Exhibit 10.2
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RECEIVABLES PURCHASE AGREEMENT
dated as of November 2, 2000
among
IMCO FUNDING CORPORATION,
as the Seller
IMCO RECYCLING INC.,
as the Servicer
MARKET STREET FUNDING CORPORATION,
as the Issuer
and
PNC BANK, NATIONAL ASSOCIATION,
as the Administrator
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Receivables Purchase Agreement
THIS RECEIVABLES PURCHASE AGREEMENT (the "Agreement"), dated as of
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November 2, 2000, among IMCO FUNDING CORPORATION, a Delaware corporation, as the
seller (the "Seller"), IMCO RECYCLING INC., a Delaware corporation ("IMCO"), as
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initial servicer (in such capacity, together with its successors and permitted
assigns in such capacity, the "Servicer"), MARKET STREET FUNDING CORPORATION, a
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Delaware corporation (together with its successors and permitted assigns, the
"Issuer"), and PNC BANK, NATIONAL ASSOCIATION, a national banking association
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("PNC"), as administrator (in such capacity, together with its successors and
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assigns in such capacity, the "Administrator").
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DEFINITIONS
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Unless otherwise indicated herein, capitalized terms used in this
Agreement are defined in Exhibit I to this Agreement. All references herein to
months are to calendar months unless otherwise expressly indicated.
BACKGROUND:
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The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Issuer desires to acquire
such undivided variable percentage interest, as such percentage interest shall
be adjusted from time to time based upon, in part, reinvestment payments that
are made by the Issuer.
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 Purchase Facility. (a) On the terms and conditions hereinafter
set forth, the Issuer hereby agrees to purchase, and make reinvestments of,
undivided percentage ownership interests with regard to the Purchased Interest
from the Seller from time to time from the date hereof to the Facility
Termination Date. Under no circumstances shall the Issuer make any such purchase
or reinvestment if, after giving effect to such purchase or reinvestment, the
aggregate outstanding Capital of the Purchased Interest would exceed the
Purchase Limit.
(b) The Seller may, upon at least 60 days' prior written notice to
the Administrator, terminate the purchase facility provided in this Section in
whole or, upon at least 30 days' written notice to the Administrator, from time
to time, irrevocably reduce in part the unused portion of the Purchase Limit;
provided that each partial reduction shall be in the amount of at least
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$5,000,000 or an integral multiple of $1,000,000 in excess thereof, and that,
unless terminated in whole, the Purchase Limit shall in no event be reduced
below $20,000,000.
SECTION 1.2 Making Purchases. (a) Each purchase (but not reinvestment) of
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undivided percentage ownership interests with regard to the Purchased Interest
hereunder shall be made upon
the Seller's irrevocable written notice in the form of Annex B delivered to the
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Administrator in accordance with Section 5.2 (which notice must be received by
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the Administrator before 1:00 p.m., New York City time) at least two Business
Days before the requested purchase date, which notice shall specify: (i) the
amount requested to be paid to the Seller (such amount, which shall not be less
than $1,000,000 and shall be in integral multiples of $100,000, being the
Capital relating to the undivided percentage ownership interest then being
purchased), (ii) the date of such purchase (which shall be a Business Day), and
(iii) the pro forma calculation of the Purchased Interest after giving effect to
the increase in Capital.
(b) On the date of each purchase (but not reinvestment) of undivided
percentage ownership interests with regard to the Purchased Interest hereunder,
the Issuer shall, upon satisfaction of the applicable conditions set forth in
Exhibit II, make available to the Seller in same day funds, at Chase Manhattan
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Bank, account # 08500216028, ABA # ▇▇▇▇▇▇▇▇▇, Ref. IMCO Funding Corporation, an
amount equal to the Capital relating to the undivided percentage ownership
interest then being purchased.
(c) Effective on the date of each purchase pursuant to this
Section and each reinvestment pursuant to Section 1.4, the Seller hereby sells
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and assigns to the Issuer an undivided percentage ownership interest in: (i)
each Pool Receivable then existing, (ii) all Related Security with respect to
such Pool Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or
otherwise) under this Agreement and the other Transaction Documents to which it
is a party, whether now or hereafter existing or arising, due or to become due,
direct or indirect, absolute or contingent, the Seller hereby grants to the
Issuer a security interest in all of the Seller's right, title and interest
(including any undivided interest of the Seller) in, to and under all of the
following, whether now or hereafter owned, existing or arising: (i) all Pool
Receivables, (ii) all Related Security with respect to such Pool Receivables,
(iii) all Collections with respect to such Pool Receivables, (iv) the Lock-Box
Accounts and all amounts on deposit therein, and all certificates and
instruments, if any, from time to time evidencing such Lock-Box Accounts and
amounts on deposit therein, (v) all books and records of each Receivable, and
all Transaction Documents to which the Seller is a party, together with all
rights (but not obligations) of the Seller, (vi) all proceeds of, and all
amounts received or receivable under any or all of, the foregoing (collectively,
the "Pool Assets"). The Issuer shall have, with respect to the Pool Assets, and
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in addition to all the other rights and remedies available to the Issuer, all
the rights and remedies of a secured party under any applicable UCC.
SECTION 1.3 Purchased Interest Computation. The Purchased Interest shall be
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initially computed on the date of the initial purchase hereunder. Thereafter,
until the Facility Termination Date, the Purchased Interest shall be
automatically recomputed (or deemed to be recomputed) on each Business Day other
than a Termination Day. The Purchased Interest as computed (or deemed
recomputed) as of the day before the Facility Termination Date shall thereafter
remain constant. The Purchased Interest shall become zero when the Capital
thereof and Discount thereon shall have been paid in full, all the amounts owed
by the Seller and the Servicer hereunder to the Issuer, the
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Administrator and any other Indemnified Party or Affected Person are paid in
full, and the Servicer shall have received the accrued Servicing Fee thereon.
