Exhibit 10.26
VENDOR AGREEMENT
This Vendor Agreement ("Agreement") is made as of December 19, 2000 between
DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS"), having a principal place of
business at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and REDLINE
PERFORMANCE PRODUCTS, INC. ("Vendor"), having a principal place of business
located at 0000 Xxxxxxx Xxx Xxxxx, Xxxxxxxxxx 00000.
Vendor sells various products ("Merchandise") to dealers and/or
distributors (individually and collectively "Dealer") who may require financial
assistance in order to make such purchases from Vendor. To induce DFS to finance
the acquisition of Merchandise by any Dealer and in consideration thereof,
Vendor and DFS agree that:
1. VENDOR'S WARRANTIES. Whenever a Dealer requests the shipment of
Merchandise from Vendor and that DFS finance such Merchandise, Vendor may
deliver to DFS an invoice(s) describing the Merchandise. By delivery of an
invoice, Vendor warrants the following:
a. That Vendor transfers to Dealer all right, title and interest
in and to the Merchandise so described, contingent upon DFS' approval
to finance the transaction;
b. That Vendor's title to the Merchandise is free and clear of
all liens and encumbrances when transferred to Dealer;
c. That the Merchandise is in salable condition suitable for
ordinary retail sale, free of any defects;
d. That the Merchandise is the subject of a bona fide order by
Dealer placed with and accepted by Vendor, and that Dealer has
requested the transaction be financed by DFS; and
e. That the Merchandise subject to the transaction has been
shipped to Dealer not more than ten (10) days prior to the invoice
date.
If Vendor breaches any of the above-described warranties, Vendor will
immediately: (i) pay to DFS an amount equal to the total unpaid balance (being
principal and finance charges which have accrued to the date of vendors payment
to DFS) owed to DFS on all Merchandise related to the breach; and (ii) reimburse
DFS for all costs and expenses (including, but not limited to, reasonable
attorneys' fees) directly incurred by DFS as a result of the breach.
2. FINANCING OF MERCHANDISE. DFS will only be bound to finance
Merchandise which DFS has accepted to finance (such acceptances will be
indicated by DFS' issuance of an approval number, draft or other instrument to
Vendor in payment of the invoice, less the amount of DFS' charges as agreed upon
from time to time) and only if: (a) the Merchandise is delivered to Dealer
within thirty (30) days following DFS' acceptance; (b) DFS has received Vendor's
invoice for such Merchandise within ten (10) days from the date of delivery of
the Merchandise to Dealer; (c) DFS' approval number is on the invoice; and (d)
DFS has not revoked its acceptance prior to the shipment of the Merchandise to
Dealer. With respect to any invoice, if DFS has not advanced funds within thirty
(30) days of DFS' issuance of an approval number for such invoice, the invoice
shall be deemed not received by DFS and DFS shall not be bound to finance such
Merchandise.
3. PURCHASE OF MERCHANDISE. Whenever DFS deems it necessary in its sole
discretion to repossess or if DFS otherwise comes into possession, actual or
constructive, of any Merchandise in which it has a security interest or other
lien, Vendor will purchase such Merchandise from DFS at the
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time of DFS' repossession or other acquisition of possession in accordance with
the following terms and conditions:
a. Vendor will purchase any Merchandise in new and unused
condition, and any Merchandise subject to wear and tear incidental to
display and/or demonstration if DFS financed such merchandise under
Vendors approved demonstration program with DFS as outlined in the
Terms Letter between DFS and vender attached hereto as exhibit "A", at
the point where DFS repossesses it or where it otherwise comes into
DFS' possession;
b. The purchase price Vendor will pay to DFS for such
Merchandise will be due and payable immediately in full, and will be
an amount equal to (i) the total unpaid balance (being principal and
finance charges which have accrued to date of venders payment to DFS)
owed to DFS with respect to such Merchandise, or Vendor's original
invoice price for such Merchandise, whichever is greater, and (ii) all
costs and expenses (including, but not limited to, reasonable
attorneys' fees) paid or directly incurred by DFS in connection with
the repossession of such Merchandise; and
c. Vendor shall not assert or obtain any interest in or to any
Merchandise acquired by Vendor until the purchase price therefor is
paid in full.
