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EXHIBIT 10.6
SERVICES AGREEMENT
This SERVICES AGREEMENT (as amended, supplemented or otherwise modified
from time to time and at any time, the "Services Agreement"), is entered into as
of May 15, 2000, between INDIAN-XXXXXX XX, a Swiss corporation ("AG"), and
Indian Industries, Inc. ("Indian Industries" or in its capacity as servicer, the
"Servicer"), a corporation incorporated under the laws of Indiana.
DEFINITIONS
Unless otherwise defined herein or the context otherwise requires,
certain terms that are used throughout the Services Agreement are defined in
Exhibit 1 to the Receivables Purchase Agreement, dated as of even date herewith,
between AG and Indian Industries, which definitions set forth on said Exhibit 1
are incorporated herein by this reference.
PRELIMINARY STATEMENTS
AG is purchasing Receivables and Related Rights from Indian Industries
pursuant to the Receivables Purchase Agreement.
AG desires to appoint Indian Industries as the Servicer to collect
Assigned Receivables and Related Rights as AG may from time to time purchase
from Indian Industries.
Indian Industries is willing to undertake to act as the Servicer for
AG.
NOW, THEREFORE, in consideration of the mutual promises and provisions
herein contained, the parties agree as follows:
ARTICLE 1 COLLECTION SERVICES
Section 1.1 Appointment of Servicer. AG hereby appoints Indian
Industries to perform the duties and obligations of the Servicer.
Section 1.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such
actions as may be necessary or advisable to collect each Assigned Receivable
from time to time, all in accordance with the Services Agreement and all
applicable laws, rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy.
(b) The Servicer shall set aside for the account of AG the
amount of the Collections to which AG is entitled in accordance with the
Receivables Purchase Agreement and
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shall deposit for the account and benefit of AG the amount of such Collections
as AG shall direct the Servicer. The Servicer, if instructed by AG or its
lender, will instruct all Obligors to cause all Collections to be sent to a Lock
Box Account. In the event that Indian Industries receives Collections directly
from any Obligor, Indian Industries shall deposit such Collections into a Lock
Box Account by the end of the then current four week accounting period of Indian
Industries.
(c) The Servicer, at the direction of AG or its lender, shall
commence or settle any legal action to enforce collection of any Assigned
Receivable or to foreclose upon or repossess any Related Property.
(d) The Servicer shall perform such other acts and provide
such other services as AG or its lender may from time to time reasonably request
and the Servicer may agree to perform or provide.
(e) The Servicer will maintain and implement administrative
and operating procedures (including, without limitation, an ability to recreate
records evidencing Assigned Receivables in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records and
other information reasonably necessary or advisable for the collection of all
Assigned Receivables (including, without limitation, records adequate to permit
the daily identification of each new Assigned Receivable and all Collections of
and adjustments to each existing Assigned Receivable), but only for a period of
at least forty-eight (48) months from the date of the origination thereof.
(f) The Servicer shall permit AG or its lender on reasonable
notice at any time during normal business hours to inspect, audit, check and
make abstracts from accounts, records, correspondence and other papers
pertaining to the Assigned Receivables.
AG shall deliver to the Servicer and the Servicer shall hold for the
benefit of AG, all records and documents (including without limitation computer
tapes or disks) with respect to each Assigned Receivable.
ARTICLE 2 CONSIDERATION FOR PERFORMANCE OF SERVICER'S ACTIVITIES
Section 2.1 Compensation for Performance of Servicer's Activities. In
consideration for the performance of the Servicer's collection and servicing
activities set forth in Article 1 of this Services Agreement (the "Servicing
Activities"), AG shall compensate the Servicer in an amount equal to the
Operating Costs incurred by the Servicer plus the Percentage Fee. The term
"Operating Costs" shall mean the costs of those Services as set out in Annex 1
to this Services Agreement. The term "Percentage Fee" shall equal the percentage
of Operating Costs as determined pursuant to an economic transfer pricing study
as calculated by an independent third
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party acceptable to both AG and the Servicer. AG and the Servicer agree that
until otherwise agreed the initial Percentage Fee shall equal 2.23% of Operating
Costs based upon the economic transfer pricing study that has been previously
agreed to by AG and Servicer.
