Exhibit 10.25
AMENDED AND RESTATED
SECURITY AGREEMENT
Redline Performance Products, Inc., a Minnesota corporation, with an
address of address 0000 Xxxxxxx, Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000,
(hereinafter called "Debtor") does hereby grant unto COMMUNITY NATIONAL BANK, a
banking corporation, which is organized and existing under the laws of the
United States (the "Bank"), at 0000 Xx. Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxx
00000 (hereinafter referred to as "Secured Party") a security interest in the
following described property:
All fixtures, furniture, equipment and personal property, accounts
receivable, patents, copyrights, snowmobiles, parts and accessories, and
any and all other property, whether tangible or intangible, together with
all proceeds therefrom and any additions or substitutions now owned or
hereafter acquired by the Debtor no matter where located other than
$150,000 in cash on deposit at Discovery Bank in San Marcos, California
and certain equipment to be purchased from Xxxx Xxxxxxxx by the Debtor in
the amount of $160,000 pursuant to a purchase money security interest,
(hereinafter the "Collateral")
to secure payment of all indebtedness of Debtor to Secured Party, including, but
not limited to that certain Amended and Restated Renewal Promissory Note dated
May 26, 2004, in the original principal amount of TWO MILLION AND NO/100THS
DOLLARS ($2,000,000.00) (hereinafter referred to as the "Note"). The Security
Interest granted hereunder shall remain in force until the Note is fully paid
and satisfied. The Security Interest shall also secure any and all advances, and
extensions and renewals of the Note, together will all other liabilities of
Debtor to Secured Party, whether primarily, secondarily, direct, contingent,
sole, joint or several, due or to become due or which may be hereafter
contracted or acquired and the performance by Debtor of all of the terms and
conditions of this Security Agreement (hereinafter referred to as
"Obligations").
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This Amended and Restated Security Agreement amends and restates the terms
set forth in the Security Agreement dated November 26, 2003, executed by Debtor
in favor of Secured Party.
DEBTOR WARRANTS, REPRESENTS AND AGREES THAT:
1.) Debtor is a registered business entity with the address set forth above
and is duly authorized to enter into this Agreement.
2.) Debtor is the owner of the Collateral free of all liens, encumbrances and
security interests except the security interest hereby created other than
$150,000 in cash on deposit at Discovery Bank in San Marcos, California and
certain equipment to be purchased from Xxxx Xxxxxxxx by the Debtor in the amount
of $160,000 pursuant to a purchase money security interest.
3.) Debtor will not sell or otherwise dispose of the Collateral or any
interest therein without the prior written consent of Secured Party, except
that, until the occurrence of an Event of Default and the revocation by Secured
Party of Debtor's right to do so, Debtor may utilize any proceeds constituting
the Collateral in the ordinary course of business and use.
4.) Debtor will (a) promptly pay 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; (b) keep all
Collateral free and clear of all security interests, liens, and encumbrances
except this Security Interest as defined herein; (c) 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 and to send and discuss with account debtors and other obligors'
requests for verifications of amounts owed to Debtor; (d) 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; (e) promptly notify
Secured Party of any loss of or material damage to any Collateral; (f) from time
to time execute such financing statements as Secured Party may reasonably
require in order to perfect the Security Interest; (g) 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 in each case all reasonable
attorneys' fees) incurred by Secured Party in connection with the protection,
defense or enforcement of the Security Interest or the 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; and
(h) execute, deliver or endorse any and all instruments, documents, assignments,
security agreements and other agreements and writings which 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. If Debtor at
any time fails to perform or observe any agreement contained herein, and if such
failure shall continue for a period of ten (10) business 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)
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and may (but need not) take any and all other actions which Secured Party may
reasonably deem necessary to cure or correct such failure (including, without
limitation, the payment of taxes, the satisfaction of security interests, liens,
or encumbrances, the performance of obligations under contracts or agreements
with account debtors or other obligors, the procurement and maintenance of
insurance, the execution of financing statements, the endorsement of
instruments, and the procurement of repairs, transportation or insurance); and,
except to the extent that the effect of such payment would be to render any loan
or forbearance of money usurious or otherwise illegal under any applicable law,
Debtor shall thereupon pay Secured Party on demand the amount of all moneys
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, 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
Agreement.
