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EXHIBIT 10.21
Canadian Imperial Branch: 000 Xxxxxxx Xxxxxx
Xxxx xx Xxxxxxxx Xxxxxxxxx, X.X. X0X 0X0
SECURITY AGREEMENT
For valuable consideration, the undersigned (the "Customer") agrees with
Canadian Imperial Bank of Commerce ("CIBC") as follows:
1. GRANT OF SECURITY. The Customer mortgages, charges and assigns to CIBC,
and grants to CIBC, and CIBC takes a Security Interest in the property described
in the following paragraph or paragraphs of this section (as applicable in
accordance with the NOTE appearing at the end of this section), and in all
property described in any schedules, documents or listings that the Customer may
from time to time sign and provide to CIBC in connection with this Agreement,
and in all present and future Accessions to, and all Proceeds of, any such
property (collectively: the "Collateral") as a general and continuing collateral
security for the due payment and performance of the Liabilities:
[ ] (a) Specific Personal Property: the Personal Property described in
Schedule A.
[X] (b) All Personal Property: all of the Customer's present and after-
acquired undertaking and Personal Property (including any
property that may be described in Schedule A) but excluding
Consumer Goods.
[ ] (c) All Real Property: all of the Customer's present and after-
acquired real property (including any property that may be
described in Schedule A), together with all buildings placed,
installed or erected on any such property.
NOTE: Check appropriate box or boxes to indicate which of paragraphs (a), (b) or
(c) are to apply. If no box is checked off, paragraph (b) will apply.
2. GOVERNING LAW. This Agreement is governed by the laws of British
Columbia.
ADDITIONAL TERMS AND CONDITIONS. THE ADDITIONAL TERMS AND CONDITIONS (INCLUDING
ANY SCHEDULES) ON THE FOLLOWING PAGES FORM PART OF THIS AGREEMENT.
The Customer has signed this Agreement on April 30th, 1998.
This Agreement is dated for reference April 15, 1998.
Witness: PIVOTAL SOFTWARE INC.
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Customer's name in full
/s/ XXXXXX XXXXXXX Xxxxxx Xxxxxxx /s/ XXXXXX XXXXXXX
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Signature Name (Print) Signature Xxxxxx Xxxxxxx
President, CEO
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Signature Name (Print) Signature
000-000 Xxxx Xxxxxxxxx
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Xxxxxxxx'x xxxxxx xxxxxxx
Xxxxx Xxxxxxxxx, X.X., X0X 0X0
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City/Town, Province and Postal Code
Note: If the Customer is a corporation, no witness is needed. The office (such
as "President" or "Secretary") of the person signing should be noted
below that person's signature.
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FOR INDIVIDUALS ONLY, record the following information:
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First and second names in full; surname Birth Date* Sex
Month M/F
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* For Alberta, Ontario, Saskatchewan and the Yukon, record: day month year.
For British Columbia and Manitoba, record: year month day.
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ADDITIONAL TERMS AND CONDITIONS
3. PLACES OF BUSINESS. The Customer represents and warrants that the
locations of all existing Places of Business are specified in Schedule B. The
Customer will promptly notify CIBC in writing of any additional Places of
Business as soon as they are established. Subject to section 5, the Collateral
will at all times be kept at the Places of Business, and will not be removed
without CIBC's written consent.
4. COLLATERAL FREE OF CHARGES. The Customer represents and warrants that
the Collateral is, and agrees that the Collateral will at all times be, free of
any Charge or trust except in favour of CIBC or incurred with CIBC's prior
written consent. CIBC may, but will not have to, pay any amount or take any
action required to remove or redeem any unauthorized Charge. The Customer will
immediately reimburse CIBC for any amount so paid and will indemnify CIBC in
respect of any action so taken.
5. USE OF COLLATERAL. The Customer will not, without CIBC's prior written
consent, sell, lease or otherwise dispose of any of the Collateral (other than
Inventory, which may be sold, leased or otherwise disposed of in the ordinary
course of the Customer's business). All Proceeds of the Collateral (including
among other things all amounts received in respect of Receivables), whether or
not arising in the ordinary course of the Customer's business, will be received
by the Customer as trustee for CIBC and will be immediately paid to CIBC.
