EXHIBIT 10.6
RECEIVABLES PURCHASE AGREEMENT
(ESCALADE DOMESTIC SUBSIDIARIES)
BETWEEN
INDIAN INDUSTRIES, INC.
AS THE SELLER,
AND
INDIAN - XXXXXX, INC.,
AS THE BUYER
DATED AS OF SEPTEMBER 5, 2003
Table of Contents
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ARTICLE 1 AMOUNTS AND TERMS OF THE PURCHASES........................................................... 1
Section 1.1. Agreement to Purchase and Sell........................................................ 1
Section 1.2. No Recourse........................................................................... 2
Section 1.3. True Sales............................................................................ 2
Section 1.4. Consideration for Purchases........................................................... 3
ARTICLE 2 CALCULATION OF PURCHASE PRICE................................................................ 3
Section 2.1. Calculation of Purchase Price......................................................... 3
ARTICLE 3 PAYMENT OF PURCHASE PRICE.................................................................... 3
Section 3.1. The Purchase Price Payment............................................................ 3
Section 3.2. Ineligible Receivables, Repurchase, Etc. ............................................. 3
Section 3.3. Payments and Computations, Etc. ...................................................... 4
ARTICLE 4 CONDITIONS TO PURCHASE....................................................................... 4
Section 4.1. Conditions Precedent to Effectiveness of this Agreement............................... 4
Section 4.2. Conditions Precedent to All Purchases................................................. 5
Section 4.3. Certification as to Representations and Warranties.................................... 5
Section 4.4. Effect of Payment of Purchase Price................................................... 5
ARTICLE 5 REPRESENTATIONS AND WARRANTIES............................................................... 5
Section 5.1. Representations and Warranties........................................................ 5
ARTICLE 6 COVENANTS.................................................................................... 8
Section 6.1. Affirmative Covenants................................................................. 8
Section 6.2. Negative Covenants.................................................................... 9
ARTICLE 7 INDEMNIFICATION.............................................................................. 9
Section 7.1. Indemnities by........................................................................ 9
Table of Contents
(continued)
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ARTICLE 8 ADMINISTRATION AND COLLECTIONS; ADDITIONAL RIGHTS AND OBLIGATIONS
IN RESPECT OF THE ASSIGNED RECEIVABLES....................................................... 11
Section 8.1. Servicing of Assigned Receivables and Related Rights.................................. 11
Section 8.2. Rights of the Buyer; Enforcement Rights............................................... 11
Section 8.3. Responsibilities of................................................................... 12
Section 8.4. Further Action Evidencing Purchases................................................... 13
Section 8.5. Purchase Termination Event............................................................ 13
ARTICLE 9 MISCELLANEOUS................................................................................ 13
Section 9.1. Amendments, Etc. ..................................................................... 13
Section 9.2. Notices, Etc. ........................................................................ 14
Section 9.3. Binding Effect; Assignability......................................................... 14
Section 9.4. Governing Law and Jurisdiction........................................................ 15
Section 9.5. Execution in Counterparts............................................................. 15
Section 9.6. Survival of Termination............................................................... 15
Section 9.7. Waiver of Jury Trial.................................................................. 15
Section 9.8. Entire Agreement...................................................................... 16
Section 9.9. Headings.............................................................................. 16
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented
or otherwise modified from time to time, this "Agreement") is entered into as of
September 5, 2003 between Indian Industries, Inc. a corporation incorporated
under the laws of Indiana, as seller (sometimes referred to as "Indian
Industries," or the "Seller," as the case may be) and INDIAN-XXXXXX, INC., a
corporation organized and existing under the laws of the State of Nevada, as
buyer ("Buyer").
PRELIMINARY STATEMENTS
1. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit 1 to this Agreement. References
in the Exhibits hereto to the Agreement refer to this Agreement, as amended,
modified or supplemented from time to time and at any time.
2. Buyer is a corporation all of whose issued and
outstanding shares of capital stock is wholly owned by Escalade, Incorporated, a
corporation incorporated and existing under the laws of Indiana.
3. On and after the Effective Date, Seller wishes to
sell Receivables that it now owns and from time to time hereafter will own to
Buyer, and Buyer, is willing, on the terms and subject to the conditions
contained in this Agreement, to purchase such Receivables from Seller at such
times.
4. Buyer, in the Services Agreement, will appoint Seller
as the Servicer to collect Assigned Receivables as Buyer, may from time to time
purchase from Seller.
NOW THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereto agree as follows:
ARTICLE 1 AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Agreement to Purchase and Sell.
(a) On the terms and conditions hereinafter set forth,
and in consideration of the Purchase Price, Seller hereby sells to the Buyer,
and the Buyer hereby purchases from Seller all of Seller's right, title and
interest in and to:
(i) all Assigned Receivables, except that Seller
will retain any Receivable that is sixty-one (61) or more days
past due and any such Receivable shall not be sold to Buyer at
any time;
(ii) all rights to, but not the obligations
under, all related Contracts and all Related Property with
respect thereto;
(iii) all monies due or to become due with respect
to the foregoing; and
(iv) all Collections in respect of, and other
proceeds of, such Assigned Receivables or any other of the
foregoing including, without limitation, all funds which
either are received by Seller or the Buyer from or on behalf
of or for credit to the account debtors obligated to pay the
Assigned Receivables (the "Obligors") in payment of any
amounts owed (including, without limitation, finance charges,
interest and all other charges) in respect of such Assigned
Receivables, or are applied to such amounts owed by the
Obligors (including, without limitation, insurance payments,
if any, that Seller applies in the ordinary course of its
business to amounts owed in respect of any such Assigned
Receivable and the net proceeds of sale or other disposition
of goods or other collateral or property of the Obligors or
any other Person directly or indirectly liable for payment of
such Assigned Receivable and available to be applied thereon,
excluding, however, proceeds of returned inventory).