SECTION 1.4 Settlement Procedures. (a) The collection of the Pool
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Receivables shall be administered by the Servicer in accordance with this
Agreement. The Seller shall provide to the Servicer on a timely basis all
information needed for such administration, including notice of the occurrence
of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the
Administrator, segregate in a separate account approved by the
Administrator if, at the time of such request, there exists an Unmatured
Termination Event or a Termination Event or if the failure to so segregate
reasonably could be expected to cause a Material Adverse Effect), first, an
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amount equal to the Discount accrued through such day for each Portion of
Capital and not previously set aside, second, an amount equal to the fees
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set forth in the Fee Letter accrued and unpaid through such day, and third,
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to the extent funds are available therefor, an amount equal to the
Servicing Fee accrued through such day and not previously set aside;
(ii) Subject to Section 1.4(f), if such day is not a Termination
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Day, then, remit to the Seller, on behalf of the Issuer, the remainder of
the Issuer's Share of such Collections and such remainder will be
automatically reinvested in additional Receivables; provided, however, that
after giving effect to such reinvestment, the Purchased Interest shall not
exceed 100%;
(iii) if such day is a Termination Day, set aside, segregate and
hold in trust (and shall, at the request of the Administrator, segregate in
a separate account approved by the Administrator) for the Issuer the entire
remainder of the Collections; provided, that if amounts are set aside and
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held in trust on any Termination Day of the type described in clause (a) of
the definition of "Termination Day" and, thereafter, the conditions set
forth in Section 2 of Exhibit II are satisfied or waived by the
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Administrator, such previously set-aside amounts shall be reinvested in
accordance with clause (ii) on the day of such subsequent satisfaction or
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waiver of conditions; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own
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account any Collections in excess of: (x) amounts required to be reinvested
in accordance with clause (ii) or the proviso to clause (iii) plus (y) the
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amounts that are required to be set aside pursuant to clause (i), the
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proviso to clause (ii) and clause (iii) plus (z) the Seller's Share of the
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Servicing Fee accrued and unpaid through such day and all reasonable and
appropriate out-of-pocket costs and expenses of the Servicer for servicing,
collecting and administering the Pool Receivables.
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(c) The Servicer shall deposit into the Administration Account
(or such other account designated by the Administrator), on each Monthly
Settlement Date, Collections held for the Issuer pursuant to clause (b)(i) or
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(f) plus the amount of Collections then held for the Issuer pursuant to clauses
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(b)(ii) and (iii) of Section 1.4, provided that if IMCO or an Affiliate thereof
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is the Servicer, such day is not a Termination Day and the Administrator has not
notified IMCO (or such Affiliate) that such right is revoked, IMCO (or such
Affiliate) may retain the portion of the Collections set aside pursuant to
clause (b)(i) that represents the Issuer's Share of the Servicing Fee. On the
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last day of each Settlement Period, the Administrator will notify the Servicer
by facsimile of the amount of Discount accrued with respect to each Portion of
Capital during such Settlement Period or portion thereof.
(d) On each Monthly Settlement Date, the Administrator shall
cause funds on deposit in the account specified in Section 1.2(b) to be
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distributed as follows:
(i) if such distribution occurs on a day that is not a Termination
Day and the Purchased Interest does not exceed 100%, first to the Issuer in
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payment in full of all accrued Discount and fees (other than Servicing
Fees) with respect to each Portion of Capital, and second, if the Servicer
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has set aside amounts in respect of the Servicing Fee pursuant to clause
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(b)(i) and has not retained such amounts pursuant to clause (c), to the
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Servicer (payable in arrears on each Monthly Settlement Date) in payment in
full of the Issuer's Share of accrued Servicing Fees so set aside;
(ii) if such distribution occurs on a Termination Day or on a day
when the Purchased Interest exceeds 100%, first to the Issuer in payment in
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full of all accrued Discount with respect to each Portion of Capital,
second to the Issuer in payment in full of Capital (or, if such day is not
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a Termination Day, the amount necessary to reduce the Purchased Interest to
100%), third, to the Servicer in payment in full of all accrued and unpaid
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Servicing Fees, fourth, if the Capital and accrued Discount with respect to
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each Portion of Capital have been reduced to zero, and all accrued
Servicing Fees payable to the Servicer have been paid in full, to the
Issuer, the Administrator and any other Indemnified Party or Affected
Person in payment in full of any other amounts owed thereto by the Seller
hereunder.
After the Capital, Discount, fees payable pursuant to the Fee Letter and
Servicing Fees with respect to the Purchased Interest, and any other amounts
payable by the Seller and the Servicer to the Issuer, the Administrator or any
other Indemnified Party or Affected Person hereunder, have been paid in full,
all additional Collections with respect to the Purchased Interest shall be paid
to the Seller for its own account.