6. INSURANCE. The Customer will keep the Collateral insured to its full
insurable value against loss or damage by fire and such other risks as are
customarily insured for property similar to the Collateral (and against such
other risks as CIBC may reasonably require). At CIBC's request, all policies in
respect of such insurance will contain a loss payable clause, and if the
Collateral includes real property will contain a mortgage clause, in favour of
CIBC and in any event the Customer assigns all proceeds of insurance on the
Collateral to CIBC. The Customer will, from time to time at CIBC's request,
deliver such policies (or satisfactory evidence of such policies) to CIBC. If
the Customer does not obtain or maintain such insurance, CIBC may, but will not
have to, do so. The Customer will immediately reimburse CIBC for any amount so
paid. The Customer will promptly give CIBC written notice of any loss or damage
to all or any part of the Collateral.
7. INFORMATION AND INSPECTION. The Customer will from time to time
immediately give CIBC in writing all information requested by CIBC relating to
the Collateral, the Places of Business, and the Customer's financial or business
affairs. The Customer will promptly advise CIBC of the Serial Number, model
year, make and model of each Serial Number Good at any time included in the
Collateral that is held as Equipment, including in circumstances where the
Customer ceases holding such Serial Number Good as Inventory and begins holding
it as Equipment. CIBC may from time to time inspect any Books and Records and
any Collateral, wherever located. For that purpose CIBC may, without charge,
have access to each Place of Business and to all mechanical or electronic
equipment, devices and processes where any of them may be stored or from which
any of them may be retrieved. The Customer authorizes any Person holding any
Books and Records to make them available to CIBC, in a readable form, upon
request by CIBC.
8. RECEIVABLES. If the Collateral includes Receivables, CIBC may advise any
Person who is liable to make any payment to the Customer of the existence of
this Agreement. CIBC may from time to time confirm with such Persons the
existence and the amount of the Receivables. Upon Default, CIBC may collect and
otherwise deal with the Receivables in such manner and upon such terms as CIBC
considers appropriate.
9. RECEIPTS PRIOR TO DEFAULT. Until Default, all amounts received by CIBC
as Proceeds of the Collateral will be applied on account of the Liabilities in
such manner and at such times as CIBC may consider appropriate or, at CIBC's
option, may be held unappropriated in a collateral account or released to the
Customer.
10. DEFAULT.
(1) Events of Default. The occurrence of any of the following events or
conditions will be a Default:
(a) the Customer does not pay any of the Liabilities when due;
(b) the Customer does not observe or perform any of the Customer's
obligations under this Agreement or any other agreement or
document existing at any time between the Customer and CIBC;
(c) any representation, warranty or statement made by or on behalf of
the Customer to CIBC is untrue in any material respect at the time
when or as of which it was made;
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(d) the Customer ceases or threatens to cease to carry on in the
normal course the Customer's business or any material part
thereof;
(e) if the Customer is a corporation, there is, in CIBC's reasonable
opinion, a change in effective control of the Customer, or if the
Customer is a partnership, there is a dissolution or change in the
membership of the partnership;
(f) the Customer becomes insolvent or bankrupt or makes a proposal or
files an assignment for the benefit of creditors under the
Bankruptcy Act (Canada) or similar legislation in Canada or any
other jurisdiction; a petition in bankruptcy is filed against the
Customer; or, if the Customer is a corporation, steps are taken
under any legislation by or against the Customer seeking its
liquidation, winding-up, dissolution or reorganization or any
arrangement or composition of its debts;
(g) a Receiver, trustee, custodian or other similar official is
appointed in respect of the Customer or any of the Customer's
property;
(h) the holder of a Charge takes possession of all or any part of the
Customer's property; or a distress, execution or other similar
process is levied against all of such property; or
(i) CIBC, in good faith and upon commercially reasonable grounds,
believes that the prospect of payment or performance is or is
about to be impaired or that the Collateral is or is about to be
placed in jeopardy.
(2) Rights upon Default. Upon Default, CIBC and a Receiver, as applicable,
will to the extent permitted by law have the following rights.
(a) Appointment of Receiver. CIBC may by instrument in writing appoint
any Person as a Receiver of all or any part of the Collateral.
CIBC may from time to time remove or replace a Receiver, or make
application to any court of competent jurisdiction for the
appointment of a Receiver. Any Receiver appointed by CIBC will
(for purposes relating to responsibility for the Receiver's acts
or omissions) be considered to be the Customer's agent. CIBC may
from time to time fix the Receiver's remuneration and the Customer
will pay CIBC the amount of such remuneration. CIBC will not be
liable to the Customer or any other Person in connection with
appointing or not appointing a Receiver or in connection with the
Receiver's actions or omissions.