All purchases hereunder shall be made without recourse, but
shall be made pursuant to and in reliance upon the representations, warranties
and covenants of Seller in its capacity as seller, set forth herein. The
proceeds and rights described in subsections (ii), (iii) and (iv) of this
Section 1.1(a) are herein collectively called the "Related Rights". Sales by the
Seller to the Buyer of Receivables under this Agreement may be made at the close
of each business week of Seller but shall be made no less frequently than by the
end of each four week accounting period of Seller.
Section 1.2. No Recourse. Except as specifically provided
in this Agreement, the purchase and sale of Receivables and Related Rights under
this Agreement shall be without recourse to Seller provided that Seller shall be
liable to the Buyer for all representations, warranties, covenants and
indemnities made by Seller pursuant to the terms of this Agreement, it being
understood that such obligation of Seller will not arise on account of the
failure of any Obligor for credit reasons to make any payment in respect of an
Assigned Receivable.
Section 1.3. True Sales
(a) Each of Seller and the Buyer intends the transactions
hereunder to constitute absolute and irrevocable purchases and sales of
Receivables and the Related Rights by Seller to the Buyer providing the Buyer
with the full benefits of ownership of the Assigned Receivables, and neither
party hereto intends the transactions contemplated hereunder to be, or for any
purpose to be characterized as, a loan or similar advance from the Buyer to
Seller giving rise to indebtedness secured by such Assigned Receivables and
Related Rights.
(b) In the event (but only to the extent) that the
transfer, assignment and conveyance of Assigned Receivables and Related Rights
hereunder is characterized by a court or other Governmental Authority as a loan
rather than a sale, Seller shall be deemed hereunder to have granted to the
Buyer, and Seller hereby grants to the Buyer, a security interest in all of
Seller's right, title and interest in, to and under all of the Assigned
Receivables and Related Rights, whether now or hereafter owned, existing or
arising. Such security interest shall secure all of Seller's obligations
(monetary or otherwise) arising under, pursuant to or by virtue of this
Agreement (including any loan deemed to have been made to Seller pursuant
hereto), whether now or hereafter existing or arising, due or to become due,
direct or indirect, absolute or contingent.
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The Buyer shall have, with respect to the property described in this Section
1.3, and in addition to all the other rights and remedies available to the Buyer
under this Agreement and applicable law, all the rights and remedies of a
secured party under the UCC, and this Agreement shall constitute a security
agreement under applicable law. To the extent permitted by applicable law,
Seller hereby authorizes Buyer to file any financing statements, amendments,
continuation statements, or the like, as Buyer may deem necessary or appropriate
with any filing jurisdiction, signed by Buyer alone.
Section 1.4. Consideration for Purchases. On the terms
and subject to the conditions set forth in this Agreement, the Buyer agrees to
make all Purchase Price payments to Seller in accordance with Article 3.
ARTICLE 2 CALCULATION OF PURCHASE PRICE
Section 2.1. Calculation of Purchase Price. The "Purchase
Price" (to be paid to Seller in accordance with the terms of Article 3) for the
Assigned Receivables and the Related Rights shall be determined in accordance
with the following formula:
PP = AR x FMVD
where:
PP = Purchase Price (to be paid to Seller
in accordance with the terms of Article 3)
as calculated on the relevant Determination
Date;
AR = For purposes of calculating the
Purchase Price for Assigned Receivables on
each Determination Date, the aggregate
Unpaid Balance of the Receivables that will
be sold to the Buyer; and
FMVD = "Fair Market Value Discount Factor"
on the Determination Date, which shall equal
the discount factor as determined pursuant
to an economic transfer pricing study as
calculated by an independent third party
acceptable to both Buyer and Seller. Buyer
and Seller agree that until otherwise agreed
the initial FMVD shall equal 95% based upon
the economic transfer pricing study that has
been previously agreed to by Buyer and
Seller
ARTICLE 3 PAYMENT OF PURCHASE PRICE
Section 3.1. The Purchase Price Payment. For all sales of
Assigned Receivables sold under this Agreement, Buyer shall pay the Purchase
Price of Assigned Receivables by depositing into such account as Seller shall
specify in immediately available funds, as specified in Section 3.3.
Section 3.2. Ineligible Receivables, Repurchase, Etc.
(a) If any of the representations or warranties in
Section 5.1 (i) or (t) hereto is not true with respect to any Receivable (each
such Receivable, an "Ineligible Receivable"), Seller
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shall deliver and pay to the Servicer in same day funds an amount equal to the
full Unpaid Balance of such Assigned Receivable for application by the Servicer
to the same extent as if Collections of such Unpaid Balance had actually been
received on such date.
(b) In the event that Seller has paid to the Buyer the
full Unpaid Balance of any Assigned Receivable pursuant to this Section 3.2, the
Buyer shall reconvey such Assigned Receivable and all Related Rights with
respect thereto to Seller without recourse, representation or warranty, free and
clear of all Liens created by the Buyer; such reconveyed Assigned Receivables
and all Related Rights shall no longer be subject to the terms of this Agreement
(including any obligation to turn over Collections with respect thereto).
Section 3.3. Payments and Computations, Etc.
(a) All amounts to be paid or deposited by Seller and
Buyer 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.
(b) 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 4 CONDITIONS TO PURCHASE
Section 4.1. Conditions Precedent to Effectiveness of
this Agreement. The effectiveness of this Agreement is subject to the conditions
precedent that the Buyer shall have received each of the following, on or before
the date of the first purchase hereunder, each in form and substance (including
the date thereof) satisfactory to the Buyer.
