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EXHIBIT 10.9
COMMERCIAL SECURITY AGREEMENT
This Commercial Security Agreement (the "Agreement") is entered as of
the date hereinafter set forth by and between:
THE XXXXXXXXX FOUNDATION (the "Secured Party"), a California nonprofit
public benefit corporation, organized under the laws of the State of
California, having its principal place of business at 0000 Xxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx, 00000, represented herein by Xxxxx X.
Xxxxxxxxx, its duly authorized President, and
XXXXXXX'X THUNDER KARTS, INC. (the "Pledgor"), Tax Identification
Number 00-0000000, a Louisiana corporation having its principal place
of business at Xxxxxxx 00 Xxxxx, Xxxxxxxx, Xxxxxxxxx, 00000
represented herein by V. Xxxx Xxxxxxxx, its President, duly
authorized by resolution attached hereto,
KARTS INTERNATIONAL INCORPORATED (the "Borrower"), Tax Identification
Number 00-0000000, a Nevada corporation having its principal place of
business at 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
represented herein by V. Xxxx Xxxxxxxx, its President, duly authorized
by resolution attached hereto,
under the following terms and conditions:
SECTION 1. GRANT OF SECURITY INTEREST. For value received and in order to
secure the prompt and punctual payment and satisfaction of the Obligations as
defined hereinafter, the Pledgor does by these presents hereby grant a
continuing security interest in favor of the Secured Party as affecting the
Collateral described in the Description of Collateral (Section 3) section of
this Agreement and agrees with the Secured Party as hereinafter provided. The
security interest granted in the Collateral described in the Description of
Collateral section of this Agreement in favor of the Secured Party will
continue until such time as all of the Obligations as defined hereinafter are
fully paid and satisfied and this Agreement is cancelled or terminated by the
Secured Party under a written cancellation instrument.
SECTION 2. OBLIGATIONS SECURED. The security interest granted hereby is
granted to secure the prompt and punctual payment and satisfaction of the
following (all of which are herein separately and collectively referred to as
the "Obligations"):
A. That loan indebtedness of Borrower to the Secured Party
represented by that certain promissory note made by Borrower March 15,
1996 payable to the order of the Secured Party, in the principal
amount of TWO MILLION AND NO/100 ($2,000,000.00)
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DOLLARS, with interest and attorney's fees and payable provided
therein; and
B. Any and all present and future advances, loans, extensions of
credit and/or other financial accommodations obtained and/or to be
obtained by either Borrower or Pledgor from the Secured Party, as well
as from the successors and assigns of the Secured Party, from time to
time, one or more times, now or in the future, and any and all
promissory notes and other instruments or agreements evidencing such
present and future loan advances, extensions of credit and/or other
financial accommodations, as well as any and all other obligations and
liabilities that either Borrower or Pledgor, may now and/or in the
future owe to or incur in favor of the Secured Party; and
C. Any advances or expenditures made by the Secured Party or
expenses incurred by the Secured Party in protection or in furtherance
of its rights under this Agreement, including but not limited to the
expenditures, expenses and rights referred to in Section 8G., Section
10C. and Section 11 of this Agreement.
SECTION 3. DESCRIPTION OF COLLATERAL. Pledgor hereby grants to Secured
Party a security interest in and agrees that Secured Party shall continue to
have a security interest in the following property (the "Collateral") to-wit:
Any and all of the Pledgor's present and future rights, title and
interest in and to all of its equipment (as defined in R.S.10:9-109(2));
Any and all of the Pledgor's present and future rights, title and
interest in and to all of its accounts receivable or accounts (as defined in
R.S.10:9-106);
Any and all of Pledgor's present and future rights, title and interest
in and to inventory (as defined in R.S.10:9-109(4));
together with any accessions, additions and attachments to the foregoing and
the proceeds and products thereof (except immovable property), including
without limitation, all cash, general intangibles, accounts, inventory,
equipment, fixtures, farm products, notes, drafts, acceptances, securities,
instruments, chattel paper, insurance proceeds payable because of loss or
damage, or other property, benefits or rights arising therefrom, and in and to
all returned or repossessed goods arising from or relating to any of the
property described herein or other proceeds of any sale or other disposition of
such property; and
SECTION 4: ADDITIONAL SECURITY IN DEPOSIT ACCOUNTS. As additional security for
the punctual payment and performance of the
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Obligations (with the exception of obligations under consumer credit card
accounts), and as part of the Collateral, Pledgor hereby grants to Secured
Party a security interest in, and a pledge and assignment of, any and all
money, property (except immovable property), deposit accounts, accounts,
securities, documents, chattel paper, claims, demands, instruments, items or
deposits of the Pledgor, and each of them. After ten (10) days written notice
to the Pledgor, Secured Party may exercise its rights granted above at any time
when an event of default, as defined in Section 9 herein, has occurred.
