EXHIBIT 10.5
SECURITY AGREEMENT
DATE: February 11, 2005
DEBTOR: CorVu Corporation EIN: ▇▇-▇▇▇▇▇▇▇
(Collectively) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Organization I.D. #4I-202
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. EIN: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Organization I.D. #8V-868
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED PARTY: ComVest Investment Partners II LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
1. Security Interest and Collateral. To secure the payment of outstanding
principal and interest on that certain Promissory Note of even date herewith in
the original principal amount of $1,500,000 by Debtor to Secured Party (the
"Note") and the performance of every liability and obligation of every type and
description that Debtor may now or at any time hereafter owe to Secured Party
under the Note, whether such debt, liability or obligation now exists or is
hereafter created or incurred, and whether it is absolute or contingent,
liquidated or unliquidated, or sole, joint, several or joint and several (all
such debts, liabilities and obligations and any amendments, extensions, renewals
or replacements thereof collectively referred to herein as the "Obligations"),
Debtor hereby grants Secured Party a first priority security interest (the
"Security Interest") in all of Debtor's property (the "Collateral"), including
without limitation the following:
A. Inventory. All inventory of Debtor, whether now owned or hereafter
acquired and wherever located and other tangible personal property
held for sale or lease or furnished or to be furnished under
contracts of service or consumed in Debtor's business, and all goods
of Debtor, whether now owned or hereafter acquired and wherever
located, including without limitation all computer programs embedded
in goods, and all other Inventory and Goods of the Debtor, as such
terms may be defined in the Uniform Commercial Code as may be in
effect in the State of Minnesota from time to time (the "UCC");
B. Equipment. All equipment of Debtor, whether now owned or hereafter
acquired and wherever located, including but not limited to all
present and future equipment, machinery, tools, motor vehicles,
trade fixtures, furniture, furnishings, office and recordkeeping
equipment and all goods for use in Debtor's business and all other
Equipment of the Debtor, as such term may be defined in the UCC,
together with all parts, equipment and attachments relating to any
of the foregoing;
C. Accounts, Contract Rights and Other Rights to Payment: Each and
every right of Debtor to the payment of money, whether such right to
payment now exists or hereafter arises, whether such right to
payment arises out of a sale, lease, license, assignment or other
disposition of goods or other property by Debtor, out of a rendering
of services by Debtor, out of a loan by Debtor, out of the
overpayment of taxes or other liabilities of Debtor, or otherwise
arises under any contract or agreement, whether such right to
payment is or is not already earned by performance, and howsoever
such right to payment may be evidenced, together with all other
rights and interests (including all liens and security interests)
which Debtor may at any time have by law or agreement against any
account debtor or other obligor obligated to make any such payment
or against any of the property of such account debtor or other
obligor; all including but not limited to all present and future
debt instruments, chattel paper, accounts, license fees, contract
rights, loans and obligations receivable and tax refunds and all
other Accounts of the Debtor, as such term may be defined in the
UCC;
67
D. Instruments: All instruments, chattel paper, letters of credit or
other documents of Debtor, whether now owned or hereafter acquired,
including but not limited to promissory notes, drafts, bills of
exchange and trade acceptances; all rights and interests of Debtor,
whether now existing or hereafter created or arising, under leases
(where Debtor is the lessor), licenses or other contracts, in each
case where assignment for security purposes is not expressly
prohibited by the terms of such instruments and all other
Instruments of the Debtor, as such term may be defined in the UCC;
E. Deposit Accounts and Investment Property: All right, title and
interest of Debtor in all deposit and investment accounts maintained
with any bank, savings and loan association, broker, brokerage, or
any other financial institution, together with all monies and other
property deposited or held therein, including, without limitation,
any checking account, savings account, escrow account, savings
certificate and margin account, and all securities, whether
certificated or uncertificated, security entitlements, securities
accounts, commodity contracts, and commodity accounts and all other
Deposit Accounts and Investment Property of the Debtor, as such
terms may be defined in the UCC;
F. General Intangibles: All general intangibles of Debtor, whether now
owned or hereafter acquired, including, but not limited to,
applications for patents, patents, copyrights, trademarks, trade
secrets, good will, tradenames, customer lists, permits and
franchises, software, all licenses of any of the foregoing and the
right to use Debtor's name, and any and all membership interests,
governance rights, and financial rights in each and every limited
liability company, and all payment intangibles and all other General
Intangibles of the Debtor, as such term may be defined in the UCC;
G. Chattel Paper: All Chattel Paper of the Debtor, whether tangible or
electronic, as such term may be defined in the UCC; and
H. Supporting Obligations, Embedded Software, etc.: All of Debtor's
rights, whether now existing or hereafter acquired, in promissory
notes, documents, embedded software, letter of credit rights and
supporting obligations (and security interests and liens securing
them) as such terms may be defined in the UCC.
