Exhibit 10.1
[EXECUTION COPY]
AMENDMENT NO. 8
Dated as of September 30, 1996
to
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 24, 1993
Sequa Receivables Corp., a New York corporation ("SRC" or
the "Seller"), Sequa Corporation, a Delaware corporation (in its
individual capacity and as Servicer, "Sequa"), the financial
institutions parties hereto (the "Purchasers") and Chemical Bank,
as managing agent (the "Managing Agent") agree as follows:
SECTION 1. Receivables Purchase Agreement. Reference is
made to the Amended and Restated Receivables Purchase Agreement
dated as of June 24, 1993, and as amended by Amendment No. 1
dated as of September 30, 1993, Amendment No. 2 dated as of
December 1, 1993, Amendment No. 3 dated as of December 14, 1993,
Amendment No. 4 dated as of July 1, 1994, Amendment No. 5 dated
as of March 3, 1995, Amendment No. 6 dated as of May 31, 1995 and
Amendment No. 7 dated as of August 16, 1995, each among SRC,
Sequa, the Managing Agent and the Purchasers (the "Receivables
Purchase Agreement"). Capitalized terms used herein but not
defined herein shall have the meanings ascribed thereto in the
Receivables Purchase Agreement. The Receivables Purchase
Agreement, as amended by this Amendment No. 8 (this "Amendment
No. 8"), is and shall continue to be in full force and effect and
is hereby in all respects ratified and confirmed.
SECTION 2. Amendments. Upon and after the Effective Date
(as defined in Section 4 hereof), the Receivables Purchase
Agreement shall be amended as follows:
(a) Section 1.05 of the Receivables Purchase Agreement
shall be restated in its entirety to read as follows:
"1.05 Commitment Termination Date. The
"Commitment Termination Date" shall be the earliest to
occur of (i) March 31, 1998 (such date, the "Scheduled
Commitment Termination Date"), (ii) the date on which
the commitment is terminated pursuant to Section 1.06,
1.07 or 10.02 and (iii) the closing date of a
replacement structured receivables financing.".
(b) Section 4.01 of the Receivables Purchase Agreement
shall be amended by deleting the percentage ".50%" appearing
in the sixth line, and substituting in lieu thereof ".375%".
(c) Section 7.03(k)(iii) of the Receivables Purchase
Agreement shall be restated in its entirety to read as
follows:
"(iii) the Consolidated Fixed Charge Coverage
Ratio at any time to be less than 2.25 to 1.00.".
(d) Appendix A to the Receivables Purchase Agreement
is amended by inserting before the period at the end of the
definition of "Consolidated Net Income" therein the
following:
"; and provided further, that all gains described
in clause (y) of the definition of Consolidated Net
Worth in excess of all losses described in such clause
shall be disregarded in the computation of Consolidated
Net Income".
SECTION 3. Covenants, Representations and Warranties.
(a) Each of SRC and Sequa has the power, and has taken
all necessary action (including any necessary stockholder
action) to authorize it, to execute, deliver and perform in
accordance with its terms this Amendment No. 8. This
Amendment No. 8 has been duly executed and delivered by SRC
and Sequa and is a legal, valid and binding obligation of
each such party, enforceable against such party in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(b) The execution, delivery and performance in
accordance with its terms by SRC and Sequa of this Amendment
No. 8 and the Receivables Purchase Agreement, as amended by
this Amendment No. 8, do not and (absent any change in any
applicable law or applicable Transaction Document) will not
(i) require any governmental approval or any other consent
or approval, including any consent or approval of the
stockholders of SRC or Sequa, other than consents and
approvals that have been obtained, are final and not subject
to review on appeal or to collateral attack and are in full
force and effect, or (ii) violate or conflict with, result
in a breach of, constitute a default under, or result in or
require the creation of any lien upon any assets of SRC,
Sequa or any Originator under, (A) any Transaction Document
to which SRC, Sequa or any Originator is a party or by which
SRC, Sequa or any Originator or any of their respective
properties may be bound, the breach of which, either singly
or in the aggregate with all other such breaches, would have
a Materially Adverse Business Effect upon SRC, Sequa or any
Originator, or (B) any applicable law or judgment;
(c) Each of SRC and Sequa hereby reaffirms all
agreements, covenants, representations and warranties made
in the Receivables Purchase Agreement and, to the extent the
same are not amended hereby, agrees that all such
agreements, covenants, representations and warranties shall
be deemed to have been remade as of the Effective Date.