(a) A certificate of the Secretary of Seller certifying
(i) a copy of the resolutions of its Board of Directors approving this Agreement
and the other Transaction Documents to be delivered by it hereunder and the
transactions contemplated hereby; (ii) the names and true signatures of the
officers authorized on its behalf to sign this Agreement and the other
Transaction Documents to be delivered by it hereunder (on which certificate the
Buyer may conclusively rely until such time as the Buyer shall receive from
Seller as the case may be, a revised certificate meeting the requirements of
this subsection (a)); (iii) a copy of its by-laws as then in effect; and (iv)
all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the other Transaction
Documents;
(b) The Articles of Incorporation of Seller duly
certified by the Secretary of state of Sellers' state of incorporates of a
recent date;
(c) Signed original copies or time stamped receipt
copies, of the proper financing statements (Form UCC-1) that have been duly
executed and name Seller as the debtor and seller and the Buyer as the secured
party and purchaser of the Assigned Receivables and the Related Rights or other,
similar instruments or documents, as may be necessary or, in Buyer's opinion,
desirable under the UCC or any comparable law of all appropriate jurisdictions
to perfect
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the Buyer's ownership interest in all Assigned Receivables and Related Rights in
which an ownership interest is assigned to it hereunder;
(d) A certificate from an officer of Seller to the effect
that Seller has placed on the most recent, and have taken all steps reasonably
necessary to ensure that there shall be placed on subsequent, summary master
control data processing reports of Seller the following legend (or the
substantive equivalent thereof):
THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO
INDIAN - XXXXXX, INC. PURSUANT TO A RECEIVABLES
PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 5, 2003,
AS AMENDED FROM TIME TO TIME, BETWEEN INDIAN
INDUSTRIES, INC., AND INDIAN- XXXXXX, INC.
(e) Such other agreements, instruments, UCC financing
statements, certificates, opinions and other documents as the Buyer may
reasonably request.
Section 4.2. Conditions Precedent to All Purchases. Each
purchase under this Agreement is subject to the condition precedent that the
agreement of Seller to sell Assigned Receivables and Related Rights, and the
agreement of the Buyer to purchase Assigned Receivables and Related Rights,
shall not have terminated pursuant to Sections 8.5 and 9.3 of this Agreement,
and shall be subject further to the conditions precedent that the
representations and warranties contained in Article 5 are correct on and as of
such day as though made on and as of such day and shall be deemed to have been
made on such day (except that any such representation or warranty that is
expressly stated as being made only as of a specified earlier date shall be true
and correct in all material respects as of such earlier date).
Section 4.3. Certification as to Representations and
Warranties. Seller by accepting the Purchase Price paid for each purchase of
Assigned Receivables and Related Rights on any day, shall be deemed to have
certified that its representations and warranties contained in Article 5 are
true and correct on and as of such day, with the same effect as though made on
and as of such day.
Section 4.4. Effect of Payment of Purchase Price. Upon
the payment of the Purchase Price for any purchase of Assigned Receivables and
Related Rights, absolute title to such Assigned Receivables and Related Rights
shall vest in the Buyer, whether or not the conditions precedent to such
purchase were in fact satisfied; provided that the Buyer shall not be deemed to
have waived any claim it may have under this Agreement for the failure by Seller
in fact to satisfy any such condition precedent unless the underlying Assigned
Receivable has been repurchased from the Buyer by the Seller.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
Section 5.1. Representations and Warranties. In order to
induce the Buyer to enter into this Agreement and to make purchases thereunder,
Seller hereby represents and warrants as follows:
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(a) Organization and Good Standing. Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of __________, with power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted.
(b) Due Qualification. Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualification,
licenses or approvals except where the failure to so qualify or have such
licenses or approvals could not reasonably be expected to have a Seller Material
Adverse Effect.
(c) Power and Authority; Due Authorization. Seller (i)
has all necessary power, authority and legal right to (A) execute and deliver
this Agreement and the other Transaction Documents to which it is a party, (B)
carry out the terms of the Transaction Documents to which it is a party, and (C)
sell and assign the Assigned Receivables and Related Rights on the terms and
conditions herein provided and (ii) has duly authorized by all necessary
corporate action the execution, delivery and performance of this Agreement and
the other Transaction Documents to which it is a party.
(d) Binding Obligations. This Agreement constitutes, and
each other Transaction Document to be signed by Seller when duly executed and
delivered will constitute, a legal, valid and binding obligation of Seller
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which
Seller is a party and the fulfillment of the terms hereof and thereof will not
(i) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default under
Seller's articles of incorporation or by-laws or any loan or credit agreement,
other agreement, indenture, lease or instrument of Seller or by which it or its
properties may be bound, but only to the extent that such conflict, breach or
default is reasonably likely to have a Seller Material Adverse Effect, (ii)
result in the creation or imposition of any Lien upon any of Seller's properties
pursuant to the terms of any such loan or credit agreement, other agreement,
indenture, lease or instrument, other than the Transaction Documents, or (iii)
violate any requirements of law enacted by any Governmental Authority.
(f) No Proceedings. There is no litigation, proceeding or
investigation pending or, to the best of Seller's knowledge, threatened, before
any Governmental Authority or arbitrator (i) asserting the invalidity of this
Agreement or any other Transaction Document to which Seller is a party, (ii)
seeking to prevent the sale and assignment of the Receivables and Related
Rights, the collectibility of any of the Receivables or the consummation of any
of the other transactions contemplated by this Agreement or any other
Transaction Document, or (iii) seeking any determination or ruling that could
reasonably be expected to have a Seller Material Adverse Effect.
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(g) Government Approvals. No action by a Governmental
Authority is required for the due execution, delivery and performance by Seller
of this Agreement or any other Transaction Document to which it is a party.
(h) Securities Exchange Act. No proceeds of any purchase
will be used to acquire any equity security of a class which is registered
pursuant to Section 12 of the Securities Exchange Act of 1934.
(i) Quality of Title; Valid Sale; Etc. Immediately prior
to any sale or contribution to the Buyer under this Agreement, Seller is the
legal and beneficial owner of each of the Assigned Receivables and the Related
Rights free and clear of any Lien; and upon each purchase or contribution the
Buyer shall acquire a valid and enforceable ownership interest in each Assigned
Receivable and in the Related Rights then existing or thereafter arising with
respect thereto, free and clear of any Lien. Each Assigned Receivable
constitutes an "account" as such term is defined in the UCC. No effective
financing statement or other instrument similar in effect covering any Assigned
Receivable or Related Rights with respect thereto is on file in any recording
office, except those filed in favor of the Buyer pursuant to this Agreement.
(j) Accuracy of Information. Each report, information,
exhibit, financial statement, document, book, record or report furnished or to
be furnished at any time by or on behalf of it to the Buyer in connection with
this Agreement is or will be correct in all material respects as of its date or
as of the date so furnished, and no such item contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained therein, in the light
of the circumstances under which they were made, not materially misleading.
