein.
Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed by and between the Lenders and the
Vendors, as follows:
Acknowledgment of
Indebtedness
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1.
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The
Vendors hereby acknowledge and agree that the Company is liable to the
Lenders for all obligations under the Financing Documents, including,
without limitation, the following (collectively, the “Obligations”): (a)
the amounts set forth on Exhibit “C” attached hereto and incorporated
herein by reference, and (b) all fees, costs, expenses, and costs of
collection (including reasonable attorneys’ fees and expenses) heretofore
or hereafter accruing and/or incurred by the Lenders in connection with
the Financing Documents, including, without limitation, all reasonable
attorneys’ fees and expenses incurred in connection with the negotiation
and preparation of this Agreement and all documents, instruments, and
agreements incidental hereto.
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Waiver of
Claims
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2.
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The
Vendors hereby acknowledge and agree that they have no offsets, defenses,
claims, or counterclaims against the Collateral Agent, the Lenders and/or
their respective officers, directors, employees, attorneys,
representatives, predecessors, affiliates, parents, successors, and
assigns (the “Released
Parties”) with respect to the Financing Documents, the Obligations,
or otherwise, and that if the Vendors now have, or ever did have, any
offsets, defenses, claims, or counterclaims against the Released Parties
whether known or unknown, at law or in equity, from the beginning of the
world through this date and through the time of execution of this
Agreement, all of them are hereby expressly WAIVED, and the Vendors
each hereby RELEASE the Released
Parties from any liability
therefor.
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Ratification of Financing
Documents; Further Assurances
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3.
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The
Vendors:
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(a)
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Hereby
ratify, confirm, and reaffirm all of the terms and conditions of the
Financing Documents. The Vendors further acknowledge and agree
that, except as specifically modified in this Agreement, all terms and
conditions of the Financing Documents shall remain in full force and
effect;
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(b)
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Hereby
ratify, confirm, and reaffirm that (i) the obligations secured by the
Financing Documents include, without limitation, the Obligations, and any
future modifications, amendments, substitutions or renewals thereof, (ii)
the Financing Documents, this Agreement, and the documents executed in
connection herewith or related hereto (collectively, the “Transaction Documents”),
grant security interests in favor of the Lenders in the undertaking of the
Vendors and all present and after-acquired personal property and real
property of the Vendors, and that such security interests remain in full
force and effect, and (iii) all collateral, whether now existing or
hereafter acquired, granted to the Collateral Agent and/or the Lenders
pursuant to the Transaction Documents shall continue to secure all of the
Obligations until payment in full of the Obligations;
and
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(c)
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Shall,
from and after the execution of this Agreement, execute and deliver to the
Collateral Agent whatever additional documents, instruments, and
agreements that the Lenders may reasonably require in order to vest or
perfect the Transaction Documents and the collateral granted to the
Lenders therein more securely in the Collateral Agent and Lenders and to
otherwise give effect to the terms and conditions of this
Agreement.
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Budget; Payment of Budgeted
Expenses
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4.
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The
Vendors have presented the Lenders with a proposed wind-down plan
(hereinafter, the “Wind-Down Plan”),
together with a projected budget (hereinafter, the “Budget”) covering the
period from the date of this Agreement through the anticipated wind-down
of the Vendors’ operations on or about December 31, 2009 (hereinafter, the
“Termination
Date”), a copy of which is annexed hereto marked Exhibit
“D”. The Budget sets forth the anticipated expenses and costs
of the Vendors’ operations through the date of closing on the Sale, and
the subsequent wind down of the Vendors’ operations (hereinafter, the
“Budgeted
Expenses”). In connection
therewith:
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(a)
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The
Vendors warrant and represent to the Lenders that the Budget contains the
Vendors’ best estimate of all foreseeable, reasonable, and necessary
expenses which may be incurred or otherwise are required to be paid in
connection with the Sale and the subsequent wind-down of the Vendors’
operations.
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(b)
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Certain
of the Budgeted Expenses identified on the Budget as “Funds req’d at
closing” in the amount of $762,532.00 (the “Specified Expenses”),
need to be paid on or before the closing on the Sale, and the Vendors do
not have sufficient funds on hand to pay for the
same. Accordingly, the Vendors have requested that YA Global
make a loan in the amount of $762,532.00 (the “Bridge Loan”) to fund
such Specified Expenses, and YA Global has agreed to do so, subject to the
following:
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(i)
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The
Bridge Loan shall be made upon, and subject to, the terms and conditions
set forth in a Bridge Note in the form attached hereto as Exhibit “E” (the
“Bridge
Note”);
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(ii)
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All
amounts advanced under the Bridge Loan, and all interest accrued thereon
and/or fees, costs, expenses, and costs of collection incurred in
connection therewith and all other amounts due under the Bridge Loan
Documents shall constitute Obligations, shall be secured by all collateral
which secures the Obligations, and shall be repaid as part of the
Obligations from the proceeds of the Sale and/or the Excluded Assets (as
defined below) in accordance with the provisions of this Agreement,
subject to certain agreements among the Lenders regarding the application
of such proceeds; and
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(iii)
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At
the option of YA Global, with the consent of the other Lenders, the
proceeds of the Bridge Loan may be disbursed directly to the party to
which the Specified Expense is due, or deposited into the Pledged Account,
as defined below, to be used by the Vendors solely to pay the Specified
Expenses. The Vendors shall cooperate fully with YA Global in
making such disbursements directly to the parties to which the Specified
Expenses are owed, and shall execute and deliver to YA Global such
notices, documents, instruments and/or agreements as YA Global may require
in connection with the same.
