EXHIBIT 10(R)(5)
BORROWER SECURITY AGREEMENT
(WITH SCHEDULE I)
This SECURITY AGREEMENT (this "Agreement"), dated as of June 28, 2001, is
entered into among COVER-ALL TECHNOLOGIES INC., a Delaware corporation
("Borrower"), XXXX XXXXXX, XXXXXX XXXXXXXX AND XXXXXX XXXXXXXXX (collectively
referred to as "Lender"), and XXXXXX XXXXXXXXX, as agent for the Secured Party
(the "Agent").
RECITALS
A. Lender, Borrower and Agent have entered into a Convertible Loan
Agreement of even date herewith (the "Loan Agreement"), pursuant to which Lender
will lend to Borrower the aggregate principal amount of $400,000 evidenced by
Borrower's 8.00% Convertible Debentures of even date herewith (the
"Debentures").
B. As a condition for entering into the Loan Agreement and providing the
Loan, Lender required that Borrower grant a security interest in its assets as
collateral for such Loan.
C. On even date herewith, Renaissance US Growth & Income Trust PLC, a
public limited company registered in England and Wales ("RUSGIT"), and BFSUS
Special Opportunities Trust PLC, a public limited company registered in England
and Wales ("BFSUS") (RUSGIT and BFSUS collectively referred to as "Renaissance")
has loaned to Borrower the aggregate principal amount of $1,400,000 evidenced by
Borrower's 8.00% Convertible Debentures.
D. Renaissance, Renaissance Capital Group, Inc., a Texas corporation
("RCG"), and the Borrower have entered into a Pledge Agreement, certain Borrower
Security Agreements and Subsidiary Security Agreements of even date herewith
providing for the pledge and grants of security interests in the pledged Shares
and the Collateral to secure the payment when due of the Obligations of the
Borrower under the Loan Documents (as such terms are defined in the Convertible
Loan Agreement among Renaissance, RCG and Borrower).
E. Renaissance and Holder have entered into an Intercreditor Agreement of
even date herewith setting forth the relative rights and responsibilities as
creditors of Borrower.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. GRANT OF SECURITY INTEREST. (a) In order to secure payment when due of
the Obligations now existing or hereafter incurred, Borrower hereby irrevocably
grants to the Lender a first and prior security interest in the following
property of the Borrower (the "Collateral"), whether now owned or existing, or
hereafter acquired, owned, existing or arising (whether by
contract or operation of law), and wherever located, which shall be retained by
Lender, until the Obligations have been paid in full and the Loan Agreement has
been terminated.
(i) All accounts (including inter-company receivables), contract
rights, chattel paper and rights of payment of every kind (collectively,
"Accounts") and instruments and general intangibles of Borrower.
(ii) All bank accounts of Borrower.
(iii) All monies and property of any kind of Borrower, now or hereafter
in the possession or under the control of Lender, Agent or a bailee of Lender.
(iv) All licenses, patents, patent applications, copyrights,
trademarks, trademark applications, trade names, assumed names, service marks
and service xxxx applications and other intellectual property of Borrower, as
more particularly described on SCHEDULE 1 attached hereto and incorporated
herein for all purposes.
(v) All licenses, patents, patent applications, copyrights, trademarks,
trademark applications, trade names, assumed names, service marks and service
xxxx applications and other intellectual property of Borrower.
(vi) All inventory, equipment (including any and all computer hardware
and components), machinery and fixtures of Borrower in all forms and wherever
located, and all parts and products thereof, all accessories thereto, and all
documents therefor.
(vii) All books and records (including, without limitation, customer
lists, credit files, tapes, ledger cards, computer software and hardware,
electronic data processing software, computer programs, printouts and other
computer materials and records) of Borrower evidencing or containing information
regarding or otherwise pertaining to any of the foregoing.
(viii) All accessories to, substitutions for and all replacements,
products and proceeds of the foregoing, including, without limitation, proceeds
of insurance policies insuring the Collateral (including, but not limited to,
claims paid and premium refunds).
