ex104.htm


    
      	
              Exhibit
      10.4

            	
              Non-Recourse
      Pledged Account Agreement dated as of October 30, 2009 by Kenneth Brooks,
      David Baird, Frederick Bohlander and Colin Eagen in favor of Silicon
      Valley Bank

            


    

     

     

    NON-RECOURSE
PLEDGED ACCOUNT AGREEMENT

     

     

    This continuing Non-Recourse Pledged
Account Agreement (“Agreement”) is entered into as of October 30, 2009, by
[______________________] (“Pledged Account Provider”), in favor of Silicon
Valley Bank (“Bank”).

     

     

    Recitals

     

     

    A.           Bank
and Braintech, Inc., a Nevada corporation, Braintech Industrial, Inc., a
Delaware corporation, and Braintech Government & Defense, Inc., a Delaware
corporation (individually and collectively, jointly and severally, “Borrower”),
are entering into (a) a certain Loan and Security Agreement (term loan) dated as
of even date herewith (“Term Loan Agreement”) and (b) a certain Loan and
Security Agreement (accounts receivable line of credit) dated as of even date
herewith (“Working Capital Loan Agreement”) (each as may be amended, restated,
or otherwise modified from time to time, collectively, the “Loan Agreements”)
pursuant to which Bank has agreed to make certain advances of money and to
extend certain financial accommodations to Borrower (collectively, the “Loans”),
subject to the terms and conditions set forth therein.  Capitalized
terms used but not otherwise defined herein shall have the meanings given them
in the Term Loan Agreement.

     

     

    B.           In
consideration of the agreement of Bank to make the Loans to Borrower under the
Loan Agreements, Pledged Account Provider is willing to enter into this
Agreement.

     

     

    C.           Pledged
Account Provider is a stockholder of Borrower and will obtain substantial direct
and indirect benefit from the Loans made by Bank to Borrower under the Loan
Agreements.

     

     

    Now,
Therefore, to induce Bank to enter into the Loan Agreements, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Pledged Account Provider
hereby represents, warrants, covenants and agrees as follows:

     

    Section
1. Agreement.

     

    1.1 Agreement.  In
consideration of the foregoing, Pledged Account Provider has pledged to Bank a
security interest in the Pledged Account (as defined
hereinafter).  Upon the occurrence and during the continuance of an
Event of Default under the Term Loan Agreement, Bank may exercise any and all of
its rights with respect to the Pledged Account as set forth in that certain
Pledge Agreement executed by Pledged Account Provider in favor of Bank and dated
as of even date herewith (the “Pledge Agreement”).  Until this
Agreement is terminated pursuant to Section 16, Pledged Account Provider agrees
that it shall execute such other documents or agreements and take such action as
Bank shall reasonably request to effect the purposes of this
Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.2 Separate
Obligations.  Pledged Account Provider’s obligations are independent
of Borrower’s obligations and separate actions may be brought against Pledged
Account Provider (whether action is brought against Borrower or whether Borrower
is joined in the action).

     

    Section
2. Representations
and Warranties.

     

     

    Pledged Account Provider hereby
represents and warrants that:

     

    (a) The
execution, delivery and performance by Pledged Account Provider of this
Agreement (i) do not contravene any law or any contractual restriction binding
on or affecting Pledged Account Provider; (ii) do not require any authorization
or approval or other action by, or any notice to or filing with, any
governmental authority or any other Person under any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which Pledged Account Provider
is a party or by which Pledged Account Provider or any of its property is bound,
except such as have been obtained or made; and (iii) do not result in the
imposition or creation of any Lien upon any property of Pledged Account Provider
other than with respect to the underlying Pledged Account.

     

    (b) Pledged
Account Provider is legally competent to execute, deliver and perform this
Agreement.

     

    (c) This
Agreement is a valid and binding obligation of Pledged Account
Provider.

     

    (d) Pledged
Account Provider’s obligations hereunder are not subject to any offset or
defense against Bank or Borrower of any kind.

     

    (e) Pledged
Account Provider covenants, warrants, and represents to Bank that all
representations and warranties contained in this Agreement shall be true at the
time of Pledged Account Provider’s execution of this Agreement, and shall
continue to be true so long as this Agreement remains in effect.

     

    (f) Pledged
Account Provider shall maintain a money market account containing at least
[____________________________ Dollars ($__________.00)] at all times (the
“Pledged Account”), which Pledged Account shall be pledged to Bank to secure
Pledged Account Provider’s obligations to Bank under the Pledge
Agreement.  Notwithstanding the foregoing, Bank acknowledges and
agrees that the amount required to be maintained in the Pledged Account may
proportionately decline as the Term Advances are paid off, as long as the amount
in the Pledged Account continues to represent the same proportionate amount of
the Term Advances as it did as of the date of this Agreement (for purposes of
this provision, the amount of Term Advances on the date of this Agreement shall
be deemed to be Two Million Two Hundred Thousand Dollars
($2,200,000.00)).