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(c)
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Provided
that no Termination Event, as defined below, has occurred, the Lenders (i)
will permit the Vendors to use their cash on hand, or other cash or funds
received by the Vendors from assets excluded from the Sale, as set forth
on Schedule 2.01 to the APA (hereinafter, the “Excluded Assets”) to pay
Budgeted Expenses and the proceeds of the Bridge Loan to pay Specified
Expenses (if not disbursed directly as set forth above), but only to the
extent that such Budgeted Expenses/Specified Expenses are actually
incurred and are then due and payable, and, to the extent that the funds
available pursuant to sub-section (i) are not sufficient to pay all such
Budgeted Expenses, then (ii) will deposit in the Pledged Account (as
defined below) from funds received under the APA, if and when such amounts
are actually received by the Collateral Agent in good and collected funds,
prior to such funds being distributed to the Lenders, sufficient amounts
to pay such Budgeted Expenses that are actually incurred and then due and
payable. The Vendors covenant and agree that they shall not, without the
prior written consent of the Collateral Agent and the Lenders, pay any
Budgeted Expense (x) prior to the week that such Budgeted Expense is
scheduled to be paid as shown in the Budget, or (y) in excess of the
Budgeted Expenses set forth in the Budget, whether by line item or in the
aggregate.
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Cash
Management
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5.
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On
or before December ___, 2008, the Company shall open an account (the
“Pledged Account”)
with a U.S. branch of Wachovia Bank, N.A., or another U.S. bank acceptable
to the Collateral Agent and the Lenders and will deposit into the Pledged
Account all cash, collections, and other funds as and when received by the
Vendors, including, without limitation, all proceeds from the Excluded
Assets and all proceeds of the Bridge Loan which are not directly
disbursed per the provisions of Paragraph 4, above. The Company
shall execute and deliver all such documents (including a pledge agreement
and control agreement) as such bank and the Lenders may require in order
to grant the Collateral Agent for the benefit of the Lenders a perfected
security interest in the Pledged Account to secure the
Obligations. The Vendors shall not open or maintain any deposit
accounts, savings accounts, money market accounts, or any other account or
investment, with any other bank, lending institution, or financial
company, with the sole exceptions of the Pledged Account and the Company’s
existing deposit account #’s _______, and _________ maintained with
_______________ (the “Existing Accounts”)
which the Vendors are required to keep open pursuant to the Transition
Services Agreement entered into with Bendix (as defined below) in
connection with the APA (the “Transition Services
Agreement”) for 120 days for the sole purpose of collecting
payments on accounts receivable which are to be sold to Bendix per the
APA. The Vendors covenant and agree that (a) any funds
currently in such accounts which are not proceeds of accounts receivable
sold to Bendix will be immediately transferred to the Pledged Account, (b)
no funds of any nature shall be deposited in such accounts other than
funds received from accounts receivable which have been sold to Bendix,
and (c) the Vendors will close such accounts no later than 120 days from
the date of the Transition Services Agreement. Unless and until
the occurrence of a Termination Event, the Company shall have access to
the funds contained in the Pledged Account solely for the payment of
Budgeted Expenses/Specified Expenses in accordance with Paragraph 4,
above, provided, however, that the Company covenants and agrees that it
will not pay any Budgeted Expenses/Specified Expenses without first
providing at least three (3) days written notice to the Lenders of the
same. If and when the funds contained in the Pledged Account
equal or exceed the amounts necessary to pay any remaining Budgeted
Expenses, such excess funds shall be remitted to the Collateral Agent for
the benefit of the Lenders in accordance with the instructions set forth
on Exhibit “F” attached hereto. Further, upon the earlier of
(a) the completion of the wind-down of the Vendors’ businesses, or (b) the
time at which all Budgeted Expenses that have been incurred or which are
reasonably expected to be incurred, have been paid, all remaining funds
contained in the Pledged Account shall be remitted to the Collateral Agent
for the benefit of the Lenders in accordance with the instructions set
forth on Exhibit “F” attached
hereto.
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Sale
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6.
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The
Vendors have informed the Lenders that they have entered into the APA with
Bendix CVS Canada Inc. (“Bendix”), as purchaser, and Bendix Commercial
Vehicle Systems LLC, as guarantor of Bendix’s obligations under the APA,
and have requested that the Lenders consent to the same. The
Lenders hereby consent to the Vendors entering into the APA. In
consideration of the Lenders providing their consent to the Vendors
entering into the APA, the Vendors agree as
follows:
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(a)
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Capitalized
terms used in this Section and not otherwise defined herein, shall have
the meaning therefore set forth in the
APA.
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(b)
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The
Vendors hereby acknowledge and agree that the Lenders hold a perfected,
first priority security interest in the APA and the Escrow Agreement, and
all of the Vendors rights thereunder, including, without limitation, all
rights to payment thereunder and the right under the Escrow Agreement to
the return of the undertaking and all assets of the Purchased Business if
the transaction is unwound (which constitute rights in such undertaking
and property and a continuing interest in such undertaking and
property). In that regard, the Vendors acknowledge and agree
that all payments under the APA have been directed to the Collateral Agent
in accordance with the instructions set forth on Exhibit “F” attached
hereto, and upon receipt by the Collateral Agent, will be applied in
reduction of the Obligations in a manner determined by the Lenders in
their sole and exclusive discretion. In the event that
notwithstanding the foregoing, a Vendor receives, or otherwise obtains or
comes into the possession of, any payments due under the APA, or any other
proceeds of the Sale, then such Vendor shall hold such payments or
proceeds in trust for the Lenders, and shall immediately remit the same to
the Collateral Agent in accordance with the instructions set forth on
Exhibit “F” attached hereto in the same form received, with any necessary
endorsements thereon.
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(c)
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The
Vendors covenant and agree that the Vendors will not, and will not cause
or encourage any other party to, cancel, revoke, terminate, rescind, or
abandon the APA, or to amend, modify, waive, or otherwise change any of
the terms and conditions of the APA, or consent to any of the foregoing,
in any manner, without the prior written consent of the Collateral Agent
and the Lenders.
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(d)
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The
Vendors shall provide the Lenders with notice immediately upon it becoming
reasonably apparent to the Vendors that (i) either the Vendors or Bendix
will not be able to consummate the Sale on or before December 5, 2008, or
(ii) the required shareholder approvals will not be obtained on or before
March 13, 2009.