Secured Party's rights and remedies under this paragraph shall be in addition
to and cumulative of any other rights or remedies at law and equity, including,
without limitation, any rights of setoff to which Secured Party may be
entitled.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. Pledgor
represents and warrants as follows:
A. USE OF THE COLLATERAL. The Collateral will be used by the
Pledgor primarily for business use.
B. OWNERSHIP; NO ENCUMBRANCES. Except for the security interest
granted hereby, the Pledgor is, and as to any property acquired after
the date hereof which is included within the Collateral, Pledgor will
be, the owner of all such Collateral free and clear from all charges,
liens, security interests, adverse claims and encumbrances of any and
every nature whatsoever.
C. ACCURACY OF INFORMATION. All information furnished to Secured
Party concerning Pledgor, the Collateral and the Obligations, or
otherwise for the purpose of obtaining or maintaining credit, is or
will be at the time the same is furnished, accurate and complete in
all material respects.
D. AUTHORITY. Pledgor has full right and authority to execute and
perform this Agreement and to create the security interest created by
this Agreement. The making and performance by Pledgor of this
Agreement will not violate any articles of incorporation, bylaws or
similar document respecting Pledgor, any provision of law or any
previous agreement of Pledgor.
E. ADDRESS, IDENTIFICATION. The address of Pledgor designated at
the beginning of this Agreement is Pledgor's place of business if
Pledgor has only one place of business; Pledgor's principal place of
business if Pledgor has more than one place of business; or Pledgor's
residence if Pledgor has no place of business. Pledgor agrees not to
change such address without advance written notice to Secured Party.
The Pledgor's correct Social Security Number or Tax Identification
Number is shown on the first page of this Agreement, and the
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Pledgor shall give notice to the Secured Party, immediately of any
change in that number. The Pledgor warrants to give notice to the
Secured Party, immediately should there be any change in Pledgor's
name or legal status.
F. CONTINUING OBLIGATIONS. The above representations and
warranties and all other representations and warranties contained in
this Agreement are and will be continuing in nature and will remain in
full force and effect until such time as this Agreement is cancelled
in the manner provided above.
SECTION 6. LOCATION OF COLLATERAL. The security interest of the Secured Party
will affect the Collateral wherever located. Except in the ordinary course of
business, Pledgor agrees not to remove or relocate or to permit the removal or
relocation of the Collateral from the State of Louisiana for a period in excess
of sixty (60) consecutive days without first obtaining the prior written
consent of the Secured Party. To the extent that the Collateral consists of a
titled motor vehicle or motor vehicles, the vehicle or vehicles will be kept at
the following address whenever not in use elsewhere: Xxxxxxx 00 Xxxxx,
Xxxxxxxx, XX 00000.
SECTION 7. PROHIBITIONS REGARDING THE COLLATERAL: So long as this Agreement
remains in effect, and to the extent applicable, Pledgor agrees not to, without
the prior written consent of Secured Party: (a) except in the ordinary course
of business, sell, assign, transfer, convey, option, mortgage or lease the
Collateral; (b) grant or permit any lien, encumbrance or other security
interest to be placed on or attached to the Collateral; (c) permit any of the
Collateral to be attached to real (and movable) property so as to become a
"fixture" within the context of LSA-R.S.10:9-313(l); (d) do any thing or
permit any thing to be done that may in any way impair the security interest
and rights of the Secured Party in and to the Collateral; or (e) modify,
adjust, compromise, settle, waive or forego any rights that Pledgor may have
with regard to the Collateral.