Section 2.2 Reports. The Servicer shall provide reports to AG listing
the Servicing Activities that the Servicer has provided for AG during each
fiscal quarter of the Servicer. Each Report shall be submitted no later than
fifteen (15) days following the end of each quarter of the calendar year, and
shall be in the form of Annex 2 to this Services Agreement.
Section 2.3 Payment by AG. AG shall pay the amount stated in a Report
to the Servicer within thirty (30) days following receipt of such Report.
Section 2.4 Currency. All financial obligations originating from the
term and conditions of this Article 2 shall be denominated in U.S. dollars.
ARTICLE 3 INDEPENDENT CONTRACTOR
Section 3.1 Independent Contractor. The Servicer is, and shall remain,
an independent contractor, and not an employee or partner of AG. The Servicer
shall be solely liable for any loss or damage caused by it or its employees or
agents.
Section 3.2 Servicer Not an Agent. AG does not appoint the Servicer as
its agent or authorize the Servicer to hold itself out as agent of AG, nor does
AG authorize the Servicer to pledge the credit of, or enter into any contract on
behalf of, AG.
Section 3.3 Contracts. The Servicer shall not have the right to assume
or create any obligation of any kind, either express or implied, on behalf of
AG, except as expressly provided for in this Services Agreement. No agreement or
commitment made on behalf of AG is binding on AG without a confirmation by
cable, facsimile, or other writing by a person duly authorized to act on AG's
behalf.
ARTICLE 4 INDEMNIFICATION
The Servicer agrees to indemnify AG and each of its permitted assigns,
officers, directors, employees, agents, lenders or secured creditors (each of
the foregoing Persons being individually called a "Indemnified Party") against,
and hold AG and each Indemnified Party harmless from, any and all claims
asserted against AG or any Indemnified Party by any third party arising out of
any wrongful or negligent act or omission of the Servicer in performing any of
the activities that the Servicer shall perform or furnish for AG pursuant to the
provisions of the Services Agreement; provided however, that AG shall promptly
notify the Servicer in writing of each such claim made or suit thereon
instituted against AG or any Indemnified Party and the details thereof, and
shall not pay or compromise any such claim or suit without the written
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approval of the Servicer, and the Servicer shall be permitted to assume and
direct the defense of any such suit by counsel of its own choosing.
ARTICLE 5 COMPLIANCE WITH LAW
The Servicer agrees that it shall not violate any applicable law or
regulation of any country or political subdivision in performing or purporting
to perform its obligations arising out of, or in connection with, the Services
Agreement. The Servicer agrees to maintain any records required by applicable
laws and regulations and to provide all written assurances required by AG or its
lender in connection with compliance with this Article 5.
ARTICLE 6 PAYMENTS AND COMPUTATIONS
Section 6.1 Amounts Paid by Indian. All amounts to be paid or deposited
by the Servicer hereunder shall be paid or deposited no later than 2:00 p.m.
(Central time) on the day when due in same day funds. All amounts received after
2:00 p.m. (Central time) will be deemed to have been received on the immediately
succeeding Business Day.
Section 6.2 Amounts Paid by AG. All amounts to be paid or deposited by
AG hereunder shall be paid or deposited no later than 2:00 p.m. (Zurich time) on
the day when due in same day funds. All amounts received after 2:00 p.m. (Zurich
time) will be deemed to have been received on the immediately succeeding
Business Day.
Section 6.3 Business Day. Whenever any payment or deposit to be made
hereunder shall be due on a day other than a Business Day, such payment or
deposit shall be made on the next succeeding Business Day.
