EXHIBIT 4.7
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS ("BLUE SKY
LAWS"). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, OR OTHER
DISPOSITION OF THIS BOND OR ANY INTEREST THEREIN MAY BE MADE EXCEPT (a)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
ANY APPLICABLE BLUE SKY LAWS OR (b) IF THE BORROWER HAS BEEN FURNISHED WITH
AN OPINION OF COUNSEL FOR THE HOLDER, WHICH OPINION AND COUNSEL SHALL BE
REASONABLY SATISFACTORY TO THE BORROWER, TO THE EFFECT THAT NO REGISTRATION
IS REQUIRED BECAUSE OF THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT AND APPLICABLE BLUE SKY LAWS.
UNITED STATES OF AMERICA
STATE OF MINNESOTA
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BELLE PLAINE, MINNESOTA
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(EXCELSIOR-▇▇▇▇▇▇▇▇▇ PROJECT)
SERIES 1998
R-1 $6,100,000
The 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"), for value received, hereby promises to
pay to FINOVA Public Finance, Inc., a Minnesota corporation (the "Lender"),
or its assigns (the Lender and any assigns are hereinafter referred to as the
"Holder"), at its designated principal office or such other place as the
Holder may designate in writing, but solely from the revenues derived from a
Loan Agreement, dated as of July 1, 1998 (the "Loan Agreement"), between the
Issuer and Excelsior-▇▇▇▇▇▇▇▇▇ Motorcycle Manufacturing Company, a Minnesota
corporation (the "Borrower"), providing for a loan of the proceeds from the
Bond to the Borrower, the principal sum of Six Million One Hundred Thousand
Dollars ($6,100,000), with interest at the rate of 10.40 % per annum (the
"Interest Rate"), interest commencing to accrue on the date of issue of the
Bond, in any coin or currency, which at the time or times of payment is legal
tender for the payment of public or private debts in the United States of
America. The principal and interest on this Bond is payable in installments
due as follows:
(a) On August 20, 1998, and thereafter on the first day of each
month thereafter to and including July 1, 1999, accrued and unpaid interest
only on the outstanding principal balance of the Bond shall be due and
payable.
(b) Commencing on August 1, 1999, and on the first day of each month
thereafter, through and including January 1, 2006, equal payments of
principal of and accrued and unpaid interest on the Bond shall be due and
payable in amounts sufficient to fully amortize the principal of the Bond by
January 1, 2006, at the Interest Rate.
(c) Payment of the entire unpaid principal balance of the Bond,
together with accrued but unpaid interest thereon, and all other indebtedness
due hereunder shall be payable on January 1, 2006 (the "Final Maturity Date").
1
EXHIBIT 4.7
(d) If the Borrower makes any partial prepayment permitted under
this Bond, the monthly payments due pursuant to this Bond shall be adjusted
to be equal to payments of principal of and interest on the Bond in amounts
sufficient to fully amortize the remaining principal of the Bond by January
1, 2006, at the Interest Rate.
All interest hereon shall be computed on the basis of a year of three hundred
sixty (360) days and charged for actual days principal is unpaid. If any
payment of principal or interest is not paid when due, each and every such
delinquent payment, including the entire principal balance and accrued
interest in the event of an acceleration of the Bond, shall bear interest to
the extent permitted by law at the rate of 18% per annum from its due date
until payment.
The Bond is subject to optional redemption prior to maturity, at the
election of the Borrower, in whole, at any time on or after September 1,
2000, at a redemption price equal to the principal amount of the Bond to be
redeemed, plus accrued interest to the date of redemption, plus a premium
(expressed as a percentage of the principal amount of the Bond outstanding as
of the date of redemption) determined in accordance with the following
schedule:
---------------------------------------------- -- --------------------------------------
Redemption Date Redemption Premium
---------------------------------------------- -- --------------------------------------
---------------------------------------------- -- --------------------------------------
September 1, 2000 - August 31, 2001 4.00 %
---------------------------------------------- -- --------------------------------------
September 1, 2001 - August 31, 2002 3.00 %
---------------------------------------------- -- --------------------------------------
September 1, 2002 - August 31, 2003 2.00 %
---------------------------------------------- -- --------------------------------------
September 1, 2003 - August 31, 2004 1.00 %
---------------------------------------------- -- --------------------------------------
September 1, 2004 and thereafter 0.00 %
---------------------------------------------- -- --------------------------------------
The Bond is subject to special optional redemption prior to
maturity, in part, on or before December 31, 1999, at the election of the
Borrower from "Excess Bond Proceeds." The term "Excess Bond Proceeds" means
up to $800,000 of the proceeds derived from the sale of the Bond, but in no
case an amount greater than the amount not disbursed under Section 7(b) of
the Escrow Deposit Agreement because of the Borrower's inability to provide
acceptable collateral pursuant to the terms of such Section 7(b).
