Exhibit 10.22
COLLATERAL AND GUARANTY AGREEMENT
THIS COLLATERAL AND GUARANTY AGREEMENT (the "AGREEMENT") is made and
entered into effective as of the 30th day of March, 2004, by and between REDLINE
PERFORMANCE PRODUCTS, INC., a Minnesota corporation (the "COMPANY") and XXXXXX
XXXX, a resident of the State of North Dakota ("XXXX").
RECITALS
WHEREAS, the Company is in the business of designing, manufacturing and
selling powersports products such as snowmobiles and ATVs; and
WHEREAS, pursuant to a loan agreement by and between the Company and
Community National Bank (the "BANK") dated March 30, 2004 (the "LOAN
AGREEMENT"), the Bank will lend the Company Five Hundred Thousand Dollars
($500,000) (the "LOAN"); and
WHEREAS, the Loan is evidenced by a promissory note in the principal
amount of Five Hundred Thousand Dollars ($500,000) dated March 30, 2004 (the
"NOTE"), the payment of which is secured by a security interest in certain
property of the Company pursuant to a security agreement between the Bank and
the Company dated March 30, 2004 (the "SECURITY AGREEMENT"); and
WHEREAS, as a condition to the Loan, the Bank is requiring Xxxx to
guaranty and secure the Company's payment of the Note, and the performance of
all of the Company's obligations under the Loan Agreement, the Note and Security
Agreement (collectively, the "OBLIGATIONS"); and
WHEREAS, Xxxx is willing to execute a guaranty in the amount of Five
Hundred Thousand Dollars ($500,000) to guarantee, and to deposit with the Bank a
total of One Hundred Thousand Dollars ($100,000) to secure, the full performance
and complete satisfaction of the Obligations in accordance with the terms and
conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises contained herein and the mutual benefits to be gained by the
performance hereof, the parties hereto agree as follows:
1.) Agreement to Provide Guaranty. Xxxx shall execute a guaranty of the
Obligations in the amount of Five Hundred Thousand Dollars ($500,000) for the
benefit of the Company, which guaranty shall be in a form satisfactory and
acceptable to the Bank and the Company, in order to guarantee the performance
and complete satisfaction of any and all of the Obligations. Xxxx further agrees
to
take such actions in connection with the execution of such guaranty as may be
deemed necessary by the Bank to guarantee the full performance and complete
satisfaction of the Obligations.
2.) Agreement to Provide Collateral. Xxxx shall deposit with the Bank
the amount of One Hundred Thousand Dollars ($100,000) for the benefit of the
Company, which sum shall be collateral to secure the performance and complete
satisfaction of any and all of the Obligations (the "DEPOSIT"). Xxxx further
agrees to take such actions in connection with the Deposit as may be deemed
necessary by the Bank to secure the full performance and complete satisfaction
of the Obligations.
3.) Consideration for Agreement to Provide Guaranty and Collateral.
(a) Guaranty and Collateral Fee. In consideration for Xxxx'x provision
of the guaranty and collateral under this Agreement, the Company shall pay
Xxxx a monthly fee (the "GUARANTY AND COLLATERAL FEE") in an amount equal
to the difference between the monthly amount of interest that would be
payable under the Note at an annual percentage rate of twenty-four percent
(24%), and the monthly amount of interest paid to the Bank for the same
monthly period. The Guaranty and Collateral Fee shall be due and payable
by the Company to Xxxx not more than fifteen (15) days after the end of
each month.
(b) Initial Fee. As additional consideration for Xxxx'x agreement to
provide a guaranty and collateral under this Agreement, the Company shall
pay Xxxx an initial fee of Ten Thousand Dollars ($10,000) (the "INITIAL
FEE"), which represents two percent (2%) of Five Hundred Thousand Dollars
($500,000), the principal amount of the Loan. The Initial Fee shall be due
and payable by the Company to Xxxx not more than five (5) days after the
execution of this Agreement.
4.) Term; Termination and Effect of Termination. This Agreement shall
commence on the day and year first above written and shall continue until the
Company has fully performed and completely satisfied any and all of the
Obligations under and pursuant to the Note, Loan Agreement and Security
Agreement.
5.) Revocation of Guaranty; Withdrawal of Deposit. The guaranty provided
by Xxxx to the Bank may not be revoked by Xxxx, and the Deposit made by Xxxx
with the Bank may not be withdrawn, unless the Company fails to pay any amount
owing to Xxxx under the Agreement within five business days after due, or
materially breaches any provision of this Agreement and fails to cure such
breach within thirty (30) days after receiving written notice of such breach
from Xxxx, in which case, Xxxx shall have the right to revoke Xxxx'x guaranty
and withdraw the Deposit.
6.) Further Assurances. Xxxx hereby agrees for himself and his heirs,
executors, administrators, successors and assigns to execute and deliver any
further documents and instruments, and to perform any further acts, as may be
necessary or appropriate to carry out the purposes and intent of this Agreement
and any agreements contemplated hereunder.
7.) Confidentiality. Xxxx agrees that all information disclosed by the
Company to Xxxx shall be considered "Confidential Information." Xxxx agrees to
maintain the confidence of
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the Confidential Information and to prevent its unauthorized dissemination, and
not to use the Confidential Information for any purpose other than the business
relationship with the Company. Confidential Information shall not, however,
include information which: (i) is now or subsequently becomes generally known or
available by publication, commercial use or otherwise, through no fault of Xxxx,
or (ii) is lawfully obtained by Xxxx or from a third party without violation of
a confidentiality obligation. All Confidential Information remains the property
of the Company and no license or other rights in the Confidential Information is
granted hereby. Xxxx agrees to return to the Company immediately upon the
Company's request all Confidential Information, including but not limited to all
documentation, notes, plans and copies thereof. This Agreement and the
provisions hereof shall be Confidential Information, provided that the Company
may disclose this Agreement and the terms of this Agreement to the extent
reasonably required to comply with the Company's disclosure obligations under
the Securities Exchange Act of 1934, as amended, and regulations promulgated
thereunder.