4. ADDITIONAL TERMS OF PURCHASE. In addition to Vendor's obligations set
forth above, if DFS at any time repossesses or otherwise comes into possession
of any new and unused condition Merchandise and any merchandise subject to wear
and tear incidental to display and or demonstration if DFS financed such
merchandise under vendors approved demonstration program with DFS as outlined in
the Terms Letter between DFS and vender attached hereto as exhibit "A" from any
Dealer who received the Merchandise from a third party and not directly from
Vendor, Vendor shall purchase such Merchandise from DFS on demand, in accordance
with the terms set forth above in Section 3; provided, however: (a) DFS will
first request such third party to purchase such Merchandise from DFS; and (b) if
such third party fails to immediately purchase such Merchandise from DFS, Vendor
shall immediately purchase such Merchandise and pay DFS a purchase price
therefor in an amount equal to the total unpaid balance (being principal and
finance charges which have accrued to the date of vendors payment to DFS) owed
to DFS with respect to such Merchandise and all costs and expenses (including,
without limitation, reasonable attorneys' fees) directly paid or incurred by DFS
in connection with its repossession of such Merchandise, but in no event will
Vendor's liability with respect to any item of such Merchandise exceed Vendor's
invoice price for such item.
5. EXTENSION OF TIME; WAIVERS. DFS may extend the time of a Dealer in
default to fulfill its obligations to DFS without notice to Vendor and without
altering Vendor's obligations hereunder. Vendor waives any rights it may have to
notice of nonpayment, nonperformance, dishonor, the amount of indebtedness of a
Dealer outstanding at any time, any legal proceeding against a Dealer, and any
other demands and notices except as required by law, and any rights it may have
to require DFS to proceed against a Dealer or the Merchandise or to pursue any
other remedy in DFS' power. Vendor's liability to DFS is direct and
unconditional and will not be affected by any change in the terms of payment or
performance of any agreement between DFS and Dealer, or the release, settlement
or compromise of or with any party liable for the payment or performance
thereof, the release or non-perfection of any security interest granted DFS in
any agreement between DFS and Dealer, any change in Dealer's financial
condition, or the interruption of business relations between DFS and Dealer.
6. EXPENSES; RELEASE OF INFORMATION. Vendor will pay all DFS' reasonable
expenses (including, but not limited to, court costs, arbitration fees and
reasonable attorneys' fees) in the event DFS is required to enforce its rights
against Vendor. Vendor will release to DFS to the extent permitted
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under applicable law any credit, financial or other information on any Dealer
upon each request by DFS. Vendor will immediately notify DFS if Vendor
reasonably believes that Dealer has violated the material terms of any
franchise, permission, license or right to sell or deal in the Merchandise. DFS
agrees to indemnify and hold the vendor harmless from and against any and all
claims arising out of and related to DFS storage and use of information on
dealers disclosed by vendor at the request of DFS.
7. INVOICES. Invoices submitted to DFS by Vendor should indicate that
the Merchandise is "Sold to (Name of Dealer) and "Financed by Deutsche
Financial Services Corporation." However, if Vendor's invoices read "Sold to
Deutsche Financial Services Corporation", and, regardless of the invoice,
Vendor acknowledges and agrees that DFS is not purchasing Merchandise, but is
only financing said Merchandise for Dealer.
8. SUCCESSORS AND ASSIGNS; OBLIGATIONS. This Agreement will be binding
upon and inure to the benefit of DFS' successors and assigns. Vendor cannot
assign this Agreement without DFS' prior written consent. DFS may perform or
cause to be performed any or all of its obligations hereunder by any of its
subsidiaries and/or affiliated companies. Vendor's obligations under this
Agreement inure to the benefit of any of DFS' subsidiaries and/or affiliated
companies.
9. EVENTS OF DEFAULT. The occurrence of any of the following events
shall be deemed an "Event of Default" under this Agreement: (a) Vendor's
failure to pay when due any amount owed DFS hereunder or under any other
agreement between DFS and Vendor; (b) Vendor's failure to perform or observe
any covenant, term or provision hereunder or under any other agreement between
DFS and Vendor; (c) termination or impairment of any guaranty of Vendor's
obligations hereunder; (d) Vendor shall cease existence as a corporation,
partnership, limited liability company or trust, as applicable; (e) Vendor
ceases or suspends business; (f) Vendor makes a general assignment for the
benefit of creditors; (g) Vendor becomes insolvent or voluntarily or
involuntarily becomes subject to the Federal Bankruptcy Code, any state
insolvency law or any similar law; (h) any receiver is appointed for any assets
of Vendor; (i) Vendor sells, transfers or assigns all or substantially all of
its assets; (j) Vendor merges its business with another business, regardless of
whether Vendor is the surviving entity; or (k) there is any material adverse
change in Vendor's financial condition.
10. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of Default,
DFS shall have the right, at DFS' option, to immediately exercise one or more
of the following remedies: (a) refuse to extend any further financing to
Dealers; (b) terminate the Agreement; or (c) exercise any other rights it may
have under the laws of the state governing this Agreement.