     

    Section
3. General
Waivers.  Pledged Account Provider waives:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (a) Any right
to require Bank to (i) proceed against Borrower or any other person;
(ii) proceed against or exhaust any security or (iii) pursue any other
remedy.  Bank may exercise or not exercise any right or remedy it has
against Borrower or any security it holds (including the right to foreclose by
judicial or nonjudicial sale) without affecting Pledged Account Provider’s
liability hereunder.

     

    (b) Any
defenses from disability or other defense of Borrower.

     

    (c) Any
setoff, defense or counterclaim against Bank.

     

    (d) Any
defense from the absence, impairment or loss of any right of subrogation against
Borrower.  Until Borrower’s obligations to Bank have been paid,
Pledged Account Provider has no right of subrogation against
Borrower.

     

    (e) Any right
to enforce any remedy that Bank has against Borrower.

     

    (f) Any
rights to participate in any security held by Bank.

     

    (g) Any
demands for performance, notices of nonperformance or of new or additional
indebtedness incurred by Borrower to Bank.  Pledged Account Provider
is responsible for being and keeping itself informed of Borrower’s financial
condition.

     

    (h) The
benefit of any act or omission by Bank which directly or indirectly results in
or aids the discharge of Borrower from any of the Obligations by operation of
law or otherwise.

     

    Section
4. Real Property Security
Waiver.  Pledged Account Provider acknowledges that, to the
extent Pledged Account Provider has or may have rights of subrogation against
Borrower for claims arising out of this Agreement, those rights may be impaired
or destroyed if Bank elects to proceed against any real property security of
Borrower by non-judicial foreclosure.  That impairment or destruction
could, under certain judicial cases and based on equitable principles of
estoppel, give rise to a defense by Pledged Account Provider against its
obligations under this Agreement.  Pledged Account Provider waives
that defense and any others arising from Bank’s election to pursue non-judicial
foreclosure.  Pledged Account Provider waives the benefits, if any, of
any statutory or common law rule that may permit a subordinating creditor to
assert any defenses of a surety, or that may give the subordinating creditor the
right to require a senior creditor to marshal assets, and Pledged Account
Provider agrees that it shall not assert any such defenses or
rights.

     

    Section
5. No Waiver;
Amendments.  No failure on the part of Bank to exercise, no
delay in exercising and no course of dealing with respect to, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right.  The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.  This
Agreement may not be amended or modified except by written agreement between
Pledged Account Provider and Bank, and no consent or waiver hereunder shall be
valid unless in writing and signed by Bank.

     

    Section
6. Compromise and
Settlement.  Subject to Section 16, no compromise, settlement,
release, renewal, extension, indulgence, change in, waiver or modification of
any of the Obligations or the release or discharge of Borrower from the
performance of any of the Obligations shall release or discharge Pledged Account
Provider from this Agreement or the performance of the obligations
hereunder.  For the avoidance of doubt, Pledged Account Provider shall
have no further obligation or liability to Bank under this Agreement or the
Pledge Agreement once this Agreement is terminated pursuant to Section
16.

     

    Section
7. Notice.  Any notice
or other communication herein required or permitted to be given shall be in
writing and may be delivered in person or sent by facsimile transmission,
overnight courier, or by United States mail, registered or certified, return
receipt requested, postage prepaid and addressed as follows:

     

     

    If to Pledged
Account:                         
Kenneth Brooks

    Provider                                                  
Braintech, Inc.

      LC/Pledged Account Provider
Committee
                                                                           
1750 Tysons Boulevard, Suite
350
                                                                           
McLean, VA 22102

      Facsimile No.:
703-637-9772

     

     

    


     

     

    With a
copy
to:                                       Thomas
E. McCabe

                                                                       EVP,
General Counsel &
Secretary
                                                                                  
Braintech,
Inc.

                                                                      
1750
Tysons Boulevard, Suite 350

                                                                       McLean,
VA 22102

                                                                       Fax:           (703)
637-9772

     

     

    


     

    If to
Bank:                                                
Silicon Valley Bank

       8020 Towers Crescent
Drive, Suite 475

       Vienna, Virginia
22182

      
Attn:           Ms.
Heather Parker

                                                                                      
Fax:           (703)
356-7643

    


    


     

    With a
copy
to:                                       Riemer
& Braunstein,
LLP
                                                                                  
Three
Center
Plaza
                                                                                   Boston,
Massachusetts  02108
                                                                                  
Attn:           David
A. Ephraim, Esquire
                           Fax:           (617)
880-3456

     

     

    


     

     

    or at
such other address as may be substituted by notice given as herein
provided.  Every notice, demand, request, consent, approval,
declaration or other communication hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or sent by facsimile
transmission or three (3) Business Days after the same shall have been deposited
in the United States mail.  If sent by overnight courier service, the
date of delivery shall be deemed to be the next Business Day after deposited
with such service.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section
8. Entire
Agreement.  This Agreement constitutes and contains the entire
agreement of the parties and supersedes any and all prior and contemporaneous
agreements, negotiations, correspondence, understandings and communications
between Pledged Account Provider and Bank, whether written or oral, respecting
the subject matter hereof.