SECTION 8. GENERAL COVENANTS: Pledgor covenants and agrees as follows:
A. OPERATION OF THE COLLATERAL. Pledgor agrees to maintain and
use the Collateral solely in the conduct of its own business, in a
careful and proper manner, and in conformity with all applicable laws,
ordinances, regulations, permits and licenses. Pledgor shall comply in
all respects with all applicable statutes, laws, ordinances and
regulations.
B. CONDITION. Pledgor shall maintain, service and repair the
Collateral so as to keep it in good operating condition and shall pay
any charges due for the same. Pledgor will not make
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or permit to be made any alterations to the Collateral that may reduce
or impair Collateral's use or value.
C. ASSESSMENTS, TAXES. Pledgor shall promptly pay when due all
taxes, assessments, license fees, registration fees, and governmental
charges levied or assessed against Pledgor or with respect to the
Collateral or any part thereof. Pledgor will additionally provide the
Secured Party with evidence of such payment.
D. NOTICES AND REPORTS; RECORDS. Pledgor shall promptly notify
Secured Party in writing of any change in the name, identity or
structure of Pledgor, any charge, lien, security interest, claim or
encumbrance asserted against the Collateral, any material litigation
against Pledgor or the Collateral, any theft, loss, injury or similar
incident involving the Collateral, and any other material matter
adversely affecting Pledgor or the Collateral. Pledgor shall furnish
such other reports, information and data regarding Pledgor's financial
condition and operations, the Collateral and such other matters as
Secured Party may request from time to time. Pledgor will keep proper
books and records with regard to the business activities of Pledgor
and the Collateral subject to this Agreement.
E. LANDLORD'S WAIVERS. Pledgor shall furnish to Secured Party, if
requested, a landlord's waiver of all liens with respect to any
Collateral covered by this Agreement that is or may be located upon
leased premises, such landlord's waivers to be in such form and upon
such terms as are acceptable to Secured Party.
F. ADDITIONAL FILINGS. Pledgor agrees to execute and deliver such
financing statement or statements, or amendments thereof or
supplements thereto, or other documents as Secured Party may from time
to time require in order to comply with the Commercial Laws of
Louisiana, the Uniform Commercial Code (or other applicable state law
of the jurisdiction where any of the Collateral is located) and to
preserve and protect the Secured Party's rights to the Collateral.
G. PROTECTION OF COLLATERAL. Secured Party, at its option,
whether before or after default, but without any obligation whatsoever
to do so, may (a) discharge taxes, claims, charges, liens, security
interests, assessments or other encumbrances of any and every nature
whatsoever at any time levied, placed upon or asserted against the
Collateral, (b) place and pay for insurance on the Collateral,
including insurance that only protects Secured Party's interest, (c)
pay for the repair, improvement, testing, maintenance and preservation
of the Collateral, (d) pay all filing, recording, registration,
licensing or certification fees or other fees and charges
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related to the Collateral, or (e) take any other action to preserve
and protect the Collateral and Secured Party's rights and remedies
under this Agreement as Secured Party may deem necessary and
appropriate. Pledgor agrees that Secured Party shall have no duty or
obligation whatsoever to take any of the foregoing action. Pledgor
agrees to promptly reimburse Secured Party upon demand for any payment
made or any expense incurred by the Secured Party pursuant to this
authorization. These payments and expenditures, together with interest
thereon from date incurred until paid by Pledgor at the rate of
eighteen (18%) percent per annum until paid, which Pledgor agrees to
pay, shall constitute additional Obligations and shall be secured by
and entitled to the benefits of this Agreement.
H. INSPECTION. Pledgor shall at all reasonable times allow
Secured Party by or through any of its officers, agents, attorneys or
accountants, to examine the Collateral, wherever located, and to
examine and make extracts from Pledgor's books and records.