ARTICLE 7 TERM AND TERMINATION
Section 7.1 Term. The Services Agreement may be terminated by either
party at any time by giving the other party thirty (30) days' prior written
notice of the effective date of termination.
Section 7.2 Rights on Termination. On termination of the Services
Agreement:
(a) All rights and obligations of the parties shall cease and
terminate except that the obligations of both parties under the Services
Agreement otherwise shall continue in effect after the date of termination with
respect to all Assigned Obligations owned by AG on the date of termination or
previously acquired by AG (including obligations of accounting and rights of
indemnification provided for herein).
(b) The Servicer shall turn over to AG records and documents
in the
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Servicer's files relating to Assigned Receivables (including without limitation
computer tapes or disks with respect to each Assigned Receivable). All such
records and information shall be treated as confidential and shall not be
disclosed by the Servicer to any other Person either during or after the term of
the Services Agreement without the prior written consent of AG.
ARTICLE 8 MISCELLANEOUS
Section 8.1 Notices. All notices and other communications provided for
hereunder shall, unless otherwise expressly stated herein, be in writing (which
shall include facsimile communication) and shall be personally delivered or sent
by certified mail, postage prepaid, or by facsimile, to the intended party at
the address or facsimile number of such party set forth under its name below or
at such other address or facsimile number as shall be designated by such party
in a written notice to the other party hereto. All such notices and
communications shall be effective, (a) if personally delivered, when received,
(b) if sent by certified mail, three (3) Business Days after having been
deposited in the mail, postage prepaid, (c) if sent by overnight courier, one
(1) Business Day after having been given to such courier, and (d) if transmitted
by facsimile, when sent, receipt confirmed by telephone or electronic means.
The Servicer: Indian Industries, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: ______________
Telephone: _____________
Facsimile: ______________
AG: Indian - Xxxxxx XX
Xxxxxxxxxxxxx 00
0000, Xxx
Xxxxxxxxxxx
Attention: President
Telephone: 0000 00 000 00 00
Facsimile: 0041 41 720 34 46
Section 8.2 Force Majeure. If the performance of any part of the
Services Agreement by either party, or of any obligation under the Services
Agreement, is prevented, restricted, interfered with, or delayed by reason of
any cause beyond the reasonable control of the party liable to perform, unless
conclusive evidence to the contrary is provided, the party so affected shall, on
giving written notice to the other party, be excused from such performance to
the extent of such prevention, restriction, interference or delay, provided that
the affected party shall use its reasonable best efforts to avoid or remove such
causes of nonperformance and shall continue performance with the utmost dispatch
whenever such causes are removed. When such circumstances arise, the parties
shall discuss in good faith what, if any, modification of the terms of the
Services Agreement may be required in order to arrive at an equitable solution.
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Section 8.3 Successors and Assigns. The Services Agreement shall be
binding on and shall inure to the benefit of the parties, Affiliates, their
respective successors, successors in title, and assigns, and each party agrees,
on behalf of it, its Affiliates, successors, successors in title, and assigns,
to execute any instruments that may be necessary or appropriate to carry out and
execute the purposes and intentions of the Services Agreement and hereby
authorizes and directs its Affiliates, successors, successors in title, and
assigns to execute any and all such instruments. Each and every successor in
interest to any party or Affiliate, whether such successor acquires such
interest by way of gift, devise, assignment, purchase, conveyance, pledge,
hypothecation, foreclosure, or by any other method, shall hold such interest
subject to all of the terms and provisions of the Services Agreement. The rights
of the parties, Affiliates, and their successors in interest, as among
themselves and shall be governed by the terms of the Services Agreement, and the
right of any party, Affiliate or successor in interest to assign, sell or
otherwise transfer or deal with its interests under the Services Agreement shall
be subject to the limitations and restrictions of the Services Agreement.