The Bond is subject to mandatory redemption, in whole but not in
part, at its principal amount plus accrued interest to the date of redemption
upon occurrence of any of the following events: (a) all or substantially all
the Building (as defined in the Loan Agreement) shall have been damaged or
destroyed to such extent that in the reasonable opinion of the Holder, the
repair and restoration of the Building or use of a replacement building is
economically not practicable or cannot be accomplished within twelve months,
or (b) there occurs the condemnation of all or substantially all the Facility
(as defined in the Loan Agreement) or the taking by eminent domain of such
use or control of the Facility as to render it unsatisfactory to the Borrower
for its intended use for a period of time longer than twelve months and the
Borrower does not commence operations in a replacement Facility satisfactory
to the Borrower within twelve months.
Notice of redemption with respect to the Bond shall be mailed
first-class, postage prepaid, not less than thirty days prior to the
redemption date, to each holder of the Bond to be redeemed. If less than all
the Bond is subject to redemption, the Borrower shall determine and designate
the principal of the Bond to be redeemed.
2
EXHIBIT 4.7
This Bond is issued under and pursuant to authority granted by the
Minnesota Municipal Industrial Development Act, being Minnesota Statutes,
Section 469.152 to 469.1651, as amended (the "Act"), for the purpose of
providing funds for a project, as defined in Section 469.153, subd. 2, of the
Act, consisting of the acquisition and installation of certain equipment with
respect to the manufacturing business of the Borrower located in the City of
Belle Plaine, Minnesota (the "City"), and paying necessary expenses
incidental thereto, such funds to be loaned by the Issuer to the Borrower
pursuant to a resolution adopted by the Issuer (the "Resolution") and the
Loan Agreement, thereby assisting activities in the public interest and for
the public welfare of the City and the Issuer. This Bond is secured by, among
other instruments, an Assignment of Loan Agreement, dated as of July 1, 1998
(the "Assignment of Loan Agreement"), from the Issuer to the Lender and a
Security Agreement, dated as of July 1, 1998 (the "Security Agreement"), from
the Borrower to Lender.
This Bond and interest thereon and any penalty, premium, or other
indebtedness due hereunder are payable solely from the revenues and proceeds
derived from the Loan Agreement and the Security Agreement, and do not
constitute a debt of the City or the Issuer within the meaning of any
constitutional or statutory limitation, are not payable from or a charge upon
any funds other than the revenues and proceeds pledged to the payment
thereof, and do not give rise to a pecuniary liability of the City or the
Issuer (other than from proceeds derived from the Loan Agreement), or, to the
extent permitted by law, of any of its officers, agents, or employees, and no
Holder of this Bond shall ever have the right to compel any exercise of the
taxing power of the City or the Issuer to pay this Bond or the interest
thereon, or to enforce payment thereof against any property of the City or
the Issuer (other than proceeds derived from the Loan Agreement), and this
Bond does not constitute a charge, lien, or encumbrance, legal or equitable,
upon any property of the City or the Issuer (other than proceeds derived from
the Loan Agreement), and the agreement of the Issuer to perform or cause the
performance of the covenants and other provisions herein referred to shall be
subject at all times to the availability of revenues or other funds furnished
for such purpose in accordance with the Loan Agreement, sufficient to pay all
costs of such performance or the enforcement thereof.