(k) Offices. The principal place of business and chief
executive office of Seller are located at the address of Seller referred to in
Section 9.2, and the offices where Seller keeps all its books, records and
documents evidencing or relating to Assigned Receivables are located at the
address of Seller referred to in Section 9.2 (or in jurisdictions where all
action required by Section 8.4 has been taken and completed).
(l) Bulk Sales Act. No transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(m) Margin Regulations. The use of all funds obtained by
Seller under this Agreement will not conflict with or contravene any of
Regulation T, U or X promulgated by the Federal Reserve Board from time to time.
(n) Maintenance of Books and Records. Seller has
accounted for and will account for each sale of Assigned Receivables and Related
Rights in its books and financial statements as sales, consistent with generally
accepted accounting principles.
(o) Credit and Collection Policy. Seller has complied in
all material respects with, and as Servicer will continue to comply with, the
Credit and Collection Policy and practices with regard to each Assigned
Receivable.
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(p) Solvency. Seller is solvent; and at the time of (and
immediately after) each sale pursuant to this Agreement it shall be solvent.
(q) Compliance with Transaction Documents. Seller, as
Servicer and/or Seller, has complied with all of the terms, covenants and
agreements contained in this Agreement and the other Transaction Documents
applicable to it.
(r) Corporate Name. Seller's complete corporate name is
set forth in the preamble to this Agreement, and Seller does not use and has not
during the last six years used any other corporate name, trade name, doing
business name or fictitious name other than the trade name Indiana Industries.
(s) Investment Company Act. It is not, and is not
controlled by, an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended.
(t) Eligible Receivables. Each Assigned Receivable sold
by Seller to the Buyer hereunder as of the date of its sale hereunder is in fact
an Eligible Receivable.
ARTICLE 6 COVENANTS
Section 6.1. Affirmative Covenants. From the date hereof
until the earlier of (a) collection by the Buyer of all Assigned Receivables,
and (b) six (6) months after a Purchase Termination Event:
(a) Compliance with Laws, Etc. Seller will comply in all
material respects with all requirements of law enacted by any Governmental
Authority, including those with respect to the Assigned Receivables and the
related Contracts and Related Rights, except where noncompliance could not
reasonably be expected to have a Seller Material Adverse Effect.
(b) Preservation of Corporate Existence. Seller will
preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its formation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification could reasonably be expected to have a Seller Material Adverse
Effect.
(c) Audits. (i) Seller will at any time and from time to
time during regular business hours, but only upon the delivery of three (3)
Business Day's prior notice thereof to Seller permit the Buyer or any of its
respective agents, representatives or lenders, (A) to examine and make copies of
and abstracts from all books, records and documents (including, without
limitation, computer tapes and disks) in its possession or under its control
relating to Assigned Receivables, (B) to visit its offices and properties for
the purpose of examining such materials described in clause (i)(A) above, and to
discuss matters relating to Assigned Receivables or its performance hereunder
with any of its officers or employees having knowledge of such matters, and (C)
to verify the existence and amount of the Assigned Receivables; and (ii) without
limiting the provisions of clause (i) above, from time to time on request of the
Buyer, permit certified public accountants or other auditors acceptable to the
Buyer to conduct, at Seller's expense, a review of Seller's books and records
with respect to the Assigned Receivables.
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(d) Location of Records. Seller will keep its principal
place of business and chief executive office, and the offices where it keeps its
records concerning the Assigned Receivables, all related Contracts and other
Related Rights and all other agreements related to such Assigned Receivables
(and all original documents relating thereto), at its address(es) referred to in
Section 9.2 or, upon 30 days' prior written notice to the Buyer, at such other
locations in the State of Seller where all action required by Section 8.4 shall
have been taken and completed.
(e) Collections. Seller in its capacity as the Servicer,
if instructed by Buyer, will instruct all Obligors to cause all Collections to
be sent to a Lock-Box Account. In the event that Seller receives Collections
directly from any Obligor, Seller shall deposit such Collections into a Lock-Box
Account by the end of the then current four week accounting period of Seller.
Section 6.2. Negative Covenants. From the date hereof
until the earlier of (a) collection by the Buyer of all Assigned Receivables,
and (b) six (6) months after a Purchase Termination Event:
(a) Sales, Liens, Etc. Seller will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Lien (other than the Lien and security interest created by Section
1.3, above) upon or with respect to, any Assigned Receivable or Related Rights
or any interest therein.
(b) Extension or Amendment of Receivables. Seller will
not, except as Servicer and as expressly permitted in any other Transaction
Document, extend, amend or otherwise modify the terms of any Assigned
Receivable; or amend, modify or waive any term or condition of any Contract
related to an Assigned Receivable.
(c) Change in Business or Credit and Collection Policy.
Seller will not make any change in the character of its business or in the
credit and collection policy, which change could impair the collectibility of
any Assigned Receivable or otherwise adversely affect the interests or remedies
of the Buyer under this Agreement or any other Transaction Document unless such
change does not result in a Seller Material Adverse Effect.
(d) Change in Payment Instructions to Obligors. Seller
will not make any change, or as the Servicer make any change, in its
instructions to Obligors regarding payments to be made to a post office box or a
wire transfer receipt account.
(e) Deposits to Special Accounts. Seller will not deposit
or otherwise credit, or cause or permit to be so deposited or credited, to any
Lock-Box Account any payments other than Collections of Assigned Receivables.
