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EXHIBIT 10.32
COLLATERAL ASSIGNMENT OF PROMISSORY NOTE
This Collateral Assignment of Promissory Note ("Assignment") is entered
into as of the 31st day of January, 2000, by and between BIKERS DREAM, INC.
("Grantor"), a California corporation, and FINOVA MEZZANINE CAPITAL INC.
("Lender"), a Tennessee corporation, formerly known as Sirrom Capital
Corporation.
W I T N E S S E T H
WHEREAS, Lender has previously made a term loan to Grantor and Ultra
Motorcycle Company ("UMC"), a Nevada corporation, formerly known as Ultra
Acquisition Company, (Grantor and UMC are hereinafter referred to collectively
as the "Borrowers") 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 Grantor (the "Loan") (the Loan Agreement as now or hereafter
amended, is hereinafter referred to as the "Loan Agreement");
WHEREAS, Lender has agreed to amend the Loan Agreement on certain terms
and conditions; and
WHEREAS, one condition to Lender's agreement is that Lender must be
provided a first priority perfected collateral assignment of a certain
promissory note owned by Grantor;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are acknowledged, it is agreed as follows:
1. Definition of Secured Indebtedness. As used herein, "Secured
Indebtedness" shall mean the obligations of Grantor to Lender under this
Assignment and all present and future debts and other obligations of Borrowers
to Lender, whether arising by contract, tort, guaranty, overdraft, or otherwise;
whether or not the advances or events creating such debts or other obligations
are presently foreseen; whether such obligations were originally payable to
Lender or are acquired by Lender from another person or entity; and regardless
of the class of the debts or other obligations, be they otherwise secured or
unsecured. Without limiting the foregoing, the Secured Indebtedness includes the
"Loan" as defined in that the Loan Agreement.
2. Security Interest; Assignment. To secure the payment of the Secured
Indebtedness, Grantor hereby assigns to Lender and grants Lender a security
interest in that promissory note dated January 31, 2000, made by V-Twin
Holdings, Inc. ("Obligor"), a District of Columbia, formerly known as V-Twin
Acquisitions, Inc., in the original principal amount of $1,000,000.00 payable to
Grantor (the "Collateral Note"), together with all proceeds thereof.
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3. Negotiation of Collateral Note; Perfection. Grantor shall negotiate
the Collateral Note to Lender by endorsing the Collateral Note to the order of
Lender (without restriction or qualification) and delivering the Collateral Note
to Lender. Lender shall retain possession of the Collateral Note to perfect its
security interest therein.
4. Warranties. Grantor warrants and represents to Lender the following:
(a) Sole Instrument. The Collateral Note is the only instrument
evidencing the indebtedness described therein.
(b) Ownership of Collateral. Grantor is the lawful holder and
owner of the Collateral Note.
(c) Binding Agreement. The Collateral Note is valid, binding and
enforceable according to its terms.
(d) No Other Assignment. The Collateral Note is not subject to
any assignment, lien or other encumbrance or claim except for the security
interest provided for herein.
(e) No Default. No default presently exists under the Collateral
Note and no condition presently exists which, with the giving of notice, the
passage of time, or both, will cause such a default.
(f) Valid Assignment. This Assignment grants Lender a valid
first priority assignment of the Collateral Note.
5. Covenants. Grantor covenants with Lender as follows:
(a) Notice of Default. Grantor shall immediately notify Lender
if a default occurs under the Collateral Note.
(b) No Amendment or Waiver. Grantor shall not purport to modify
or waive any terms of the Collateral Note without the prior written approval of
Lender.
(c) Notices. Grantor shall promptly convey to Lender any notice
received by Grantor concerning the Collateral Note.
(d) No Further Encumbrances. Grantor shall not sell, assign, or
grant or allow any other security interest to attach to the Collateral Note.
6. Collection Rights of Lender. Concurrently with the execution hereof,
Grantor and Lender shall direct Obligor to send all payments made under the
Collateral Note and
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to send all notices pertaining to the Collateral Note directly and exclusively
to Lender at such address as Lender may specify. All payments received by Lender
respecting the Collateral Note shall be applied as principal prepayments on the
Secured Indebtedness. Any such prepayment shall be applied to the final
principal installment due under the Secured Indebtedness and shall not defer or
reduce any other scheduled payments. Promptly following the payment in full of
the Secured Indebtedness, Lender shall return the Collateral Note to Grantor and
shall notify Obligor that any future payments thereunder should be made at the
direction of Grantor.