5.) Events of Default. Each of the following occurrences shall constitute an
event of default under this Agreement (herein called "Event of Default"): (a)
Debtor shall fail to pay any or all of the Obligations when due or (if payable
on demand) on demand, shall fail to observe or perform any covenant or agreement
herein binding on it or shall be in default under any loan or credit agreement
between it and the Secured Party; (b) any representation or warranty by Debtor
set forth in this Agreement or made to Secured Party in any financial statements
or reports submitted to Secured Party by or on behalf of Debtor shall prove
materially false or misleading; (c) a garnishment, summons or a writ of
attachment shall be issued against or served upon the Secured Party for the
attachment of any property of the Debtor or any indebtedness owing to Debtor and
such garnishment, summons or writ of attachment is not removed within 30 days of
attachment or filing; (d) Debtor or any guarantor shall (1) be or become
insolvent (however defined); or (2) voluntarily file, or have filed against it
involuntarily, a petition under the United States Bankruptcy Code; or (3) be
dissolved or liquidated; or (4) go out of business; provided the Secured Party
reasonably determines that such event results in a material adverse change to
the security of the Promissory Note; or (e) if an event of default occurs in any
of the terms of the Loan Documents as that term is defined in the Note and such
event is not cured within any applicable cure period.
6.) Remedies upon Event of Default. Ten (10) business days after the Debtor
receives notice of an Event of Default if such Event of Default is not cured
within such ten-day period, Secured Party may exercise any one or more of the
following rights and remedies: (a) declare all unmatured Obligations to be
immediately due and payable, and the same shall thereupon be immediately due and
payable, without presentment or other notice or demand; (b) 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 or by judicial
process (without a prior hearing or notice thereof, which Debtor hereby
expressly waives), and the right to sell, lease or otherwise
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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 which 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
herein) at least ten (10) business days prior to the date of intended
disposition or other action; (c) exercise or enforce any or all other rights or
remedies available to Secured Party by law or agreement against the Collateral,
against Debtor or against any other person or property or set forth in the Loan
Documents. Upon the occurrence of the Event of Default and expiration of the
ten-day period referenced herein, all Obligations shall be immediately due and
payable without demand or notice thereof.
7. Miscellaneous. 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. 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. 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 the most recent address shown on Secured
Party's records. 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. This Agreement shall be binding upon and
inure to the benefit of Debtor and Secured Party and their respective heirs,
representatives, 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. Secured Party may execute this Agreement if
appropriate for the purpose of filing, but the failure of Secured Party to
execute this Agreement shall not affect or impair the validity or effectiveness
of this Agreement. A carbon, photographic or other reproduction of this
Agreement or of any financing statement signed by the Debtor shall have the same
force and effects as the original for all purposes of a financing statement.
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. 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.
8. THE SECURED PARTY AND DEBTOR HEREBY VOLUNTARILY, KNOWINGLY AND
INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING UNDER THE LOAN DOCUMENTS OR CONCERNING THE INDEBTEDNESS
EVIDENCED HEREBY AND/OR ANY COLLATERAL SECURING SUCH INDEBTEDNESS, REGARDLESS OF
WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL OR TORTIOUS OR
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OTHER CLAIM. THE DEBTOR ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL IS A
MATERIAL INDUCEMENT TO THE SECURED PARTY IN EXTENDING CREDIT TO THE DEBTOR, THAT
THE SECURED PARTY WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL
WAIVER, AND THAT THE DEBTOR HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN
OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL
WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS WAIVER.
This Security Agreement made and entered on this 26th day of May, 2004.
Redline Performance Products, Inc.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President &
Chief Financial Officer
Community National Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx,
Executive Vice President
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