Each of SRC and Sequa hereby further represents and warrants
that as of the Effective Date no event has occurred and is
continuing or will result from the execution, delivery and
performance by it of this Amendment No. 8 which constitutes
a Liquidation Event or which, after notice or lapse of time
or both, would constitute a Liquidation Event; and
(d) Except as specifically amended herein, the
Receivables Purchase Agreement shall remain in full force
and effect and is hereby ratified and confirmed. The
execution, delivery and effectiveness of this Amendment No.
8 shall not operate as a waiver of any right, power or
remedy of the Managing Agent or any of the Purchasers under
the Receivables Purchase Agreement or any other document,
instrument or agreement executed and delivered in connection
therewith, except as specifically set forth herein.
SECTION 4. Effective Date; Conditions to Effectiveness.
This Amendment No. 8 shall become effective as of the date first
written above on the first day (the "Effective Date") on which
each of the following conditions is satisfied:
(a) The Managing Agent shall have received an
officer's certificate, dated the Effective Date of this
Amendment No. 8, in the form attached hereto as Schedule 1.
(b) This Amendment No. 8 shall have been duly executed
and delivered by Sequa, SRC and the Required Purchasers.
SECTION 5. Governing Law. This Amendment No. 8 shall be
construed in accordance with and governed by the substantive law
of the State of New York.
SECTION 6. Headings. Section headings in this Amendment
No. 8 are included herein for convenience and reference only and
shall not constitute a part of this Amendment No. 8 for any other
purpose.
SECTION 7. Counterparts. This Amendment No. 8 may be
executed in any number of counterparts and on separate
counterparts, each of which shall be deemed to be an original and
shall be binding upon the parties hereto, their successors and
assigns.
SECTION 8. Cross-References. References in this Amendment
No. 8 to any Section or Subsection, unless otherwise specified,
refer to such Section or Subsection of this Amendment No. 8.
SECTION 9. Instrument Pursuant to Receivables Purchase
Agreement. This Amendment No. 8 is an instrument executed
pursuant to the Receivables Purchase Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the
Receivables Purchase Agreement, including Article XIV thereof.
[Next page is signature page]
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 8, or caused it to be executed and delivered by
their duly authorized officers, all as of the day and year first
above written.
SEQUA RECEIVABLES CORP.,
as Seller
By
Name:
Title:
SEQUA CORPORATION,
individually and as Servicer
By
Name:
Title:
CHEMICAL BANK,
as Managing Agent and Purchaser
By
Name:
Title:
THE BANK OF NEW YORK,
as Purchaser
By
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Purchaser
By
Name:
Title:
Schedule 1
[FORM OF]
SEQUA CORPORATION
OFFICERS'S CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, do hereby certify that I am the duly
elected and qualified Vice President and Treasurer of SEQUA
CORPORATION, a Delaware corporation (the "Company"), that I am
authorized to execute this Certificate, and that as of the date
hereof, the following statements are true and correct.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned thereto in Appendix A to that
certain Amended and Restated Receivables Purchase Agreement dated
June 24, 1993, as amended by Amendment No. 1 thereto dated as of
September 30, 1993, Amendment No. 2 thereto dated as of December
1, 1993, Amendment No. 3 thereto dated as of December 14, 1993,
Amendment No. 4 thereto dated as of July 1, 1994, Amendment No. 5
thereto dated as of March 3, 1995, Amendment No. 6 thereto dated
as of May 31, 1995 and Amendment No. 7 thereto dated as of August
16, 1995 (the "Receivables Purchase Agreement"), among the
Company, Sequa Receivables Corp. ("SRC"), Chemical Bank, as
Managing Agent, and the financial institution parties thereto.
(i) The representations, warranties and covenants
made by the Company and SRC in the Receivables Purchase
Agreement and in the certificates delivered by officers of
the Company or SRC (as the case may be) in connection
therewith, are true and correct in all material respects on
and as of the date hereof, with the same effect as if made
on the date hereof, and the Company and SRC have complied
with all agreements and satisfied all conditions to be
performed or satisfied on their part at or prior to the
execution of Amendment No. 8 to the Receivables Purchase
Agreement; and
(ii) As of the date hereof, no event has occurred and
is continuing or will result from the execution, delivery
and performance by the Company or SRC of Amendment No. 8 to
the Receivables Purchase Agreement which constitutes a
Liquidation Event or which, after notice or lapse of time or
both, would constitute a Liquidation Event.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 30th day of September, 1996.