(b) Dealings with the Collateral. CIBC or a Receiver may take
possession of all or any part of the Collateral and retain it for
as long as CIBC or the Receiver considers appropriate, receive any
rents and profits from the Collateral, carry on (or concur in
carrying on) all or any part of the Customer's business or refrain
from doing so, borrow on the security of the Collateral, repair
the Collateral, process the Collateral, prepare the Collateral for
sale, lease or other disposition, and sell or lease (or concur in
selling or leasing) or otherwise dispose of the Collateral on such
terms and conditions (including among other things by arrangement
providing for deferred payment) as CIBC or the Receiver considers
appropriate. CIBC or the Receiver may (without charge and to the
exclusion of all other Persons including the Customer) enter upon
any Place of Business.
(c) Realization. CIBC or a Receiver may use, collect, sell, lease or
otherwise dispose of, realize upon, release to the Customer or
other Persons and otherwise deal with, the Collateral in such
manner, upon such terms (including among other things by
arrangement providing for deferred payment) and at such time as
CIBC or the Receiver considers appropriate. CIBC or the Receiver
may make any sale, lease or other disposition of the Collateral in
the name of and on behalf of the Customer or otherwise.
(d) Application of Proceeds After Default. All Proceeds of Collateral
received by CIBC or a Receiver may be applied to discharge or
satisfy any expenses (including among other things the Receiver's
remuneration and other expenses of enforcing CIBC's rights under
this Agreement), Charges, borrowings, taxes and other outgoings
affecting the Collateral or which are considered advisable by CIBC
or the Receiver to preserve, repair, process, maintain or enhance
the Collateral or prepare it for sale, lease or other disposition,
or to keep in good standing any Charges on the Collateral ranking
in priority to any Charge created by this Agreement, or to sell,
lease or otherwise dispose of the Collateral. The balance of such
Proceeds will be applied to the Liabilities in such manner and at
such times as CIBC considers appropriate and thereafter will be
accounted for as required by law.
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(3) Other Legal Rights. Before and after Default, CIBC will have, in
addition to the rights specifically provided in this Agreement,
the rights of a secured party under the PPSA, as well as the
rights recognized at law and in equity. No right will be exclusive
of or dependent upon or merge in any other right, and one or more
of such rights may be exercised independently or in combination
from time to time.
(4) Deficiency. The Customer will remain liable to CIBC for payment of
any Liabilities that are outstanding following realization of all
or any part of the Collateral.
11. CIBC NOT LIABLE. CIBC will not be liable to the Customer or any other
Person for any failure or delay in exercising any of its rights under this
Agreement (including among other things any failure to take possession of,
collect, or sell, lease or otherwise dispose of, any Collateral). None of CIBC,
a Receiver or any agent of CIBC (including, in Alberta, any sheriff) is required
to take, or will have any liability for any failure to take or delay in taking,
any steps necessary or advisable to preserve rights against other Persons under
any Chattel Paper, Securities or instrument in possession of CIBC, a Receiver or
CIBC's agent.
12. CHARGES AND EXPENSES. The Customer agrees to pay on demand all costs
and expenses incurred (including among other things legal fees on a solicitor
and client basis) and fees charged by CIBC in connection with obtaining or
discharging this Agreement or establishing or confirming the priority of the
Charges created by this Agreement or by law, compliance with any demand by any
Person under the PPSA to amend or discharge any registration relating to this
Agreement, and by CIBC or any Receiver in exercising any remedy under this
Agreement (including among other things preserving, repairing, processing,
preparing for disposition and disposing of the Collateral by sale, lease or
otherwise) and in carrying on the Customer's business. All such amounts will
bear interest from time to time at the highest interest rate then applicable to
any of the Liabilities, and the Customer will reimburse CIBC upon demand for any
amount so paid.
13. FURTHER ASSURANCES. The Customer will from time to time immediately
upon request by CIBC take such action (including among other things the signing
and delivery of financing statements and financing change statements, other
schedules, documents or listings describing property included in the Collateral,
further assignments and other documents, and the registration of this Agreement
or any other Charge against any of the Customer's real property) as CIBC may
require in connection with the Collateral or as CIBC may consider necessary to
give effect to this Agreement. If permitted by law, the Customer waives the
right to sign or receive a copy of any financing statement or financing change
statement, or any statement issued by any registry that confirms any
registration of a financing statement or financing change statement, relating to
this Agreement. The Customer irrevocably appoints the Manager or the Acting
Manager from time to time of CIBC's branch specified on the first page of this
Agreement as the Customer's attorney (with full powers of substitution and
delegation) to sign, upon Default, all documents required to give effect to this
section. Nothing in this section affects the right of CIBC as secured party, or
any other Person on CIBC's behalf, to sign and file or deliver (as applicable)
all such financing statements, financing change statements, notices,
verification agreements and other documents relating to the Collateral and this
Agreement as CIBC or such other Person considers appropriate.
