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Title: |
Receivables Purchase Agreement |
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Entities: |
Bank One, NA; Comerica Bank; First National Bank of Chicago; First Union National Bank; Metals USA Inc.; Bank of New York; Bracewell & Patterson L.L.P. |
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Date: |
2000 |
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Size: |
Preview shows 22KB of 227KB total |
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Price: |
$83 |
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ID: |
#818882 |
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RECEIVABLES PURCHASE AGREEMENT
Dated as of January 21, 1999
As Amended By
AMENDMENT NO. 1
Dated as of March 22, 1999,
AMENDMENT NO. 2
Dated as of August 30, 1999,
AMENDMENT NO. 3
Dated as of January 19, 2000,
AMENDMENT NO. 4
Dated as of September 29, 2000 and
AMENDMENT NO. 5
Dated as of November 1, 2000
Among
METALS RECEIVABLES CORPORATION
as Seller
and
FALCON ASSET SECURITIZATION CORPORATION,
and
THE FINANCIAL INSTITUTIONS PARTY HERETO,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
{PAGE}
ARTICLE I AMOUNTS AND TERMS OF THE PURCHASES 2
Section 1.1. Purchase Facility 3
Section 1.2. Making Purchases 3
Section 1.3. Selection of Tranche Periods and Discount Rates 3
Section 1.4. Percentage Evidenced by Receivable Interests 4
Section 1.5. Dividing or Combining Receivable Interests 4
Section 1.6. Reinvestment Purchases 4
Section 1.7. Liquidation Settlement Procedures 5
Section 1.8. Deemed Collections 5
Section 1.9. Discount and Funding Charges; Payments and Computations,
Etc 6
Section 1.10. Seller Interest 7
ARTICLE II LIQUIDITY FACILITY 7
Section 2.1. Transfer to Investors 7
Section 2.2. Transfer Price Reduction Discount 7
Section 2.3. Payments to Falcon 7
Section 2.4. Limitation on Commitment to Purchase from Falcon 8
Section 2.5. Defaulting Investors 8
ARTICLE III REPRESENTATIONS AND WARRANTIES 8
Section 3.1. Seller Representations and Warranties 8
Section 3.2. Investor Representations and Warranties 12
ARTICLE IV CONDITIONS OF PURCHASES 12
Section 4.1. Conditions Precedent to Initial Purchase 12
Section 4.2. Conditions Precedent to All Purchases and Reinvestments 12
ARTICLE V COVENANTS 13
Section 5.1. Affirmative Covenants of Seller 13
Section 5.2. Negative Covenants of Seller 19
ARTICLE VI ADMINISTRATION AND COLLECTION 20
Section 6.1. Designation of Servicer 20
Section 6.2. Duties of Servicer 21
Section 6.3. Collection Notices 22
Section 6.4. Responsibilities of the Seller 22
Section 6.5. Reports 23
Section 6.6. Servicer Fee 23
{PAGE}
ARTICLE VII SERVICER DEFAULTS 23
Section 7.1. Servicer Default 23
Section 7.2. Originator Liquidation Events 25
ARTICLE VIII INDEMNIFICATION 26
Section 8.1. Indemnities by the Seller 26
Section 8.2. Increased Cost and Reduced Return 28
Section 8.3. Other Costs and Expenses 29
Section 8.4. Allocations 29
ARTICLE IX THE AGENT 30
Section 9.1. Authorization and Action 30
Section 9.2. Delegation of Duties 30
Section 9.3. Exculpatory Provisions 31
Section 9.4. Reliance by Agent 31
Section 9.5. Non-Reliance on Agent and Other Purchasers 31
Section 9.6. Reimbursement and Indemnification 32
Section 9.7. Agent in its Individual Capacity 32
Section 9.8. Successor Agent 32
ARTICLE X ASSIGNMENTS; PARTICIPATIONS 32
Section 10.1. Assignments 32
Section 10.2. Participations 33
ARTICLE XI MISCELLANEOUS 33
Section 11.1. Waivers and Amendments 33
Section 11.2. Notices 34
Section 11.3. Ratable Payments 35