______________________________
Xxxxxxx X. Xxxxxxx
Treasurer
SEQUA CORPORATION
OFFICERS'S CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, do hereby certify that I am the duly
elected and qualified Vice President and Treasurer of SEQUA
CORPORATION, a Delaware corporation (the "Company"), that I am
authorized to execute this Certificate, and that as of the date
hereof, the following statements are true and correct.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned thereto in Appendix A to that
certain Amended and Restated Receivables Purchase Agreement dated
June 24, 1993, as amended by Amendment No. 1 thereto dated as of
September 30, 1993, Amendment No. 2 thereto dated as of December
1, 1993, Amendment No. 3 thereto dated as of December 14, 1993,
Amendment No. 4 thereto dated as of July 1, 1994, Amendment No. 5
thereto dated as of March 3, 1995, Amendment No. 6 thereto dated
as of May 31, 1995 and Amendment No. 7 thereto dated as of August
16, 1995 (the "Receivables Purchase Agreement"), among the
Company, Sequa Receivables Corp. ("SRC"), Chemical Bank, as
Managing Agent, and the financial institution parties thereto.
(i) The representations, warranties and covenants
made by the Company and SRC in the Receivables Purchase
Agreement and in the certificates delivered by officers of
the Company or SRC (as the case may be) in connection
therewith, are true and correct in all material respects on
and as of the date hereof, with the same effect as if made
on the date hereof, and the Company and SRC have complied
with all agreements and satisfied all conditions to be
performed or satisfied on their part at or prior to the
execution of Amendment No. 8 to the Receivables Purchase
Agreement; and
(ii) As of the date hereof, no event has occurred and
is continuing or will result from the execution, delivery
and performance by the Company or SRC of Amendment No. 8 to
the Receivables Purchase Agreement which constitutes a
Liquidation Event or which, after notice or lapse of time or
both, would constitute a Liquidation Event.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 30th day of September, 1996.
______________________________
Xxxxxxx X. Xxxxxxx
Treasurer
Exhibit 10.1
[EXECUTION COPY]
AMENDMENT NO. 9
Dated as of December 30, 1996
to
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 24, 1993
Sequa Receivables Corp., a New York corporation ("SRC" or
the "Seller"), Sequa Corporation, a Delaware corporation (in its
individual capacity and as Servicer, "Sequa"), the financial
institutions parties hereto (the "Purchasers") and Chemical Bank,
as managing agent (the "Managing Agent") agree as follows:
SECTION 1. Receivables Purchase Agreement. Reference is
made to the Amended and Restated Receivables Purchase Agreement
dated as of June 24, 1993, and as amended by Amendment No. 1
dated as of September 30, 1993, Amendment No. 2 dated as of
December 1, 1993, Amendment No. 3 dated as of December 14, 1993,
Amendment No. 4 dated as of July 1, 1994, Amendment No. 5 dated
as of March 3, 1995, Amendment No. 6 dated as of May 31, 1995,
Amendment No. 7 dated as of August 16, 1995 and Amendment No. 8
dated as of September 30, 1996, each among SRC, Sequa, the
Managing Agent and the Purchasers (the "Receivables Purchase
Agreement"). Capitalized terms used herein but not defined
herein shall have the meanings ascribed thereto in the
Receivables Purchase Agreement. The Receivables Purchase
Agreement, as amended by this Amendment No. 9 (this "Amendment
No. 9"), is and shall continue to be in full force and effect and
is hereby in all respects ratified and confirmed.
SECTION 2. Amendments. Upon and after the Effective Date
(as defined in Section 4 hereof), the Receivables Purchase
Agreement shall be amended as follows:
(a) Appendix A to the Receivables Purchase Agreement
is amended by
(i) in the definition of "Consolidated Net
Worth", (A) inserting a new clause (w) immediately before
the existing clause (x) contained therein to read as
follows:
"(w) 1996 Excess Gas Turbine Litigation
Expenses,"; and
(B) inserting "(w)," immediately before
the phrase "(x), (y) and (z)" contained therein:
(ii) in the definition of "EBITDA", deleting
the "and" immediately before clause (vi) thereof and
replacing it with "," and inserting a new clause (vii)
immediately after the existing clause (vi) to read as
follows:
"and (vii) 1996 Excess Gas Turbine
Litigation Expenses";
(iii) adding a definition of "1996 Excess
Gas Turbine Litigation Expenses" in the correct alphabetical
order as follows:
"1996 Excess Gas Turbine Litigation
Expenses" means the lesser of (i)
$27,275,000 and (ii) the litigation
expenses in excess of $12,725,000
actually incurred by the Servicer or a
Subsidiary of the Servicer for the
fiscal year ended December 31, 1996, in
connection with the antitrust litigation
involving Chromalloy Gas Turbine
Corporation, which litigation was
identified in the Servicer's letter to
the Managing Agent dated November 25,
1996."
