EXHIBIT 10.5
RECEIVABLES PURCHASE AGREEMENT
(SWISS SUBSIDIARY)
BETWEEN
INDIAN-MARTIN AG,
AS THE SELLER,
AND
INDIAN - MARTIN, INC.,
AS THE BUYER
DATED AS OF SEPTEMBER 5, 2003
Table of Contents
Page
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ARTICLE 1 A MOUNTS 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. Purchase Price........................................................................ 3
ARTICLE 3 PAYMENT OF PURCHASE PRICE...................................................................... 3
Section 3.1. The Purchase Price Payment............................................................ 3
ARTICLE 4 CONDITIONS TO PURCHASE......................................................................... 3
Section 4.1. Conditions Precedent to Effectiveness of this Agreement............................... 3
Section 4.2. Effect of Payment of Purchase Price................................................... 4
ARTICLE 5 REPRESENTATIONS AND WARRANTIES................................................................. 4
Section 5.1. Representations and Warranties........................................................ 4
ARTICLE 6 INDEMNIFICATION................................................................................ 6
Section 6.1. Indemnities by AG..................................................................... 6
ARTICLE 7 ADMINISTRATION AND COLLECTIONS; ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT
OF THE ASSIGNED RECEIVABLES.................................................................... 7
Section 7.1. Servicing of Assigned Receivables and Related Rights.................................. 7
Section 7.2. Rights of the Buyer; Enforcement Rights............................................... 7
Section 7.3. Responsibilities of AG................................................................ 8
Section 7.4. Further Action Evidencing Purchases................................................... 8
Table of Contents
(continued)
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ARTICLE 8 MISCELLANEOUS.................................................................................. 9
Section 8.1. Amendments, Etc. ..................................................................... 9
Section 8.2. Notices, Etc. ........................................................................ 9
Section 8.3. Binding Effect; Assignability......................................................... 10
Section 8.4. Governing Law and Jurisdiction........................................................ 10
Section 8.5. Execution in Counterparts............................................................. 10
Section 8.6. Survival of Termination............................................................... 11
Section 8.7. Waiver of Jury Trial.................................................................. 11
Section 8.8. Entire Agreement...................................................................... 11
Section 8.9. Headings.............................................................................. 11
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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-Martin AG, a corporation organized and existing
under the laws of Switzerland, as seller (sometimes referred to as "AG" or the
"Seller," as the case may be) and INDIAN-MARTIN, INC., a corporation organized
and existing under the laws of the State of Nevada, as buyer (sometimes referred
to as "IM, Inc." or the "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. AG and IM, Inc. are each corporations all of whose
issued and outstanding shares of capital stock are wholly owned by Escalade,
Incorporated, a corporation incorporated and existing under the laws of Indiana
("Escalade").
3. AG wishes to sell all of the Receivables that it owns
as of the Effective Date to IM, Inc., and IM, Inc. is willing, on the terms and
subject to the conditions contained in this Agreement, to purchase such
Receivables from AG as of the date hereof.
4. IM, Inc., in the Services Agreement, has appointed
Indian Industries, Inc. and Martin Yale Industries, Inc. as the Servicer to
collect Assigned Receivables which IM, Inc. purchases from AG.
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, AG hereby sells to the Buyer, and
the Buyer hereby purchases from AG, all of AG's right, title and interest in and
to:
(i) all Assigned Receivables;
(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 AG or the Buyer from or on behalf of or
for credit to
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 AG
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).
The purchase hereunder shall be made without recourse, but
shall be made pursuant to and in reliance upon the representations, warranties
and covenants of AG, 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".