11. FINANCIAL STATEMENTS. The performance of any obligations of DFS under
this Agreement is subject to: (i) DFS' receipt of Vendor's financial statement
as of December 31, 2000, and such other documents or information which DFS may
require from Vendor, and (ii) DFS' approval in writing of the institution of a
financing program for Vendor and Dealers, based on its review of such
documentation and information. Vendor will thereafter deliver to DFS, within
ninety (90) days after the end of each of Vendor's fiscal years, a reasonably
detailed balance sheet as of the last day of such fiscal year and a reasonably
detailed income statement covering Vendor's operations for such fiscal year, in
a form satisfactory to DFS.
12. TERMINATION. Either party may terminate this Agreement by notice to
the other in writing, the termination to be effective thirty (30) days after
receipt (which receipt is presumed to be five (5) business days after the same
is sent) of notice by the other party provided, however, that DFS may terminate
this Agreement immediately if an Event of Default has occurred. In any event,
no termination of this Agreement will affect any of Vendor's (or its assignees,
whether permitted or unpermitted) liability with respect to any financial
transactions entered into by DFS with any Dealer prior to the
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effective date of termination, including, without limitation, transactions that
will not be completed until after the effective date of termination.
13. MISCELLANEOUS. Vendor will notify DFS of any change in its name or
business structure. Vendor waives notice of DFS' acceptance of this Agreement.
This Agreement is not intended, nor shall it be deemed to, directly or
indirectly, benefit any person or entity, including any Dealer, who is not a
party hereto. If at any time any one or more of the provisions of this Agreement
becomes invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby. DFS' failure to exercise any
rights granted hereunder shall not operate as a waiver of those rights. The
rights of DFS under this Agreement are cumulative, may be exercised as often as
it considers appropriate, and are in addition to its rights under the general
law.
14. NO ORAL AGREEMENTS. There are no oral or unwritten agreements between
DFS and Vendor regarding the subject matter hereof. Vendor and DFS acknowledge
and agree that all agreements and understandings between them are set forth in
this Agreement and any terms letter(s) executed in connection herewith (as the
same may be revised from time to time without necessitating an amendment of this
Agreement) ("Terms Letter(s)") or in any other writing between the parties
relating hereto. The Terms Letter(s) are hereby incorporated into this Agreement
by reference and from a part of this Agreement.
15. BINDING ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, the relationship resulting in or from this
Agreement, the breach of any duties hereunder or any other relationship,
transaction or dealing between the parties (collectively "Disputes") will be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of The American Arbitration Association, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000. Except as otherwise stated herein, all notices,
arbitration claims, responses, requests and documents will be sufficiently given
or served if mailed or delivered: (a) to DFS at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel: and (b) to any other
party at the address specified herein; or such other address as the parties may
specify from time to time in writing. The parties agree that all arbitrators
selected will be attorneys with at least five (5) years secured transactions
experience. Any award rendered by the arbitrators(s) may be entered as a
judgment or order and confirmed or enforced by either party in any state or
federal court having competent jurisdiction thereof. The non-prevailing party
will pay all of the costs and expenses (including without limitation, reasonable
attorneys' fees) incurred by the prevailing party in any arbitration proceeding.
If either party brings or appeals any judicial action to vacate or modify any
award rendered pursuant to arbitration or opposes the confirmation of such award
and the party bringing or appealing such action or opposing confirmation of such
award does not prevail, such party will pay all of the costs and expenses
(including, without limitation, court costs, arbitrators fees and expenses and
attorneys' fees) incurred by the other party in defending such action.
Additionally, if either party brings any action for judicial relief in the first
instance without pursuing arbitration prior thereto, the party bringing such
action for judicial relief will be liable for and will immediately pay to the
other party all of the other party's costs and expenses (including, without
limitation, court costs and attorneys' fees) to stay or dismiss such judicial
action and/or remove it to arbitration. The failure of either party to exercise
any rights granted hereunder shall not operate as a waiver of any of those
rights. THE LAWS OF THE STATE OF CALIFORNIA WILL GOVERN THIS AGREEMENT AND ALL
TRANSACTIONS HEREUNDER AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS; PROVIDED, HOWEVER, THAT THE
FEDERAL ARBITRATION ACT ("FAA"), TO THE EXTENT INCONSISTENT, WILL SUPERSEDE THE
LAWS OF SUCH STATE AND GOVERN. This Agreement concerns transactions involving
commerce among the several states. The arbitrators will not be empowered to
award punitive damages. The agreement to arbitrate will survive termination of
this Agreement. IF THIS AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION,
EACH
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PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS LOCATED WITHIN SUCH
STATE AND AGREE THAT ALL LEGAL PROCEEDINGS WILL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. EACH PARTY WAIVES ANY RIGHT
TO A JURY TRIAL IN ANY SUCH PROCEEDING.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
Redline Performance Products, Inc.
