EXHIBIT 10.3
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ASSIGNMENT OF LOAN AGREEMENT
BY AND AMONG
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BELLE PLAINE, MINNESOTA,
FINOVA PUBLIC FINANCE, INC.
AND
EXCELSIOR-▇▇▇▇▇▇▇▇▇ MOTORCYCLE MANUFACTURING COMPANY
DATED AS OF JULY 1, 1998
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This instrument was drafted by:
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EXHIBIT 10.3
ASSIGNMENT OF LOAN AGREEMENT
THIS ASSIGNMENT OF LOAN AGREEMENT, dated as of July 1, 1998, is made and
entered into by and among Economic Development Authority of the City of Belle
Plaine, Minnesota, a public body corporate and politic and political
subdivision of the State of Minnesota (the "Issuer"), FINOVA Public Finance,
Inc. (the "Lender"), and Excelsior-▇▇▇▇▇▇▇▇▇ Motorcycle Manufacturing
Company, a Minnesota corporation (the "Borrower").
WHEREAS, the Issuer has authorized the issuance of, and sale to the
Lender of a Taxable Industrial Development Revenue Bond (Excelsior-▇▇▇▇▇▇▇▇▇
Project), Series 1998 (the "Bond"), in the principal face amount of Six
Million One Hundred Thousand Dollars ($6,100,000); and
WHEREAS, the Issuer has entered into a Loan Agreement, dated as of July
1, 1998 (the "Loan Agreement"), with the Borrower whereby the Issuer will
loan the proceeds from the sale of the Bond to the Borrower upon the terms
and conditions set forth in the Loan Agreement; and
WHEREAS, the Issuer is willing to provide further security for the
prompt payment of the principal, premium, if any, and interest due on the
Bond in order to induce the Lender to purchase the Bond and to advance funds
under the Bond.
NOW, THEREFORE, in order to induce the Lender to purchase the Bond and
to secure the due and punctual payment of the Bond and all other sums due the
Lender under any document securing or executed in connection with the Bond,
the Issuer hereby agrees with the Lender and the Borrower as follows:
1. The Issuer does hereby grant to Lender a security interest in all
of the Issuer's right, title, and interest in and to the Loan Agreement
(except its rights to indemnification and the payment of costs and expenses
provided in Sections 3.04, 4.02 and 7.07 of the Loan Agreement).
2. The Issuer hereby represents and warrants to the Lender that the
Issuer is the owner of the Loan Agreement and all rights incident thereto,
free and clear of any lien, security interest, or other encumbrance other
than the security interest arising under this Assignment of Loan Agreement.
3. The Issuer hereby authorizes the Lender to exercise, whether or not
an "Event of Default" has occurred under the Loan Agreement, either in the
Issuer's name or the Lender's name, any and all rights or remedies available
to the Issuer under the Loan Agreement, including without limitation the
right to modify the terms of the Loan Agreement and the Bond without the
prior consent of the Issuer; provided that the maturity date of the Bond
shall in no event be modified to a date that is more than thirty years after
the date of issue of the Bond, and further provided that so long as the Bond
is outstanding the Lender agrees that it will not make or approve a
modification of the Loan Agreement or the Bond if as a result thereof the
property financed with the proceeds of the Bond no longer constitutes a
"project" under the Act (as defined in the Loan Agreement). The Issuer
agrees, on request of the Lender, to execute and deliver to the Lender such
other documents or instruments as shall be deemed necessary or appropriate by
the Lender at any time to confirm or perfect the security interest hereby
granted. The Issuer hereby irrevocably appoints the Lender its
attorney-in-fact to execute on behalf of the Issuer, and in its name, any and
all such assignments, financing statements, or other documents or instruments
which the Lender may deem necessary or appropriate to perfect, protect, or
enforce the security interest hereby granted.
EXHIBIT 10.3
4. The Issuer will not:
(a) exercise or attempt to exercise any remedies under the Loan
Agreement (except those reserved to the Issuer under Section 1 hereof), or
terminate, modify, or accept a surrender of, or offer or agree to any
termination, modification, or surrender of the same, or by affirmative act,
consent to the creation or existence of any security interest or other lien
in the Loan Agreement to secure payment of any other indebtedness; or
(b) receive or collect or permit the receipt or collection of any
payments, receipts, rentals, profits, or other money under the Loan
Agreement, or assign, transfer, or hypothecate (other than to the Lender
hereunder) any of the same then due or to accrue in the future except for
payments received by the Issuer pursuant to Sections 3.04, 4.02, or 7.07 of
the Loan Agreement.
5. Whenever any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party; and all
the covenants, promises, and agreements in this Assignment of Loan Agreement
contained by or on behalf of the Issuer or the Lender shall bind and inure to
the benefit of the respective successors and assigns of such parties whether
so expressed or not.
6. The unenforceability or invalidity of any provision or provisions
of this Assignment of Loan Agreement shall not render any other provision or
provisions herein contained unenforceable or invalid.
7. This Assignment of Loan Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of
Minnesota. This Assignment of Loan Agreement may not be amended or modified
except in writing signed by the Issuer and the Lender.
8. This Assignment of Loan Agreement may be executed, acknowledged,
and delivered in any number of counterparts and each of such counterparts
shall constitute an original but all of which together shall constitute one
agreement.
9. The terms used in this Assignment of Loan Agreement which are
defined in the Loan Agreement shall have the meanings specified therein,
unless the context of this Assignment of Loan Agreement otherwise requires,
or unless such terms are otherwise defined herein.
10. No obligation of the Issuer hereunder shall constitute or give rise
to a pecuniary liability of the Issuer or a charge against its general credit
or taxing powers, but shall be payable solely out of the proceeds and the
revenues derived under the Loan Agreement. If, notwithstanding the
provisions of the immediately preceding sentence, the Issuer incurs any
expense or suffers any losses, claims, or damages or incurs any liabilities
directly related to the Facility or the Loan Agreement, the Borrower will
indemnify and hold harmless the Issuer from the same and will reimburse the
Issuer for any legal or other expenses incurred by the Issuer in relation
thereto, and this covenant to indemnify, hold harmless, and reimburse the
Issuer shall survive payment of the Bond.
EXHIBIT 10.3
IN WITNESS WHEREOF, the Issuer, the Lender, and the Borrower have hereunto
executed this instrument as of the date first above written.
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BELLE PLAINE, MINNESOTA
By
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Its
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By
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Its
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EXHIBIT 10.3
Assignment of Loan Agreement signature page.
FINOVA PUBLIC FINANCE, INC.
By
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Its
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EXHIBIT 10.3
The undersigned agrees to the provisions of paragraph 10 of this
Assignment of Loan Agreement and agrees that its obligations to indemnify and
hold harmless and reimburse the Issuer shall survive payment of the Bond.
EXCELSIOR-▇▇▇▇▇▇▇▇▇ MOTORCYCLE
MANUFACTURING COMPANY
By
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Its
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