7. No Burdensome Agreements. Grantor warrants that it is not party to
any contract or agreement and is not subject to any contingent liability that
does or may impair its ability to perform under the terms of this Assignment.
Grantor further warrants that the execution and performance of this Assignment
will not cause a default, acceleration or other event under any other contract
or agreement to which Grantor or any property of Grantor is subject, and will
not result in the imposition of any charge, penalty, lien or other encumbrance
against any of its property except in favor of Lender.
8. Legal and Binding Agreement. Grantor warrants that the execution and
performance of this Assignment will not violate any judicial or administrative
order or governmental law or regulation, and that this Assignment is valid,
binding and enforceable in every respect according to its terms.
9. No Consent Required. Grantor warrants that its execution, delivery
and performance of this Assignment do not require the consent of or the giving
of notice to any third party including, but not limited to, any other lender,
governmental body or regulatory authority.
10. No Default. Grantor warrants that, as of the execution of this
Assignment, no default exists hereunder and no condition exists which, with the
giving of notice, the passing of time, or both, would constitute such a default.
11. Default Defined. The occurrence of any one or more of the following
events shall constitute a default under this Assignment:
(a) Monetary Default. The failure of Borrowers to timely pay any
amount due Lender under the Secured Indebtedness or under any other obligation
to Lender.
(b) Breach of Covenant. The failure of Borrowers to perform or
observe any obligation or covenant made with respect to the Secured
Indebtedness.
(c) Breach of Warranty. Lender's discovery that any
representation or warranty in connection with this Assignment or the Secured
Indebtedness is materially false.
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(d) Default Under Other Document. The occurrence of a default
under the terms of the Loan Agreement or any other document evidencing,
securing, or otherwise pertaining to the Secured Indebtedness.
(e) Collateral Note Default. The occurrence of a default under
the Collateral Note.
12. Remedies Upon Default. Upon default, Lender may pursue any or all of
the following remedies without notice to Grantor except as required below:
(a) Rights of Holder. Lender may exercise any or all rights of
the holder of the Collateral Note. Without limiting the foregoing, Lender may
initiate any administrative or judicial proceeding that it may deem necessary in
the course of enforcing any rights under the Collateral Note. Any administrative
or judicial action or other action taken by Lender pursuant to the Collateral
Note may be taken by Lender in its own name or in Grantor's name. Lender may
enter into any amendment or extension of the Collateral Note and may grant any
indulgences with respect thereto that Lender may deem appropriate in the course
of exercising its rights under the Collateral Note. Grantor hereby appoints
Lender as its attorney-in-fact to take any action authorized by this Assignment
upon default. Grantor acknowledges that this power of attorney is coupled with
an interest and is irrevocable.
(b) Sale of Collateral Note. Lender may sell the Collateral Note
pursuant to Lender's rights under the Uniform Commercial Code. Any such sale may
be either public or private. If public, the sale may be postponed by
announcement at the scheduled time and place and adjourned to another time or
place, or both. It is agreed that five (5) days' notice of any sale is
commercially reasonable notice thereof. Any public sale may be adjourned to a
different time, place, or both by announcement at the advertised time and place
of sale, without further publication. Any advertised sale may be canceled in
Lender's discretion, either before or after the opening of bidding. Lender shall
transfer the Collateral Note to any purchaser thereof by endorsing the
Collateral Note to the purchaser's order, without warranty or recourse on the
part of Lender.
(c) Setoff. Lender may exercise its lien upon and right of
setoff against any monies, items, credits, deposits or instruments that Lender
may have in its possession and which belong to Grantor or any other person or
entity liable for the payments of any or all of the Secured Indebtedness.
(d) Other Remedies. Lender may pursue any other remedies
available under any other document evidencing or securing the Secured
Indebtedness or otherwise available to Lender at law or equity.
(e) Application of Proceeds. All amounts received by Lender for
Grantor's account by exercise of its remedies hereunder shall be applied as
follows: First, to the
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payment of all expenses incurred by Lender in exercising its rights hereunder,
including reasonable attorney's fees, and any other expenses due Lender from
Grantor; Second, to the payment of all interest included in the Secured
Indebtedness, in such order as Lender may elect; Third, to the payment of all
principal included in the Secured Indebtedness, in such order as Lender may
elect; and Fourth, surplus to Grantor.
