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EXHIBIT 10.26
FIRST AMENDMENT TO
LOAN AGREEMENT AND LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN AGREEMENT AND LOAN DOCUMENTS ("Amendment")
dated as of the 31st day of January, 2000, is made and entered into on the terms
and conditions hereinafter set forth, by and among Bikers Dream, Inc. ("BDI"), a
California corporation, and Ultra Motorcycle Company ("UMC"), a Nevada
corporation, formerly known as Ultra Acquisition Corporation (individually and
collectively "Borrower") and FINOVA Mezzanine Capital Corporation, a Tennessee
corporation ("Lender"), formerly known as Sirrom Capital Corporation.
RECITALS:
WHEREAS, Lender has previously made a term loan to Borrower in the
original principal amount of Four Million Five Hundred Thousand and No/100ths
Dollars ($4,500,000.00) on the terms and conditions set forth in that certain
Loan Agreement dated June 22, 1998, by and between Lender and Borrower (the
"Loan") (the Loan Agreement as now or hereafter amended, is hereinafter referred
to as the "Loan Agreement"); and
WHEREAS, the Loan is further evidenced and secured by certain
agreements, documents and instruments as more particularly described in the Loan
Agreement (the "Loan Documents"); and
WHEREAS, this Amendment shall amend the Loan Documents.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrowers and Lender hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined shall have
the meanings ascribed thereto in the Loan Agreement.
2. Lender hereby consents to the sale by BDI pursuant to that Asset
Purchase Agreement dated as of January 18, 2000, among BDI and V-Twin Holdings,
Inc., a District of Columbia corporation, formerly known as V-Twin Acquisitions,
Inc. (the "Asset Purchase
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Agreement."). Upon satisfaction of the Closing Conditions (as hereinafter
defined), Lender shall execute appropriate releases of Lender's security
interest in the assets of BDI being sold under the Asset Purchase Agreement.
3. Each Borrower hereby represents and warrants to Lender that all of
the representations made in Section 2 of the Loan Agreement are true and correct
as of the date hereof, except as modified or supplemented by Schedule A attached
hereto and incorporated herein by this reference.
4. Each Borrower hereby represents and warrants to Lender that the
address(es) set forth on Schedule B attached hereto and incorporated herein by
this reference is the principal place of Borrower's business and the location of
all tangible collateral and the place where the records concerning all
intangible collateral are kept and/or maintained.
5. Each Borrower hereby represents and warrants to Lender that Schedule
C attached hereto is a complete and correct list of all credit agreements,
indentures, purchase agreements, promissory notes and other evidences of
indebtedness, guaranties, capital leases and other instruments, agreements and
arrangements presently in effect providing for or relating to extensions of
credit (including agreements and arrangements for the issuance of letters of
credit or for acceptance financing) in respect of which the Borrower or any of
its properties is in any manner directly or contingently obligated and the
maximum principal or face amounts of the credit in question that are outstanding
and that can be outstanding are correctly stated, and all liens of any nature
given or agreed to be given as security therefor are correctly described or
indicated in Schedule C.
6. Notwithstanding anything to the contrary contained in the Loan
Documents, without the prior written consent of Lender, Borrower shall not
create, incur, assume or suffer to exist indebtedness of any description
whatsoever, excluding:
(a) the indebtedness evidenced by the Loan Documents;
(b) the endorsement of negotiable instruments payable to Borrower
for deposit or collection in the ordinary course of business;
(c) capitalized leases and purchase money indebtedness incurred in
the ordinary course of business provided that the aggregate
amount of such items incurred on or after the date hereof shall
not exceed $250,000 at any time;
(d) trade payables incurred in the ordinary course of business; and
(e) the indebtedness listed on Schedule C.
7. Notwithstanding anything to the contrary contained in the Loan
Documents, without prior the written consent of Lender, Borrower shall not
create, incur, assume or suffer to exist any lien, security interest, security
title, mortgage, deed of trust or other encumbrance
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upon or with respect to any of its assets, now owned or hereafter acquired,
except the following permitted liens:
(a) liens in favor of Lender;
(b) liens for taxes or assessments or other governmental charges or
levies if not yet due and payable or being contested in good
faith by appropriate proceedings and for which reserves
determined in accordance with GAAP have been provided on the
books of the Borrower;
(c) purchase money liens and liens on leased equipment granted in
connection with the leasing of such equipment in favor of the
lessor of such equipment, provided that the aggregate amount of
such items incurred on or after the date hereof shall not exceed
$250,000 at any time;
(d) Those existing liens, if any, described on Schedule C;
(e) mechanics', materialmen's, warehousemen's, landlords', carriers'
or other like liens arising in the ordinary course of business,
arising with respect to obligations which are not overdue for a
period of longer than 90 days or which are being contested in
good faith by appropriate proceedings and for which reserves
determined in accordance with GAAP have been provided on the
books of the Borrower; and
(f) deposits or pledges to secure the performance of bids, tenders,
contracts, leases, public or statutory obligations, surety or
appeal bonds or other deposits or pledges for purposes of a like
general nature or given in the ordinary course of business by a
Borrower.