together with all substitutions and replacements for and products of any of the
foregoing property and proceeds of any and all of the foregoing property
together with (i) all accessories, attachments, parts, equipment, accessions and
repairs and embedded software now or hereafter attached or affixed to or used in
connection with any such goods, (ii) all warehouse receipts, bills of lading and
other documents of title now or hereafter covering such goods, and (iii) all
books and records of Debtor related to the Collateral.
2. Representations, Warranties and Agreements. Debtor jointly and
severally represents, warrants and agrees that:
2.1. Debtor is a corporation duly organized, validly existing and in
good standing under the laws of the state of Minnesota, and the state of
Minnesota has been Debtor's state of organization since the date of
Debtor's organization. Debtor has full power and authority to execute this
Agreement, to perform Debtor's obligations hereunder and to subject the
Collateral to the Security Interest. Debtor's taxpayer identification
number is the number shown at the beginning of this Agreement. Debtor's
organizational identification number is the number shown at the beginning
of this Agreement.
2.2. Debtor's chief place of business is, and has been for the five
years preceding the date of this Agreement, located at the address shown
at the beginning of this Agreement. Debtor's records concerning its
accounts and contract rights are kept at such address. The Collateral is
located at the address shown at the beginning of this Agreement, and there
are no other locations where any of the Collateral may be kept except as
set forth on Schedule 2.2 hereto. All Collateral has been located at the
address shown at the beginning of this Agreement or at the locations set
forth on Schedule 2.2, for the five years prior to execution of this
Agreement. Debtor will give at least 30 days' advance written notice to
Secured Party of any change in Debtor's jurisdiction of organization or
chief place of business and any change in or addition of any Collateral
location. Debtor will take all such actions as Secured Party may
reasonably request to permit Secured Party to establish and perfect the
Security Interest in all jurisdictions Secured Party deems necessary,
including but not limited to the execution, delivery or endorsement of any
and all instruments, documents, assignments, security agreements and other
agreements and writings that Secured Party may at any time reasonably
request in order to secure, protect, perfect or enforce the Security
Interest and Secured Party's rights under this Agreement.
2.3. Debtor has (or will have at the time Debtor acquires rights in
Collateral hereafter arising) absolute title to each item of Collateral
free and clear of all security interests, liens and encumbrances. Debtor
will keep all Collateral free and clear of all security interests, liens
and encumbrances except the Security Interest, and will defend the
Collateral against all claims or demands of all persons other than Secured
Party. Debtor will promptly pay or properly and timely contest all taxes
and other governmental charges levied or assessed upon or against any
Collateral or upon or against the creation, perfection or continuance of
the Security Interest.
68
2.4. Until the Obligations are satisfied in full, Debtor will not,
without Secured Party's prior written consent, sell any of the Collateral
or enter into any agreement that is inconsistent with Debtor's obligations
or Secured Party's rights under this Agreement, except that Debtor may
sell or discard the Collateral in the ordinary course of business so long
as such agreements are not inconsistent with Secured Party's rights or
Debtor's obligations under this Agreement. Debtor further agrees that it
will not take any action, or permit any action to be taken by others under
its control, or fail to take any action, that would affect the validity of
the Collateral or enforcement of Secured Party's rights in the Collateral.