On the date of issuance, the Issuer will register this Bond upon its
books. Upon such registration, this Bond shall be transferable upon the books
of the Issuer, by the Holder hereof in person or by its attorney duly
authorized in writing, upon surrender hereof together with a written
instrument of transfer satisfactory to the Issuer, duly executed by the
Holder or its duly authorized attorney; provided, however, that any
assignment, transfer, sale, or conveyance of this Bond shall be subject to
the limitations set forth in Section 7.8 of the Loan Agreement. Upon such
transfer the Issuer will note the date of registration and the name and
address of the new Holder upon the books of the Issuer and in the
registration blank appearing below. The Issuer may deem and treat the person
in whose name this Bond is last registered upon the books of the Issuer with
such registration also noted on the Bond, as the absolute owner hereof,
whether or not overdue, for the purpose of receiving payment of or on account
of the principal balance, redemption price, or interest, and for all other
purposes, and all such payments so made to the Holder or upon its order shall
be valid and effectual to satisfy and discharge the liability upon this Bond
to the extent of the sum or sums so paid, and the Issuer shall not be
affected by any notice to the contrary.
All of the agreements, conditions, covenants, provisions, and
stipulations contained in the Resolution, the Loan Agreement, the Security
Agreement, and the Assignment of Loan Agreement, or any instrument securing,
or executed in connection with the issuance of, this Bond are hereby made a
part of this Bond to the same extent and with the same force and effect as if
they were fully set forth herein. If an Event of Default occurs under the
Security Agreement, the Loan Agreement, or any such other instrument, then
the Holder of this Bond may at its right and option declare immediately due
and payable
3
EXHIBIT 4.7
the principal balance of this Bond and interest accrued thereon, and, to the
extent permitted by law, a prepayment premium of 4% of the outstanding
principal amount of the Bond but only if the Event of Default has occurred
and if the Holder has declared immediately due and payable the principal
balance of this Bond and interest accrued thereon on or before August 31,
2001, and thereafter a prepayment premium equal to the applicable redemption
premium for an optional redemption, together with any costs of collection
including attorneys' fees incurred by the Holder of this Bond in collecting
or enforcing payment hereof, whether suit be brought or not, and all other
sums due hereunder or under the Loan Agreement, or any instrument securing
this Bond.
The remedies of the Holder of this Bond as provided herein, and in
the Security Agreement, the Loan Agreement, or any other instrument securing,
or executed in connection with the issuance of, this Bond, shall be
cumulative and concurrent and may be pursued singly, successively, or
together, and, at the sole discretion of the Holder of this Bond, may be
exercised as often as occasion therefor shall occur; and the failure to
exercise any such right or remedy shall in no event be construed as a waiver
or release thereof.
The Holder of this Bond shall not be deemed, by any act of omission
or commission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by the Holder of this Bond, and then
only to the extent specifically set forth in the writing and if the Borrower
pays, upon the Holder's demand, $1,500 to the Holder as reimbursement for the
Holder's cost of providing such a waiver. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any
right or remedy as to a subsequent event. This Bond may not be amended,
modified, or changed except only by an instrument in writing signed by the
party against whom enforcement of any such amendment, modification, or change
is sought.
If any term of this Bond, or the application thereof to any person
or circumstances, shall, to any extent, be invalid or unenforceable, the
remainder of this Bond, or the application of such term to persons or
circumstances other than those to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Bond shall be valid and
enforceable to the fullest extent permitted by law.
This Bond is made with reference to, and shall be construed as, a
Minnesota contract and governed by the laws thereof.
IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and
things required to exist, happen, and be performed precedent to or in the
issuance of this Bond do exist, have happened, and have been performed in
regular and due form as required by law.
4
EXHIBIT 4.7
IN WITNESS WHEREOF, the Issuer has caused this Bond to be duly
executed by its duly authorized officers as of _______________, 1998.
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BELLE PLAINE, MINNESOTA
By
-------------------------------------
Its
------------------------------------
By
-------------------------------------
Its
------------------------------------
5
EXHIBIT 4.7
CERTIFICATE OF REGISTRATION
It is hereby certified that the undersigned has registered this Bond in the
name of the Holder, as indicated in the registration blank below, on the
books of the Issuer kept for that purpose.
--------------------------------------------------------------------------------------------------------
Name of Registered Signature of Issuer
Holder Date of Registration Official
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
6