SECTION 3. Covenants, Representations and Warranties.
(a) Each of SRC and Sequa has the power, and has taken
all necessary action (including any necessary stockholder
action) to authorize it, to execute, deliver and perform in
accordance with its terms this Amendment No. 9. This
Amendment No. 9 has been duly executed and delivered by SRC
and Sequa and is a legal, valid and binding obligation of
each such party, enforceable against such party in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(b) The execution, delivery and performance in
accordance with its terms by SRC and Sequa of this Amendment
No. 9 and the Receivables Purchase Agreement, as amended by
this Amendment No. 9, do not and (absent any change in any
applicable law or applicable Transaction Document) will not
(i) require any governmental approval or any other consent
or approval, including any consent or approval of the
stockholders of SRC or Sequa, other than consents and
approvals that have been obtained, are final and not subject
to review on appeal or to collateral attack and are in full
force and effect, or (ii) violate or conflict with, result
in a breach of, constitute a default under, or result in or
require the creation of any lien upon any assets of SRC,
Sequa or any Originator under, (A) any Transaction Document
to which SRC, Sequa or any Originator is a party or by which
SRC, Sequa or any Originator or any of their respective
properties may be bound, the breach of which, either singly
or in the aggregate with all other such breaches, would have
a Materially Adverse Business Effect upon SRC, Sequa or any
Originator, or (B) any applicable law or judgment;
(c) Each of SRC and Sequa hereby reaffirms all
agreements, covenants, representations and warranties made
in the Receivables Purchase Agreement and, to the extent the
same are not amended hereby, agrees that all such
agreements, covenants, representations and warranties shall
be deemed to have been remade as of the Effective Date.
Each of SRC and Sequa hereby further represents and warrants
that as of the Effective Date no event has occurred and is
continuing or will result from the execution, delivery and
performance by it of this Amendment No. 9 which constitutes
a Liquidation Event or which, after notice or lapse of time
or both, would constitute a Liquidation Event; and
(d) Except as specifically amended herein, the
Receivables Purchase Agreement shall remain in full force
and effect and is hereby ratified and confirmed. The
execution, delivery and effectiveness of this Amendment No.
9 shall not operate as a waiver of any right, power or
remedy of the Managing Agent or any of the Purchasers under
the Receivables Purchase Agreement or any other document,
instrument or agreement executed and delivered in connection
therewith, except as specifically set forth herein.
SECTION 4. Effective Date; Conditions to Effectiveness.
This Amendment No. 9 shall become effective as of the date first
written above on the first day (the "Effective Date") on which
each of the following conditions is satisfied:
(a) The Managing Agent shall have received an
officer's certificate, dated the Effective Date of this
Amendment No. 9, in the form attached hereto as Schedule 1.
(b) This Amendment No. 9 shall have been duly executed
and delivered by Sequa, SRC and the Required Purchasers.
SECTION 5. Governing Law. This Amendment No. 9 shall be
construed in accordance with and governed by the substantive law
of the State of New York.
SECTION 6. Headings. Section headings in this Amendment
No. 9 are included herein for convenience and reference only and
shall not constitute a part of this Amendment No. 9 for any other
purpose.
SECTION 7. Counterparts. This Amendment No. 9 may be
executed in any number of counterparts and on separate
counterparts, each of which shall be deemed to be an original and
shall be binding upon the parties hereto, their successors and
assigns.
SECTION 8. Cross-References. References in this Amendment
No. 9 to any Section or Subsection, unless otherwise specified,
refer to such Section or Subsection of this Amendment No. 9.
SECTION 9. Instrument Pursuant to Receivables Purchase
Agreement. This Amendment No. 9 is an instrument executed
pursuant to the Receivables Purchase Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the
Receivables Purchase Agreement, including Article XIV thereof.