ARTICLE 7 INDEMNIFICATION
Section 7.1. Indemnities by Seller. Without limiting any
other rights which the Buyer and each of its permitted assigns, officers,
directors, employees, agents, lenders or secured creditors (each of the
foregoing Persons being individually called a "Sale Indemnified Party") may have
hereunder or under applicable law, Seller hereby agrees to indemnify and hold
harmless the Buyer and each Sale Indemnified Party from and against any and all
damages, losses, claims, judgments, liabilities and related costs and expenses,
including reasonable attorneys' fees and
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disbursements (all of the foregoing collectively being called "Sale Indemnified
Amounts") arising out of or resulting from this Agreement (whether directly or
indirectly) or the use of proceeds of purchases or the purchase ownership of any
Assigned Receivable or Related Rights, excluding, however, (a) Sale Indemnified
Amounts to the extent resulting from gross negligence or willful misconduct on
the part of the Buyer or such Sale Indemnified Party, (b) Sale Indemnified
Amounts to the extent the same include losses in respect of Assigned Receivables
and reimbursement therefor that would constitute credit recourse to Seller for
the amount of any Assigned Receivable or Related Rights not paid by the Obligor
for credit reasons, or (c) any net income taxes or franchise taxes imposed on
the Buyer or such Sale Indemnified Party. Without limiting or being limited by
the foregoing, but subject to the exclusions set forth in the immediately
preceding sentence, Seller shall pay on demand to the Buyer and each Sale
Indemnified Party any and all amounts necessary to indemnify and hold harmless
the Buyer and such Sale Indemnified Party from and against any and all Sale
Indemnified Amounts relating to or resulting from any of the following, with the
express understanding that no such claim shall arise solely due to the inability
of a particular Obligor to satisfy its obligations under a particular Assigned
Receivable because it lacks the financial resources to do so:
(i) the transfer or assignment (by operation of
law or otherwise) by Seller of an interest in any Assigned
Receivable or Related Rights to any Person other than the
Buyer or the transfer and sale to the Buyer of any Receivable
other than an Eligible Receivable;
(ii) the failure of any information provided by
Seller to the Buyer with respect to Assigned Receivables or
this Agreement to be true, correct and complete;
(iii) the failure of any representation or
warranty or statement made or deemed made by Seller (or any of
its officers), under or in connection with this Agreement to
have been true and correct when made or deemed made;
(iv) the failure by Seller to comply with any
requirements of law enacted by any Governmental Authority with
respect to any Receivable or Related Rights or otherwise; or
the failure of any Assigned Receivable or Related Rights to
conform to any such requirement of law;
(v) the failure to vest and maintain vested in
the Buyer a valid and enforceable absolute ownership interest
in each Assigned Receivable at any time existing and the
Related Rights with respect thereto, free and clear of any
Lien, other than a Lien arising solely as a result of an act
of the Buyer, whether existing at the time of purchase of such
Assigned Receivable or at any time thereafter;
(vi) the failure of Seller to have filed, or any
delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any
Assigned Receivables and the Related Rights in respect
thereof, whether at the time of any purchase or at any
subsequent time;
10
(vii) any dispute, claim, counterclaim, offset or
defense (other than discharge in bankruptcy) of the Obligor to
the payment of any Assigned Receivable (including, without
limitation, a defense based on such Assigned Receivable or the
related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from
the sale of the goods or services related to such Assigned
Receivable or the furnishing or failure to furnish such goods
or services;
(viii) any failure of Seller to perform its duties
or obligations in accordance with the provisions hereof or to
perform its duties or obligations under any of the Contracts;
(ix) any products liability claim or personal
injury or property damage suit or other claim, investigation,
litigation or proceeding of whatever sort arising out of or in
connection with merchandise, insurance or services which are
the subject of any Receivable or Contract;
(x) the commingling of Collections of Assigned
Receivables at any time with other funds;
(xi) any investigation, litigation or proceeding
related to this Agreement or the use of proceeds of purchases
or the ownership of any Assigned Receivable or Related Rights;
(xii) any tax or governmental fee or charge (but
not including taxes upon or measured by net income or
representing a franchise or doing business tax on such Sale
Indemnified Party), all interest and penalties thereon or with
respect thereto, and all out-of-pocket costs and expenses,
including the reasonable fees and expenses of counsel in
defending against the same, which may arise by reason of the
purchase or ownership of the Assigned Receivables generated by
Seller or any Related Rights connected with any such Assigned
Receivables; or
(xiii) any failure by Seller to pay any taxes when
due, including, without limitation, sales taxes or excise
taxes, payable in connection with the Assigned Receivables.
ARTICLE 8 ADMINISTRATION AND COLLECTIONS; ADDITIONAL RIGHTS AND OBLIGATIONS
IN RESPECT OF THE ASSIGNED RECEIVABLES
Section 8.1. Servicing of Assigned Receivables and
Related Rights. Consistent with the Buyer's ownership of the Assigned
Receivables and the Related Rights, the Buyer shall have the sole right to
service, administer and collect the Assigned Receivables, to assign such right
and to delegate such right to others. In consideration of the Buyer's purchase
of the Assigned Receivables and the Related Rights, Seller agrees to cooperate
fully with the Buyer to facilitate the full and proper performance of such
duties and obligations for the benefit of the Buyer.
Section 8.2. Rights of the Buyer; Enforcement Rights.
11
(a) Unless the underlying Assigned Receivables have been
repurchased by Seller from the Buyer pursuant to Section 3.2, the Buyer shall
have no obligation to account for, to replace, to substitute or to return any
Assigned Receivables and Related Rights to Seller. Unless the underlying
Assigned Receivables have been repurchased by the Buyer from Seller the Buyer
shall have no obligation to account for, or to return to Seller Collections, or
any interest, late fees and charges or other finance charges collected pursuant
thereto, without regard to whether such Collections and charges are in excess of
the Purchase Price for such Assigned Receivables and Related Rights.
(b) The Buyer shall have the unrestricted right to
further assign, transfer, deliver, hypothecate, grant Liens in, subdivide or
otherwise deal with the Receivables and Related Rights, and all of the Buyer's
right, title and interest in, to and under this Agreement, on whatever terms the
Buyer shall determine.
(c) The Buyer shall have the sole right to retain any
gains or profits created by buying, selling or holding the Assigned Receivables
and Related Rights and, except as expressly set forth in the Transaction
Documents, shall have the sole risk of and responsibility for losses or damages
created by such buying, selling or holding.