(e) for the purposes of this Section 1.4:
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(i) if on any day the Outstanding Balance of any Pool Receivable
is reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed goods or services, or any revision, cancellation,
allowance, discount or other adjustment made by the
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Seller or any Affiliate of the Seller, or any setoff or dispute between the
Seller or any Affiliate of the Seller and an Obligor, the Seller shall be
deemed to have received on such day a Collection of such Pool Receivable in
the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in
Section 1(g) or (n) of Exhibit III is not true with respect to any Pool
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Receivable, the Seller shall be deemed to have received on such day a
Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise
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required by applicable law or the relevant Contract, all Collections
received from an Obligor of any Receivable shall be applied to the
Receivables of such Obligor in the order of the age of such Receivables,
starting with the oldest such Receivable, unless such Obligor designates in
writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be
required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding) any
amount received by it hereunder, such amount shall be deemed not to have
been so received by the Administrator or the Issuer but rather to have been
retained by the Seller and, accordingly, the Administrator or the Issuer,
as the case may be, shall have a claim against the Seller for such amount,
payable when and to the extent that any distribution from or on behalf of
such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the
reduction of Capital or a portion thereof (but not to commence the liquidation,
or reduction to zero, of the entire Capital of the Purchased Interest), the
Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer
written notice in the form of Annex C at least two Business Days prior to
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the date of such reduction for any reduction of Capital less than or equal
to $20,000,000 and (B) at least five Business Days prior to the date of
such reduction for any reduction of Capital greater than $20,000,000; and
(ii) on the proposed date of such reduction, (A) the Seller shall
remit to the Administration Account cash and instructions to apply such
cash to the reduction of such Capital and Discount to accrue (until such
cash can be used to pay Notes) with respect to such Capital, and to pay all
costs related to such Capital reduction, or (B) at the election of the
Seller, on the proposed date of commencement of such reduction and on each
day thereafter, the Servicer shall cause Collections with respect to such
Portion of Capital not to be reinvested until the amount thereof not so
reinvested shall equal the desired amount of reduction and the Servicer
shall hold such Collections in trust for the Purchasers, for payment to the
Administrator on the last day of the current Settlement Period relating to
such Portion of Capital (as specified by the Seller), and the applicable
Portion of Capital shall be deemed reduced in the amount to be paid to the
Agent only when in fact finally so paid;
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provided that the amount of any such reduction shall be not less than $1,000,000
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and shall be an integral multiple of $100,000, and the entire Capital of the
Purchased Interest after giving effect to such reduction shall be not less than
$20,000,000 and shall be in an integral multiple of $100,000.
SECTION 1.5 Fees. The Seller shall pay to the Administrator certain fees in
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the amounts and on the dates set forth in a fee letter, dated the date hereof,
among IMCO, the Seller and the Administrator (as such letter agreement may be
amended, supplemented or otherwise modified from time to time, the "Fee
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Letter").
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SECTION 1.6 Payments and Computations, Etc. (a) All amounts to be paid or
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deposited by the Seller or the Servicer hereunder shall be made without
reduction for offset or counterclaim and shall be paid or deposited no later
than 1:00 p.m. (New York City time) on the day when due in same day funds to the
Administration Account. All amounts received after 1:00 p.m. (New York City
time) will be deemed to have been received on the next Business Day.
(b) The Seller or the Servicer, as the case may be, shall, to the
extent permitted by law, pay interest on any amount not paid or deposited by the
Seller or the Servicer, as the case may be, when due hereunder, at an interest
rate equal to 2.0% per annum above the Base Rate, payable on demand.
(c) The Seller or the Servicer, as the case may be, shall, during
the existence of a Termination Event, pay interest on the outstanding amount of
the Capital at an interest rate equal to 2.0% per annum above the Base Rate,
payable on demand.
(d) All computations of interest under clause (b) and all
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computations of Discount, fees and other amounts hereunder shall be made on the
basis of a year of 360 (or 365 or 366, as applicable, with respect to Discount
or other amounts calculated by reference to the Base Rate) days for the actual
number of days elapsed. 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 Business Day and such extension of time shall be included in
the computation of such payment or deposit.
SECTION 1.7 Increased Costs. (a) If the Administrator, the Issuer, any
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Purchaser, any other Program Support Provider or any of their respective
Affiliates (each an "Affected Person") reasonably determines that the existence
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of or compliance with: (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof, or (ii) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement, affects the amount of
capital required or expected to be maintained by such Affected Person, and such
Affected Person determines that the amount of such capital is increased by or
based upon the existence of any commitment to make purchases of (or otherwise to
maintain the investment in) Pool Receivables related to this Agreement or any
related liquidity facility, credit enhancement facility and other commitments of
the same type, then, upon demand by such Affected Person (with a copy to the
Administrator), the Seller shall promptly pay to the Administrator, for
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the account of such Affected Person, from time to time as specified by such
Affected Person, additional amounts sufficient to compensate such Affected
Person in the light of such circumstances, to the extent that such Affected
Person reasonably determines such increase in capital to be allocable to the
existence of any of such commitments. A certificate as to such amounts submitted
to the Seller and the Administrator by such Affected Person shall be conclusive
and binding for all purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to any Affected Person of agreeing to purchase or purchasing, or
maintaining the ownership of, the Purchased Interest in respect of which
Discount is computed by reference to the Euro-Rate, then, upon demand by such
Affected Person, the Seller shall promptly pay to such Affected Person, from
time to time as specified by such Affected Person, additional amounts sufficient
to compensate such Affected Person for such increased costs. A certificate as to
such amounts submitted to the Seller and the Administrator by such Affected
Person shall be conclusive and binding for all purposes, absent manifest error.
(c) If such increased costs affect the related Affected Person's
portfolio of financing transactions, such Affected Person shall use reasonable
averaging and attribution methods to allocate such increased costs to the
transactions contemplated by this Agreement.
