EXHIBIT 10.11
SECURITY AGREEMENT
This Security Agreement ("AGREEMENT") is dated as of the 22nd day of
December 1999, and is executed by CRAGAR INDUSTRIES, INC., a Delaware
corporation ("Debtor"), in favor of xxxxxxxxx, ("SECURED PARTY"). Capitalized
terms used herein but not otherwise defined herein are used with the meanings
set forth in that certain Loan and Security Agreement (as it may be amended
and modified from time to time) ("LOAN AGREEMENT") dated as of April 21,
1998, between Debtor and NATIONSCREDIT COMMERCIAL CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING DIVISION ("Lender").
1. For valuable consideration, and to secure the performance of the
obligations hereinafter described, Debtor hereby assigns to Secured Party,
and grants to Secured Party, pursuant to Article 9 of the Uniform Commercial
Code as adopted in Arizona, a security interest in and to the goods and
property described in EXHIBIT A attached hereto and incorporated herein by
this reference (all of which shall be collectively referred to herein as
"COLLATERAL").
2. This Agreement and the security interest created hereby are given
for the purpose of securing: (a) any and all rights of subrogation of Secured
Party against Debtor arising as a result of the exercise by Secured Party of
its rights and remedies under that certain Promissory Note (as it may be
amended and modified from time to time) dated as of December 22, 1999,
between Secured Party and Debtor; (b) performance of each agreement of Debtor
herein contained; (c) payment and performance of any additional existing or
future obligations of Debtor to Secured Party when evidenced by a writing or
writings reciting that they are so secured; and (d) any and all amendments,
modifications, increases, renewals and/or extensions of any of the foregoing.
3. Debtor represents, warrants and agrees that: (a) Debtor has and
will continue to have full title to the Collateral free from any liens,
leases, encumbrances, defenses or other claims except for those provided
under previously executed and duly filed Security Agreements and to Pledgors
under the Pledge Agreements made a part of the Loan Agreement; (b) Debtor
will execute all documents (including financing statements and motor vehicle
title applications) and take such other action as Secured Party deems
necessary to create and perfect a security interest in the Collateral; (c)
Debtor will, at its sole cost and expense, defend any claims that may be made
against the Collateral, except for those made by Secured Party pursuant to
the Promissory Note, other secured creditors pursuant to their respective
lending agreements and Pledgors under the Pledge Agreements; (d) the
Collateral shall be kept at, upon or about Debtor's address set forth herein,
and Debtor will not, without Lender's, Pledgors' other secured parties'and
Secured Party's prior written consent, part with possession of; transfer,
sell, lease, encumber, conceal or otherwise dispose of the Collateral or any
interest therein, except in the normal course of business; (e) the Collateral
will be maintained in good condition and repair, and will not be knowingly
used in violation of any applicable laws, rules or regulations; (f) Debtor
will pay and discharge all taxes and liens on the Collateral prior to
delinquency; (g) Debtor will maintain insurance on the Collateral covering
such risks and in such form and amount as may be required by Secured Party
from time to time, with insurers satisfactory to Secured Party and with loss
payable to Secured Party as its interest may appear, and upon request Debtor
will deliver the original of such policy or policies to Secured Party; (h)
Debtor will permit Secured Party to inspect the Collateral and Debtor's books
and records pertaining thereto at any time; and (i) the Collateral will at
all times remain personal property.
4. With respect to any of the Collateral consisting of accounts,
rights to payment, accounts receivable, and the like (collectively, the
"RECEIVABLES"), Debtor further represents, warrants and agrees that to the
best of Debtor's knowledge and belief: (i) the Receivables are genuine, valid
and enforceable in accordance with
their terms, and are not subject to any defenses, offsets or other claims;
(ii) Debtor has full title to the Receivables, and has not heretofore
transferred, conveyed, encumbered, assigned or released any interest therein,
except as provided in the Loan Agreements and the Pledge Agreements; and
(iii) Debtor will take all steps necessary to preserve and maintain the
Receivables and Debtor's interest therein.
