Exhibit 10.26
AMENDED AND RESTATED
LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT is made and entered into as of
this 26th day of May, 2004, by and between Redline Performance Products, Inc., a
Minnesota corporation, (hereinafter referred to as the "Borrower") with an
address of 0000 Xxxxxxx, Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000 and
Community National Bank, a United States corporation, (Lender) with an address
of 0000 Xx. Xxxxx Xxxxx, Xxxxx Xxxxxx, XX 00000.
RECITALS:
A. Borrower has entered into a Contract Assembly Agreement with
Interstate Companies, Inc. ("Assembler") dated effective September 26, 2003
(Assembly Agreement) pursuant to which the Assembler will assemble the
Borrower's snowmobile ("Unit(s)") at an assembly facility located in the Fargo,
North Dakota metropolitan area (Project).
B. Lender has loaned to Borrower up to a total maximum amount of FIVE
HUNDRED THOUSAND AND NO/100THS Dollars ($500,000.00), ("Loan") and the parties
now desire to amend and restate the terms of the Loan, which Loan is for the
assembly and production of snowmobiles sold to dealers that are located in the
United States and that have been approved by GE Commercial Distribution Finance
Corporation ("Unit(s)") pursuant to the Assembly Agreement, which Loan is
evidenced by an Amended and Restated Renewal Promissory Note ("Renewal
Promissory Note") from Borrower to Lender in the principal amount of Five
Hundred Thousand and No/100ths ($500,000.00) and is secured by an amended and
restated security interest created by security agreements dated November 26,
2003, March 30, 2004, and May 26, 2004 in the property of Borrower ("Security
Agreement"). Payment of the Renewal Promissory Note and performance of
Borrower's obligations under the Loan Documents are guaranteed by Xxxxxx X. Xxxx
("Guaranty"), which Guaranty is secured by a
Third Party Pledge and Security Agreement in a certificate of deposit in the
original principal amount of One Hundred Thousand and No/100ths Dollars
($100,000.00) ("Third Party Pledge"). This Renewal Promissory Note is further
secured by an assignment of proceeds between Borrower and GE Commercial
Distribution Finance Corporation ("Assignment"). Borrower further agrees that
all payments to be made pursuant to the contract between Redline Performance
Products, Inc. and GE Commercial Distribution Finance Corporation effective as
of October 10, 2003, ("GE Contract") shall be made to Lender until this Note is
paid in full, and Borrower shall not direct those payments to any other parties
until this note is paid in full. All of such documents are hereinafter referred
to as the "Loan Documents" and are incorporated herein by reference.
C. The parties hereto desire to set forth the terms and conditions on
which the Loan shall be made.
AGREEMENT:
In consideration of the above recitals, of Lender's agreement to lend
funds to Borrower and of the mutual agreements set forth below, the parties
agree as follows:
1. All capitalized terms not otherwise defined in this Agreement shall
have the meanings given to them in the Loan Documents. All proceeds from the
Loan shall be used exclusively for the Project. Borrower further understands
that Lender intends to sell all or a part of the Loan to one or more
participants and, subject to compliance by all such parties with the
confidentiality provisions set forth in this Agreement, Borrower consents to the
dissemination of financial and other information concerning Borrower, Guarantor
and the Project to the contemplated and/or actual participants. The word "Unit"
as set forth in the Loan Documents shall mean one snowmobile sold to a dealer
located in the United States that has been approved by GE Commercial
Distribution Finance Corporation.
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2. Lender has loaned the principal sum of Five Hundred Thousand and
No/100ths ($500,000.00) to Borrower, which has a present principal balance owing
of Five Hundred Thousand and No/100th Dollars ($500,000.00). Lender and Borrower
desire to continue the loan in the principal amount of Five Hundred Thousand and
No/100ths ($500,000.00) pursuant to the terms and conditions set forth in the
Renewal Promissory Note and the other Loan Documents. In order to continue the
Loan, Borrower hereby agrees to comply with the following conditions:
(a) Borrower shall provide all documentation required by any of the Loan
Documents, Lender's loan commitment letter and/or Lender's normal banking
requirements.
(b) Borrower shall not be in default on any of the terms or conditions
of the Loan Documents.
(c) Borrower shall provide monthly inventory reports to Lender, which
shall include any obsolete inventory.
(d) Borrower shall provide monthly financial statements, including
accounts receivable and payable statements.
(e) Borrower shall provide reporting to the Bank on all shipped units on
a weekly basis.