8. Notwithstanding anything to the contrary contained in the Loan
Documents, without the prior written consent of Lender, Borrower shall not
guarantee nor be liable in any manner, whether directly or indirectly, or become
contingently liable in connection with the obligations or indebtedness of any
person or entity whatsoever, except for the endorsement of negotiable
instruments payable to Borrower for deposit or collection in the ordinary course
of business. Without the prior written consent of Lender, Borrower shall not (a)
make any loan, advance or extension of credit to any person other than in the
normal course of its business, or (b) make any payment on any subordinated debt
other than trade payables incurred in the ordinary course of Borrower's
business.
9. Notwithstanding anything to the contrary contained in the Loan
Documents, without the prior written consent of Lender, Borrower shall not (a)
be a party to any merger, consolidation or corporate reorganization, nor (b)
purchase or otherwise acquire all or substantially all of the assets or stock
of, or any partnership or joint venture interest in, any other person, firm or
entity, nor (c) sell, transfer, convey, or lease all or any substantial part of
its assets, nor (d) create any subsidiaries nor convey any of its assets to any
subsidiary.
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10. Lender's consent issued in this instrument and all other provisions
hereof shall become effective only upon the delivery to Lender of the following
documents, in form and substance acceptable to Lender:
(a) This Amendment, executed by the Borrowers indicated as parties
hereto.
(b) Collateral Assignment of Promissory Note in the form attached hereto
as Schedule D attached hereto;
(c) Stock Pledge Agreement in the form attached hereto as Schedule E
attached hereto; (d) Opinions of Borrower's counsel.
(e) Certified copies of resolutions authorizing the sale and credit
transactions described in this Amendment.
(f) Certificates of existence or good standing issued with respect to
the Borrowers;
(g) Closing Statement providing for the payment of Lender's expenses.
providing for the payment of Lender's expenses in connection with the
transactions described herein;
(h) UCC Financing Statements in form and substance acceptable to Lender;
and
(i) Such other documents or matters as Lender may reasonably request.
11. Borrowers warrant and represent that (a) the Loan Documents are
valid, binding and enforceable against Borrowers according to their terms,
subject to principles of equity and laws applicable to the rights of creditors
generally, including bankruptcy laws, (b) no default or Event of Default
presently exists under the Loan Documents and no condition presently exists
which, with the giving of notice, the passing of time, or both, would cause such
a default or Event of Default. Borrowers further acknowledge that Borrowers'
obligations evidenced by the Loan Documents are not subject to any counterclaim,
defense or right of setoff, and Borrowers hereby jointly and severally release
Lender from any claim, known or unknown, that any Borrower may have against
Lender as of the execution of this Amendment.
12. The terms "Loan Document" and "Loan Documents" as defined in the
Loan Agreement are amended to include this Amendment.
13. This Amendment may be executed in any number of counterparts and by
different parties to this Amendment in separate counterparts, each of which when
so executed
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shall be deemed to be an original and all of which taken together shall
constitute one and the same Amendment.
14. Except as modified and amended hereby, the Loan Documents shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers, as
of the day and year first above written.
LENDER:
FINOVA MEZZANINE CAPITAL INC.,
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Vice President
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BORROWERS:
BIKERS DREAM, INC.
a California corporation
By: /s/ X. Xxxxxxxx
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Title: CEO
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ULTRA MOTORCYCLE COMPANY.
a Nevada corporation
By: /s/ X. Xxxxxxxx
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Title: CEO
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SCHEDULE A
Modifications of and Supplements to
Representations and Warranties
Schedule 2.2(a)
The authorized capital stock of the Company consists of (i) 10,000,000 shares of
Preferred Stock, no par value, of which 702,194 shares of Series B Preferred
Stock and 1,750 shares of Series D Preferred Stock are outstanding as of January
20, 2000; and (ii) 25,000,000 shares of Common Stock, no par value, of which
5,749,432 are outstanding as of January 20, 2000.
Schedule 2.2(b)
As of January 20, 2000, the Company has 702,194 shares of Series B Preferred
Stock outstanding which is convertible into 140,439 shares of Common Stock, plus
accrued dividends.