     

    Section
9. Severability.  If
any provision of this Agreement is held to be unenforceable under applicable law
for any reason, it shall be adjusted, if possible, rather than voided in order
to achieve the intent of Pledged Account Provider and Bank to the extent
possible.  In any event, all other provisions of this Agreement shall
be deemed valid and enforceable to the full extent possible under applicable
law.

     

    Section
10. Subordination of
Indebtedness.  Issues of subordination are addressed in the
Subordination Agreement dated as of even date herewith between Pledged Account
Provider and Bank, as acknowledged by Borrower.

     

    Section
11. Business
Debt.  Pledged Account Provider hereby represents and agrees
that none of the Obligations and none of Pledged Account Provider’s obligations
hereunder are consumer debt, or were or shall be incurred by Borrower or Pledged
Account Provider, respectively, primarily for personal, family or household
purposes.  Pledged Account Provider further agrees and represents that
the Obligations are and shall be incurred by Borrower, and the obligations of
Pledged Account Provider hereunder are and shall be incurred by Pledged Account
Provider, for business and commercial purposes only.

     

    Section
12. Assignment; Governing Law.  This
Agreement shall be binding upon and inure to the benefit of Pledged Account
Provider and Bank and their respective successors and assigns, except that
Pledged Account Provider shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of Bank, which may be
granted or withheld in Bank’s sole discretion.  Any such purported
assignment by Pledged Account Provider without Bank’s written consent shall be
void.  This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts without regard to
principles thereof regarding conflict of laws.

     

    SECTION
13. JURISDICTION. Pledged
Account Provider hereby irrevocably agrees that any legal action or proceeding
with respect to this Agreement or any of the agreements, documents or
instruments delivered in connection herewith may be brought in the state and
federal courts located in the Commonwealth of Massachusetts as Bank may elect
(PROVIDED THAT PLEDGED ACCOUNT PROVIDER ACKNOWLEDGES THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COMMONWEALTH
OFMASSACHUSETTS), and, by execution and delivery hereof, Pledged Account
Provider accepts and consents to, generally and unconditionally, the
jurisdiction of the aforesaid courts and agrees that such jurisdiction shall be
exclusive, unless waived by Bank in writing, with respect to any action or
proceeding brought by Pledged Account Provider against Bank.  Nothing
herein shall limit the right of Bank to bring proceedings against Pledged
Account Provider in the courts of any other jurisdiction.  Pledged
Account Provider hereby waives, to the full extent permitted by law, any right
to stay or to dismiss any action or proceeding brought before said courts on the
basis of forum non conveniens.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SECTION
14. WAIVER OF JURY
TRIAL.  EACH OF BANK AND PLEDGED ACCOUNT PROVIDER HEREBY
WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND ANY RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
14.

     

    SECTION
15. PLEDGED
ACCOUNT.  Pledged Account Provider hereby
acknowledges and agrees that upon the occurrence and during the continuance of
an Event of Default, Bank may exercise any and all of its rights and remedies
with respect to the Pledged Account.

     

    Section
16. TERMINATION.  This
Agreement shall terminate upon the earlier to occur of (a) both (i) payment in
full of all Term Advances and any other amounts due to Bank under the Term Loan
Agreement (but specifically excluding any amounts due in connection with the
Working Capital Loan Agreement or any other agreement) and (ii) termination of
the Term Loan Agreement, or (b) March 2, 2013.

     

    SECTION
17. NON-RECOURSE
AGREEMENT.  NOTWITHSTANDING THE FOREGOING, OR ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IT IS EXPRESSLY ACKNOWLEDGED AND AGREED
THAT THE LIABILITY OF THE PLEDGED ACCOUNT PROVIDER HEREUNDER AT ALL TIMES SHALL
BE LIMITED TO THE COLLATERAL (AS DEFINED IN THE PLEDGE AGREEMENT).  IN
FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, IF AN EVENT OF DEFAULT SHALL
OCCUR AND BE CONTINUING UNDER THE TERM LOAN AGREEMENT, AND/OR THERE IS A DEFAULT
OR ANY BREACH OF ANY PROVISION HEREUNDER, BANK'S SOLE RECOURSE AGAINST THE
PLEDGED ACCOUNT PROVIDER SHALL BE THE COLLATERAL REFERENCED
HEREUNDER.

     

     

    PLEDGED
ACCOUNT PROVIDER

     

     

    


     

     

    _____________________________

     

     

    [______________________________]