I. INSURANCE. Pledgor shall have and maintain insurance at
Pledgor's sole expense at all times with respect to all Collateral
insuring against risks of fire (including so-called extended
coverage), theft and other risks as Secured Party may require,
containing such terms, in such form and amounts and written by such
companies as may be satisfactory to Secured Party. Pledgor will name
Secured Party as a loss payee beneficiary under such insurance
policies, which policies must contain a non-contributory lender loss
payable endorsement in favor of Secured Party. Such policies of
insurance must also contain a provision prohibiting the cancellation
or alteration of such insurance without at least thirty (30) days
prior written notice to Secured Party. Pledgor further will provide
the Secured Party with originals or certified copies of such insurance
policies along with evidence that the Pledgor has paid the policy
premiums and all renewal premiums when due.
The Secured Party shall have the right to directly receive all
proceeds payable under such insurance policies and Secured Party is
hereby authorized to act as agent for Pledgor in obtaining, adjusting,
settling and cancelling such insurance and endorsing any drafts or
instruments. Should Pledgor receive any such insurance proceeds,
Pledgor will immediately turn such proceeds over to and pay the same
to Secured Party. Secured Party shall apply such insurance proceeds
(after payment of all reasonable costs, expenses and attorney fees
incurred by Secured Party) for the purpose of (a) repairing, replacing
or restoring the lost, stolen or damaged Collateral or (b) reducing
the outstanding balance of the Obligations. Pledgor specifically
authorizes Secured Party to disclose
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information from the policies of insurance to prospective insurers
regarding the Collateral.
SECTION 9. EVENTS OF DEFAULT: Pledgor shall be in default hereunder upon
the happening of any of the following events or conditions:
A. Failure by either Borrower or Pledgor to pay the principal of
or any installment of the principal of the Obligations when due, or
failure to pay any interest on the Obligations when due, and such
nonpayment shall have continued for a period of fifteen (15) days
after receipt of written notice thereof;
B. If any representation or warranty made in this Agreement or in
any certificate, financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have been
untrue or misleading in any material respect when made;
C. Default in the observance or performance of any covenant or
agreement contained in this Agreement, and if such default shall have
continued for a period of fifteen (15) days after receipt of written
notice thereof;
D. If either Borrower or Pledgor shall commence any case,
proceeding or other action (i) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution, composition or other relief with
respect to it or its debts; or (ii) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property, or either Borrower or Pledgor shall
make a general assignment for the benefit of its creditors; or (iii)
there shall be commenced against either Borrower or Pledgor any case,
proceeding or other action of a nature referred to in clauses (i) or
(ii) above or seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its property, which case, proceeding or other action results in the
entry of an order for relief or remains undismissed, undischarged or
unbonded for a period of 60 days; or (iv) either Borrower or Pledgor
shall take any action indicating its consent to, approval of, or
acquiescence in, or in furtherance of, any of the acts set forth in
clauses (i), (ii) or (iii) above; or (v) either Borrower or Pledgor
shall generally not, or shall be unable to, pay its debts as they
become due or shall admit in writing its inability to pay its debts;
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SECTION 10. REMEDIES: Upon the occurrence of any event of default and the
applicable notice thereof, if any, Secured Party, at its option, shall be
entitled to exercise any one or more of the following remedies (all of which
are cumulative):
A. DECLARE OBLIGATIONS DUE. Secured Party, at its option, may
declare the Obligations or any part thereof immediately due and
payable, without demand, notice of intention to accelerate, notice of
acceleration, notice of nonpayment, presentment, protest, notice of
dishonor, or any other notice whatsoever, all of which are hereby
waived by Pledgor and any maker, endorser, guarantor, surety or other
party liable in any capacity for any of the Obligations.