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 AG; provided that AG shall be liable
to the Buyer for all representations, warranties, covenants and indemnities made
by AG pursuant to the terms of this Agreement, it being understood that such
obligation of AG 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 AG and the Buyer intends the transaction
hereunder constitutes an absolute and irrevocable purchase and sale of
Receivables and the Related Rights by AG to the Buyer providing the Buyer with
the full benefits of ownership of the Assigned Receivables, and neither party
hereto intends the transaction contemplated hereunder to be, or for any purpose
to be characterized as, a loan or similar advance from the Buyer to AG 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, AG shall be deemed hereunder to have granted to the Buyer,
and AG hereby grants to the Buyer, a security interest in all of AG'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 AG's obligations (monetary or otherwise) arising
under, pursuant to or by virtue of this Agreement (including any loan deemed to
have been made to AG pursuant hereto), whether now or hereafter existing or
arising, due or to become due, direct or indirect, absolute or contingent. 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, AG
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.
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Section 1.4. Consideration for Purchases. On the terms and
subject to the conditions set forth in this Agreement, the Buyer agrees to make
the Purchase Price payment to AG in accordance with Article 3.
ARTICLE 2 CALCULATION OF PURCHASE PRICE
Section 2.1. Purchase Price. The "Purchase Price" (to be paid
to AG in accordance with the terms of Article 3) for the Assigned Receivables
and the Related Rights shall be the amount of $_______________.
ARTICLE 3 PAYMENT OF PURCHASE PRICE
Section 3.1 The Purchase Price Payment. Buyer shall pay the
purchase price for the Initial Sale of Assigned Receivables sold under this
Agreement by means of a wire transfer in immediately available funds in
accordance with instructions heretofore provided by AG to Buyer.
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 in form and
substance satisfactory to the Buyer.
(a) A certificate of the Secretary of AG 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 AG,
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) Signed original copies or time stamped receipt
copies, of the proper financing statements (Form UCC-1) that have been duly
executed and name AG 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 the Buyer's ownership interest in all Assigned Receivables and
Related Rights in which an ownership interest is assigned to it hereunder;
(c) A certificate from an officer of AG to the effect
that AG has placed on the most recent summary master control data processing
reports of AG the following legend (or the substantive equivalent thereof):
THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO INDIAN -
MARTIN, INC. PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT,
DATED AS OF SEPTEMBER 5, 2003, AS AMENDED FROM TIME TO TIME,
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BETWEEN INDIAN-MARTIN AG AND INDIAN- MARTIN, INC.
(d) Such other agreements, instruments, UCC financing
statements, certificates, opinions and other documents as the Buyer may
reasonably request.
Section 4.2. Effect of Payment of Purchase Price. Upon the
payment of the Purchase Price for the Initial Sale 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 AG in
fact to satisfy any such condition precedent.
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 the purchase
hereunder, AG hereby represents and warrants as follows:
(a) Organization and Good Standing. AG has been duly
organized and is validly existing as a corporation in good standing under the
laws of Switzerland, 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) Power and Authority; Due Authorization. AG (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.
(c) Binding Obligations. This Agreement constitutes, and
each other Transaction Document to be signed by AG when duly executed and
delivered will constitute, a legal, valid and binding obligation of AG
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.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which AG
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
AG's articles of association or regulations on internal organization or any loan
or credit agreement, other agreement, indenture, lease or instrument of AG, or
by which it or its properties may be bound, (ii) result in the creation or
imposition of any Lien upon any of AG's properties pursuant to the terms of any
such loan or credit agreement, other agreement, indenture, lease or instrument,
other
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than the Transaction Documents, or (iii) violate any requirements of law enacted
by any Governmental Authority.
(e) No Proceedings. There is no litigation, proceeding or
investigation pending or, to the best of AG's knowledge, threatened, before any
Governmental Authority or arbitrator (i) asserting the invalidity of this
Agreement or any other Transaction Document to which AG is a party, or (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.
(f) Government Approvals. No action by a Governmental
Authority is required for the due execution, delivery and performance by AG of
this Agreement or any other Transaction Document to which it is a party.