Section 11.4. Protection of Ownership Interests of the Purchasers 35
Section 11.5. Confidentiality 35
Section 11.6. Bankruptcy Petition 36
Section 11.7. Limitation of Liability 36
Section 11.8. CHOICE OF LAW 36
Section 11.9. CONSENT TO JURISDICTION 36
Section 11.10. WAIVER OF JURY TRIAL 37
Section 11.11. Integration; Survival of Terms 37
Section 11.12. Counterparts; Severability 37
Section 11.13. First Chicago Roles 37
Section 11.14. Characterization 38
{PAGE}
EXHIBITS AND SCHEDULES
EXHIBIT I DEFINITIONS
EXHIBIT II PRINCIPAL PLACE OF BUSINESS OF THE SELLER; LOCATION(S) OF
RECORDS; FEDERAL EMPLOYER IDENTIFICATION NUMBERS
EXHIBIT III LOCK-BOXES; CONCENTRATION ACCOUNTS; DEPOSITARY ACCOUNTS
EXHIBIT IV FORM OF COMPLIANCE CERTIFICATE
EXHIBIT V FORM OF COLLECTION ACCOUNT AGREEMENT
EXHIBIT VI CREDIT AND COLLECTION POLICY
EXHIBIT VII FORM OF MONTHLY REPORT
EXHIBIT VIII FORM OF PURCHASE NOTICE
EXHIBIT IX ORIGINATORS
SCHEDULE A LIST OF DOCUMENTS TO BE DELIVERED TO THE AGENT PRIOR TO THE
INITIAL PURCHASE
{PAGE}
METALS RECEIVABLES CORPORATION
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF JANUARY 21, 1999
AS AMENDED BY
AMENDMENT NO. 1
DATED AS OF MARCH 22, 1999,
AMENDMENT NO. 2
DATED AS OF AUGUST 30, 1999
AMENDMENT NO. 3
DATED AS OF JANUARY 19, 2000
AMENDMENT NO. 4
DATED AS OF SEPTEMBER 29, 2000 AND
AMENDMENT NO. 5
DATED AS OF NOVEMBER 1, 2000
This Receivables Purchase Agreement dated as of January 21, 1999 is among
Metals Receivables Corporation, a Delaware corporation (the "Seller"), the
Investors, Falcon Asset Securitization Corporation ("Falcon") and The First
National Bank of Chicago, as Agent. Unless defined elsewhere herein, capitalized
terms used in this Agreement shall have the meanings assigned to such terms in
Exhibit I hereto.
PRELIMINARY STATEMENTS
The Seller desires to transfer and assign Receivable Interests to the
Purchasers from time to time.
Falcon may, in its absolute and sole discretion, purchase Receivable
Interests from the Seller from time to time.
The Investors shall, at the request of the Seller, purchase Receivable
Interests from time to time. In addition, the Investors have agreed to provide a
liquidity facility to Falcon.
The First National Bank of Chicago has been requested and is willing to
act as Agent on behalf of Falcon and the Investors in accordance with the terms
hereof.
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{PAGE}
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1 PURCHASE FACILITY. (a) Upon the terms and subject to the
conditions hereof, the Seller may, at its option, sell and assign Receivable
Interests to the Agent for the benefit of the Purchasers. Falcon may, at its
option, instruct the Agent to purchase on behalf of Falcon, or if Falcon shall
decline to purchase, the Agent shall purchase on behalf of the Investors,
Receivable Interests from time to time during the period from the date hereof to
but not including the Termination Date. The Seller hereby assigns, transfers and
conveys to the Agent for the benefit of the relevant Purchaser or Purchasers,
and the Agent hereby acquires, all of the Seller's right, title and interest in
and to the Receivable Interests as more particularly described herein.
(b) The Seller may, upon at least ten days' prior notice to the Agent,
terminate in whole or reduce in part ratably among the Investors the unused
portion of the Purchase Limit; PROVIDED that each partial reduction of the
Purchase Limit shall be in an amount equal to $5,000,000 or an integral multiple
thereof.