B. DEFAULT REMEDIES. Should any event of default occur, and in
addition to the rights of Secured Party with respect to possessory
collateral, Secured Party shall have the right, at its sole
discretion, to accelerate payment of all amounts that either Borrower
or Pledgor may then owe to Secured Party, which will then entitle
Secured Party to foreclose under this Agreement under ordinary or
executory process procedures, and to cause the Collateral to be
immediately seized wherever found, and sold with or without appraisal,
in regular session of court or in vacation, in accordance with
applicable Louisiana law, without the necessity of further demanding
payment from either Borrower or Pledgor or of notifying or either
Borrower or Pledgor placing either Borrower or Pledgor in default,
subject to the notice provisions in Section 8(D) herein. For purposes
of foreclosure under Louisiana executory process procedures, Pledgor
confesses judgment and acknowledges to be indebted to Secured Party up
to the full amount of the Obligations, in principal, interest, costs,
expenses, attorney's fees and other fees and charges, and all other
amounts secured by this Agreement.
Should the Collateral for any reason be located in another state at or
following any default under the Obligations or under this Agreement,
or should there be a subsequent change in Louisiana law permitting
self-help remedies with regard to non-possessory collateral, Pledgor
agrees that Secured Party may take possession of the Collateral in any
manner then permitted under the laws of the state in which the
Collateral is then located or under the laws of Louisiana as then
applicable. Should Secured Party for any reason have or acquire
possession of the Collateral at or following default, Secured Party
may sell the Collateral at public or private sale as authorized by
Louisiana law or the applicable provisions of the Uniform Commercial
Code or similar laws in effect in the state where the Collateral is
then located. If Secured Party is required by law to give Pledgor
notice of the public or private sale of the Collateral, Pledgor agrees
that the requirements of reasonable notice shall be met if the
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Secured Party mails such notice to Pledgor at Pledgor's address as
shown in this Agreement at least ten (10) days before the time of any
public sale or, if disposition is by private sale, at least ten (10)
days before the time after which private sale may occur. If public
sale is held, there will be sufficient compliance with all
requirements of notice to the public by a single publication in a
newspaper in general circulation in the parish or county where the
Collateral is then located. This notice should include the time and
place of sale, and a brief description of the property to be sold.
C. PROCEEDS; SURPLUS; DEFICIENCIES. Secured Party may apply any
proceeds derived or to be derived from the sale, collection or other
disposition of the Collateral first to the reimbursement of any
expenses incurred by Secured Party in connection therewith, including
the fees of Secured Party's attorney and court costs; and then to the
payment of any additional sums that Secured Party may advance on
Pledgor's and/or Borrower's behalf under this Agreement, together with
interest thereon at the rate of eighteen (18%) percent per annum; and
then to the payment of the Obligations in such order and with such
priority as Secured Party may determine within its sole discretion.
Pledgor shall be entitled to any surplus if one results after
application of the proceeds and the debtors to the obligations shall
remain liable for any deficiency.
D. EXPENSES. Pledgor shall be liable for and agrees to pay on
demand the reasonable expenses incurred by Secured Party in enforcing
its rights and remedies, in retaking, holding, testing, repairing,
improving, selling, leasing or disposing of the Collateral, or like
expenses, including, without limitation, attorney's fees and legal
expenses incurred by Secured Party. These expenses, together with
interest thereon at the rate of eighteen (18%) percent per annum from
the date incurred until paid by Pledgor, which Pledgor agrees to pay,
shall constitute additional Obligations and shall be secured by and
entitled to the benefits of this Agreement.
E. REMEDIES CUMULATIVE. The rights and remedies of Secured Party
are cumulative and the exercise of any one or more of the rights or
remedies shall not be deemed an election of rights or remedies or a
waiver of any other right or remedy. Pledgor agrees that nothing under
this Agreement shall limit or restrict the remedies available to
Secured Party following any event of default. Secured Party may remedy
any default and may waive any default without waiving the default
remedied or without waiving any other prior or subsequent default.