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(e)
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The
Vendors shall use their commercially reasonable best efforts to close on
the Sale upon the terms contemplated by the APA on or before December 5,
2008.
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(f)
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Upon
the closing of the Sale, the Vendors shall, as soon as is practicable
thereafter, subject to applicable law, convene and hold a special meeting
of the shareholders of the Company for the purpose of passing special
resolutions to approve the Sale and any other transactions contemplated by
the APA, but in any event on or before March 13, 2009, or if the Company
is unable to obtain, after using its best efforts to do so, such
shareholder approval of the Sale and the other transactions contemplated
by the APA, the Company will use all reasonable commercial efforts to
obtain an order of the British Columbia Supreme Court declaring that the
Sale is for valuable consideration to Bendix who is dealing with the
Company in good faith pursuant to Section 301(3)(a) of the Business Corporations
Act (British Columbia) or is otherwise
valid.
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(g)
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The
Company covenants and agrees to cooperate fully with the Lenders who are
entering into a voting agreement as contemplated by the APA, and to
provide such Lenders with all such documents, instruments, agreements, and
waivers as such Lenders may reasonably request, in connection with any
such Lender’s conversion of a portion of the Obligations into shares of
the Company pursuant to the terms and conditions of the Convertible
Debentures set forth on Exhibit “A” attached hereto, to promptly issue the
required shares to such Lenders, and to otherwise fully comply with all of
the Company’s obligations under the Convertible Debentures and the other
Financing Documents in connection with the
same.
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(h)
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The
Company covenants and agrees to cooperate fully with the Lenders, and to
provide the Lenders with all such documents, instruments, agreements, and
waivers as the Lenders may reasonably request, in connection with the
Lenders’ performance pursuant to that certain Voting Arrangement Agreement
of even date herewith entered into by and among Bendix, the Company, and
the Lenders.
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(i)
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The
Vendors will provide the Lenders with copies of all correspondence,
notices, documents, agreements and other written information and/or
materials relating to the Sale, the APA, the shareholder meeting,
shareholder approval, the wind-down of the Vendors operations, and all
related matters, as and when such materials are sent, or received by, the
Vendors, and shall at all times keep the Lenders fully apprized of the
status of the Sale, the Vendors efforts to obtain shareholder, or court,
approval of the same, and, after the closing on the Sale, all transactions
between the Vendors and Bendix thereafter, including, without limitation,
the calculation of Closing Net Book Value and Final Net Book Value, and
calculation of Earnout Payments. In that regard, the Vendors
covenant and agree (i) to provide the Lenders with copies of the Closing
Net Book Value Statement and each Earn Out Statement promptly upon
receiving the same, (ii) to provide the Lenders with prior notice before
inspecting, examining or auditing any information or other materials
provided by Bendix pursuant to Section 2.03 of the APA, or observing any
physical inventory under Section 2.04 of the APA, and allow the Lenders
and/or their auditor or representatives to participate in the same, (iii)
not to dispute any Earn Out Statement or deliver a Notice of Objection to
Bendix, or take any other material action under the APA, without first
providing the Lenders with a detailed summary of the Vendors objection to
the Earn Out Statement and/or Closing Net Book Value Statement, or
proposed action, and obtaining the Lenders consent to the same, which
consent shall not be unreasonably withheld, conditioned, or delayed, and
(v) to provide the Lenders with prior notice of any other meeting or
conference call with Bendix, and, at the Lenders request, allow the
Lenders to participate in the same.
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(j)
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Weekly,
on or before 11:00 a.m. on Wednesday of each week, the Vendors shall
provide the Lenders with a report of the status of the Sale, the Vendors’
efforts to obtain shareholder or court approval of the Sale, the wind-down
of the Vendors operations, and any other developments under or related to
the Sale or the APA or the wind-down. Each such report shall
include a detailed summary of all sources and uses of cash, a comparison
for the prior week of actual expenditures against the Budgeted Expenses
set forth in the Budget, and a comparison of the status of the wind-down
of the Vendors’ operations to the Wind-Down Plan. In addition,
the Vendors shall provide such other reporting and information as the
Lenders may reasonably request from time to
time.
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(k)
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The
Lenders’ and or their auditor and/or other representatives or agents,
shall be permitted access to the Vendors’ business premises, and/or the
location at which the Vendors store their books and records, at any time
during normal business hours upon reasonable prior notice and shall be
afforded complete access to all information, books, and records as may be
necessary in order to effectively monitor the Vendors’ progress in
conducting the Sale, any post-sale transactions, such as the calculation
of Closing Net Book Value or Earn Out Payments, and/or the wind-down of
their operations. The reasonable out-of-pocket costs incurred
by the Lenders in connection with such inspections and the retention of
auditors or other professionals in connection with the same shall be added
to, and be a part of, the
Obligations.
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(l)
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The
Excluded Assets include the right to pursue a patent enforcement action
with respect to two patents held by the Company. In connection
therewith, the Company will use commercially reasonable efforts to
diligently prosecute such enforcement action, provided that the Company
will not incur any obligations or liabilities, or pay any out-of-pocket
expenses, in connection with the same without the Collateral Agent’s prior
consent. Further, the Company has ensured, under the terms of
the Transition Services Agreement, that the employees that it may need in
connection with prosecuting such enforcement action (namely Xxxx Xxxxx and
Xxxxx Xxxxxxx) will be available, subject to reimbursing Bendix for their
time, to the Company in connection with such litigation. The
Company acknowledges and agrees that all proceeds of such enforcement
actions constitute the Lenders’ collateral, and agree that they will
execute and deliver all necessary documents, instruments, and agreements
to preserve, protect, perfect, or vest such interests in the Lenders
and/or the Collateral Agent, as the Lenders may reasonably require,
including, without limitation, to execute an assignment of any judgment(s)
obtained in such actions to the Collateral Agent and/or
Lenders. Further, the Company agrees (i) that it will not
settle such litigation without the Collateral Agent’s and Lenders consent,
and (ii) all proceeds of the Excluded Assets shall be remitted to the
Collateral Agent for the benefit of the Lenders in accordance with the
instructions set forth on Exhibit “F” attached
hereto.