5. Secured Party may, from time to time, request from obligors
indebted on the Collateral, if any, information concerning the same.
6. In the event that Debtor shall fail to perform any obligation
hereunder, Secured Party may, but shall not be obligated to, perform the
same, and the cost thereof shall be payable by Debtor to Secured Party
immediately and without demand, and shall bear interest at the rate of 12%
per annum.
7. Secured Party may, in the event of default by Debtor in so doing,
pay taxes, assessments, liens, fees, charges or encumbrances, or order and
pay for repairs or spend any amounts necessary to maintain the Collateral in
Debtor's exclusive possession and in good condition and repair, and all
amounts expended by Secured Party shall, with interest thereon at the rate of
12% per annum, constitute an indebtedness of Debtor to Secured Party secured
by the Collateral and by the terms of this Agreement and shall be immediately
due and payable, but no such act or expenditure by Secured Party shall
relieve Debtor from the consequences of such default.
8. There shall be a "DEFAULT" or "EVENT OF DEFAULT" hereunder upon
the occurrence of any of the following events: (a) any "EVENT OF DEFAULT", as
such term is defined in the Promissory Note; or (b) any "EVENT of DEFAULT",
as such term is defined in the Loan Agreement; or (c) any "EVENT OF DEFAULT",
as such term is defined in the Pledge Agreement; or (d) the breach of any
representation and warranty contained herein; or (e) the breach of any of the
terms, conditions or covenants contained herein.
9. Upon the occurrence of any default or event of default
hereunder, all obligations secured hereby shall, at Secured Party's option,
immediately become due and payable without notice or demand, and Secured
Party shall have in any jurisdiction where enforcement hereof is sought, in
addition to all other rights and remedies which Secured Party may have under
law, all rights and remedies of a secured party under the Uniform Commercial
Code and in addition the following rights and remedies, all of which may be
exercised with or without further notice to Debtor: (a) to settle, compromise
or release on terms acceptable to Secured Party, in whole or in part, any
amounts owing on the Collateral; b) to enforce payment and prosecute any
action or proceeding with respect to any and all of the Collateral; (c) to
extend the time of payment, make allowances and adjustments and issue credits
in Secured Party's name or in the name of Debtor; (d) to foreclose the liens
and security interests created under this Agreement or under any other
agreement relating to the Collateral by any available judicial procedure or
without judicial process; (e) to enter any premises where any Collateral may
be located for the purpose of taking possession of or removing any
Collateral; (f) to remove from any premises where any Collateral may be
located, the Collateral and any and all documents, instruments, files and
records relating to the Collateral, and Secured Party may, at Debtor's cost
and expense, use the supplies and space of Debtor at any or all of its places
of business as may be necessary or appropriate to properly administer and
control the Collateral or the handling of collections and realizations
thereon; and (g) to sell, assign, lease, or otherwise dispose of the
Collateral or any part thereof, either at public or private sale, in lots or
in bulk, for cash, on credit or otherwise, with or without representations or
warranties, and upon such terms as shall be acceptable to Secured Party, all
at Secured Party's sole option and as Secured Party in its sole discretion
may deem advisable. Debtor irrevocably appoints Secured Party its true and
lawful attorney in fact, which appointment is coupled with an interest, for
purposes of accomplishing any of the foregoing. The net cash proceeds
resulting from the collection, liquidation, sale, lease or other disposition
of the Collateral shall be applied, first, to the expenses (including
reasonable attorneys fees) of retaking, holding, storing, processing and
preparing for sale, selling, collecting, liquidating and the like, and then
to the satisfaction of all obligations and indebtedness secured hereby. Such
proceeds shall be applied to particular obligations and indebtedness, or
against principal or interest, in Secured Party's absolute discretion. Debtor
will, at Secured Party's request, assemble all Collateral and make it
available to Secured Party at such place or places as Secured Party may
designate which are reasonably convenient to both parties, whether at the
premises of Debtor or elsewhere, and will make available to Secured Party all
premises and facilities of Debtor for the purpose of Secured Party's taking
possession of the Collateral or removing or putting the Collateral in
saleable form. Debtor agrees to pay all costs and expenses incurred by
Secured Party in the enforcement of this Agreement, including without
limitation reasonable attorneys' fees, whether or not suit is filed hereon.