SECTION 1.8 Requirements of Law. If any Affected Person reasonably
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determines that the existence of or compliance with: (a) any law or regulation
or any change therein or in the interpretation or application thereof, in each
case adopted, issued or occurring after the date hereof, or (b) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement:
(i) does or shall subject such Affected Person to any tax of any
kind whatsoever with respect to this Agreement, any increase in the
Purchased Interest or in the amount of Capital relating thereto, or does or
shall change the basis of taxation of payments to such Affected Person on
account of Collections, Discount or any other amounts payable hereunder
(excluding taxes imposed on the overall pre-tax net income of such Affected
Person, and franchise taxes imposed on such Affected Person, by the
jurisdiction under the laws of which such Affected Person is organized or a
political subdivision thereof),
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, purchases,
advances or loans by, or other credit extended by, or any other acquisition
of funds by, any office of such Affected Person that are not otherwise
included in the determination of the Euro-Rate or the Base Rate hereunder,
or
(iii) does or shall impose on such Affected Person any other expense
or liability with respect to the transactions contemplated by this
Agreement,
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and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Administrator, or of agreeing to purchase or
purchasing or maintaining the ownership of undivided percentage ownership
interests with regard to the Purchased Interest (or interests therein) or any
Portion of Capital, or (B) to reduce any amount receivable hereunder (whether
directly or indirectly), then, in any such case, upon demand by such Affected
Person, the Seller shall promptly pay to such Affected Person additional amounts
necessary to compensate such Affected Person for such additional cost or reduced
amount receivable. All such amounts shall be payable as incurred. A certificate
from such Affected Person to the Seller and the Administrator certifying, in
reasonably specific detail, the basis for, calculation of, and amount of such
additional costs or reduced amount receivable shall be conclusive and binding
for all purposes, absent manifest error; provided, however, that no Affected
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Person shall be required to disclose any confidential or tax planning
information in any such certificate.
SECTION 1.9 Inability to Determine Euro-Rate. (a) If the Administrator
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determines before the first day of any Settlement Period (which determination
shall be final and conclusive) that, by reason of circumstances affecting the
interbank eurodollar market generally, deposits in dollars (in the relevant
amounts for such Settlement Period) are not being offered to banks in the
interbank eurodollar market for such Settlement Period, or adequate means do not
exist for ascertaining the Euro-Rate for such Settlement Period, then the
Administrator shall give notice thereof to the Seller. Thereafter, until the
Administrator notifies the Seller that the circumstances giving rise to such
suspension no longer exist, (a) no Portion of Capital shall be funded at the
Alternate Rate determined by reference to the Euro-Rate and (b) the Discount for
any outstanding Portions of Capital then funded at the Alternate Rate determined
by reference to the Euro-Rate shall, on the last day of the then current
Settlement Period, be converted to the Alternate Rate determined by reference to
the Base Rate.
(b) If, on or before the first day of any Settlement Period, the
Administrator shall have been notified by any Purchaser that such Purchaser has
determined (which determination shall be final and conclusive) that, any
enactment, promulgation or adoption of or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration thereof by
a governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Purchaser with
any guideline, request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall make it unlawful or
impossible for such Purchaser to fund or maintain any Portion of Capital at the
Alternate Rate and based upon the Euro-Rate, the Administrator shall notify the
Seller thereof. Upon receipt of such notice, until the Administrator notifies
the Seller that the circumstances giving rise to such determination no longer
apply, (a) no Portion of Capital shall be funded at the Alternate Rate
determined by reference to the Euro-Rate and (b) the Discount for any
outstanding Portions of Capital then funded at the Alternate Rate determined by
reference to the Euro-Rate shall be converted to the Alternate Rate determined
by reference to the Base Rate either (i) on the last day of the then current
Settlement Period if such Purchaser may lawfully continue to maintain such
Portion of Capital at the Alternate Rate determined by reference to the Euro-
Rate to such day, or (ii) immediately, if such Purchaser may not lawfully
continue to maintain such Portion of Capital at the Alternate Rate determined by
reference to the Euro-Rate to such day.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
SECTION 2.1 Representations and Warranties; Covenants. Each of the Seller,
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IMCO and the Servicer hereby makes the representations and warranties, and
hereby agrees to perform and observe the covenants, applicable to it set forth
in Exhibits III and IV respectively.
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SECTION 2.2 Termination Events. If any of the Termination Events set forth
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in Exhibit V shall occur, the Administrator may, by notice to the Seller,
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declare the Facility Termination Date to have occurred (in which case the
Facility Termination Date shall be deemed to have occurred); provided that
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automatically upon the occurrence of any event (without any requirement for the
passage of time or the giving of notice) described in paragraph (f) of Exhibit
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V, the Facility Termination Date shall occur. Upon any such declaration,
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occurrence or deemed occurrence of the Facility Termination Date, the Issuer and
the Administrator shall have, in addition to the rights and remedies that they
may have under this Agreement, all other rights and remedies provided after
default under the New York UCC and under other applicable law, which rights and
remedies shall be cumulative.