13. Return of Collateral Note. The Collateral Note shall be returned to
Grantor when (i) Lender acknowledges in writing the payment of the Secured
Indebtedness and (ii) Lender has no further obligation to extend credit to be
included in the Secured Indebtedness. The return of the Collateral Note shall be
without recourse against Lender and shall be effected without any representation
or warranty on Lender's part, notwithstanding any provision of the Uniform
Commercial Code or other law that might otherwise imply or require
representations or warranties as to title or other matters.
14. Indulgence Not Waiver. Lender's indulgence in the existence of a
default hereunder or any other departure from the terms of this Assignment shall
not prejudice Lender's rights to declare a default or otherwise demand strict
compliance with this Assignment.
15. Cumulative Remedies. The remedies provided Lender in this Assignment
are not exclusive of any other remedies that may be available to Lender under
any other document or at law or equity.
16. Amendment and Waiver in Writing. No provision of this Assignment can
be amended or waived, except by a statement in writing signed by the party
against which enforcement of the amendment or waiver is sought.
17. Assignment. This Assignment shall be binding upon and inure to the
benefit of the respective heirs, successors and assigns of Grantor and Lender,
except that Grantor shall not assign any rights or delegate any obligations
arising hereunder without the prior written consent of Lender. Any attempted
assignment or delegation by Grantor without the required prior consent shall be
void.
18. Entire Agreement. This Assignment and the other written agreements
between Grantor and Lender represent the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreements are merged herein. Provided, if there is a conflict between this
Assignment and any other document executed contemporaneously herewith with
respect to the Secured Indebtedness, the provision most favorable to Lender
shall control.
19. Severability. Should any provision of this Assignment be invalid or
unenforceable for any reason, the remaining provisions hereof shall remain in
full effect.
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20. Time of Essence. Time is of the essence of this Assignment, and all
dates and time periods specified herein shall be strictly observed, except that
Lender may permit specific deviations therefrom by its written consent.
21. Applicable Law. The validity, construction and enforcement of this
Assignment and all other documents executed with respect to the Secured
Indebtedness shall be determined according to the laws of Tennessee applicable
to contracts executed and performed entirely within that state, in which state
this Assignment has been executed and delivered. 22.ab Gender and Number. Words
used herein indicating gender or number shall be read as context may require.
23. Captions Not Controlling. Captions and headings have been included
in this Assignment for the convenience of the parties, and shall not be
construed as affecting the content of the respective paragraphs.
Executed as of the date first written above.
THE UNDERSIGNED ACKNOWLEDGE A
THOROUGH UNDERSTANDING OF THE
TERMS OF THIS ASSIGNMENT AND
AGREE TO BE BOUND THEREBY:
FINOVA MEZZANINE CAPITAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Vice President
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BIKERS DREAM, INC.
By: /s/ X. Xxxxxxxx
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Title: CEO
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January __, 2000
V-Twin Holdings, Inc.
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Attn:
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Re: Notice of Assignment of Promissory Note
Dear Sir or Madam:
As you know, V-Twin Holdings, Inc. is the Maker of a Promissory
Note dated January 31, 2000, in the original principal amount of $1,000,000.00,
payable to Bikers Dream, Inc. (the "Note").
Please be advised that the Note has been negotiated to FINOVA
Mezzanine Capital Inc. ("FMC") as collateral for certain obligations.
We hereby direct you to send all payments under the Note
directly to FMC unless and until it notifies you in writing that its security
interest has been satisfied. FMC's address is 000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, attn: Xxxxx Xxxxxxx.
No provision of the Note may hereafter be amended or waived
without FMC's written consent. A complete copy of the Note is attached hereto as
Exhibit A.
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Please contact Xxxxx Xxxxxxx of FMC at (000) 000-0000 if you
have any questions regarding this notice. We would appreciate your acknowledging
this letter as indicated below.
Very truly yours,
FINOVA MEZZANINE CAPITAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Vice President
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BIKERS DREAM, INC.
By: /s/ X. Xxxxxxxx
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Title: CEO
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ACKNOWLEDGMENT
The undersigned acknowledges receipt of a copy of this letter,
acknowledges that Exhibit A hereto is a complete copy of the Note, and agrees to
remit all future payments directly to FINOVA Mezzanine Capital Inc. as provided
above.
Dated as of January 31st, 2000.
V-TWIN HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxx
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Title: President
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