14. DEALINGS BY CIBC. CIBC may from time to time increase, reduce,
discontinue or otherwise vary the Customer's credit facilities, grant extensions
of time and other indulgences, take and give up any Charge, abstain from taking,
perfecting or registering any Charge, accept compositions, grant releases and
discharges and otherwise deal with the Customer, customers of the Customer,
guarantors and others, and with the Collateral and any Charges held by CIBC, as
CIBC considers appropriate without affecting the Customer's obligations to CIBC
or CIBC's rights under this Agreement.
15. DEFINITIONS. In this Agreement:
"Accessions", "Account", "Chattel Paper", "Document of Title", "Equipment",
"Goods", "Instrument", "Intangible", "Inventory", "Proceeds", "Purchase-Money
Security Interest" and "Security Interest" have the respective meanings given to
them in the PPSA.
"Books and Records" means all books, records, files, papers, disks, documents
and other repositories of data recording, evidencing or relating to the
Collateral to which the Customer (or any Person on the Customer's behalf) has
access.
"Charge" means any mortgage, charge, pledge, hypothecation, lien (statutory or
otherwise), assignment, financial lease, title retention agreement or
arrangement, security interest or other encumbrance of any nature however
arising, or any other security agreement or arrangement creating in favour of
any creditor a right in respect of a particular property that is prior to the
right of any other creditor in respect of such property.
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"Consumer Goods" has the meaning given to it in the PPSA, except that, if this
Agreement is governed by the laws of the Yukon, it does not include special
consumer goods as that term is defined in the Yukon PPSA.
"Default" has the meaning set our in subsection 10(1).
"Liabilities" means all present and future indebtedness and liability of every
kind, nature and description (whether direct or indirect, joint or several,
absolute or contingent, matured or unmatured) of the Customer to CIBC, wherever
and how incurred and any unpaid balance thereof excluding such amounts as CIBC
may deem to be, in its sole discretion, or pursuant to the CIBC/WED Information
Technology & Telecommunications Loan Program and which are secured by security
agreement dated for reference April 16, 1998 executed by the Customer in favour
of CIBC (the "WED Security Agreement").
"Money" has the meaning given to it in the PPSA or, if there is no such
definition, means a medium of exchange authorized or adopted by the Parliament
of Canada as part of the currency of Canada, or by a foreign government as part
of its currency.
"Person" means any natural person or artificial body (including among others any
firm, corporation or government).
"Personal Property" means personal property and includes among other things
Inventory, Equipment, Receivables, Book and Records, Chattel Paper, Goods,
Documents of Title, Instruments, Intangibles (including intellectual property),
Money and Securities, and includes all Accessions to such property.
"Place of Business" means a location where the Customer carries on business or
where any of the Collateral is located (including any location described in
Schedule B).
"PPSA" means the legislation that applies in the province or territory noted in
section 2 of this Agreement, as such legislation may be amended, renamed or
replaced from time to time (and includes all regulations from time to time made
under such legislation) as follows: in the case of Ontario, the Personal
Property Security Act, 1989; in the case of Alberta, British Columbia, Manitoba,
Xxxxxx Xxxxxx Island, Saskatchewan and the Yukon Territory, the Personal
Property Security Act; and in the case of any other province or territory, such
legislation as deals generally with Charges on personal property.
"Receivables" means all debts, claims and choses in action (including among
other things Accounts and Chattel Paper now or in the future due or owing to or
owned by the Customer.
"Receiver" means a receiver or a receiver and manager.
"Securities" has the meaning given to it in the PPSA or, if there is no such
definition and the PPSA defines "security" instead, it means the plural of that
term.
"Serial Number" means the number that the Person who manufactured or constructed
a Serial Number Good permanent marked or attached to it for identification
purposes or, if applicable, such other number as the PPSA stipulates as the
serial number or vehicle information number to be used for registration purposes
of such Serial Number Good.
"Serial Number Good" means a motor vehicle, trailer, mobile home, aircraft
airframe, aircraft engine or aircraft propeller, boat or an outboard motor for a
boat.