ARTICLE III
INDEMNIFICATION
SECTION 3.1 Indemnities by the Seller. Without limiting any other rights
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that the Administrator, the Issuer, any Program Support Provider or any of their
respective Affiliates, employees, officers, directors, agents, counsel,
successors, transferees or assigns (each, an "Indemnified Party") may have
hereunder or under applicable law, the Seller hereby agrees to indemnify each
Indemnified Party from and against any and all claims, damages, expenses, costs,
losses and liabilities (including Attorney Costs) (all of the foregoing being
collectively referred to as "Indemnified Amounts") arising out of or resulting
from this Agreement (whether directly or indirectly), the use of proceeds of
purchases or reinvestments, the ownership of the Purchased Interest, or any
interest therein, or in respect of any Receivable, Related Security or Contract,
excluding, however: (a) Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Indemnified Party or its
officers, directors, agents or counsel, (b) recourse (except as otherwise
specifically provided in this Agreement) for Receivables, or (c) any overall net
income taxes or franchise taxes imposed on such Indemnified Party by the
jurisdiction under the laws of which such Indemnified Party is organized or any
political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand (which demand shall be accompanied by
documentation of the Indemnified Amounts, in reasonable detail) to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
(a) the failure of any Receivable included in the calculation of
the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible
Receivable, the failure of any
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information contained in an Information Package to be true and correct, or the
failure of any other information provided to the Issuer or the Administrator
with respect to Receivables or this Agreement to be true and correct,
(b) the failure of any representation or warranty made or deemed made
by the Seller (or any of its officers) under or in connection with this
Agreement to have been true and correct as of the date made or deemed made in
all material respects when made,
(c) the failure by the Seller to comply with any applicable law, rule
or regulation with respect to any Pool Receivable or the related Contract, or
the failure of any Pool Receivable or the related Contract to conform to any
such applicable law, rule or regulation,
(d) the failure to vest in the Issuer a valid and enforceable: (A)
perfected undivided percentage ownership interest, to the extent of the
Purchased Interest, in the Receivables in, or purporting to be in, the
Receivables Pool and the other Pool Assets, or (B) first priority perfected
security interest in the Pool Assets, in each case, free and clear of any
Adverse Claim,
(e) the failure 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 Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets,
whether at the time of any purchase or reinvestment or at any subsequent time,
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in,
or purporting to be in, the Receivables Pool (including a defense based on such
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 Receivable or the furnishing or failure to furnish such goods or services
or relating to collection activities with respect to such Receivable (if such
collection activities were performed by the Seller or any of its Affiliates
acting as Servicer or by any agent or independent contractor retained by the
Seller or any of its Affiliates),
(g) any failure of the Seller (or any of its Affiliates acting as the
Servicer) to perform its duties or obligations in accordance with the provisions
hereof or under the Contracts,
(h) any products liability or other claim, investigation, litigation
or proceeding arising out of or in connection with merchandise, insurance or
services that are the subject of any Contract,
(i) the commingling of Collections at any time with other funds,
(j) the use of proceeds of purchases or reinvestments, or
10 Receivables Purchase Agreement
(k) any reduction in Capital as a result of the distribution of
Collections pursuant to Section 1.4(d), if all or a portion of such
-------------
distributions shall thereafter be rescinded or otherwise must be returned for
any reason.
SECTION 3.2 Indemnities by the Servicer. Without limiting any other rights
---------------------------
that the Administrator, the Issuer or any other Indemnified Party may have
hereunder or under applicable law, the Servicer hereby agrees to indemnify each
Indemnified Party from and against any and all Indemnified Amounts arising out
of or resulting from (whether directly or indirectly): (a) the failure of any
information contained in an Information Package to be true and correct, or the
failure of any other information provided to the Issuer or the Administrator by,
or on behalf of, the Servicer to be true and correct, (b) the failure of any
representation, warranty or statement made or deemed made by the Servicer (or
any of its officers) under or in connection with this Agreement to have been
true and correct as of the date made or deemed made in all respects when made,
(c) the failure by the Servicer to comply with any applicable law, rule or
regulation with respect to any Pool Receivable or the related Contract, (d) any
dispute, claim, offset or defense of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool resulting from or
related to the collection activities with respect to such Receivable, or (e) any
failure of the Servicer to perform its duties or obligations in accordance with
the provisions hereof.
ARTICLE IV
ADMINISTRATION AND COLLECTIONS
SECTION 4.1 Appointment of the Servicer. (a) The servicing, administering
---------------------------
and collection of the Pool Receivables shall be conducted by the Person so
designated from time to time as the Servicer in accordance with this Section.
Until the Administrator gives notice to IMCO (in accordance with this Section)
of the designation of a new Servicer, IMCO is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Servicer pursuant to the
terms hereof. Upon the occurrence of a Termination Event (but not prior
thereto), the Administrator may designate as Servicer any Person (including
itself) to succeed IMCO or any successor Servicer, on the condition in each case
that any such Person so designated shall agree to perform the duties and
obligations of the Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in
clause (a), IMCO agrees that it will terminate its activities as Servicer
---------
hereunder in a manner that the Administrator determines will facilitate the
transition of the performance of such activities to the new Servicer, and IMCO
shall cooperate with and assist such new Servicer. Such cooperation shall
include access to and transfer of related records and use by the new Servicer of
all licenses, hardware or software necessary or desirable to collect the Pool
Receivables and the Related Security.
(c) IMCO acknowledges that, in making their decision to execute and
deliver this Agreement, the Administrator and the Issuer have relied on IMCO's
agreement to act as Servicer hereunder. Accordingly, IMCO agrees that it will
not voluntarily resign as Servicer.
11 Receivables Purchase Agreement
(d) The Servicer may delegate its duties and obligations hereunder to
any subservicer (each a "Sub-Servicer"); provided, that, in each such
------------ --------
delegation: (i) such Sub-Servicer shall agree in writing to perform the duties
and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer
shall remain primarily liable for the performance of the duties and obligations
so delegated, (iii) the Seller, the Administrator and the Issuer shall have the
right to look solely to the Servicer for performance, and (iv) the terms of any
agreement with any Sub-Servicer shall provide that the Administrator may
terminate such agreement upon the termination of the Servicer hereunder by
giving notice of its desire to terminate such agreement to the Servicer (and the
Servicer shall provide appropriate notice to each such Sub-Servicer); provided,
--------
however, that if any such delegation is to any Person other than an Originator,
-------
the Administrator shall have consented in writing in advance to such delegation.