[Next page is signature page]
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 9, or caused it to be executed and delivered by
their duly authorized officers, all as of the day and year first
above written.
SEQUA RECEIVABLES CORP.,
as Seller
By
Name:
Title:
SEQUA CORPORATION,
individually and as Servicer
By
Name:
Title:
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL
BANK), as Managing Agent and
Purchaser
By
Name:
Title:
THE BANK OF NEW YORK,
as Purchaser
By
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Purchaser
By
Name:
Title:
Schedule 1
[FORM OF]
SEQUA CORPORATION
OFFICERS'S CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, do hereby certify that I am the duly
elected and qualified Vice President and Treasurer of SEQUA
CORPORATION, a Delaware corporation (the "Company"), that I am
authorized to execute this Certificate, and that as of the date
hereof, the following statements are true and correct.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned thereto in Appendix A to that
certain Amended and Restated Receivables Purchase Agreement dated
June 24, 1993, as amended by Amendment No. 1 thereto dated as of
September 30, 1993, Amendment No. 2 thereto dated as of December
1, 1993, Amendment No. 3 thereto dated as of December 14, 1993,
Amendment No. 4 thereto dated as of July 1, 1994, Amendment No. 5
thereto dated as of March 3, 1995, Amendment No. 6 thereto dated
as of May 31, 1995, Amendment No. 7 thereto dated as of August
16, 1995 and Amendment No. 8 thereto dated as of September 30,
1996 (the "Receivables Purchase Agreement"), among the Company,
Sequa Receivables Corp. ("SRC"), Chemical Bank, as Managing
Agent, and the financial institution parties thereto.
(i) The representations, warranties and covenants
made by the Company and SRC in the Receivables Purchase
Agreement and in the certificates delivered by officers of
the Company or SRC (as the case may be) in connection
therewith, are true and correct in all material respects on
and as of the date hereof, with the same effect as if made
on the date hereof, and the Company and SRC have complied
with all agreements and satisfied all conditions to be
performed or satisfied on their part at or prior to the
execution of Amendment No. 9 to the Receivables Purchase
Agreement; and
(ii) As of the date hereof, no event has occurred and
is continuing or will result from the execution, delivery
and performance by the Company or SRC of Amendment No. 9 to
the Receivables Purchase Agreement which constitutes a
Liquidation Event or which, after notice or lapse of time or
both, would constitute a Liquidation Event.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 30th day of December, 1996.
______________________________
Xxxxxxx X. Xxxxxxx
Treasurer
SEQUA CORPORATION
OFFICERS'S CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, do hereby certify that I am the duly
elected and qualified Vice President and Treasurer of SEQUA
CORPORATION, a Delaware corporation (the "Company"), that I am
authorized to execute this Certificate, and that as of the date
hereof, the following statements are true and correct.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned thereto in Appendix A to that
certain Amended and Restated Receivables Purchase Agreement dated
June 24, 1993, as amended by Amendment No. 1 thereto dated as of
September 30, 1993, Amendment No. 2 thereto dated as of December
1, 1993, Amendment No. 3 thereto dated as of December 14, 1993,
Amendment No. 4 thereto dated as of July 1, 1994, Amendment No. 5
thereto dated as of March 3, 1995, Amendment No. 6 thereto dated
as of May 31, 1995, Amendment No. 7 thereto dated as of August
16, 1995 and Amendment No. 8 thereto dated as of September 30,
1996 (the "Receivables Purchase Agreement"), among the Company,
Sequa Receivables Corp. ("SRC"), Chemical Bank, as Managing
Agent, and the financial institution parties thereto.
(i) The representations, warranties and covenants
made by the Company and SRC in the Receivables Purchase
Agreement and in the certificates delivered by officers of
the Company or SRC (as the case may be) in connection
therewith, are true and correct in all material respects on
and as of the date hereof, with the same effect as if made
on the date hereof, and the Company and SRC have complied
with all agreements and satisfied all conditions to be
performed or satisfied on their part at or prior to the
execution of Amendment No. 9 to the Receivables Purchase
Agreement; and
(ii) As of the date hereof, no event has occurred and
is continuing or will result from the execution, delivery
and performance by the Company or SRC of Amendment No. 9 to
the Receivables Purchase Agreement which constitutes a
Liquidation Event or which, after notice or lapse of time or
both, would constitute a Liquidation Event.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 30th day of December, 1996.
______________________________
Xxxxxxx X. Xxxxxxx
Treasurer