8.) Remedies. Each of the parties to this Agreement acknowledges that
irreparable injury will result to the Company if Xxxx violates and fails to
promptly remedy any of Xxxx'x covenants or agreements in this Agreement, and
that it would be impossible to adequately ascertain or quantify the Company's
damages or be compensated therefor by money damages. The parties further
acknowledge that each such covenant or agreement is material. Xxxx agrees and
consents to the entry by a court of an injunction or other equitable remedy
enjoining Xxxx'x breach or threatened breach, or requiring the specific
performance of Xxxx'x obligations under this Agreement, without the necessity of
proof of actual damages respecting any such breach or threatened breach by Xxxx
and without bond or other security, and hereby waives the defense of the
availability of relief in damages. Xxxx expressly agrees that the Company shall
be entitled, in addition to damages and any other remedies provided by law, to
reimbursement from Xxxx of the Company's reasonable attorneys' fees and costs
incurred in successfully enforcing its rights under this paragraph.
9.) Miscellaneous.
(a) Binding Effect;. This Agreement shall be binding upon Xxxx and his
heirs, executors, administrators, successors and assigns.
(b) Entire Agreement; Modification. This Agreement constitutes the full
and complete understanding and agreement of the parties with respect to
the subject matter hereof, and supersedes and nullifies any prior or
contemporaneous understanding or agreement, whether written, oral or
communicated in any other type of medium, between the parties relating
thereto. No amendment or modification of any provision of this Agreement
shall be binding unless made in writing and signed by the parties hereto.
(c) Assignment. Neither the Company nor Xxxx may assign this Agreement
without the prior written consent of the other party, which consent shall
not be unreasonably withheld or delayed.
(d) Notices. To be effective, all notices, consents or other
communications required or permitted hereunder shall be in
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writing. A written notice or other communication shall be deemed to have
been given hereunder: (i) if delivered by hand, when the notifying party
delivers such notice or other communication to the other party; (ii) if
delivered by facsimile or overnight delivery service, on the first
business day following the date of such notice or other communication is
transmitted by facsimile or timely delivered to the overnight courier; or
(iii) if delivered by mail, on the third business day following the date
such notice or other communication is deposited in the U.S. mail by
certified or registered mail addressed to the other party. Mailed or faxed
communications shall be directed as follows unless written notice of a
change of address or facsimile number has been given in writing in
accordance with this section:
If to the Company: Redline Performance Products, Inc.
0000 Xxxxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn: President
Facsimile No.: (000) 000-0000
If to any Guarantor: Xxxxxx Xxxx
____________, North Dakota _________
Attn: Xx. Xxxxxx Xxxx
Facsimile No.: (___)
(e) Waiver. No waiver of any term, condition or covenant of this
Agreement by a party shall be deemed to be a waiver of any subsequent
breach of the same or other terms, covenants or conditions hereof by such
party.
(f) Construction; Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective or
valid under applicable law, but if any provision of this Agreement shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions
of this Agreement.
(g) Titles. Titles to sections and subsections of this Agreement are
solely for convenience of reference and do not modify or interpret any
provisions contained therein.
(h) Representation by Counsel; Interpretation. The Company and Xxxx each
acknowledge that they have been, or have had the opportunity to be,
represented by legal counsel in connection with this Agreement and the
matters contemplated by this Agreement. Accordingly, any rule of law or
any legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the party that drafted it has no
application and is expressly waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to affect the intent of the
parties.
(i) Arbitration. All disputes or claims arising out of, or in any way
relating to, this Agreement shall be submitted to and determined by final
and binding arbitration under
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the rules of the American Arbitration Association. Arbitration proceedings
may be initiated by the Company or Xxxx upon notice to the other and to
the American Arbitration Association, and shall be conducted by a panel
consisting of three (3) arbitrators under the rules of the American
Arbitration Association in Minneapolis, Minnesota or such other location
mutually agreed upon by the parties; provided, however, that the Company
and Xxxx may agree, following the giving of such notice, to have the
arbitration proceedings conducted by a single arbitrator. The notice must
describe, in general terms, the issues to be resolved in any such
arbitration proceeding. Each party to the arbitration proceedings shall
bear its own costs and its pro-rata share of the fees and expenses charged
by the arbitrators and the American Arbitration Association in connection
with any arbitration proceedings. Any final decision of the arbitrators
may be enforced in any court of competent jurisdiction. Notwithstanding
the foregoing, nothing shall prevent any party from obtaining equitable
relief from a court of competent jurisdiction.
(j) Governing Law; Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Minnesota, without regard to such state's choice of law provisions.
Actions or proceedings litigated in connection with this Agreement, if
any, shall be venued exclusively in the state and federal courts located
in the County of Hennepin, State of Minnesota.
(k) Counterparts. This Agreement may be executed in separate and several
counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Collateral and
Guaranty Agreement effective as of the day and year first above written.
COMPANY:
REDLINE PERFORMANCE PRODUCTS, INC.:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
XXXX:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, An Individual
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