As of January 20, 2000, the Company has 1,750 shares of Series D Preferred Stock
outstanding with a stated value of $1,000 per share which are convertible into
an indeterminate number of shares of Common Stock . The number of shares of
Common Stock issuable upon conversion of each share of Series D Preferred Stock
shall equal (i) the sum of (A) the stated value per share and (B) accrued and
unpaid dividends on such share, divided by (ii) the Conversion Price. The
Conversion Price is equal to the lesser of: (i) 110% of the average of the
closing bid price of the Company's Common Stock for the trading day immediately
preceding the date of issuance of the shares of Series D Preferred Stock ; or
(ii) at 90% of the average of the four lowest Closing Bid Prices for the 22
trading days immediately preceding the conversion of the respective shares of
Series D Preferred Stock. The Closing Bid Price means the closing bid price of
the Company's Common Stock as reported by NASDAQ or the principal exchange or
market where traded. The terms of the Series D Preferred Stock are set forth in
a Certificate of Determination filed with the Secretary of State of California.
As of January 20, 2000, there are no shares of Series A Preferred Stock or
Series C Preferred Stock outstanding.
As of January 20, 2000, the Company also has (i) 1,472,583 warrants at exercise
prices ranging from $1.82 to $5.00 and (ii) 1,171,894 options at exercise prices
ranging from $1.75 to $7.50, of which 597,494 are vested.
Section 2.5
See description in litigation section regarding Cana Capital.
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$300,000 unsecured promissory note to MD Strategic L.P., a partnership
affiliated with Xxx Xxxxx, a former director of Bikers Dream. This note (on
which there is accrued approximately $82,200 in interest and fees) was assigned
in January 2000 to W3 Holdings, Inc. W3 Holdings has extended the term to March
31, 2000.
Purchase money indebtedness and capital leases as permitted by the First
Amendment to Loan Agreement.
Section 2.6
Please see attached description of litigation.
Section 2.7
The consolidated financial statements of Bikers Dream have been updated in
reports on Form 10QSB/A for the quarters ended March 30, 1998, June 30, 1998 ,
September 30, 1998 and March 30, 1999 and Form 10KSB/A for the fiscal year ended
December 31, 1998, all as filed with the Securities and Exchange Commission on
August 17, 1999, Form 10QSB for the quarter ended June 30, 1999 filed with the
Commission on August 23, 1999 and Form 10QSB for the quarter ended September 30,
1999 filed with the Commission on November 22, 1999.
Section 2.8
Bikers Dream's common stock is listed for trading on the Nasdaq Small Cap
Market.
Section 2.9
All of Bikers Dream's Series C Preferred Stock, and accrued dividends thereon,
has been converted into Common Stock. As of the date hereof, 310 shares of
Series D Preferred Stock (having a stated value of $310,000) plus accrued
dividends thereon, have been converted into a total of 566,940 shares of common
stock. See also Schedule 2.2(b), Schedule 2.5 and Schedule 2.6.
Schedule 2.10
See Schedule 2.6.
Schedule 2.15
Pursuant to a report of Bikers Dream's intellectual property counsel dated
December 21, 1999, J&B Fabrications, Inc. has threatened a lawsuit relating to
alleged patent infringement and Xxxxxx Act claims. As of December 21, 1999,
intellectual property counsel has negotiated most of the terms of the settlement
except for plaintiff's demand for $25,000 in cash.
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Schedule 2.24
Bikers Dream has an registration rights obligations under its agreements with
the holders of its Series D Convertible Preferred Stock.
Schedule 2.27
All material employment contracts and employee stock option plans by which
Bikers Dream is bound are disclosed in its public filings with the Securities
and Exchange Commission. Bikers Dream has a noncontributory 401(k) plan and
medical plan for its employees.
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SCHEDULE B
Location of Principal Place
of Business and Collateral
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
In addition to the Company's headquarters (which are now located at 0000 Xxxxxx
Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000) and the 5 company superstore locations
(which will be sold pursuant to the Asset Purchase Agreement), the Company sends
out certain parts for finishing to third party processors: Xxxxxxx (motor
polishing; at any one time, from 75 to 100 motors valued at $3,200 each);
Jericho (frames sent out for powder coating; at any one time, up to $45,000 to
$50,000 worth of frames) and ; other outside processors, which in the aggregate
do not exceed $20,000 worth of inventory
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SCHEDULE C
Debts and Liens
See updates to reps and warranties
[Lien schedule to be attached by Xxxxxx]
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XXXXXXXX X
Collateral Assignment of Promissory Note
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SCHEDULE E
Stock Pledge Agreement