SECTION 4.2 Duties of the Servicer. (a) The Servicer shall take or cause
----------------------
to be taken all such action as may be necessary or advisable to administer and
collect each Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policies. The
Servicer shall set aside, for the accounts of the Seller and the Issuer, the
amount of the Collections to which each is entitled in accordance with Article
-------
I. The Servicer may, in accordance with the applicable Credit and Collection
-
Policies, extend the maturity of any Pool Receivable (but not beyond 30 days)
and extend the maturity or adjust the Outstanding Balance of any Defaulted
Receivable as the Servicer may determine to be appropriate to maximize
Collections thereof; provided, however, that: (i) such extension or adjustment
-------- -------
shall not alter the status of such Pool Receivable as a Delinquent Receivable or
a Defaulted Receivable or limit the rights of the Issuer or the Administrator
under this Agreement and (ii) if a Termination Event has occurred and IMCO or an
Affiliate thereof is serving as the Servicer, IMCO or such Affiliate may make
such extension or adjustment only upon the prior approval of the Administrator.
The Seller shall deliver to the Servicer and the Servicer shall hold for the
benefit of the Seller and the Administrator (individually and for the benefit of
the Issuer), in accordance with their respective interests, all records and
documents (including computer tapes or disks) with respect to each Pool
Receivable. Notwithstanding anything to the contrary contained herein, the
Administrator may direct the Servicer (whether the Servicer is IMCO or any other
Person) to commence or settle any legal action to enforce collection of any Pool
Receivable or to foreclose upon or repossess any Related Security, provided that
--------
no such direction may be given unless a Termination Event or an Unmatured
Termination Event has occurred and is continuing.
(b) The Servicer shall, as soon as practicable following actual
receipt of collected funds, turn over to the Seller the collections of any
indebtedness that is not a Pool Receivable, less, if IMCO or an Affiliate
thereof is not the Servicer, all reasonable and appropriate out-of-pocket costs
and expenses of such Servicer of servicing, collecting and administering such
collections. The Servicer, if other than IMCO or an Affiliate thereof, shall, as
soon as practicable upon demand, deliver to the Seller all records in its
possession that evidence or relate to any indebtedness that is not a Pool
Receivable, and copies of records in its possession that evidence or relate to
any indebtedness that is a Pool Receivable.
Receivables Purchase Agreement
12
(c) The Servicer's obligations hereunder shall terminate on the later
of: (i) the Facility Termination Date and (ii) the date on which all amounts
required to be paid to the Issuer, the Administrator and any other Indemnified
Party or Affected Person hereunder shall have been paid in full.
After such termination, if IMCO or an Affiliate thereof was not the Servicer on
the date of such termination, the Servicer shall promptly deliver to the Seller
all books, records and related materials that the Seller previously provided to
the Servicer, or that have been obtained by the Servicer, in connection with
this Agreement.
SECTION 4.3 Lock-Box Arrangements. On or prior to the initial purchase
---------------------
hereunder, the Seller shall enter into Lock-Box Agreements with all of the Lock-
Box Banks and deliver original counterparts thereof to the Administrator. Upon
the occurrence of a Termination Event, the Administrator may at any time
thereafter give notice to each Lock-Box Bank that the Administrator is
exercising its rights under the Lock-Box Agreements to do any or all of the
following: (a) to have the exclusive ownership and control of the Lock-Box
Accounts transferred to the Administrator and to exercise exclusive dominion and
control over the funds deposited therein, (b) to have the proceeds that are sent
to the respective Lock-Box Accounts redirected pursuant to the Administrator's
instructions rather than deposited in the applicable Lock-Box Account, and (c)
to take any or all other actions permitted under the applicable Lock-Box
Agreement. The Seller hereby agrees that if the Administrator at any time takes
any action set forth in the preceding sentence, the Administrator shall have
exclusive control of the proceeds (including Collections) of all Pool
Receivables and the Seller hereby further agrees to take any other action that
the Administrator may reasonably request to transfer such control. Any proceeds
of Pool Receivables received by the Seller or the Servicer thereafter shall be
sent immediately to the Administrator. The parties hereto hereby acknowledge
that if at any time the Administrator takes control of any Lock-Box Account, the
Administrator shall not have any rights to the funds therein in excess of the
unpaid amounts due to the Administrator, the Issuer or any other Person
hereunder, and the Administrator shall promptly distribute or cause to be
distributed such funds in accordance with Section 4.2(b) and Article I (in each
------------- ---------
case as if such funds were held by the Servicer thereunder). The Seller hereby
agrees to take all actions necessary to ensure that all Lock-Box Accounts are
maintained in the name of the Servicer.
SECTION 4.4 Enforcement Rights. (a) At any time following the occurrence
------------------
of a Termination Event:
(i) the Administrator may direct the Obligors that payment of all
amounts payable under any Pool Receivable is to be made directly to the
Administrator or its designee,
(ii) the Administrator may instruct the Seller or the Servicer to give
notice of the Issuer's interest in Pool Receivables to each Obligor,
which notice shall direct that payments be made directly to the
Administrator or its designee, and the Seller or the Servicer, as the
case may be, shall give such notice at the expense of the Seller or the
Servicer, as the case
Receivables Purchase Agreement
may be; provided that if the Seller or the Servicer, as the case may
--------
be, fails to so notify each Obligor, the Administrator (at the Seller's
or the Servicer's, as the case may be, expense) may so notify the
Obligors, and
(iii) the Administrator may request the Servicer to, and upon
such request the Servicer shall: (A) assemble all of the records
necessary or desirable to collect the Pool Receivables and the Related
Security, and transfer or license to a successor Servicer the use of
all software necessary or desirable to collect the Pool Receivables and
the Related Security, and make the same available to the Administrator
or its designee at a place selected by the Administrator, and (B)
segregate all cash, checks and other instruments received by it from
time to time constituting Collections in a manner acceptable to the
Administrator and, promptly upon receipt, remit all such cash, checks
and instruments, duly endorsed or with duly executed instruments of
transfer, to the Administrator or its designee.