ATTEST:
Xxxx Xxxxxxxx(3) By: /s/ Xxxxx Xxxxxxxx (2)
------------ ------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------
Title: Vice President
---------------------------
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By: Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------
Title: Regional Sales Manager
---------------------------
********
(1) Name of Vendor
(2) Signature of Vendor's Authorized Representative, if Vendor is a corporation,
an officer must sign
(3) Signature of Vendor's Secretary or Assistant Secretary, if Vendor is a
Corporation, if Vendor is a Sole Proprietor, the signature must be either
witnessed by a DFS employee or notarized if Vendor is a member-managed
Limited Liability Company, all members must sign and the signature must be
either witnessed by a DFS employee or notarized if Vendor is a Partnership,
also complete the Partnership Certificate -- Vendor Agreement if Vendor is a
Limited Liability Company, also complete the Limited Liability Company
Certificate -- Vendor Agreement
DO NOT COMPLETE THE NOTARY BELOW IF VENDOR IS A CORPORATION
NOTARY STATEMENT
On this ____ day of ____________, 20__, before me, the subscriber, a Notary
Public, personally appeared ____________________ known to me to be the
person(s) described in and who executed the above Vendor Agreement, and who
acknowledged the execution thereof to be their free act and deed.
Notary Public: __________________________
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[DEUTSCHE FINANCIAL SERVICES LETTERHEAD]
September 12, 2000
Xx. Xxxxx Xxxxxxxx
Vice President
Redline Performance Products, Inc.
0000 Xxxxxxx Xxx
Xxxxx, Xxxxxxxxxx 00000
Dear Xx. Xxxxxxxx:
The following outlines the proposed financing terms, which will apply to the
inventory financing program for Snowmobiles or any Redline Performance Products
manufactured/distributed by Redline Performance Products, Inc. and financed by
Deutsche Financial Services (DFS).
Program Name: Redline Performance Products FFP
-----------------------------------
Program Duration: Ongoing
-----------------------------------
Eligible Dealers: Approved DFS Dealers
-----------------------------------
Subsidized Flooring Period: Free Flooring until 12/01/2001
-----------------------------------
Funding: 10 days from receipt of invoice
-----------------------------------
Discount Rate: PAS N/A for each N/A days of Free Flooring
SPP N/A% for each N/A days of Free Flooring
The discount rate increases or decreases N/A
basis points with each corresponding N/A basis
points increase or decrease in the prime rate;
provided that the prime rate on which the discount
rate is calculated will not decrease below the
minimum Prime Rate of N/A
Current Prime Rate: 9.5%
-----------------------------------
Definition of Prime: Prime means the highest prime rate or reference
rate of interest publicly announced from time to
time by Chase Manhattan Bank, N.A., Chemical Bank
and Citibank, N.A., and such rate in effect on the
last business day of any calendar month will be
prime for the following calendar month, subject to
any minimum prime.
Advance Amount: 100.0%
-----------------------------------
Curtailments: None
-----------------------------------
Manufacturer Rate: Prime plus 2.50% with a .15% Monthly Handling Charge
Dealer Program: Prime plus 3% with a .25% Monthly Handling Charge
Thru Day 365
Maturity Rates: After Day 365 Prime plus 5.0% with .25 MHC
Our Invoices submitted to Deutsche Financial Services should indicate that the
inventory is "Sold to (Name of Dealer)" and "Financed by Deutsche Financial
Services," However, if your invoices say, "Sold To Deutsche Financial Services"
you hereby acknowledge the fact that Deutsche Financial Services is not
purchasing the inventory, but is only financing the inventory for the
particular dealer.
If the above program terms are acceptable, please sign and return this letter
to my attention. If you wish to discuss any elements of the program, I can be
reached at 000-000-0000. My fax number is 000-000-0000.
Sincerely,
DEUTSCHE FINANCIAL SERVICES
Xxxxxxx X. Xxxxxxxx
Regional Sales Manager
The terms as stated above are agreed to and accepted on this 8 day of November,
2000.
Redline Performance Products, Inc.
By /s/ Xxxxx Xxxxxxxx
[GE COMMERCIAL DISTRIBUTION FINANCE LETTERHEAD]
December 3, 2002
Xx. Xxxxx Xxxxxxxx
Redline
0000 Xxxxxxxx Xxx
Xxxxx, Xxxxxxxxxx 00000
Dear Xxxxx:
As per our recent conversation, General Electric bought Deutsche Financial
Services (DFS) effective November 1, 2002. Our new name is General Electric
Commercial Distribution Finance Corp. The documents you signed when we were
DFS, including the Vendor Agreement, are still valid. The documents were
designed to remain in effect in case of a DFS entity change.
We remain committed to being the inventory financing source for Redline
dealers. We are excited about the opportunity to work with you and the others
at Redline as you enter the motorsports market. We have a long history of
working with vendors and dealers in this industry.
If we can help you in any way, please do not hesitate to call us.
Best Regards,
/s/ Xxx Xxxxxx
Xxx Xxxxxx
Vice President of Marketing