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(m)
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The
Vendors confirm and reaffirm that the consideration set forth in the APA
is the only consideration being paid by Bendix, or on Bendix behalf, in
connection with the Sale, and that no fees, commissions, or other amounts,
or any other consideration, are being paid to the Vendors or any of the
Lenders, or any of their respective officers or directors, in connection
with the Sale, except as expressly set forth in this
Agreement.
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Guarantee and Grant of
Security Interest by Subsidiaries
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7.
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In
consideration of the Lenders consenting to the Sale, and permitting the
Vendors to pay the Budgeted Expenses with the proceeds of the Lenders’
collateral, the Subsidiaries hereby guarantee to the Collateral Agent, for
the benefit of all of the Lenders, the payment and performance of the
Obligations, and grant the Collateral Agent, for the benefit of all of the
Lenders, a security interest in and to all of their personal
property. In order to further evidence this grant of a security
interest, each of the Subsidiaries have executed and delivered to the
Collateral Agent a Guarantee and a Security Agreement of even date
herewith. Such Guarantees and Security Agreements shall
constitute Financing Documents as defined
hereunder.
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Disposition of Remaining
Collateral
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8.
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From
and after the earlier of the occurrence of a Termination Event, or the
Termination Date, but only to the extent that any Obligations remain
unpaid, any collateral of the Lenders which remains may be disposed of by
the Collateral Agent and/or Lenders, as appropriate, in such manner as the
Collateral Agent and/or Lenders, in their sole and exclusive discretion,
but subject to applicable law, may determine. The Vendors shall
execute and deliver to the Collateral Agent and/or Lenders, as applicable,
whatever assents and waivers that the Lenders may require in connection
with any such secured party’s sale or other disposition, and shall
reasonably cooperate with the Collateral Agent and Lenders in connection
with their efforts to liquidate any remaining assets of the Vendors and/or
collect any outstanding accounts receivable. In connection
therewith, the Vendors hereby:
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(a)
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Acknowledge
and agree that the Lenders may apply the proceeds realized from the
disposition of the collateral in reduction of the Obligations in such
manner as the Lenders, in their sole and exclusive discretion, may
determine;
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(b)
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Acknowledge
and agree that the Vendors are, and shall be, liable to the Lenders for
any deficiency which remains after the disposition of all or any portion
of the collateral; and
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(c)
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Acknowledge
and agree that (i) nothing herein shall require the Collateral Agent
and/or the Lenders to take possession of, sell by secured party sale, or
otherwise dispose of the collateral, and (ii) the Collateral Agent and/or
the Lender may exercise its rights and remedies to collect the Obligations
from the Vendors without resort, or regard, to the
collateral.
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Power of
Attorney
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9.
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Each
Vendor hereby appoints the Collateral Agent as its attorney-in-fact, with
full authority in the place and stead of such Vendor and in the name of
each Vendor or otherwise, from time to time in the Collateral Agent’s
discretion to take any action and to execute any instrument which the
Collateral Agent may reasonably deem necessary to accomplish the purposes
of this Agreement or for the purpose of perfecting, confirming, continuing
, enforcing or protecting the security interest in the collateral held by
the Collateral Agent and/or the Lenders, including, without limitation, to
(a) receive and collect all payments, or instruments made payable, to the
Vendors under the APA or otherwise or any part thereof and to give full
discharge for the same, (b) to exercise any and all of the Vendors rights
under the APA, and to take all actions to preserve, protect, and/or
enforce the same, and/or (c) demand, collect, receipt for, settle,
compromise, adjust, xxx for, foreclose, or realize on any collateral as
and when the Collateral Agent may determine. The foregoing
power of attorney is a power coupled with an interest and shall be
irrevocable until all Obligations are paid and performed in
full. The Vendors agree that the powers conferred on the
Collateral Agent hereunder are solely to protect the Collateral Agent’s
and Lenders’ interests in the Collateral and shall not impose any duty
upon the Collateral Agent to exercise any such
powers.
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Interest Rate; Repayment of
Obligations
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10.
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From
and after the execution of this Agreement, interest shall accrue upon, and
the Obligations shall be repaid, as
follows:
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(a)
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Interest
shall continue to accrue upon the principal balance of the Obligations at
the applicable non-default rate set forth in the Financing
Documents;
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(b)
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All
proceeds of the Sale, net of any amounts necessary to pay Budgeted
Expenses, shall be applied in reduction of the Obligations in a manner
determined by the Lenders in their sole and exclusive
discretion;
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(c)
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After
payment of all reasonable and necessary Budgeted Expenses actually
incurred by the Vendors, all remaining cash and other funds of the
Vendors, and all other proceeds of the Lenders’ collateral, shall be
applied in reduction of the Obligations in a manner determined by the
Lenders in their sole and exclusive
discretion;
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(d)
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All
Obligations shall be paid in full, in good and collected funds, upon the
earlier of (i) the occurrence of a Termination Event, or (ii) the
Termination Date; and
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(e)
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Any
and all payments hereunder shall be made to the Collateral Agent for the
benefit of the Lenders in accordance with the instructions set forth on
Exhibit “F” attached hereto.
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Forbearance by
Lenders
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11.