Section 1.2 MAKING PURCHASES. (a) The Seller shall provide the Agent with
a purchase notice, in substantially the form of Exhibit VIII hereto (each a
"Purchase Notice"), at least (i) three Business Days prior to the date of an
Incremental Purchase in the event the applicable Discount Rate is requested to
be the LIBO Rate, (ii) two Business Days prior to the date of an Incremental
Purchase in the event the applicable Discount Rate is requested to be the CP
Rate and (iii) one Business Day prior to the date of an Incremental Purchase in
the event the applicable Discount Rate is requested to be the Base Rate. Each
Purchase Notice shall, except as set forth below, be irrevocable and shall
specify the requested Purchase Price (which shall not be less than, and shall be
an integral multiple of, $1,000,000) and date of purchase, together with the
duration of the initial Tranche Period and the initial Discount Rate related
thereto. Following receipt of a Purchase Notice, the Agent will determine
whether Falcon agrees to make the purchase. If Falcon declines to make a
proposed purchase, the Seller may cancel the Purchase Notice or the Incremental
Purchase of the Receivable Interests will be made by the Investors.
(b) On the date of each Incremental Purchase, upon satisfaction of the
applicable conditions precedent set forth in Article IV, Falcon or each
Investor, as applicable, shall deposit to the Facility Account, in immediately
available funds, no later than 12:00 noon (Chicago time), an amount equal to (i)
in the case of Falcon, the aggregate Purchase Price of each Receivable Interests
Falcon is then purchasing or (ii) in the case of an Investor, such Investor's
Pro Rata Share of the aggregate Purchase Price of each of the Receivable
Interests the Investors are purchasing.
Section 1.3 SELECTION OF TRANCHE PERIODS AND DISCOUNT RATES. (a) Each
Receivable Interest shall at all times have an associated amount of Capital, a
Discount Rate and Tranche Period applicable to it. Not less than $10,000,000 of
Capital may be allocated to any single Receivable Interest. The Seller shall
request Discount Rates and Tranche Periods for the Receivable Interests of the
Purchasers. The Seller may select the CP Rate (with the concurrence of the
Agent) or the Base Rate for the Receivable Interests of Falcon and the LIBO Rate
or the Base Rate for the Receivable Interests of the Investors. In the case of
any Tranche Period with respect to which either the LIBO Rate or the Base Rate
applies, the Seller shall by 9:00 a.m. (Chicago time), (i) at least three
Business Days prior to the expiration of any then existing
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{PAGE}
Tranche Period with respect to which the LIBO Rate is being requested as a new
Discount Rate and (ii) at least one Business Day prior to the expiration of any
Tranche Period with respect to which the Base Rate is being requested as a new
Discount Rate, give the Agent irrevocable notice of the new Tranche Period and
Discount Rate for the Receivable Interest associated with such expiring Tranche
Period. In the case of any Tranche Period with respect to which the CP Rate
applies, unless the Agent shall otherwise direct, or the Seller shall otherwise
request (i) at least three Business Days prior to the expiration of such Tranche
Period with respect to which the LIBO Rate is being requested as a new Discount
Rate and (ii) at least one Business Day prior to the expiration of such Tranche
Period with respect to which the Base Rate is being requested as a new Discount
Rate, a new Tranche Period with respect to which the CP Rate applies shall
automatically commence at the expiration of such existing Tranche Period. Until
the Seller gives notice to the Agent of another Discount Rate, the initial
Discount Rate for any Receivable Interest transferred to the Investors pursuant
to Section 2.1 shall be the Base Rate.
(b) If any Purchaser notifies the Agent that it has determined that
funding all or any portion of any Receivable Interest at a LIBO Rate would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or that (i) deposits of a type and maturity appropriate
to match fund its Receivable Interests at such LIBO Rate are not available or
(ii) such LIBO Rate does not accurately reflect the cost of acquiring or
maintaining a Receivable Interest at such LIBO Rate, then the Agent shall
suspend the availability of such LIBO Rate and require the Seller to select a
new Discount Rate for any Receivable Interest accruing Discount at such LIBO
Rate.