(d) Seller hereby authorizes the Buyer, and irrevocably
appoints the Buyer as its attorney-in-fact with full power of substitution and
with full authority in the place and stead of Seller, which appointment is
coupled with an interest, to take any and all steps in the name of Seller and on
behalf of Seller necessary or desirable, in the determination of the Buyer, to
collect any and all amounts or portions thereof due under any and all Assigned
Receivables or Related Rights, including, without limitation, endorsing the name
of Seller on checks and other instruments representing Collections and enforcing
such Assigned Receivables and Related Rights.
Section 8.3. Responsibilities of Seller.
Anything herein to the contrary notwithstanding:
(a) Seller agrees to deliver directly to the Servicer
(for the Buyer's account), by the end of the then current four week accounting
period of Seller, any Collections that it receives, in the form so received, and
agrees that all Collections shall be deemed to be received in trust for the
Buyer and shall be maintained and segregated separate and apart from all other
funds and moneys of Seller until delivery of the Collections to the Servicer;
(b) Seller in its capacity as the Servicer, if instructed
by Buyer, agrees to instruct all Obligors to cause all Collections to be sent to
a post office box that is the subject of a Lock-Box Agreement; and
(c) Seller shall (i) perform all of its obligations
hereunder and under the Contracts related to the Assigned Receivables and
Related Rights to the same extent as if the Assigned Receivables and Related
Rights had not been sold hereunder, and the exercise by the Buyer or its
designee or assignee of the Buyer's rights hereunder or in connection herewith
shall not relieve Seller from such obligations and (ii) pay when due any taxes,
including, without limitation, any sales taxes payable in connection with the
Assigned Receivables and their creation
12
and satisfaction. Notwithstanding anything to the contrary in this Agreement,
the Buyer shall not have any obligation or liability with respect to any
Assigned Receivable or Related Rights nor shall the Buyer be obligated to
perform any of the obligations of Seller under any of the foregoing, other than
a duty to cooperate with Seller in connection with the performance of its
obligations under this Agreement.
Section 8.4. Further Action Evidencing Purchases. Seller
agrees that from time to time, at its expense, it will execute and deliver all
further instruments and documents, and take all further reasonable action, in
order to perfect, protect or more fully evidence the purchase of the Assigned
Receivables and the Related Rights by the Buyer hereunder, or to enable the
Buyer to exercise or enforce any of its rights hereunder or under any other
Transaction Document as soon as reasonably possible. Seller further agrees from
time to time, at its expense, promptly to take all action that the Buyer may
reasonably request in order to perfect, protect or more fully evidence such
purchase of the Assigned Receivables and the Related Rights or to enable the
Buyer to exercise or enforce any of its or their respective rights hereunder or
under any other Transaction Document in respect of the Assigned Receivables and
the Related Rights. Without limiting the generality of the foregoing Seller
will:
(a) execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such other
instruments or notices, as the Buyer or its lender(s) may reasonably determine
to be necessary or appropriate; and
(b) xxxx the master data processing records evidencing
the Assigned Receivables and, if requested by the Buyer, to the extent
reasonably practicable, legend the related Contracts, to reflect the sale of the
Assigned Receivables and Related Rights pursuant to this Agreement.
Seller hereby authorizes the Buyer or its designee or assignee
to file, signed only by the Buyer, one or more financing or continuation
statements, and amendments thereto and assignments thereof, relative to all or
any of the Assigned Receivables and Related Rights of Seller in each case
whether now existing or hereafter generated. If Seller fails to perform any of
its agreements or obligations under this Agreement, the Buyer or its designee or
assignee may (but shall not be required to) itself perform, or cause performance
of, such agreement or obligation, and the reasonable expenses of the Buyer or
its designee or assignee incurred in connection therewith shall be payable by
Seller under Section 7.1.
Section 8.5. Purchase Termination Event. Either (i) an
election by the Seller to no longer sell Receivables and Related Rights to the
Buyer hereunder by delivery to the Buyer of a notice to that effect, or (ii) an
election by the Buyer to no longer purchase Receivables and Related Rights from
the Seller hereunder by delivery to the Seller of a notice to that effect, shall
take effect on the Business Day after the day of receipt by the recipient of
such notice (in either case, a "Purchase Termination Event").
ARTICLE 9 MISCELLANEOUS
Section 9.1. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or consent to any departure by ____________
therefrom shall be effective unless
13
in a writing signed by the Buyer and any lender of the Buyer to which the Buyer
shall have granted a Lien in, or assigned to, any of the Assigned Receivables,
and any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of the
Buyer to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right.
Section 9.2. Notices, Etc. 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
parties 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 Seller: Indian Industries, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Buyer: Indian-Xxxxxx, Inc.
0000-X Xxxxxxxxxxx Xxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 9.3. Binding Effect; Assignability. This
Agreement shall be binding upon and inure to the benefit of the Buyer and Seller
and their respective successors and permitted assigns. Seller may not assign its
rights hereunder or any interest herein without the prior written consent of the
Buyer. The Buyer may not assign its rights hereunder or any interest herein
without the prior written consent of Seller; provided, that Seller hereby
approves of the Buyer's assignment of its rights hereunder, either absolutely or
as collateral, to Bank One, National Association, and its successors and
assigns. This Agreement shall create and constitute the continuing obligations
of the parties hereto in accordance with its terms, and shall remain in full
force and effect until the date after the occurrence of any Purchase Termination
Event on which Seller has received payment in full for all Assigned Receivables
and Related Rights conveyed pursuant to Section 1.1 hereof and has paid and
performed all of its obligations hereunder in full. The rights and remedies with
respect to any breach of any representation and warranty made by Seller pursuant
to Article 5 shall be continuing and shall survive any termination of this
Agreement.
14
Section 9.4. Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF INDIANA WITHOUT REFERENCE
TO THE CONFLICTS OF LAWS RULES OR PRINCIPLES OF ANY JURISDICTION, EXCEPT TO THE
EXTENT THAT THE PERFECTION (OR THE EFFECT OF PERFECTION OR NON-PERFECTION) OF
THE INTERESTS OF THE BUYER IN THE RECEIVABLES AND THE RELATED RIGHTS IS GOVERNED
BY THE LAWS OF A STATE OR JURISDICTION OTHER THAN THE STATE OF INDIANA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF INDIANA OR ANY UNITED
STATES FEDERAL COURT, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
TRANSACTION DOCUMENT.