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In
consideration of the Vendors’ performance in accordance with this
Agreement, the Lenders shall forbear from enforcing the Lenders’ rights
and remedies under the Transaction Documents and/or applicable law against
the Vendors, until the earlier of (i) the occurrence of a Termination
Event, or (ii) the Termination Date. Notwithstanding the foregoing,
nothing contained in this Agreement shall constitute a waiver by the
Lenders of any default or event of default (including, without limitation,
the Existing Defaults) under the Financing Documents, whether now existing
or hereafter arising, nor a waiver by the Lenders of any of their claims,
rights, and/or remedies with respect to any of the Vendors or any other
third party under the Transaction Documents, applicable law, or
otherwise. This Agreement shall only constitute an agreement by
the Lenders to forbear from enforcing their rights and remedies upon the
terms and conditions set forth
herein.
|
Termination
Events
|
12.
|
The
occurrence of any one or more of the following events shall constitute a
termination event (hereinafter, a “Termination Event”)
under this Agreement:
|
|
(a)
|
The
filing of a petition for relief by or against any of the Vendors under any
insolvency law, including the United States Bankruptcy Code, Bankruptcy or
Insolvency Act (Canada), Companies Creditors Arrangement Act
(Canada), or other insolvency statute or
proceeding;
|
|
(b)
|
The
waiver, modification or amendment of any of the terms and conditions of
the APA without the Lenders prior written
consent;
|
|
(c)
|
The
Vendors and Bendix fail to consummate the Sale in accordance with the
terms of the APA on or before December 12,
2008;
|
|
(d)
|
The
APA and/or the Sale is cancelled, terminated, revoked, voided, or
rescinded for any reason;
|
|
(e)
|
The
Vendors shall pay any expenses which are not Budgeted Expenses, or
otherwise fail to comply with the
Budget;
|
|
(f)
|
The
issuance of an attachment, injunction, restraining order, or other order
of any court of competent jurisdiction or government authority enjoining,
restraining, or otherwise restricting the ability of the Vendors to
consummate the Sale or to obtain a shareholder resolution ratifying the
same;
|
|
(g)
|
The
failure of the Vendors to conduct the wind-down of their operations
substantially in accordance with the Wind-Down
Plan;
|
|
(h)
|
The
failure of the Vendors to promptly, punctually, or faithfully perform any
term or condition of this Agreement as and when due, it being expressly
acknowledged and agreed that TIME IS OF THE
ESSENCE;
|
|
(i)
|
The
failure of the Vendors to pay any amount required to be paid to the
Lenders under this Agreement as and when due, it being expressly
acknowledged and agreed that TIME IS OF THE ESSENCE;
and
|
|
(j)
|
The
failure of the Vendors to pay all Obligations in full on or before 5:00
p.m. on the Termination Date, it being expressly acknowledged and agreed
that TIME IS OF THE
ESSENCE.
|
Rights Upon
Termination
|
13.
|
Upon
the earlier of the occurrence of any Termination Event or the Termination
Date, the Lenders’ forbearance as set forth in this Agreement shall
automatically terminate, all Obligations shall become immediately due and
payable in full, and the Collateral Agent and the Lenders may immediately
commence enforcing their rights and remedies against the Vendors pursuant
to the Transaction Documents and/or applicable law. Further,
upon the occurrence of any Termination Event, interest shall accrue on the
outstanding balance of the Obligations at the default rate of interest set
forth in the Financing Documents.
|
Reimbursement of Costs and
Expenses
|
14.
|
Any
and all reasonable out-of-pocket costs, expenses, and costs of collection
(including reasonable attorneys’ fees and expenses) heretofore or
hereafter incurred by the Lenders in connection with the protection,
preservation, and enforcement by the Collateral Agent and/or the Lenders
of their rights and remedies under the Financing Documents and this
Agreement, including, without limitation, the negotiation and preparation
of this Agreement, shall be added to, and be a part of, the
Obligations.
|
Notices
|
15.
|
Unless
otherwise specified herein, all notices hereunder to any party hereto
shall be in writing and (i) hand delivered, or (ii) sent by a recognized
overnight courier, addressed to such party at its address indicated
below:
|
|
(a)
|
If
to the Collateral Agent or the Lenders, to
both:
|
YA Global
Investments, L.P.
c/o
Yorkville Advisors, LLC
000
Xxxxxx Xxxxxx Xxxxx 0000
Xxxxxx
Xxxx, XX 00000
Attn: Xxxxxxx
Xxxxxxx
and
Starome Investments
Limited
c/o
Prentice Capital Management, LP
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxx, Esquire
With a
copy to:
Xxxxxxx
X. Xxxxxx, Esquire
Xxxxxx
& Xxxxxxxxxx LLP
0 Xxxxxx
Xxxxx
Xxxxxx,
XX 00000
Fax No.
(000) 000-0000
|
(b)
|
If
to the Vendors:
|
0000 Xxx
Xxxxxxxxx, Xxxxx 000
Xxx
#000
Xxxxxx
Xxxxx, XX 00000
U.S.A.
Attention:
Xxxxx Xxxxx
With a
copy to:
Xxxxx
Xxxxxx LLP
800 – 000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
X.X. X0X 0X0
Attention:
Xxxxxxx Xxxxxx
Fax No.
(000) 000-0000
or at any
other address specified by such party in writing upon seven (7) days written
notice to the other parties. Any such notice shall be treated as
having been given upon the earlier of (i) actual receipt (by any method of
delivery) by the person to whom the notice is addressed, or (ii) upon delivery
to such address (or refusal to accept delivery).
Waivers
|
16.
|
Non-Interference. From
and after the occurrence of any Termination Event, the Vendors agree not
to interfere with the exercise by the Collateral Agent and/or the Lenders
of any of their rights and remedies. The Vendors further agree
that they shall not seek to distrain or otherwise hinder, delay, or impair
the Collateral Agent’s and/or Lenders’ efforts to realize upon their
collateral, or otherwise to enforce their respective rights and remedies
pursuant to the Transaction Documents. The provisions of this
Paragraph shall be specifically enforceable by the Collateral Agent and
the Lenders.
|
|
17.
|
Jury
Trial. Each of the Vendors hereby makes the following
waiver knowingly, voluntarily, and intentionally, and understands that the
Collateral Agent and the Lenders, in entering into this Agreement, are
relying on such a waiver: THE VENDORS HEREBY IRREVOCABLY
WAIVE ANY PRESENT OR FUTURE RIGHT TO A JURY IN ANY TRIAL OF ANY CASE OR
CONTROVERSY IN WHICH THE COLLATERAL AGENT OR THE LENDERS OR ANY ONE OF
THEM BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR
AGAINST SUCH PARTY OR IN WHICH SUCH PARTY IS JOINED AS A PARTY LITIGANT),
WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT OF, THE
OBLIGATIONS, THE TRANSACTION DOCUMENTS, THE SALE, OR ANY RELATED
MATTER.