In addition, Debtor agrees not to enter into any instruments, chattel
paper, letters of credit or other documents, including but not limited to
promissory notes, drafts, bills of exchange and trade acceptances, which
expressly prohibit assignment for security purposes.
2.5. This Agreement has been duly and validly authorized by all
necessary action by Debtor.
2.6. Debtor will keep all tangible Collateral in good repair,
working order and condition, normal depreciation excepted, and will, from
time to time, replace any worn, broken or defective parts thereof.
2.7. Debtor will at all reasonable times permit Secured Party or its
representatives to examine or inspect any Collateral, wherever located,
and to examine, inspect and copy Debtor's books and records pertaining to
the Collateral and its business and financial condition.
2.8. If Secured Party at any time so requests after the occurrence
of an Event of Default, Debtor will promptly transfer to Secured Party any
instrument, document, chattel paper, or investment properties constituting
the Collateral, duly endorsed or assigned by Debtor.
2.9. Debtor will keep accurate and complete records pertaining to
the Collateral and pertaining to Debtor's business and financial condition
and submit to Secured Party such periodic reports concerning the
Collateral and Debtor's business and financial condition as Secured Party
may from time to time reasonably request.
2.10. Debtor will at all times keep all tangible Collateral insured
against risks of fire (including so-called extended coverage), theft, and
such other risks and in such amounts as Secured Party may reasonably
request, with any loss payable to Secured Party to the extent of its
interest.
2.11. Debtor will pay when due or reimburse Secured Party on demand
for all costs of collection of any of the Obligations and all other
out-of-pocket expenses (including all reasonable attorneys' fees) incurred
by Secured Party in connection with the creation, perfection,
satisfaction, protection, defense or enforcement of the Security Interest
or the creation, continuance, protection, defense or enforcement of this
Agreement or any or all of the Obligations, including expenses incurred in
any litigation or bankruptcy or insolvency proceedings.
2.12. The Obligations have been incurred and the Collateral will be
used primarily for business purposes.
2.13. All rights to payment and all instruments, documents, chattel
papers and other agreements constituting or evidencing Collateral are (or
will be when arising or issued) the valid, genuine and legally enforceable
obligation, subject to no defense, set-off or counterclaim (other than
those arising in the ordinary course of business) of each account debtor
or other obligor named therein or in Debtor's records pertaining thereto
as being obligated to pay such obligation. Debtor will not agree to any
modification, amendment or cancellation of any such obligation without
Secured Party's prior written consent except discounts provided by Debtor
in the ordinary course of business, and will not subordinate any such
right to payment to claims of other creditors of such account debtor or
other obligor.
2.14. Debtor will promptly notify Secured Party of any material loss
of or damage to any Collateral or of any adverse change in the prospect of
payment of any material sums due on or under any instrument, chattel
paper, account or contract right constituting Collateral.
2.15. Debtor will from time to time execute such financing
statements or control agreements as Secured Party may reasonably deem
necessary in order to perfect the Security Interest and, if any Collateral
is covered by a certificate of title, execute such documents as may be
required to have the Security Interest properly noted on a certificate of
title. In addition, Debtor authorizes Secured Party to file any financing
statement the Secured Party deems necessary, describing any liens held by
Secured Party. Such financing statements may describe the Collateral in
the same manner as described herein or may contain an indication or
description of the Collateral that describes such property in any other
manner as the Secured Party may determine, in its reasonable discretion,
is necessary to ensure the perfection of the Security Interest, including,
without limitation, describing such property as "all assets" or "all
personal property."
69
2.16 Debtor will not use or keep any Collateral, or permit it to be
used or kept, for any unlawful purpose or in violation of any federal,
state or local law, statute or ordinance.