SECTION 11. PROTECTION OF SECURED PARTY'S SECURITY RIGHTS: Pledgor agrees to be
fully responsible for any losses that Secured
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Party may suffer as a result of anyone other than Secured Party
asserting any rights or interest in the Collateral. Pledgor further
agrees to appear in and defend all actions and proceedings purporting
to affect Secured Party's security rights and interest. Should Pledgor
fail to do what is required of it under this Agreement, or if any
action or proceeding is commenced naming Secured Party as a party, or
affecting Secured Party's security interest, or the rights and powers
granted under this Agreement, then Secured Party may, without
releasing Pledgor from any of its obligations, do whatever Secured
Party believes is necessary and proper within its sole discretion,
including advancing additional sums on Pledgor's behalf as provided
herein, to protect Secured Party's security rights and interests.
SECTION 12. OTHER AGREEMENTS:
A. USE OF COPIES; FILING FEES. Any carbon, photographic or other
reproduction of this Security Agreement or any financing statement
signed by Pledgor is sufficient as a financing statement for all
purposes, including without limitation, filing in any state as may be
permitted by the provisions of the Uniform Commercial Code of such
state. Pledgor agrees that Secured Party may file a carbon,
photographic, facsimile or other type of copy of this Agreement, or of
a UCC Financing Statement, in lieu of filing an original containing
the signature of Pledgor or of Pledgor's duly authorized
representative. Pledgor further agrees to reimburse Secured Party for
the cost of filing, amending, continuing, terminating and releasing
Pledgor's UCC Financing Statement(s), to the extent applicable, which
costs shall be considered additional Obligations secured under this
Agreement.
B. RELATIONSHIP TO OTHER AGREEMENTS. This Security Agreement and
the security interests (and pledges and assignments as applicable)
herein granted are in addition to (and not in substitution, novation or
discharge of) any and all prior or contemporaneous security
agreements, security interests, pledges, assignments, liens, rights,
titles or other interests in favor of Secured Party or assigned to
Secured Party by others in connection with the Obligations. All
rights and remedies of Secured Party in all such agreements are
cumulative, but in the event of actual conflict in terms and
conditions, the terms and conditions of the latest security agreement
shall govern and control.
C. NOTICES. Any notice or demand given by Secured Party to
Pledgor in connection with this Agreement, the Collateral or the
Obligations shall be deemed given and effective upon deposit in the
United States mail, postage prepaid, addressed to Pledgor at the
address of Pledgor designated at the
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beginning of this Agreement. Actual notice to Pledgor shall always be
effective no matter how given or received.
D. HEADINGS AND GENDER. Paragraph headings in this Agreement are
for convenience only and shall be given no meaning or significance in
interpreting this Agreement. All words used herein shall be construed
to be of such gender or number as the circumstances require.
E. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Louisiana.
F. EXEMPTIONS FROM SEIZURE. In entering into this Agreement,
Pledgor is, to the extent applicable, waiving any exemption from
seizure with regard to the Collateral to which Pledgor may be entitled
under applicable Louisiana law and the laws of the United States.
SIGNATURES: IN WITNESS WHEREOF, this Agreement is executed by the Secured party
at Santa Xxxxxxx County, Solvang, California on March 13, 1996 in the presence
of the undersigned two competent witnesses after due reading of the whole.
WITNESSES: The Xxxxxxxxx Foundation
/s/ XXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
/s/ XXXXX X. XXXXXXX President
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IN WITNESS WHEREOF, this Agreement is executed by the Pledgor at Dallas County,
Dallas, Texas, on March 15, 1996 in the presence of the undersigned two
competent witnesses after due reading of the whole.
WITNESSES: Xxxxxxx'x Thunder Karts, Inc.
/s/ XXXXXXX XXXXXXX By: V. XXXX XXXXXXXX
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V. Xxxx Xxxxxxxx
/s/ XXXXXX XXXXXXX President
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IN WITNESS WHEREOF, this Agreement is executed by the Borrower at Dallas
County, Texas, on March 15, 1996 in the presence of the undersigned two
competent witnesses after due reading of the whole.
WITNESSES: Karts International Incorporated
/s/ XXXXXXX XXXXXXX By: /s/ V. XXXX XXXXXXXX
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V. Xxxx Xxxxxxxx
/s/ XXXXXX XXXXXXXX President
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