Section 8.4 Amendment. No change, modification, or amendment of the
Services Agreement shall be valid or binding on the parties unless such change
or modification shall be in writing signed by the party or parties against whom
the same is sought to be enforced and any lender of AG to which AG shall have
granted a Lien in, or assigned to, any of the Assigned Receivables.
Section 8.5 Remedies Cumulative. The remedies of the parties under the
Services Agreement are cumulative and shall not exclude any other remedies to
which either party may be lawfully entitled.
Section 8.6 Further Assurances. Each party hereby covenants and agrees
that it shall execute and deliver such further documents and take such further
actions as may be required to implement any of the provisions of the Services
Agreement.
Section 8.7 No Waiver. The failure of either party to insist on strict
performance of a covenant hereunder or of any obligation hereunder shall not be
a waiver of such party's right to demand strict compliance therewith in the
future, nor shall the same be construed as a novation of the Services Agreement.
Section 8.8 Entire Agreement. The Services Agreement embodies the
entire agreement and understandings of the parties hereto, and supersedes all
prior or contemporaneous agreements and understandings of such Person, verbal or
written, relating to the subject matter hereof and thereof. The Annexes to the
Services Agreement shall be deemed incorporated by reference into the Services
Agreement as if set forth herein.
Section 8.9 Headings. The captions and heading of the Services
Agreement and in
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any Annex hereto are for convenience of reference and shall not affect the
interpretation hereof or thereof.
Section 8.10 Counterparts. The Services Agreement may be executed in
any number of counterparts each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement.
Section 8.11 Applicable Law. The Services Agreement shall 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.
Section 8.12 Severability. In the event any provision, clause,
sentence, phrase, or word hereof, or the application thereof in any
circumstances, is held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder hereof, or of the application of any such provision, sentence, clause,
phrase, or word in any other circumstances.
IN WITNESS WHEREOF, the parties have caused the Services Agreement to
be executed and delivered by their respective duly authorized officers, as of
the date first above written.
INDIAN INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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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)
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ANNEX 1
DEFINITION OF OPERATING COSTS
Operating Costs shall include the following categories:
A. Direct costs ("Direct Costs") of the Servicing Activities:
o Costs or deductions for compensation, bonuses, and
travel expenses attributable to employees directly
engaged in performing the servicing
o Materials and supplies directly consumed in rendering
the servicing
o Other costs in connection with the servicing
B. Indirect costs that relate to the Direct Costs ("Indirect
Costs") attributable to the Servicing Activities:
o Including utilities, occupancy, supervisory and
clerical compensation, and other overhead burden of
the department incurring the Direct Costs. Indirect
Costs also include an appropriate share of the costs
relating to supporting department and other
applicable general and administrative expense to the
extent reasonably allocable to the Servicing
Activities.
o Excluded costs include interest expense and expenses
of compliance with regulations or policies imposed
upon the Servicer that are not directly related to
the Servicing Activities.
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ANNEX 2
REPORT OF SERVICING ACTIVITIES PROVIDED BY
SERVICER TO AG PURSUANT TO SERVICES AGREEMENT
To: [Name and Address]
From: [Name and Address]
Date: [Date]
You are receiving this Report pursuant to Section 2 of the Services
Agreement (the "Services Agreement") , dated as of May 15, 2000, between
Indian-Xxxxxx XX and Indian Industries, Inc. (the "Servicer"). Unless defined
herein, capitalized terms that are used throughout this Report are defined in
the Services Agreement.
During the period from [Date] to [Date] (the "Period"), the Servicer
performed to following described Servicing Activities:__________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
During the Period, the Servicer incurred Operating Costs in the following
categories:
[List of Operating Categories]
[Total of Operating Costs]
Pursuant to the Services Agreement, the compensation due the Servicer
for the Period is the total of Operating Costs and the Percentage Fee.
Accordingly, the compensation due for this Period is $_______________ [Total of
Operating Costs + Percentage Fee].
All supporting information with respect to the Operating Costs is in
the Servicer's files. Please advise if you have any questions or comments about
these matters.
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