10. Upon the occurrence of any default or event of default
hereunder, Secured Party shall also have the following additional rights and
remedies with respect to the Receivables, all of which may be exercised with
or without further notice to Debtor: to notify any and all parties to any of
the Receivables that the same have been assigned to Secured Party and that
all performance thereunder shall thereafter be rendered to Secured Party; to
renew, extend, modify, amend, accelerate, accept partial performance on,
release, settle, compromise, compound, collect or otherwise liquidate or deal
with, on terms acceptable to Secured party, in whole or in part, the
Receivables and all of Debtors rights or interest therein; to enter into any
other agreement relating to or affecting the Receivables; to enforce
performance and prosecute any action or proceeding with respect to any and
all of the Receivables, and take or bring, in Secured Party's name or in the
name of Debtor, all steps, actions, suits or proceedings deemed by Secured
Party necessary or desirable with respect to the Receivables; and to exercise
all other rights, powers and remedies of Debtor with respect to the
Receivables; provided, however, that Secured Party shall be under no
obligation whatsoever to take any of the foregoing actions, and Secured Party
shall have no liability or responsibility for any act or omission taken with
respect thereto. Debtor hereby nominates and appoints Secured Party as
attorney-in-fact to perform all acts and execute all documents deemed
necessary by Secured Party in furtherance of the terms hereof.
11. If this Security Agreement is given to secure obligations of any
person or entity other than that of Debtor (such person or entity being
hereinafter referred to as "Principal"), Debtor waives notice of default,
presentment, demand for payment, protest, notice of protest, notice of
nonpayment or dishonor, and all other notices and demands of any kind
whatsoever; and Debtor consents and agrees that Secured Party may, from time
to time, without notice or demand and without affecting the enforceability or
security hereof: (a) take, alter, enforce or release any additional security
for the obligations secured hereby; (b) renew, extend, modify, amend,
accelerate, accept partial payments on, release, settle, compromise,
compound, collect or otherwise liquidate the obligations secured hereby or
any security therefor, and bid and purchase at any sale; (c) release or
substitute Principal or any guarantors of the obligations secured hereby; or
(d) amend, modify, waive, supplement or terminate the Loan Agreement or any
of the Loan Documents. Upon the occurrence of a default or an event of
default hereunder, Secured Party may enforce this Agreement independently of
any other remedy or security Secured Party may at any time hold in connection
with the obligations secured hereby, and it shall not be necessary for
Secured Party to proceed upon or against, and/or exhaust, any other remedy or
security before proceeding to enforce this Agreement. Until all obligations
secured hereby are paid in full, Debtor waives all right of subrogation and
all rights and remedies that Debtor may have or be able to assert by reason
of the laws of the State of Arizona pertaining to the rights and remedies of
sureties including, without limitation, A.R.S. Sections 12-1641 through
12-1646, and Arizona Rules of Civil Procedure 17(f).
12. Debtor further represents and warrants:
(a) The Collateral will be kept at Debtor's principal places of
business:
0000 Xxxxx 00xx Xxxxxx Xxxxxxx, Xxxxxxx 00000
(b) Debtor shall promptly notify Secured Party in writing of
any change in location of the Collateral, Debtor's place or places of
business.
(c) Debtor hereby acknowledges express intent to hereby waive
and abandon all personal property exemptions granted by law upon the
goods which are the subject of this Agreement. NOTICE: By signing
this Agreement, Debtor waives all rights provided by law to claim
such goods exempt from process.
13. This Agreement may not be altered or amended except with the
written consent of each of the parties. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, assigns and successors. The term "SECURED PARTY"
shall mean the holder and owner, including any pledgee or assignee, of the
obligations secured hereby whether or not named as the Secured Party herein.