(g) Quality of Title; Valid Sale; Etc. Immediately prior
to the Initial Sale, AG is the legal and beneficial owner of each of the
Assigned Receivables and the Related Rights free and clear of any Lien; and 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. All
Receivables were purchased by AG from Escalade Affiliates in accordance with the
terms and conditions contained in those certain receivables purchase agreements
entered into by and between AG and such Escalade Affiliates. The Assigned
Receivables constitute all of the Receivables owned by AG as of the Effective
Date.
(h) Accuracy of Information. Each report, information,
exhibit, financial statement, document, book, record or report furnished by or
on behalf of it to the Buyer in connection with this Agreement is correct in all
material respects as of its date or as of the date so furnished, and no such
item contains any untrue statement of a material fact or omits 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.
(i) Offices. The principal place of business and chief
executive office of AG are located at the address of AG referred to in Section
9.2, and the offices where AG keeps all its books, records and documents
evidencing or relating to Assigned Receivables are located at the address of AG
referred to in Section 9.2 (or in jurisdictions where all action required by
Section 8.4 has been taken and completed).
(j) Bulk Sales Act. No transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(k) Maintenance of Books and Records. AG has accounted
for and will account for the sale of Assigned Receivables and Related Rights to
IM, Inc. in its books and financial statements as sales, consistent with
generally accepted accounting principles.
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(l) Solvency. AG is solvent; and at the time of (and
immediately after) each sale pursuant to this Agreement it shall be solvent.
ARTICLE 6 INDEMNIFICATION
Section 6.1. Indemnities by AG. 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, AG 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 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 AG 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, AG 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 AG of an interest in any Assigned
Receivable or Related Rights to any Person other than the
Buyer;
(ii) the failure of any information provided by
AG 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 AG (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 AG 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,
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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 AG 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;
(vii) the commingling of Collections of Assigned
Receivables at any time with other funds;
(viii) 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;
(ix) 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 conveyed by
AG pursuant hereto or any Related Rights connected with any
such Assigned Receivables; or
(x) any failure by AG to pay any taxes when due,
including, without limitation, sales taxes or excise taxes,
payable in connection with the Assigned Receivables.
ARTICLE 7 ADMINISTRATION AND COLLECTIONS; ADDITIONAL RIGHTS AND
OBLIGATIONS IN RESPECT OF THE ASSIGNED RECEIVABLES
Section 7.1. 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, AG 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 7.2. Rights of the Buyer; Enforcement Rights.
(a) The Buyer shall have no obligation to account for, to
replace, to substitute or to return any Assigned Receivables and Related Rights
to AG, and the Buyer shall have no obligation to account for, or to return to
AG, 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.
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(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) AG 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 AG, which appointment is coupled
with an interest, to take any and all steps in the name of AG and on behalf of
AG 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 AG on
checks and other instruments representing Collections and enforcing such
Assigned Receivables and Related Rights.
Section 7.3. Responsibilities of AG,
Anything herein to the contrary notwithstanding:
(a) AG agrees to deliver directly to the Servicer (for
the Buyer's account), by the end of the then current four week accounting period
of AG, 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 AG until delivery of the Collections to the Servicer;
(b) AG shall pay when due any taxes, including, without
limitation, any sales taxes payable in connection with the Assigned Receivables
and their creation 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 AG under any of the foregoing,
other than a duty to cooperate with AG in connection with the performance of its
obligations under this Agreement.
Section 7.4. Further Action Evidencing Purchases. AG 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. AG 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 AG will:
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(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) mark 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.
AG 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 AG in each case whether
now existing or hereafter generated. If AG 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 AG
under Section 6.1.
ARTICLE 8 MISCELLANEOUS
Section 8.1. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or consent to any departure by AG therefrom shall be
effective unless 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 8.2. 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 Buyer: Indian-Martin, Inc.