16. General.
(1) Reservation of the Last Day of any Lease. The Charges created by this
Agreement do not extend to the last of the term of any lease or
agreement for lease; however, the Customer will hold such last day in
trust for CIBC and, upon the exercise by CIBC of any of its rights
under this Agreement following Default, will assign ???? last day as
directed by CIBC.
(2) Attachment of Security Interest. The Security Interests created by this
Agreement are intended to attach to existing Collateral when the
Customer signs this Agreement, and (ii) to Collateral subsequently
acquired by the Customer, immediately upon the Customer acquiring any
rights in such Collateral. The parties do not intend to postpone the
attachment of any Security Interest created by this Agreement.
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(3) Purchase-Money Security Interest. If CIBC gives value for the purpose of
enabling the Customer to acquire rights in or to any of the Collateral, the
Customer will in fact apply such value to acquire those rights (and will
provide CIBC with such evidence in this regard as CIBC may require), and
the Customer grants to CIBC, and CIBC takes, a Purchase-Money Security
Interest in such Collateral to the extent that the value is applied to
acquire such rights. A certificate or affidavit of any of CIBC's authorized
representatives is admissible in evidence to establish the amount of any
such value.
(4) Description of Collateral in Schedule A. The fact that box (b) or box (c)
of section 1 has been checked without there being any property described in
Schedule A does not affect the nature or validity of CIBC's security in the
Collateral.
(5) Entire Agreement. CIBC has not made any representation or undertaken any
obligation in connection with the subject matter of this Agreement other
than as specifically set out in this Agreement, and in particular nothing
contained in this Agreement will require CIBC to make, renew or extend the
time for payment of any loan or other credit accommodation to the Customer
or any other Person.
(6) Additional Security. The Charges created by this Agreement are in addition
and without prejudice to any other Charge now or later held by CIBC. No
Charge held by CIBC will be exclusive of or dependent upon or merge in any
other Charge, and CIBC may exercise its rights under such Charges
independently or in combination.
(7) Joint and Several Liability. If more than one Person signs this Agreement
as the customer, the obligations of such Persons will be joint and several.
(8) Severability; Headings. Any provision of this Agreement that is void or
unenforceable in any jurisdiction is, as to that jurisdiction, ineffective
to that extent without invalidating the remaining provisions of this
Agreement. The headings in this Agreement are for convenience only and do
not limit or extend the provisions of this Agreement.
(9) Interpretation. When the context so requires, the singular will be read as
the plural, and vice versa.
(10) Copy of Agreement. The Customer acknowledges receipt of a copy of this
Agreement.
(11) Waivers. If this Agreement is governed by the laws of Saskatchewan and the
Customer is a corporation, the Customer agrees that The Limitation of Civil
Rights Act, The Land Contracts (Actions) Act and Part IV (excepting only
section 46) of The Saskatchewan Farm Security Act do not apply insofar as
they relate to actions as defined in those Acts, or insofar as they relate
to or affect this Agreement, the rights of CIBC under this Agreement or any
instrument, Charge, security agreement or other document of any nature that
renews, extends or is collateral to this Agreement.
(12) Notice. CIBC may send to the Customer, by prepaid regular mail addressed to
the Customer at Customer's address last known to CIBC, copies of any
document required by the PPSA to be delivered by CIBC to the Customer. Any
document mailed in this manner will be deemed to have been received by the
Customer upon the earlier of actual receipt by the Customer and the expiry
of 10 days after the mailing date. A certificate or affidavit of any of
CIBC's authorized representatives is admissible in evidence to establish
the mailing date.
(13) Enurement; Assignment. This Agreement will enure to the benefit of and be
binding upon (i) CIBC, its successors and assigns, and (ii) the Customer
and the Customer's heirs, executors, administrators, successors and
permitted assigns. The Customer will not assign this Agreement without
CIBC's prior written consent.
(14) Priority. The mortgages, charges, assignments and security interests
created by this Agreement shall have priority over the mortgages, charges,
assignments and security interests created by the WED Security Agreement
(as defined in the definition of "Liabilities" in section 15 of this
Agreement).
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The following is a description of property included in the Collateral (describe
personal property by item or kind; if space is insufficient, use a separate
sheet):
Schedule B
The following are the Places of Business (if space is insufficient, use a
separate sheet):
000 - 000 Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, X.X. X0X 3O7
300 - 000 Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, X.X. X0X 0X0
202 - 000 Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, X.X. X0X 0X0