Section 1.4 PERCENTAGE EVIDENCED BY RECEIVABLE INTERESTS. Each Receivable
Interest shall be initially computed on its date of purchase. Thereafter, until
its Liquidation Day, each Receivable Interest shall be automatically recomputed
(or deemed to be recomputed) on each day prior to its Liquidation Day. The
variable percentage represented by any Receivable Interest as computed (or
deemed recomputed) as of the close of business on the day immediately preceding
its Liquidation Day shall remain constant at all times after such Liquidation
Day.
Section 1.5 DIVIDING OR COMBINING RECEIVABLE INTERESTS. The Seller or the
Agent may, upon notice to and consent by the other received at least three
Business Days prior to the end of a Tranche Period for any Receivable Interest,
take any of the following actions with respect to such Receivable Interest: (i)
divide the Receivable Interest into two or more Receivable Interests having
aggregate Capital equal to the Capital of such divided Receivable Interest, (ii)
combine the Receivable Interest with another Receivable Interest with a Tranche
Period ending on the same day, creating a new Receivable Interest having Capital
equal to the Capital of the two Receivable Interests combined or (iii) combine
the Receivable Interest with a Receivable Interest to be purchased on such day
by such Purchaser, creating a new Receivable Interest having Capital equal to
the Capital of the two Receivable Interests combined, PROVIDED THAT, a
Receivable Interest of Falcon may not be combined with a Receivable Interest of
the Investors.
Section 1.6 REINVESTMENT PURCHASES. At any time that any Collection or
Collections are received by the Servicer after the initial purchase of a
Receivable Interest hereunder and on or prior to the Liquidation Day of such
Receivable Interest, the Seller hereby
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{PAGE}
requests and the Purchasers hereby agree to make, simultaneously with such
receipt, a reinvestment (each a "Reinvestment") with that portion of each and
every Collection received by the Servicer that is part of such Receivable
Interest, such that after giving effect to such Reinvestment, the amount of the
Capital of such Receivable Interest immediately after any such receipt and
corresponding Reinvestment shall be equal to the amount of the Capital
immediately prior to such receipt.
Section 1.7 LIQUIDATION SETTLEMENT PROCEDURES. On the Liquidation Day of a
Receivable Interest and on each day thereafter, the Servicer shall set aside and
hold in trust for the holder of such Receivable Interest, the percentage
evidenced by such Receivable Interest of Collections received on such day. On
each Settlement Date after the occurrence of the Liquidation Day in respect of
such Receivable Interest, the Servicer shall remit to the Agent's account the
amounts set aside pursuant to the preceding sentence, together with any
remaining amounts set aside pursuant to Section 1.8 prior to such day, but not
to exceed the sum of (i) the accrued Discount or Funding Charges for, and
Servicing Fee allocable to, such Receivable Interest, (ii) the Capital of such
Receivable Interest, and (iii) the aggregate of all other amounts then owed
hereunder by Seller to the Purchasers. If there shall be insufficient funds on
deposit for the Servicer to distribute funds in payment in full of the
aforementioned amounts, the Servicer shall distribute funds FIRST, to
reimbursement of the Agent's costs of collection and enforcement of this
Agreement, SECOND, if the Servicer is not the Seller or any Affiliate of the
Seller, to enable the applicable Purchasers to pay their allocable portion of
the accrued Servicing Fee, THIRD, in reduction of the Capital of the Receivable
Interests, FOURTH, in payment of all accrued Discount and Funding Charges for
the Receivable Interests, FIFTH, in payment of all other amounts payable to the
Purchasers, and SIXTH, if the Seller or any Affiliate of the Seller is the
Servicer, to enable the applicable Purchasers to pay their allocable portion of
the accrued Servicing Fee. Collections allocated to the Receivable Interests of
the Investors shall be shared ratably by the Investors in accordance with their
Pro Rata Shares. Collections applied to the payment of fees, expenses, Discount,
Funding Charges and all other amounts payable by the Seller to the Agent and the
Purchasers hereunder shall be allocated ratably among the Agent and the
Purchasers in accordance with such amounts owing to each of them. Following the
date on which the Aggregate Unpaids are reduced to zero, the Servicer shall pay
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