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EXHIBIT 10.8
STANDBY AND SUBORDINATION AGREEMENT
This Agreement is entered into as of May 15, 2000 to induce BANK ONE,
INDIANA, NATIONAL ASSOCIATION, a national banking association with its principal
office in Indianapolis, Indiana, United States of America (the "Bank"), to make
and continue certain financial accommodations to or for the benefit of
INDIAN-XXXXXX XX, a corporation organized and existing under the laws of
Switzerland (the "Company"). All amounts and Obligations now or hereafter due
and owing by the Company to the Bank pursuant to (i) a Credit Agreement of even
date (as amended, modified or supplemented from time to time and at any time,
the "Credit Agreement"); and (ii) any and all other indebtedness or obligations
from the Company to Bank now or hereafter owing are collectively hereinafter
referred to as the "Bank One Indebtedness". Any capitalized terms used, but not
otherwise defined, herein shall have the meanings ascribed thereto in the Credit
Agreement.
Indian Industries, Inc., a corporation incorporated under the laws of
Indiana, United States of America ("Standby Creditor"), to whom the Company is
or will be indebted pursuant to certain promissory note(s) made pursuant to the
Receivables Purchase Agreement of even date (the "Subordinated Claim"), and the
Company agree with Bank as follows:
1. The amount of the Subordinated Claim shall, in the absence of the written
consent of Bank to the contrary, be increased by the amount of any and all
additional indebtedness, regardless of its nature, hereafter to become owing by
the Company to the Standby Creditor, and in such event the Subordinated Claim
shall include such additional indebtedness. However, at no time during the term
of the Bank One Indebtedness shall the principal amount of the Subordinated
Claim be less than $5,086,501.81 without the prior written consent of the Bank.
2. The Subordinated Claim is hereby postponed in favor of, and made JUNIOR and
SUBORDINATE in all respects to, the Bank One Indebtedness, including without
limitation any and all Obligations, liabilities and indebtedness of the Company
to Bank, due or to become due, direct or contingent and whether now existing or
contemporaneously or hereafter arising or contracted, whether with any other
Person or not.
3. Standby Creditor hereby unconditionally agrees that, notwithstanding any
security agreements heretofore or hereafter entered into between Standby
Creditor and the Company or any financing statements heretofore or hereafter
filed by Standby Creditor against the Company, any security interest, lien,
claim or right now or hereafter asserted by Standby Creditor with respect to any
collateral granted to Standby Creditor by the Company (including without
limitation inventory, accounts receivable, equipment, furniture, fixtures,
chattel paper, documents, instruments, investment property and general
intangibles) shall be subject, JUNIOR and SUBORDINATE to the security interest
of the Bank with respect to such collateral. Standby Creditor hereby consents to
the collection or other disposition of such collateral by the Bank free of
Standby Creditor's security interest, if any.
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4. Standby Creditor shall not take any action of any kind to assert, collect or
enforce the Subordinated Claim upon the occurrence of any default or event of
default under the documents governing the Subordinated Claim or otherwise until
the earliest to occur of the following: (i) prior written consent to such action
by Bank; or (ii) full and final payment and satisfaction and release of the Bank
One Indebtedness. Upon the occurrence of any of events specified in clauses (i)
or (ii) hereof, Standby Creditor may pursue its remedies under the terms of the
Subordinated Claim. Any Event of Default by the Company with respect to the Bank
One Indebtedness shall not entitle Standby Creditor to take any action to
enforce the Subordinated Claim unless Bank has initiated an action that makes
the Standby Creditor a party.
5. Without the prior written consent of Bank, the Company will not make, and the
Standby Creditor will not accept or receive, any payments, in cash or otherwise,
on account of the principal of, or interest accrued on, the Subordinated Claim,
and the Company will not give, and the Standby Creditor will not take, any
collateral or other security (or additional collateral or security, as the case
may be) for the Subordinated Claim or any part thereof. The Standby Creditor
will not, without first obtaining Bank's prior written consent, sell, pledge or
otherwise transfer any of the Subordinated Claim unless the pledgee or
transferee agrees in writing to be bound by this Agreement.