2. INSURANCE ON COLLATERAL. Borrower further warrants and agrees that it
will pay for and maintain insurance in the amounts and of the types required
pursuant to Section 5.12 of the Loan Agreement.
3. DELIVERY OF RECEIVABLES. Upon Agent's request, upon the occurrence and
during the continuance of an Event of Default, Borrower will, at any reasonable
time and at Borrower's own expense, physically deliver to Agent, all Accounts
(including inter-company receivables) assigned to Agent at any reasonable place
or places designated by Agent. Failure to deliver any
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Account, or failure to deliver physical possession of any instruments, documents
or writings in respect of any Account shall not invalidate Agent's Lien and
security interest therein, except to the extent that possession may be required
by applicable law for the perfection of said Lien or security interest, in which
latter case, the Account shall be deemed to be held by the Borrower as the
custodian agent of Agent, for the benefit of Lender. Failure of Agent to demand
or require Borrower to include any Account in any schedule, to execute any
schedule, to assign and deliver any schedule or to deliver physical possession
of any instruments, documents or writings related to any Account shall not
relieve Borrower of its duty so to do.
4. COLLECTION OF RECEIVABLES. Borrower hereby agrees that it shall use
commercially reasonable efforts, at its sole cost and expense and in its own
name, to promptly and diligently collect and enforce payment of all Accounts and
Borrower will defend and hold Lender and Agent harmless from any and all loss,
damage, penalty, fine or expense arising from such collection or enforcement.
5. FINANCING STATEMENTS. Borrower agrees to execute all financing
statements and amendments thereto as Agent, on behalf of the Lender, may request
from time to time to evidence the security interest granted to Agent hereunder
and will pay the cost of all filing fees and taxes, if any, necessary to effect
the filing thereof. Wherever permitted by law, during the term of this
Agreement, Borrower authorizes Agent to file financing statements with respect
to the Collateral without the signature of Borrower, and shall give notice
thereof to Borrower. Without the written consent of Agent, Borrower will not
allow any financing statement or notice of assignment to be on file in any
public office covering any Collateral, proceeds thereof or other matters subject
to the security interest granted to Agent herein, unless such financing
statement relates to a Permitted Lien.
6. LENDER'S PAYMENT OF CLAIMS. Lender may, in its sole discretion,
discharge or obtain the release of any Lien asserted by any Person against the
Collateral, other than a Permitted Lien which, in the Lender's judgment, may
have a Material Adverse Effect on the Lender's rights with respect to the
Collateral. All sums paid by Lender in respect thereof shall be payable, on
demand, by Borrower to Lender and shall be a part of the Obligations.
7. DEFAULT AND REMEDIES.
a. Borrower shall be in default hereunder upon the occurrence and
during the continuation of an Event of Default, as set forth in
the Loan Agreement.
b. Upon the occurrence and during the continuation of any Event of
Default (i) unless Lender or Agent shall elect otherwise, the
entire unpaid amount of the Obligations due under the Loan
Agreement, as are not then otherwise due and payable, shall
become immediately due and payable without notice to Borrower or
demand by Lender or Agent and (ii) either Lender or Agent may, at
its or their option, exercise from time to time any and all
rights and remedies available to them under the Uniform
Commercial Code or otherwise, including the right to foreclose or
otherwise realize upon the Collateral and to dispose of any of
the
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Collateral at one or more public or private sales or other
proceedings, and Borrower agrees that any of Lender, Agent or
their nominee may become the purchaser at any such sale or sales.