|
Entire
Agreement
|
18.
|
This
Agreement shall be binding upon the Vendors and the Vendors’ respective
successors, and assigns, and shall inure to the benefit of the Collateral
Agent, the Lenders and their respective successors and
assigns. This Agreement and all documents, instruments, and
agreements executed in connection herewith incorporate all of the
discussions and negotiations between the parties hereto, either expressed
or implied, concerning the matters included herein and in such other
documents, instruments and agreements, any statute, custom, or usage to
the contrary notwithstanding. No such discussions or
negotiations shall limit, modify, or otherwise affect the provisions
hereof. No modification, amendment, or waiver of any provision
of this Agreement, or any provision of any other document, instrument, or
agreement between the parties hereto shall be effective unless executed in
writing by all of the parties hereto, and if such party be the Collateral
Agent or a Lender, then by a duly authorized representative
thereof.
|
Venue
|
19.
|
The
Vendors agree that any legal action, proceeding, case, or controversy
against the Vendors or any one of them with respect to the Obligations,
the Transaction Documents, or any related matter may be brought in any
Federal or state court located in the State of New Jersey, or the Supreme
court located in the Province of British Columbia, as the Lenders may
elect in their sole discretion. By execution and delivery of
this Agreement, the Vendors, for themselves and in respect of their
property, accept, submit, and consent generally and unconditionally, to
the jurisdiction of the aforesaid
courts.
|
Construction of
Agreement
|
20.
|
In
connection with the interpretation of this Agreement and all other
documents, instruments, and agreements incidental
hereto:
|
|
(a)
|
All
rights and obligations hereunder and thereunder, including matters of
construction, validity, and performance, shall be governed by and
construed in accordance with the law of the State of New Jersey and are
intended to take effect as sealed
instruments.
|
|
(b)
|
The
captions of this Agreement are for convenience purposes only, and shall
not be used in construing the intent of the parties under this
Agreement.
|
|
(c)
|
In
the event of any inconsistency between the provisions of this Agreement
and any other document, instrument, or agreement entered into by and
between the parties hereto, the provisions of this Agreement shall govern
and control.
|
|
(d)
|
The
parties have prepared this Agreement and all documents, instruments, and
agreements incidental hereto with the aid and assistance of their
respective counsel. Accordingly, all of them shall be deemed to
have been jointly drafted by the parties and shall not be construed
against any one party.
|
Illegality or
Unenforceability
|
21.
|
Any
determination that any provision or application of this Agreement is
invalid, illegal, or unenforceable in any respect, or in any instance,
shall not affect the validity, legality, or enforceability of any such
provision in any other instance, or the validity, legality, or
enforceability of any other provision of this
Agreement.
|
Informed
Execution
|
22.
|
The
Vendors warrant and represent to the Lenders that the
Vendors:
|
|
(a)
|
Have
read and understand all of the terms and conditions of this
Agreement;
|
|
(b)
|
Intend
to be bound by the terms and conditions of this Agreement;
and
|
|
(c)
|
Are
executing this Agreement freely and voluntarily, without duress, after
consultation with independent counsel of their own
selection.
|
[Remainder
of Page Intentionally Left Blank - Signature Page to Follow]
IN WITNESS WHEREOF, this
Liquidation Agreement has been executed as of the date first set forth
above.
|
YA
GLOBAL INVESTMENTS, L.P., as Collateral Agent and as a Lender
By: Yorkville
Advisors LLC, its InvestmentManager
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Portfolio Manager
|
By:
/s/ Xxxxx Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: CEO
|
|
XENTENIAL
HOLDINGS LIMITED, as a Lender
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Director
|
SMARTIRE
TECHNOLOGIES INC.
By:
/s/ Xxxxx Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: CEO
|
|
STARAIM
ENTERPRISES LIMITED, as Lender
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Director
|
SMARTIRE
USA, INC.
By:
/s/ Xxxxx Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: CEO
|
|
STAROME
INVESTMENTS LIMITED, as a Lender
By:
/s/ Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Signatory
|
Exhibit
“A”
Financing
Documents
1. Securities
Purchase Agreement dated as of May 20, 2005 by and between the Company and YA
Global (“May 05 SPA”);
2. Securities
Purchase Agreement dated as of June 23, 2005 by and among the Company, YA
Global, and Highgate House Funds, LTD, as amended by that certain Amendment No.