(f) All interest outstanding as of the date of this Loan Agreement owed
by Borrower to Lender is paid in full.
3. Payments of interest only shall be made on the Renewal Promissory
Note commencing on June 26, 2004, and shall continue on the same date of each
month thereafter. On and after the date of the Renewal Promissory Note, Borrower
shall also pay to Bank the following principal payments:
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A. No portion of the proceeds received from the sale of each
("Unit") manufactured by Borrower to be sold to a dealer located in the
United States that has been approved by GE Commercial Distribution Finance
Corporation (hereinafter referred to as a ("Unit") for the first
Twenty-five (25) Units sold shall be required to be made to Bank as a
principal payment on the Renewal Promissory Note referenced herein; and
B. Following the sale of the first Twenty-five (25) Units the
Bank is to receive Seven Thousand and No/100ths Dollars ($7,000.00) from
the sale of each Unit sold to be applied to the outstanding principal
balance of the Renewal Promissory Note referenced herein and to a renewal
promissory note of the same date in the original principal amount of One
Million Nine Hundred Thirteen Thousand and No/100ths Dollars
($1,913.000.00) until Borrower has repaid the entire principal balances
plus interest on both Notes. Said Seven Thousand and No/100ths Dollars
($7,000.00) payments are to be applied on a prorata format according to
the remaining principal balances of both Notes, with 78.61%, or Five
Thousand Five Hundred Three and No/100ths Dollars ($5,503.00), of each
Seven Thousand and No/100ths Dollars ($7,000.00) payment to be applied to
the One Million Nine Hundred Thirteen Thousand and NO/100ths Dollars
($1,913.000.00) Note, and 21.39%, or One Thousand Four Hundred Ninety
Seven and No/100 Dollars ($1,497.00), of each Seven Thousand and no/100ths
Dollars ($7,000.00) payment to be applied to the Renewal Promissory Note
referenced herein.
C. If not sooner paid, all principal and interest shall be due
and payable in full on this Promissory Note on November 26, 2004, as a
BALLOON PAYMENT. This
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Promissory Note may be paid in full or in part at any time without
penalty. Any partial payment shall be applied first to outstanding
interest and the balance against principal.
4. Borrower shall pay to Lender an origination fee in the amount of the
Five Thousand and No/100ths Dollars ($5,000.00) to be paid as follows; Two
Thousand and No/100 ($2,000.00) to be paid upon execution of this agreement, and
Three Thousand and No/100 Dollars ($3,000.00) to be paid within fifteen days
(15) of the date of the execution of this agreement
5. It is expressly understood and agreed that Lender does not assume
any liability or responsibility for the satisfactory completion of the Project,
for the adequacy of funds advanced or disbursed, or for the quality of the work
completed.
6. The Parties agree that any material default in the terms of any one
of the Loan Documents and this Agreement which is not cured within Ten (10)
business days of receipt of notice of default shall be a default in the terms of
any and all of the Loan Documents.
7. THE LENDER AND BORROWER 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 OTHER
CLAIM. THE BORROWER ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL
INDUCEMENT TO THE LENDER IN EXTENDING CREDIT TO THE BORROWER, THAT THE LENDER
WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT THE
BORROWER 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.
8. Lender agrees that all information disclosed by Borrower to the
Lender regarding the Borrower and its products, business plans, business
opportunities, finances, research, development, know-how or personnel, and
confidential information disclosed to the Borrower by third parties, shall be
considered "Confidential Information." Lender agrees to maintain the confidence
of the Confidential Information and to prevent its unauthorized dissemination,
and not to use the Confidential Information for any purpose other than
consideration of the proposed business relationship with Borrower. Confidential
Information shall not, however, include
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information which: (i) is now or subsequently becomes generally known or
available by publication, commercial use or otherwise, through no fault of the
Lender; or (ii) is lawfully obtained by Lender from a third party without
violation of a confidentiality obligation. All Confidential Information remains
the property of the Borrower and no license or other rights in the Confidential
Information is granted hereby. Lender agrees to return to the Borrower
immediately upon the Lender'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 Borrower may disclose the terms of this Agreement and the Agreement to
the extent reasonably required to comply with Borrower's disclosure obligations
under the Securities Exchange Act of 1934, as amended, and regulations
promulgated thereunder.
9. This agreement shall be governed by the laws of the State of
Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the
day and year first above written.
BORROWER:
Redline Performance Products, Inc.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President & Chief
Financial Officer
LENDER:
Community National Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Executive Vice President
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