(b) The Seller hereby authorizes the Administrator, and
irrevocably appoints the Administrator as its attorney-in-fact with full power
of substitution and with full authority in the place and stead of the Seller,
which appointment is coupled with an interest, to take any and all steps in the
name of the Seller and on behalf of the Seller necessary or desirable, in the
determination of the Administrator, to collect any and all amounts or portions
thereof due under any and all Pool Assets, including endorsing the name of the
Seller on checks and other instruments representing Collections and enforcing
such Pool Assets. The Administrator hereby agrees that it shall not exercise
such power or authority unless a Termination Event or an Unmatured Termination
Event has occurred and is continuing. Notwithstanding anything to the contrary
contained in this subsection, none of the powers conferred upon such attorney-
in-fact pursuant to the preceding sentence shall subject such attorney-in-fact
to any liability if any action taken by it shall prove to be inadequate or
invalid, nor shall they confer any obligations upon such attorney-in-fact in any
manner whatsoever.
SECTION 4.5 Responsibilities of the Seller. (a) Anything herein to the
------------------------------
contrary notwithstanding, the Seller shall: (i) perform all of its obligations,
if any, under the Contracts related to the Pool Receivables to the same extent
as if interests in such Pool Receivables had not been transferred hereunder, and
the exercise by the Administrator or the Issuer of their respective rights
hereunder shall not relieve the Seller from such obligations, and (ii) pay when
due any taxes, including any sales taxes payable in connection with the Pool
Receivables and their creation and satisfaction. The Administrator and the
Issuer shall not have any obligation or liability with respect to any Pool
Asset, nor shall either of them be obligated to perform any of the obligations
of the Seller, IMCO or an Originator thereunder.
(b) IMCO hereby irrevocably agrees that if at any time it
shall cease to be the Servicer hereunder, it shall act (if the then-current
Servicer so requests) as the data-processing agent of the Servicer and, in such
capacity, IMCO shall conduct the data-processing functions of the administration
of the Receivables and the Collections thereon in substantially the same way
that IMCO conducted such data-processing functions while it acted as the
Servicer.
Receivables Purchase Agreement
14
SECTION 4.6 Servicing Fee. (a) Subject to clause (b), the Servicer shall be
------------- ----------
paid a fee equal to 0.50% per annum (the "Servicing Fee Rate") of the daily
--------- ------------------
average aggregate Outstanding Balance of the Pool Receivables. The Issuer's
Share of such fee shall be paid through the distributions contemplated by
Section 1.4(d), and the Seller's Share of such fee shall be paid by the Seller
--------------
on each Monthly Settlement Date.
(b) If the Servicer ceases to be IMCO or an Affiliate thereof, the
servicing fee shall be the greater of: (i) the amount calculated pursuant to
clause (a), and (ii) an alternative amount specified by the successor Servicer
----------
not to exceed 110% of the aggregate reasonable costs and expenses incurred by
such successor Servicer in connection with the performance of its obligations as
Servicer.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement or any other Transaction Document, or consent to any departure by
the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by the Administrator, and, in the case of any amendment, by the other
parties thereto; and then such amendment, 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 Issuer or the Administrator 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 5.2 Notices, Etc. All notices and other communications hereunder
------------
shall, unless otherwise stated herein, be in writing (which shall include
facsimile communication) and be sent or delivered to each party hereto at its
address set forth under its name on the signature pages hereof or at such other
address as shall be designated by such party in a written notice to the other
parties hereto. Notices and communications by facsimile shall be effective when
sent (and shall be followed by hard copy sent by first class mail), and notices
and communications sent by other means shall be effective when received.
SECTION 5.3 Assignability. (a) This Agreement and the Issuer's rights and
-------------
obligations herein (including ownership of the Purchased Interest or an interest
therein) shall be assignable, in whole or in part, by the Issuer and its
successors and assigns with the prior written consent of the Seller; provided,
--------
however, that such consent shall not be unreasonably withheld; and provided
------- --------
further, that no such consent shall be required if the assignment is made to
-------
PNC, any Affiliate of PNC (other than a director or officer of PNC), any
Purchaser or other Program Support Provider or any Person that is: (i) in the
business of issuing Notes and (ii) controlled or administered by PNC or any
Affiliate of PNC (other than a director or officer of PNC). Each assignor may,
in connection with the assignment, disclose to the applicable assignee (that
shall have agreed to be bound by Section 5.6) any information relating to the
-----------
Servicer, the Seller or the Pool Receivables furnished to such assignor by or on
behalf of the Servicer, the Seller, the Issuer or the Administrator. The
Administrator shall give prior written notice of any assignment of the Issuer's
rights and obligations
Receivables Purchase Agreement
15
(including ownership of the Purchased Interest to any Person other than a
Program Support Provider).
(b) The Issuer may at any time grant to one or more banks or other
institutions (each a "Purchaser") party to the Liquidity Agreement, or to any
---------
other Program Support Provider, participating interests in the Purchased
Interest. In the event of any such grant by the Issuer of a participating
interest to a Purchaser or other Program Support Provider, the Issuer shall
remain responsible for the performance of its obligations hereunder. The Seller
agrees that each Purchaser or other Program Support Provider shall be entitled
to the benefits of Sections 1.7 and 1.8.
------------ ---
(c) This Agreement and the rights and obligations of the Administrator
hereunder shall be assignable, in whole or in part, by the Administrator and its
successors and assigns; provided, that unless: (i) such assignment is to an
Affiliate of PNC, (ii) it becomes unlawful for PNC to serve as the Administrator
or (iii) a Termination Event exists, the Seller has consented to such
assignment, which consent shall not be unreasonably withheld or delayed.