1 to Securities Purchase Agreement dated as of December 30, 2005, by and among
the Company, the Lenders, and LCC Global Limited (“June 05 SPA”);
3. Securities
Purchase Agreement dated as of January 23, 2007 by and between the Company and
Xentenial, as amended by that certain Amendment to Securities Purchase Agreement
dated as of February 9, 2007, and as further amended by that certain Amendment
to Securities Purchase Agreement dated as of on March 2, 2007 (“January 07
SPA”);
4. Securities
Purchase Agreement dated as of April 27, 2007 by and between the Company and
Xentenial (“April 07 SPA”);
5. Securities
Purchase Agreement dated as of November 19, 2007 by and among the Company and
Xentenial (“November 19, 2007 SPA”);
6. Securities
Purchase Agreement dated as of November 30, 2007 by and between the Company and
Xentenial (“November 30, 2007 SPA”);
7. Amended
and Restated Convertible Debenture dated as of March 27, 2005 issued by the
Company in favor of Staraim pursuant to the May 05 SPA in the original principal
amount of $600,000 (“$600K Debenture”);
8. Amended
and Restated Convertible Debenture dated as of December 30, 2005 issued by the
Company in favor of Starome pursuant to the June 05 SPA in the original
principal amount of $20,000,000 (“$20M Debenture”);
9. Amended
and Restated Convertible Debenture dated as of June 10, 2005 issued by the
Company in favor of YA Global pursuant to the May 05 SPA in the original
principal amount of $1,500,000 (“$1.5M Debenture”);
10. Amended
and Restated Convertible Debenture dated as of December 30, 2005 issued by the
Company in favor of Xentenial pursuant to the June 05 SPA in the original
principal amount of $8,000,000 as amended by that certain Amendment No. 1 to
Smartire Systems Inc. Amended and Restated Convertible Debenture No. 2 dated as
of December 30, 2006 and effective as of August 16, 2007, as further amended by
that certain Amendment No. 2 to Smartire Systems Inc. Amended and Restated
Convertible Debenture No. 2 effective as of November 7, 0000 (“x0X
Debenture”);
11. Amended
and Restated Convertible Debenture dated as of December 30, 2005 issued by the
Company in favor of Staraim pursuant to the June 05 SPA in the original
principal amount of $2,000,000, as amended by that certain Amendment No. 1 to
Smartire Systems Inc. Amended and Restated Convertible Debenture No. 3 dated as
of December 30, 2006 and effective as of August 16, 2007, as further amended by
that certain Amendment No. 2 to Smartire Systems Inc. Amended and Restated
Convertible Debenture No. 3 effective as of November 7, 0000 (“x0X
Debenture”);
12. Convertible
Debenture dated as of January 23, 2007 issued by the Company in favor of
Xentenial pursuant to the January 07 SPA in the original principal amount of
$684,000 (“$684K Debenture”);
13. Convertible
Debenture dated as of February 9, 2007 issued by the Company in favor of
Xentenial pursuant to the January 07 SPA in the original principal amount of
$334,000 (“$334K Debenture”);
14. Convertible
Debenture dated as of March 2, 2007 issued by the Company in favor of Xentenial
pursuant to the January 07 SPA in the original principal amount of $782,000
(“$782K Debenture”);
15. Convertible
Debenture dated as of April 27, 2007 issued by the Company in favor of Xentenial
pursuant to the April 07 SPA in the original principal amount of $1,150,000
(“$1.15M Debenture”);
16. Convertible
Debenture dated as of November 19, 2007 issued by the Company in favor of
Xentenial pursuant to the November 19, 2007 SPA in the original principal amount
of $96,500 (“$96K Debenture”);
17. Convertible
Debenture dated as of November 30, 2007 issued by the Company in favor of
Xentenial pursuant to the November 30, 2007 SPA in the original principal amount
of $422,000 (“$422K Debenture”);
18. Convertible
Debenture dated as of August 20, 2007 issued by the Company in favor of
Xentenial pursuant to the April 07 SPA in the original principal amount of
$350,000 (“$350K Debenture”);
19. Convertible
Debenture dated as of January 17, 2008 issued by the Company in favor of
Xentenial pursuant to the November 30, 2007 SPA in the original principal amount
of $392,000 (“$392K Debenture”);
20. Convertible
Debenture dated as of February 20, 2008 issued by the Company in favor of
Xentenial pursuant to the November 30, 2007 SPA in the original principal amount
of $74,000 (“$74K Debenture”);
21. Convertible
Debenture dated as of June 20, 2008 issued by the Company in favor of Xentenial
pursuant to the November 30, 2007 SPA in the original principal amount of
$269,000 (“$269K Debenture”);
22. Convertible
Debenture dated as of August 1, 2008 issued by the Company in favor of Xentenial
pursuant to the November 30, 2007 SPA in the original principal amount of
$152,500 (“$152K Debenture”);
23. Convertible
Debenture dated as of August 15, 2008 issued by the Company in favor of
Xentenial pursuant to the November 30, 2007 SPA in the original principal amount
of $100,000 (“$100K Debenture”);
24. Warrant
dated as of November 30, 2007 executed and delivered to Xentenial by the Company
granting Xentenial the right to purchase 225,000,000 shares of the Company’s
common stock;
25. Warrant
dated as of December, 2005 executed and delivered to Staraim by the Company
granting Staraim the right to purchase 4,162,500 shares of the Company’s common
stock;
26. Warrant
dated as of January 17, 2008 executed and delivered to Xentenial by the Company
granting Xentenial the right to purchase 225,000,000 shares of the Company’s
common stock;
27. Warrant
dated as of February 20, 2008 executed and delivered to Xentenial by the Company
granting Xentenial the right to purchase 41,925,000 shares of the Company’s
common stock;
28. Amended
and Restated Warrant dated as of June 23, 2005 executed and delivered to
Xentenial by the Company granting Xentenial the right to purchase 16,668,750
shares of the Company’s common stock;
29. Security
Agreement (Patent) dated as of April 27, 2007 granted by the Company in favor of
the Lenders; and
30. Security
Agreement dated as of January 23, 2007 granted by the Company in favor of the
Lenders, as amended by that certain Amendment No. 1 to Security Agreement dated
as of April 27, 2007.
31. Amended
and Restated Warrant dated as of December 30, 2005 executed and delivered to
Starome by the Company granting Starome the right to purchase 41,668,750 shares
of the Company’s common stock;
Exhibit
“B”
Asset
Purchase Agreement
Exhibit
“C”
Obligations
Amounts
owed under the following documents as of December 1, 2008 (rounded to nearest
dollar):
|
1.
|
The
$20M Debenture:
|
|
a.
|
Principal: $19,202,198
|
|
b.
|
Interest: $6,170,423
|
|
c.
|
Total: $25,372,621
|
|
2.
|
The
$600K Debenture:
|
|
a.
|
Principal: $600,000
|
|
b.
|
Interest: $107,583
|
|
c.
|
Total: $707,583
|
|
3.
|
The
$1.5M Debenture:
|
|
a.
|
Principal: $820,000
|
|
b.
|
Interest: $150,908
|
|
c.
|
Total: $970,908
|
|
4.
|
The
$2M Debenture:
|
|
a.
|
Principal: $1,415,400
|
|
b.
|
Interest: $567,034
|
|
c.
|
Total: $1,982,434
|
|
5.