6. The Company and Standby Creditor will cause each instrument now or hereafter
evidencing all or any part of the Subordinated Claim to be conspicuously marked,
to Bank's satisfaction, with the following legend:
"This instrument is subject to the terms of a Standby and Subordination
Agreement and an Offset Waiver Agreement, each dated as of May 15, 2000
in favor of BANK ONE, INDIANA, NATIONAL ASSOCIATION (the "Bank"), to
which reference is hereby made, restricting the rights of the maker,
drawer or any guarantor, and of any holder, with respect to payments on
account of the principal and interest hereof, subordinating the
indebtedness evidenced hereby to the interest of the Bank and waiving
offset and certain related rights."
7. Upon the demand of Bank, after maturity of the Bank One Indebtedness (whether
by acceleration or otherwise), the Standby Creditor, or any successor in
interest, will assign or transfer without recourse, and deliver, to Bank every
instrument evidencing the Subordinated Claim, or any part thereof, to be held by
Bank as security for the Bank One Indebtedness and after the Bank One
Indebtedness has been finally paid and satisfied in full the Bank will reassign
the assignment of the Subordinated Claim to Standby Creditor.
8. In any bankruptcy, reorganization, receivership, liquidation or dissolution
proceedings relating to the Company or any of its property, or upon any
distribution of assets to its creditors, this Agreement shall constitute an
irrevocable assignment to Bank of the Subordinated Claim and all of the rights
of the Standby Creditor with respect to the Subordinated Claim, including
without limitation (a) voting rights, (b) rights to all distributions, in cash
or otherwise and (c) right to participate in the administration of the bankrupt
or insolvent estate. In any such event Bank may prove, file, or institute legal
proceedings upon, the Subordinated Claim, or any part
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thereof, or take any other steps it may deem advisable to protect its interest
in the Subordinated Claim either in its own name or in the name of the Standby
Creditor, but Bank shall be under no obligation to take any steps whatsoever in
regard to the Subordinated Claim. After the Bank One Indebtedness has been
finally paid and satisfied in full, the Bank will reassign its assignment of the
Subordinated Claim to the Standby Creditor.
9. Bank may, without notice to the Standby Creditor and without prejudice to
this Agreement, make loans to the Company or permit the Company otherwise to
become indebted to it, extend or renew any indebtedness of the Company, take or
release collateral therefor as it sees fit, take guaranties of any indebtedness
of the Company, release any party liable on account of any indebtedness of the
Company to it, and take and/or release and discharge subordination agreements
from any other creditor of the Company.
10. Upon any breach of this Agreement, Bank, at its sole option, may declare the
Bank One Indebtedness to be immediately due and payable, and may xxx for and
recover any and all payments received by the Standby Creditor, its legal
representatives, successors and assigns, on account of the Subordinated Claim in
violation of the provisions hereof, and apply any amount so recovered to the
Bank One Indebtedness.
11. No postponement or delay on the part of Bank in the enforcement of any right
hereunder shall constitute a waiver of such right.
12. Any notices under or pursuant to this Agreement shall be deemed duly sent
when delivered in hand or when mailed by registered or certified mail, return
receipt requested, addressed as follows:
To Standby Creditor: Indian Industries, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: ___________________
Telecopy: ____________________
To Bank: Bank One, Indiana, National Association
Bank One Tower, Mail Code IN 1-0046
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Manager - Corporate Banking
Telecopy: (000) 000-0000
13. This Agreement shall continue in force and effect for so long as the Company
shall be indebted to Bank for any of the Bank One Indebtedness, including all
amendments, modifications, extensions, renewals and refinancing thereof. This
Agreement shall be binding upon and shall inure to the benefit of the respective
successors and assigns of Bank, the Company and Standby Creditor. This Agreement
will be governed by and construed in accordance with the substantive laws of the
State of Indiana without reference to the choice or conflicts of laws rules or
principles of any foreign or domestic jurisdiction. This Agreement
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represents the entire agreement of the parties with respect to the subject
matter hereof and may not be amended, altered or modified except by a writing
signed by the parties hereto.
WITNESS the due execution and delivery hereof as of May 15, 2000.
BANK ONE, INDIANA, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Vice President
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(Printed Name and Title)
INDIAN-XXXXXX XX
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Director
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(Printed Name and Title)
INDIAN INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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(Printed Name and Title)
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