Borrower agrees that twenty (20) days shall be reasonable prior
notice of the date of any public sale or other disposition of the
same. All rights and remedies granted Lender hereunder or under
any other agreement between Lender and Borrower shall be deemed
concurrent and cumulative and not alternative, and Lender, or
Agent on its behalf, may proceed with any number of remedies at
the same time or at different times until all the Obligations are
fully satisfied. The exercise of any one right or remedy shall
not be deemed a waiver or release of, or an election against, any
other right or remedy. Borrower shall pay to Lender or Agent, on
demand, any and all expenses (including reasonable attorneys'
fees and legal expenses) which may have been incurred by Lender
or Agent (i) in the prosecution or defense of any action arising
under this Agreement, the Collateral or any of Lender's rights
therein or thereto; or (ii) in connection with the custody,
preservation, use, operation, preparation for sale or sale of the
Collateral, the incurring of all of which are hereby authorized
to the extent Lender or Agent deem the same advisable. Borrower's
liability to Lender or Agent for any such payment shall be
included in the Obligations. The proceeds of any Collateral
received by Lender or Agent at any time before or after an Event
of Default, whether from a sale or other disposition of
Collateral or otherwise, or the Collateral itself, may be applied
to the payment, in full or in part, of such of the Obligations
and in such order and manner as Lender or Agent may elect.
8. REPRESENTATIONS AND COVENANTS OF BORROWER. Borrower hereby represents to
and agrees with Lender as follows:
a. Borrower owns the Collateral as sole owner, free and clear of any
Liens, other than Permitted Liens.
b. So long as any Obligations remain unpaid, Borrower agrees not to
sell, assign or transfer the Collateral, other than sales of
Collateral in the ordinary course of business, and to maintain it
free and clear of any Liens, other than Permitted Liens.
9. MISCELLANEOUS.
a. This Agreement shall bind and inure to the benefit of the parties
and their respective heirs, personal representatives, successors
and assigns, except that Borrower shall not assign any of its
rights hereunder without the prior written consent of holders of
more than 50% of the principal amount of the then outstanding
Debentures.
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b. Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
affecting the validity or enforceability of the remainder of this
Agreement or the validity or enforceability of such provision in
any other jurisdiction.
c. This Agreement shall be governed by and construed and enforced in
accordance with the substantive laws of the State of New York,
without regard to the conflicts of laws provisions thereof, and
the applicable laws of the United States. Venue and jurisdiction
shall be in the state or federal courts in New York County, New
York.
d. Borrower hereby consents to the jurisdiction of the courts of the
State of New York in any action or proceeding which may be
brought against it under or in connection with this Agreement or
any transaction contemplated hereby or to enforce any agreement
contained herein and, in the event any such action or proceeding
shall be brought against it, Borrower agrees not to raise any
objection to such jurisdiction or to the laying of venue in New
York County, New York or, if applicable, any other county in any
state in which Collateral is located.
e. All capitalized terms, unless otherwise specified, have the
meanings assigned to them in the Loan Agreement and the
Debentures.
f. Any notices or other communications required or permitted to be
given by this Agreement or any other documents and instruments
referred to herein must be (i) given in writing and personally
delivered, mailed by prepaid certified or registered mail or sent
by overnight service, such as FedEx, or (ii) made by telex or
facsimile transmission delivered or transmitted to the party to
whom such notice or communication is directed, with confirmation
thereupon given in writing and personally delivered or mailed by
prepaid certified or registered mail.
If to Borrower to:
Cover-All Technologies Inc.
00-00 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxx X. Xxxxxx
Chairman and CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Lender to:
Xxxx Xxxxxx
c/o 00-00 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxx X. Xxxxxx
Chairman and CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxxx
c/o Spear, Leeds & Xxxxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxx Xxxxxxxxx
c/o Spear, Leeds & Xxxxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Agent to:
Xxxxxx Xxxxxxxxx
c/o Spear, Leeds & Xxxxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice delivered personally in the manner provided herein will be
deemed given to the party to whom it is directed upon the party's (or its
agent's) actual receipt.
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Any notice addressed and mailed in the manner provided herein will be
deemed given to the party to whom it is addressed at the close of business,
local time of the recipient, on the fourth business day after the day it is
placed in the mail, or, if earlier, the time of actual receipt.
g. Capitalized terms used herein, unless otherwise defined herein,
have the definitions given them in the Loan Agreement among
Borrower, Lender and Agent.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date and year written above. BORROWER:
COVER-ALL TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chairman and CEO
LENDER:
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
AGENT:
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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