|
The
$8M Debenture:
|
|
a.
|
Principal: $7,100,025
|
|
b.
|
Interest: $2,509,084
|
|
c.
|
Total: $9,609,109
|
|
6.
|
The
$684K Debenture:
|
|
a.
|
Principal: $684,000
|
|
b.
|
Interest: $128,820
|
|
c.
|
Total: $812,820
|
|
7.
|
The
$334K Debenture:
|
|
a.
|
Principal: $334,000
|
|
b.
|
Interest: $61,326
|
|
c.
|
Total: $395,326
|
|
8.
|
The
$782K Debenture:
|
|
a.
|
Principal: $782,000
|
|
b.
|
Interest: $139,022
|
|
c.
|
Total: $921,022
|
|
9.
|
The
$1.15M Debenture:
|
|
a.
|
Principal: $1,150,000
|
|
b.
|
Interest: $186,556
|
|
c.
|
Total: $1,336,556
|
|
10.
|
The
$350K Debenture:
|
|
a.
|
Principal: $350,000
|
|
b.
|
Interest: $45,597
|
|
c.
|
Total: $395,597
|
|
11.
|
The
$96K Debenture:
|
|
a.
|
Principal: $95,500
|
|
b.
|
Interest: $10,133
|
|
c.
|
Total: $106,633
|
|
12.
|
The
$422K Debenture:
|
|
a.
|
Principal: $422,000
|
|
b.
|
Interest: $51,625
|
|
c.
|
Total: $473,625
|
|
13.
|
The
$392K Debenture:
|
|
a.
|
Principal: $392,000
|
|
b.
|
Interest: $41,683
|
|
c.
|
Total: $433,683
|
|
14.
|
The
$74K Debenture:
|
|
a.
|
Principal: $74,000
|
|
b.
|
Interest: $7,030
|
|
c.
|
Total: $81,030
|
|
15.
|
The
$269K Debenture:
|
|
a.
|
Principal: $269,000
|
|
b.
|
Interest: $14,705
|
|
c.
|
Total: $283,705
|
|
16.
|
The
$152K Debenture:
|
|
a.
|
Principal: $152,500
|
|
b.
|
Interest: $6,202
|
|
c.
|
Total: $158,702
|
|
17.
|
The
$100K Debenture:
|
|
a.
|
Principal: $100,000
|
|
b.
|
Interest: $3,600
|
|
c.
|
Total: $103,600
|
Exhibit
“D”
Wind-Down
Plan and Budget
Exhibit
“E”
Bridge
Note
BRIDGE
NOTE
$762,532.00 As
of December __, 2008
Smartire
Systems Inc., a corporation incorporated under the laws of the Province of
British Columbia, Smartire Technologies Inc., a corporation incorporated under
the laws of the Province of British Columbia, and Smartire USA, Inc., a
corporation incorporated under the laws of the State of Delaware (collectively,
jointly, and severally, the “Borrowers”), hereby
promise to pay to the order of YA GLOBAL INVESTMENTS, L.P. (“YA Global”), at the
office of YA Global at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx
00000, in lawful money of the United States and in immediately available funds,
the principal sum of SEVEN HUNDRED AND SIXTY-TWO THOUSAND FIVE HUNDRED AND
THIRTY-TWO DOLLARS ($762,532.00).
This
Note is the Bridge Note referred to in that certain Liquidation Agreement, dated
as of the date hereof, between the Borrowers, YA Global as Collateral Agent and
as a Lender, and Xentenial Holdings Limited, Staraim Enterprises Limited, and
Starome Investments Limited as Lenders (as such agreement may be amended from
time to time the “Liquidation
Agreement”), and is subject to repayment upon the terms contained in the
Liquidation Agreement. Capitalized terms used herein shall be defined as in the
Liquidation Agreement.
The
outstanding unpaid principal balance of this Note shall bear interest at the
rate of fourteen percent (14.0%) per annum. Interest shall be
calculated on the basis of a year of 360 days, for the actual number of days
elapsed, and shall be repaid in accordance with the terms of the Liquidation
Agreement.
If
any payment on this Note becomes due and payable on a day which is not a
Business Day, such payment shall be extended to the next succeeding day on which
those offices are open, and if the date for any payment of principal is so
extended, interest thereon shall be payable for the extended time.
The
Borrowers hereby waive diligence, presentment, protest and notice of any kind,
and assent to extensions of the time of payment, release, surrender or
substitution of security, or forbearance or other indulgence, without
notice.
This
Note may not be changed, modified or terminated orally, but only by an agreement
in writing signed by the Borrowers and YA Global, or any holder
hereof.
This
Note shall be governed by, and construed in accordance with, the laws of the
State of New Jersey, and shall be binding upon the successors and assigns of the
Borrowers and inure to the benefit of YA Global, its successors, endorsees and
assigns. If any term or provisions of this note shall be held invalid, illegal
or unenforceable, the validity of all other terms and provisions thereof shall
in no way be affected thereby.
This Note is secured by all collateral
granted to the Collateral Agent and/or the Lenders by the Borrowers under the
Financing Documents, the Liquidation Agreement, or otherwise.
Executed
under seal as of the date first set forth above.
|
By:__________________________________
Name:
Title:
|
|
SMARTIRE
TECHNOLOGIES INC.
By:__________________________________
Name:
Title:
|
|
SMARTIRE
USA, INC.
By:__________________________________
Name:
Title:
|
1120287.1
Exhibit
“F”
Payment
Instructions
Payments
via wire shall be remitted in accordance with the following
instructions:
Name of
Account : Xxxxxx & Xxxxxxxxxx
LLP
Clients Trust Fund
Account
Number:
000053776978
|
|
Bank:
Bank of America
|
|
|
000 Xxxxxxx
Xxxxxx
|
|
|
Xxxxxx, XX 00000
|
Transit
Number:
0000-0000-0
All other
payments shall be remitted to the following address:
Xxxxxx
& Xxxxxxxxxx LLP
0 Xxxxxx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxx, Esquire
