Exhibit 10.28
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 secured 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 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 FIVE HUNDRED THOUSAND AND
NO/100THS DOLLARS ($500,000.00) (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 with all other
liabilities of Debtor to secured Party, whether primarily, secondary, 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 March 26, 2004, 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 a
first security interest running if favor of Secured Party and a security
interest in the original principal amount of One Million Nine Hundred Thirteen
Thousand and No/100ths Dollars ($1,913,000.00) running in favor of Secured
Party.
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; (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 creation, perfection, satisfaction,
protection, defense or enforcement of the Security Interest or the creation,
continuance, 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) calendar 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) and may (but need not) take
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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;
(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 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
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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) calendar
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. If this Agreement is signed by more than one person
as Debtor, the term "Debtor" shall refer to each of them separately and to both
or all of them jointly; all such persons shall be bound both severally and
jointly with the other(s); and the Obligations shall include all debts,
liabilities and obligations owed to Secured Party by any Debtor solely or by
both or all Debtors jointly or jointly and severally.
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
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COLLATERAL SECURING SUCH INDEBTEDNESS, REGARDLESS OF WHETHER SUCH ACTION OR
PROCEEDING CONCERNS ANY CONTRACTUAL OR TORTIOUS OR 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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