14. All of Secured Party's rights and remedies hereunder are
cumulative and not exclusive, and are in addition to all rights and remedies
provided by law or under any other agreement between Debtor and Secured
Party, or otherwise. Where the context permits, the plural term shall include
the singular, and vice versa. Where more than one person, partnership,
corporation or other entity executes this Agreement as Debtor, their
liability hereunder shall be joint and several. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Arizona. Notice of acceptance hereof by Secured Party is hereby
waived by Debtor.
CRAGAR INDUSTRIES, INC., a Delaware corporation,
"DEBTOR"
By:
-------------------------------
Title:
-----------------------------
EXHIBIT A
COLLATERAL DESCRIPTION
This Security Agreement covers the following property (the
"COLLATERAL"):
(a) All shares of stock, common or preferred, of Xxxxxxxxxx.xxx,
Inc. now owned or hereafter acquired by Debtor.
(b) All of Debtor's accounts receivable, rights to payment,
accounts, notes, drafts, acceptances, instruments, documents of title, policies
and certificates of insurance, insurance claims, general intangibles and chattel
paper now existing or hereafter arising, herein called "Accounts". The terms
"accounts receivable", "rights to payment", "accounts", "notes", "drafts",
"acceptances", "instruments", "documents of title", "policies and certificates
of insurance", "insurance claims", "general intangibles", and "chattel paper"
shall include not only such thereof as arise out of the sale or other
disposition at any time and from time to time of inventory, goods, or equipment,
but also such thereof as arise out of or for furnishing services, or the
furnishing of, or the furnishing of the use of or lease of; any goods.
(c) All of the inventory of Debtor including without limitation
all goods, merchandise and other personal property and all parts, accessories,
additions or accessions thereto, now owned or hereafter acquired by Debtor,
which are held for sale or lease or are to be furnished under contract of
service, hereinafter called Inventory. The term "Inventory" as used herein means
goods, merchandise, raw materials, work in process, materials used or consumed
in Debtor's business, finished goods and other personal property and all parts,
accessories, additions or accessions thereto, and products thereof and all
documents of title evidencing any part thereof; now owned or hereafter acquired
by Debtor, which are held for sale or lease or are to be furnished under
contracts of service, and shall also include any of the foregoing items used by
Debtor for demonstration, executive, or similar purposes to the end that no
goods of the type which are "Inventory" under the foregoing definition shall be
deemed to be excluded therefrom because they are for a long or short period not
actually held or offered for sale, lease or otherwise.
(d) All interest of Debtor now existing or hereafter arising in
goods or merchandise as to which an account receivable for goods sold or
delivered has arisen.
(e) All present and future furniture, fixtures, goods and
equipment, as those terms are defined in the Uniform Commercial Code, of every
type now owned or hereafter acquired by Debtor, complete with accessories,
attachments, accessions, repairs, replacements, parts and equipment now or
hereafter owned, attached or appertaining thereto or commingled or used in
connection therewith, or substituted therefor.
(f) All of Debtor's rights under all insurance policies covering
the Collateral and any and all proceeds, loss payments, and premium refunds
payable regarding the same.
(g) All causes of action claims, compensation, and recoveries
for any damage to, or destruction of the Collateral, or any part thereof;
whether direct or consequential, or for any damage or injury to the Collateral,
or for any loss or diminution in value of the Collateral.
(h) All proceeds from the sale or disposition of any of the
aforesaid Collateral. "Proceeds" as herein used includes not only case proceeds
but also all accounts, accounts receivables, notes, drafts, acceptances, chattel
paper and other forms of obligations and receivables which at any time
constitute all or part or are included in the
proceeds of the Collateral.
(i) All books and records now owned or hereafter acquired by
Debtor pertaining to any of the above-described Collateral, including but not
limited to any computer-readable memory and any computer hardware or software
necessary to process such memory.