(d) Except as provided in Section 4.1(d), none of the Seller, IMCO or
--------------
the Servicer may assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of the Administrator.
(e) Without limiting any other rights that may be available under
applicable law, the rights of the Issuer may be enforced through it or by its
agents.
SECTION 5.4 Costs, Expenses and Taxes. (a) In addition to the rights of
-------------------------
indemnification granted under Section 3.1, the Seller agrees to pay on demand
-----------
(which demand shall be accompanied by documentation thereof in reasonable
detail) all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic internal audits by
the Administrator of Pool Receivables) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for the
Administrator, the Issuer and their respective Affiliates and agents with
respect thereto and with respect to advising the Administrator, the Issuer and
their respective Affiliates and agents as to their rights and remedies under
this Agreement and the other Transaction Documents, and (ii) all reasonable
costs and expenses (including Attorney Costs), if any, of the Administrator, the
Issuer and their respective Affiliates and successors and permitted assigns in
connection with the enforcement of this Agreement and the other Transaction
Documents.
(b) In addition, the Seller shall pay on demand any and all
stamp and other taxes and fees payable in connection with the execution,
delivery, filing and recording of this Agreement or the other documents or
agreements to be delivered hereunder, and agrees to save each Indemnified Party
harmless from and against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
Receivables Purchase Agreement
16
SECTION 5.5 No Proceedings; Limitation on Payments. Each of the Seller,
--------------------------------------
IMCO, the Servicer, the Administrator, each assignee of the Purchased Interest
or any interest therein, and each Person that enters into a commitment to
purchase the Purchased Interest or interests therein, hereby covenants and
agrees that it will not institute against, or join any other Person in
instituting against, the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and one day after the latest
maturing Note issued by the Issuer is paid in full. The provision of this
Section 5.5 shall survive any termination of this Agreement.
-----------
SECTION Confidentiality. Unless otherwise required by applicable law or the
---------------
terms of any material credit agreement to which the Seller is a party, each of
the Seller and the Servicer agrees to maintain the confidentiality of this
Agreement and the other Transaction Documents (and all drafts thereof) in
communications with third parties and otherwise; provided, that this Agreement
may be disclosed to: (a) third parties to the extent such disclosure is made
pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the Administrator, and (b) the Seller's legal counsel
and auditors if they agree to hold it confidential. Unless otherwise required by
applicable law, each of the Administrator and the Issuer agrees to maintain the
confidentiality of non-public financial information regarding IMCO and its
Subsidiaries and Affiliates; provided, that such information may be disclosed\
--------
to: (i) third parties to the extent such disclosure is made pursuant to a
written agreement of confidentiality in form and substance reasonably
satisfactory to IMCO, (ii) legal counsel and auditors of the Issuer or the
Administrator if they agree to hold it confidential, (iii) the rating agencies
rating the Notes to the extent such information relates to the Receivables Pool
or the transactions contemplated by this Agreement, or if not so related, upon
obtaining the prior consent of IMCO (such consent not to be unreasonably
withheld), (iv) any Program Support Provider or potential Program Support
Provider (if they agree to hold it confidential) to the extent such information
relates to the Receivables Pool or the transactions contemplated by this
Agreement, or if not so related, upon obtaining the prior consent of IMCO (such
consent not to be unreasonably withheld), (v) any placement agent placing the
Notes and (vi) any regulatory authorities having jurisdiction over PNC, the
Issuer, any Program Support Provider or any Purchaser.
SECTION 5.7 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
------------------------------
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF
Receivables Purchase Agreement
17
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, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY NEW YORK LAW.
SECTION 5.8 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 5.9 Survival of Termination. The provisions of Sections 1.7, 1.8,
----------------------- ------------ ---
3.1, 3.2, 5.4, 5.5, 5.6, 5.7, 5.10 and 5.13 shall survive any termination of
--- --- --- --- --- --- ---- ----
this Agreement.
SECTION 5.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES THEIR
--------------------
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 THE TRANSACTIONS CONTEMPLATED
HEREBY 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 OF THE PARTIES 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 THAT SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
SECTION 5.11 Entire Agreement. This Agreement and the other Transaction
-----------------
Documents embody the entire agreement and understanding between 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, except for any prior arrangements made with respect to the payment by
the Issuer of (or any indemnification for) any fees, costs or expenses payable
to or incurred (or to be incurred) by or on behalf of the Seller, the Servicer
and the Administrator.
SECTION 5.12 Headings. The captions and headings of this Agreement and any
--------
Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
Receivables Purchase Agreement
18
SECTION 5.13 Issuer's Liabilities. The obligations of the Issuer under the
--------------------
Transaction Documents are solely the corporate obligations of the Issuer. No
recourse shall be had for any obligation or claim arising out of or based upon
any Transaction Document against any stockholder, employee, officer, director or
incorporator of the Issuer; provided, however, that this Section shall not
relieve any such Person of any liability it might otherwise have for its own
gross negligence or willful misconduct.
[Signature Pages Follow]
Receivables Purchase Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
IMCO FUNDING CORPORATION, as the Seller
By:__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IMCO RECYCLING INC., as the Servicer
By:___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Receivables Purchase Agreement
▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORPORATION, as
the Issuer
By:__________________________________
Name:
Title:
Address: c/o AMACAR Group, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
PNC Bank, National Association
Address: One PNC Plaza
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PNC BANK, NATIONAL ASSOCIATION, as
Administrator
By:________________________________
Name:
Title:
Address: One PNC Plaza
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Receivables Purchase Agreement
S-2