2.17. If Debtor at any time fails to perform or observe any
agreement contained in this Section 2, and if such failure shall continue
for a period of 30 calendar days after Secured Party gives Debtor written
notice thereof, Secured Party may (but need not) perform or observe such
agreement on behalf and in the name, place and stead of Debtor (or, at
Secured Party's option, in Secured Party's own name) and may (but need
not) take any and all other actions that Secured Party may reasonably deem
necessary to cure or correct such failure. Debtor shall pay Secured Party
on demand the amount of all monies expended and all costs and expenses
(including reasonable attorneys' fees) incurred by Secured Party in
connection with or as a result of Secured Party's performing or observing
such agreements or taking such actions, together with interest thereon
from the date expended or incurred by Secured Party at the highest rate
then applicable to any of the Obligations. To facilitate the performance
or observance by Secured Party of such agreements of Debtor (in the event
Debtor does not cure any such failure during the above-described 30-day
period), Debtor hereby irrevocably appoints (which appointment is coupled
with an interest) Secured Party, or its delegate, as the attorney-in-fact
of Debtor with the right (but not the duty) from time to time to create,
prepare, complete, execute, deliver, endorse or file, in the name and on
behalf of Debtor, any and all instruments, documents, financing
statements, and other agreements and writings required to be obtained,
executed, delivered or endorsed by Debtor under this Section 2.
3. Account Verification and Collection Rights of Secured Party. Secured
Party shall have the right to verify any accounts in the name of Debtor or in
Secured Party's own name; and Debtor, whenever requested pursuant to the terms
of this Section, shall furnish Secured Party with duplicate statements of the
accounts, which statements may be mailed or delivered by Secured Party for that
purpose. Secured Party may at any time after the occurrence of an Event of
Default notify any account debtor, or any other person obligated to pay any
amount due, that such chattel paper, account, or other right to payment has been
assigned or transferred to Secured Party for security and shall be paid directly
to Secured Party. If Secured Party so requests at any time after the occurrence
of an Event of Default, Debtor will so notify such account debtors and other
obligors in writing and will indicate on all invoices to such account debtors or
other obligors that the amount due is payable directly to Secured Party. At any
time after Secured Party or Debtor gives such notice to an account debtor or
other obligor, Secured Party may (but need not), in Secured Party's own name or
in Debtor's name, demand, ▇▇▇ for, collect or receive any money or property at
any time payable or receivable on account of, or securing, any such chattel
paper, account, or other right to payment, or grant any extension to, make any
compromise or settlement with or otherwise agree to waive, modify, amend or
change the obligations (including collateral obligations) of any such account
debtor or other obligor.
4. Events of Default. The occurrence of any of the following shall, at the
sole option of the Secured Party, be an Event of Default:
A. Any "Event of Default" (as defined in such agreement) by Debtor
under the Note or any other agreement evidencing the Obligations, which
default is not cured within any grace period granted with respect to such
default or, if no specific grace period is granted with respect to such
default, where such default is not cured within five (5) business days
after written notice thereof from the Secured Party;
B. Debtor's failure to comply with any representation, warranty or
covenant hereunder if not cured within thirty (30) days after written
notice;
C. Transfer or disposition of any of the Collateral, except as
permitted by this Agreement; or
D. Attachment, execution or levy on any of the Collateral.
5. Remedies upon Event of Default. Upon the occurrence of an Event of
Default and at any time thereafter, Secured Party may exercise any one or more
of the following rights and remedies:
5.1. declare all Obligations to be immediately due and payable,
which shall then be immediately due and payable, without presentment or
other notice or demand;
5.2. exercise and enforce any or all rights and remedies available
upon default to a secured party under the Uniform Commercial Code,
including but not limited to the right to take possession of any
Collateral, proceeding without judicial process if permitted by law or by
judicial process, and the right to use, sell, lease or otherwise dispose
of any or all of the Collateral, and in connection therewith, Secured
Party may require Debtor to make the Collateral available to Secured Party
at a place to be designated by Secured Party that is reasonably convenient
to both parties, and if notice to Debtor of any intended disposition of
Collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given (in
the manner specified in Section 8.2) at least 10 business days prior to
the date of intended disposition or other action; or
70
5.3. exercise or enforce any or all other rights or remedies
available to Secured Party by law or agreement against the Collateral,
including specifically the right to use the Collateral, against Debtor or
against any other person or property.