Section 9.5. Execution in Counterparts. This 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 9.6. Survival of Termination. The provisions of
Section 1.4, Article 7, Section 9.4, Section 9.7 and this Section 9.6 shall
survive any termination of this Agreement.
Section 9.7. Waiver of Jury Trial. EACH PARTY HERETO
WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
15
Section 9.8. Entire Agreement. This Agreement and the
other Transaction Documents embody the entire agreement and understanding of the
parties hereto, and supersede all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof. The Exhibits to this Agreement shall be deemed
incorporated by reference into this Agreement as if set forth herein.
Section 9.9. Headings. The captions and headings of this
Agreement and in any Exhibit hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective duly authorized officers, as of
the date first above written.
INDIAN INDUSTRIES, INC., AS SELLER
By:________________________________
___________________________________
(Printed Name and Title)
INDIAN - XXXXXX, INC., AS BUYER
By:________________________________
___________________________________
(Printed Name and Title)
STATE OF___________________)
) SS:
COUNTY OF__________________)
The foregoing instrument was personally acknowledged before me
this _____ day of ____________, 2003, by ___________________________, the
_________________ of ________________, an ___________ corporation, for and on
behalf of such corporation.
___________________________________
Notary Public - Signature
___________________________________
(Printed Name)
My Commission Expires:_______________________
My County of Residence:______________________
16
STATE OF___________________)
) SS:
COUNTY OF__________________)
The foregoing instrument was personally acknowledged before me
this ____ day of ____________, 2003, by ___________________________, the
_________________ of Indian Industries, Inc., an Indiana corporation, for and on
behalf of such corporation.
___________________________________
Notary Public - Signature
___________________________________
(Printed Name)
My Commission Expires:_______________________
My County of Residence:______________________
17
EXHIBIT 1
DEFINITIONS
As used in the Receivables Purchase Agreement, dated as of
September 5, 2003 between Indiana Industries, Inc. and Indian-Xxxxxx, Inc. (the
"Agreement"), the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined). Unless otherwise indicated, all Section and Exhibit references
in the Agreement are to Sections of and Exhibits to the Agreement. All
accounting terms not specifically defined herein shall be constructed in
accordance with generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of Indiana and not specifically defined
herein, are used herein as defined in Article 9. Unless the context otherwise
requires, "or" means "and/or," and "including" (and with correlative meaning
"include" and "includes") means including without limiting the generality of any
description preceding such term.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or officer of such Person.
"Assigned Receivable" means any Receivable which as of any
Determination Date, Seller sells to the Buyer.
"Adverse Claim" means a lien, security interest, pledge or
charge or encumbrance of any kind other than a lien, pledge, security interest
or other charge or encumbrance, in favor of the Buyer.
"Business Day" means any day on which (i) banks are not
authorized or required to remain closed in Indianapolis, Indiana.
"Buyer" has the meaning assigned in the preamble to this
Agreement.
"Collections" means, with respect to any Assigned Receivables,
(i) all funds or other payment media or property that are received by any Person
in payment of any amounts owed in respect of such Assigned Receivable
(including, without limitation, finance charges, interest and all other
charges), or applied to amounts owed in respect of such Assigned Receivable
(including, without limitation, insurance payments and net proceeds of the sale
or other disposition of repossessed goods or other collateral or property of the
Obligor or any Person directly or indirectly liable for the payment of such
Assigned Receivable and available to be applied thereon) and (ii) all other
proceeds of such Assigned Receivable.
"Contract" means, with respect to any Receivable, any all
contracts, understandings, instruments, agreements, invoices, notes or other
writings pursuant to which such Receivable arises or which evidences such
Receivable or under which any Obligor becomes or is obligated to make payment in
respect of such Receivable.
"Credit and Collection Policy" means those receivables credit
and collection policies and practices of Seller in effect on the date of this
Agreement, as modified from time to time.
"Determination Date" shall mean any date on which Assigned
Receivables are sold to the Buyer.
"Effective Date" means 12:01 a.m. on September 7, 2003.
"Eligible Receivables" means, at any date a determination
thereof is to be made, those Receivables of Seller for which Seller shall have
furnished to the Buyer information adequate for purposes of identification at
all times and in form and substance as may be requested by the Buyer; provided
however, that a Receivable shall not constitute an Eligible Receivable if it:
(a) remains unpaid sixty-one (61) or more days after the original due date for
its payment stated on the applicable invoice; (b) is an account receivable with
respect to which the account receivable debtor is the subject of a bankruptcy or
similar insolvency proceeding or has made an assignment for the benefit of
creditors or whose assets have been conveyed to a receiver or trustee or who is
no longer conducting its customary business, except and to the extent the Bank
otherwise agrees in writing; (c) is an account receivable which is not invoiced
(and dated as of the date of such invoice) and sent to the account receivable
debtor in the ordinary course of the business of Seller and in accordance with
customary billing practices after delivery of the underlying goods to, or
performance of the underlying services for, the accounts receivable debtor; (d)
is an account receivable arising with respect to goods which have not been
shipped or arising with respect to services which have not been fully performed;
(e) is an account receivable with respect to which the account receivable
debtor's obligation to pay the account receivable is conditioned upon the
account receivable debtor's approval or is otherwise subject to any repurchase
obligation or return right, as with sales made on a xxxx-and-hold, guaranteed
sale, sale-and-return, sale on approval or consignment basis; (f) is an account
receivable in which the Buyer does not have an interest; (g) is an account
receivable due from any Affiliate of Indian Industries, Inc. or which is due
solely from an accounts receivable debtor which is a USA federal governmental
entity or agency, except and to the extent the Buyer otherwise agrees in
writing; (h) is an account receivable evidenced by an instrument (as defined in
Article 9 of the UCC) not in the possession of the Buyer; or (i) is an account
receivable which has been charged-off by Seller. At any time more than ten
percent (10%) of the aggregate amount of accounts receivable due from an
accounts receivable debtor remain unpaid sixty-one (61) or more days after the
date(s) due, as stated on the original invoice(s) evidencing such accounts
receivable, then no account receivable due Seller from that accounts receivable
debtor shall constitute an Eligible Receivable.