2325-B Renaissance Drive, Suite 10
Las Vegas, NV 89119
Attn: President
Telephone: (702) 740-4244
Facsimile: (702) 966-4247
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AG: Indian-Martin AG
Aegeristrasse 66
6300, Zug, Switzerland
Attention: President
Telephone: 0041 41 720 34 45
Facsimile: 0041 41 720 34 46
Section 8.3. Binding Effect; Assignability. This Agreement
shall be binding upon and inure to the benefit of the Buyer and AG and their
respective successors and permitted assigns. AG 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 AG; provided that AG 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 AG 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 AG pursuant to Article 5 and
all of AG's indemnification obligations pursuant to Article 6 shall be
continuing and shall survive any termination of this Agreement.
Section 8.4. 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 ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN THE
STATE OF INDIANA, 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 8.5. 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, and the facsimile
10
signature of either party hereto shall be deemed to be valid and binding for all
purposes with the same force and effect of an original, manual signature.
Section 8.6. Survival of Termination. The provisions of
Section 1.4, Article 6, Section 8.4, Section 8.7 and this Section 8.6 shall
survive any termination of this Agreement.
Section 8.7. 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.
Section 8.8. 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 8.9. 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.
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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-MARTIN, AG, AS SELLER
By:___________________________________
_____________________________________
(Printed Name and Title)
INDIAN - MARTIN, INC., AS BUYER
By:___________________________________
_____________________________________
(Printed Name and Title)
12
STATE OF__________________________________)
) SS:
COUNTY OF_________________________________)
Execution of the foregoing instrument was acknowledged before
me this ____ day of ____________, 2003, by ___________________________, the
_________________ of Indian-Martin, Inc., a Nevada corporation, on behalf of the
corporation.
______________________________________
Notary Public - Signature
______________________________________
(Printed Name)
My Commission Expires:________________________
My County of Residence:_______________________
STATE OF______________________________________)
) SS:
COUNTY OF_____________________________________)
Execution of the foregoing instrument was acknowledged before
me this _____ day of ____________, 2003, by ___________________________, the
_________________ of Indian-Martin AG, a Swiss corporation, on behalf of the
corporation.
______________________________________
Notary Public - Signature
______________________________________
(Printed Name)
My Commission Expires:__________________
My County of Residence:_________________
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EXHIBIT 1
DEFINITIONS
As used in the Receivables Purchase Agreement, dated as of
September 5, 2003, between Indian-Martin, Inc. and Indian-Martin AG (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 owned by AG as of
the Effective Date and which AG sells to the Buyer on the Closing Date.
"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.
"Closing Date" is that date which is first set forth in the
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, and any and all Services Agreements and Receivables
Purchase Agreements entered into by and between AG and any Escalade Affiliate.
"Effective Date" means 12:01 a.m. on September 7, 2003.
"Governmental Authority" means any court or any federal,
state, municipal, local or other department, commission, board, bureau, agency,
public authority, instrumentality or any arbitrator.
"Initial Sale" means the first and only sale of Assigned
Receivables made by AG to Buyer pursuant to this Agreement. There can be only
one Initial Sale under this Agreement, and there will be no subsequent sales
hereunder.
"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.
"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 Escalade Affiliate from which the Seller acquired
such account, 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;
2
(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 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 6.1 hereof.
"Sale Indemnified Party" shall have the meaning assigned to
such term in Section 6.1 hereof.
"Seller" has the meaning set forth in the preamble to the
Agreement.
"Servicer(s)" means the Person(s) who will collect the
Assigned Receivables on behalf of the Buyer.
"Services Agreement(s)" means any of one or more service
agreements, dated as of September 5, 2003, between IM, Inc. and one or more
Escalade Affiliates, wherein IM, Inc. appoints Indian Industries, Inc. and
Martin Yale Industries, Inc. as the Servicers.
"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.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the applicable jurisdiction.
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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
INDIAN-MARTIN, INC. and INDIAN-MARTIN AG (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 - MARTIN, 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-MARTIN AG, a Swiss corporation
By:___________________________________
______________________________________
(Printed Name and Title)
Accepted as of September 5, 2003.
INDIAN - MARTIN, INC. a Nevada corporation
By:_______________________________________
__________________________________________
(Printed Name and Title)