All rights and remedies of Secured Party shall be cumulative and may be
exercised singularly or concurrently, at Secured Party's option, and the
exercise or enforcement of any one such right or remedy shall neither be a
condition to nor bar the exercise or enforcement of any other.
6. Other Personal Property. Unless at the time Secured Party takes
possession of any tangible Collateral, or within seven days thereafter, Debtor
gives written notice to Secured Party of the existence of any goods, papers or
other property of Debtor, not affixed to or constituting a part of such
Collateral, but which are located or found upon or within such Collateral,
Secured Party shall not be responsible or liable to Debtor for any action taken
or omitted by or on behalf of Secured Party with respect to such property
without actual knowledge of the existence of any such property or without actual
knowledge that it was located or to be found upon or within such Collateral.
7. Assignment of Insurance. Debtor hereby assigns to Secured Party, as
additional security for the payment of the Obligations, any and all moneys
(including but not limited to proceeds of insurance and refunds of unearned
premiums) due or to become due under, and all other rights of Debtor under or
with respect to, any and all policies of insurance covering the Collateral, and
Debtor hereby directs the issuer of any such policy to pay any such moneys
directly to Secured Party. Both before and after the occurrence of an Event of
Default, Secured Party may (but need not), in Secured Party's own name or in
Debtor's name, execute and deliver proofs of claim, receive all such moneys,
endorse checks and other instruments representing payment of such moneys, and
adjust, litigate, compromise or release any claim against the issuer of any such
policy.
8. Miscellaneous.
8.1. This Agreement can be waived, modified, amended, terminated or
discharged, and the Security Interest can be released, only explicitly in
a writing signed by Secured Party. A waiver signed by Secured Party shall
be effective only in the specific instance and for the specific purpose
given. Mere delay or failure to act shall not preclude the exercise or
enforcement of any of Secured Party's rights or remedies.
8.2. All notices to be given to Debtor shall be deemed sufficiently
given if delivered or mailed by registered or certified mail, postage
prepaid, to Debtor at its address set forth above or at such other address
as Debtor may subsequently provide to Secured Party.
8.3. Secured Party's duty of care with respect to Collateral in its
possession (as imposed by law) shall be deemed fulfilled if Secured Party
exercises reasonable care in physically safekeeping such Collateral or, in
the case of Collateral in the custody or possession of a bailee or other
third person, exercises reasonable care in the selection of the bailee or
other third person, and Secured Party need not otherwise preserve,
protect, insure or care for any Collateral. Secured Party shall not be
obligated to preserve any rights Debtor may have against prior parties, to
realize on the Collateral at all or in any particular manner or order, or
to apply any cash proceeds of Collateral in any particular order of
application.
8.4. This Agreement shall be binding upon and inure to the benefit
of Debtor and Secured Party and their respective successors and assigns
and shall take effect when signed by Debtor and delivered to Secured
Party, and Debtor waives notice of Secured Party's acceptance hereof.
8.5. A carbon, photographic or other reproduction of this Agreement
or of any financing statement signed by Debtor shall have the same force
and effects as the original for all purposes of a financing statement.
8.6. This Agreement shall be governed by the internal laws of the
State of Minnesota. If any provision or application of this Agreement is
held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which
can be given effect and this Agreement shall be construed as if the
unlawful or unenforceable provision or application had never been
contained herein or prescribed hereby. Any dispute arising out of or
relating to this Agreement, including the formation, interpretation or
alleged breach hereof, shall be brought in the state or federal courts
located in Hennepin County, Minnesota, and the parties hereto consent to
the personal jurisdiction and venue of such courts.
8.7. All representations and warranties contained in this Agreement
shall survive the execution, delivery and performance of this Agreement
and the creation and payment of the Obligations.
71
(signature page on following page)
72
ACCORDINGLY, this Agreement has been duly executed by the parties as of
the date first set forth above.
CORVU CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Its: CFO
CORVU NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Its: CFO
COMVEST INVESTMENT PARTNERS II LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Its: Partner
#3075262\4
73
SCHEDULE 2.2
Other Locations
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