"Fair Market Value Discount Factor" shall have the meaning
assigned to such term in Section 2.1 hereof.
"Governmental Authority" means any court or any federal,
state, municipal, local or other department, commission, board, bureau, agency,
public authority, instrumentality or any arbitrator.
"Ineligible Receivable" shall have the meaning assigned to
such term in Section 3.2(a) hereof.
"Initial Sale" means the first and earliest sale of Assigned
Receivables made by Seller to Buyer pursuant to this Agreement. There can be
only one Initial Sale under this Agreement.
2
"Lien" means any security interest, mortgage, pledge,
assignment, or voluntary or involuntary lien, charge or other encumbrance of any
kind, including interests of vendors or lessors under conditional sale contracts
or capital leases.
"Lock-Box Account" means an account maintained at a bank or
other financial institution for the purpose of receiving collections with
respect to the Assigned Receivables.
"Lock-Box Agreement" means an agreement between the Buyer and
each Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial
institutions holding one or more Lock-Box Accounts.
"Obligor" means, with respect to any Receivable, the Person
obligated to make payments pursuant to the Contract relating to such Receivable.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity, or a
government or any political subdivision or agency thereof.
"Purchase Price" shall have the meaning assigned to such term
in Section 2.1 hereof.
"Purchase Termination Event" shall have the meaning assigned
to such term in Section 8.5 hereof.
"Receivable" means any indebtedness and any other obligations
owed to the Seller by, or any rights of the Seller to payments from or on behalf
of, an Obligor, which constitutes an account arising in connection with the sale
of goods or services by the Seller, and includes, without limitation, the
obligation to pay any finance charges, fees and other charges with respect
thereto. Indebtedness and other obligations arising from any one transaction,
including, without limitation, indebtedness and other obligation represented by
an individual invoice or Contract, shall constitute a Receivable separate from a
Receivable arising from any other transaction.
"Related Property" means, with respect to any Receivable:
(i) all of the Seller's interest in any goods
(including returned goods), and documentation or title
evidencing the shipment or storage of any goods (including
returned goods) relating to any sale giving rise to such
Receivable;
(ii) all other security interests or liens and
property subject thereto from time to time purporting to
secure payment of such Receivable, whether pursuant to the
Contract relating to such Receivable or otherwise, together
with all UCC financing statements or similar filings signed by
an Obligor relating thereto; and
(iii) all guaranties, indemnities, insurance and
other agreements (including the related Contract) or
arrangements of whatever character from time to
3
time supporting or securing payment of such Receivable or
otherwise relating to such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise.
"Related Rights" shall have the meaning assigned to such term
in Section 1.1(a) hereof.
"Sale Indemnified Amounts" shall have the meaning assigned to
such term in Section 7.1 hereof.
"Sale Indemnified Party" shall have the meaning assigned to
such term in Section 7.1 hereof.
"Seller" has the meaning set forth in the preamble to the
Agreement.
"Seller Material Adverse Effect" means, with respect to any
event or circumstance
(i) a materially adverse effect on the assets,
business, financial condition, prospects or operation of
Seller;
(ii) a materially adverse effect on the ability
of Seller to perform its obligations under this Agreement or
any other Transaction Document to which Seller as the Seller
or the Servicer, in its capacity as such, is a party;
(iii) a materially adverse effect on the validity
or enforceability as against Seller of this Agreement or any
other Transaction Document to which Seller, as the Seller or
the Servicer as such, is a party;
(iv) a materially adverse effect on the status,
existence, vesting, validity, perfection, priority or
enforceability of the Buyer's interests in the Assigned
Receivables and the Related Rights; or
(v) a materially adverse effect on the validity,
enforceability or collectibility of more than ten percent
(10%) of the then outstanding Assigned Receivables.
"Servicer" means the Person who will collect the Assigned
Receivables on behalf of the Buyer. Seller will be appointed by Buyer as the
Servicer pursuant to the Services Agreement.
"Services Agreement" means the Services Agreement, dated as of
even date herewith, between Buyer and Seller wherein Buyer appoints Seller as
the Servicer.
"Transaction Documents" means this Agreement, the Services
Agreement, the Lock-Box Agreements (if any), and all other certificates,
instruments, UCC financing statements, reports, notices, agreements and
documents executed or delivered under or in connection with this Agreement, in
each case as the same may be amended, supplemented or otherwise modified or
restated from time to time in accordance with this Agreement.
4
"UCC" means the Uniform Commercial Code as from time to time
in effect in the applicable jurisdiction.
"Unpaid Balance" means the then outstanding principal balance
thereof, excluding therefrom any available reductions or adjustments, the amount
of which the Buyer and Seller have agreed upon, due to defective, rejected,
returned, repossessed or foreclosed goods, defective goods or rejected services
or any cash discount, adjustment or set off.
5
EXHIBIT 2
PURCHASE STATEMENT
This instrument is delivered to you pursuant to the
Receivables Purchase Agreement dated as of September 5, 2003, by and between
____________________ and INDIAN-XXXXXX, INC. (the "Agreement").
1. The undersigned hereby sells, assigns and transfers,
absolutely but without recourse and with the covenants, warranties and
indemnifications set forth in the Agreement, to INDIAN - XXXXXX, INC. pursuant
to Article 1 of the Agreement, all rights, title and interests of the Seller in,
to and under the Receivables sold herewith and all Related Rights (as such term
is defined in the Agreement) with respect thereto, for an aggregate purchase
price of $__________, payable in accordance with the provisions of Article 3 of
the Agreement.
2. This instrument shall become effective as of the date
hereof upon your acceptance.
INDIAN INDUSTRIES, INC.
By:________________________________
___________________________________
(Printed Name and Title)
Accepted as of _______________, 20___.
INDIAN - XXXXXX, INC.
By:________________________________
___________________________________
(Printed Name and Title)
