EXHIBIT 10.17
EXECUTION VERSION
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS EIGHTH AMENDMENT (this "Amendment") dated as of April 30, 2003 is
entered into among SEQUA RECEIVABLES CORP., a New York corporation (the
"Seller"), SEQUA CORPORATION, a Delaware corporation (the "Servicer"), LIBERTY
STREET FUNDING CORP., a Delaware corporation (the "Issuer"), and THE BANK OF
NOVA SCOTIA, a Canadian chartered bank acting through its New York Agency
("BNS"), as administrator (in such capacity, together with its successors and
assigns in such capacity, the "Administrator").
R E C I T A L S
1. The Seller, the Servicer, the Issuer and the Administrator are
parties to that certain Receivables Purchase Agreement dated as of November 13,
1998, as amended by the First Amendment, dated as of May 28, 1999, by the Second
Amendment, dated as of July 12, 1999, by the Third Amendment, dated as of May
15, 2000, by the Fourth Amendment, dated as of November 8, 2000, by the Fifth
Amendment, dated as of August 20, 2001, by the Sixth Amendment, dated as of
November 9, 2001 and by the Seventh Amendment, dated as of August 15, 2002 (the
"Agreement").
2. The Seller, the Servicer, the Issuer and the Administrator desire to
amend the Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms which are used herein
without definition and that are defined in the Agreement shall have the same
meanings herein as in the Agreement.
2. Amendments to Agreement. The Agreement is hereby amended as follows:
2.1 Purchase Limit. The definition of "Purchase Limit" in Exhibit I
to the Agreement is amended and restated in its entirety to read as follows:
"Purchase Limit" means $100,000,000, as such amount may be reduced
pursuant to Section 1.1(b) of the Agreement. References to the
unused portion of the Purchase Limit shall mean, at any time, the
Purchase Limit minus the then outstanding Capital."
2.2 Receivable. The definition of "Receivable" in Exhibit I to the
Agreement is amended and restated in its entirety to read as follows:
""Receivable" means any indebtedness and other obligations owed to
the Seller as assignee of any Originator or any Originator by, or
any right of the Seller or any Originator to payment from or on
behalf of, an Obligor whether constituting an account, chattel
paper, instrument or general intangible arising in connection with
the sale of goods or the rendering of services by such Originator,
and includes the obligation to pay any finance charges, fees and
other charges with respect thereto; provided, however, Receivable
shall not include any Receivable the Obligor of which is either (i)
National Steel Corporation, a Delaware corporation, or any Affiliate
or Subsidiary thereof, (ii) UAL Corporation, a Delaware corporation,
or any Affiliate or Subsidiary thereof or (iii) AMR Corporation, a
Delaware corporation, or any Affiliate or Subsidiary thereof.".
3. Representations and Warranties. Each of the Seller and the Servicer
hereby represents and warrants to the Administrator and the Issuer as follows:
(a) Representations and Warranties. The representations and
warranties of such Person contained in Exhibit III to the Agreement
are true and correct as of the date hereof (unless stated to relate
solely to an earlier date, in which case such representations and
warranties were true and correct as of such earlier date).
(b) Enforceability. The execution and delivery by such Person
of this Amendment, and the performance of its obligations under this
Amendment and the Agreement, as amended hereby, are within its
corporate powers and have been duly authorized by all necessary
corporate action on its part. This Amendment and the Agreement, as
amended hereby, are its valid and legally binding obligations,
enforceable in accordance with its terms.
(c) Termination Event. No Termination Event or Unmatured
Termination Event. has occurred and is continuing
4. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by the Administrator of the following, each duly executed
and dated as of the date hereof (or such other date satisfactory to the
Administrator), in form and substance satisfactory to the Administrator:
(a) counterparts of this Amendment (whether by facsimile or
otherwise) executed by each of the parties hereto; and
(b) such other documents and instruments as the Administrator
may reasonably request.
5. Effect of Amendment. Except as expressly amended and modified by this
Amendment, all provisions of the Agreement shall remain in full force and
effect. After this Amendment becomes effective, all references in the Agreement
(or in any other Transaction Document) to "the Receivables Purchase Agreement,"
"this Agreement," "hereof," "herein" or words of similar effect, in each case
referring to the Agreement, shall be deemed to be references to the Agreement as
amended by this Amendment. This Amendment shall not be deemed to expressly or
impliedly waive, amend or supplement any provision of the Agreement other than
as set forth herein.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York without reference to
conflict of laws principles.
8. Section Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
amendment or the Agreement or any provision hereof or thereof.
[signature pages on next page]
IN WITNESS WHEREOF, the parties have executed the Amendment as of the date
first above written.
SEQUA RECEIVABLES CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
__________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
SEQUA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President &
Treasurer
LIBERTY STREET FUNDING CORP.
By: /s/ Xxxxxx X. Xxxxx
__________________________________
Name: Xxxxxx X. Xxxxx
Title: President
THE BANK OF NOVA SCOTIA,
as Administrator
By: /s/ J. Xxxx Xxxxxxx
__________________________________
Name: J. Xxxx Xxxxxxx
Title: Managing Director
PURCHASERS:
Consented and Agreed:
THE BANK OF NOVA SCOTIA,
as a Purchaser under the Liquidity Agreement
By: /s/ J. Xxxx Xxxxxxx
__________________________________
Name: J. Xxxx Xxxxxxx
Title: Managing Director
