EXECUTION COPY Exhibit 10.9
FOURTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS FOURTH AMENDMENT (this "Amendment") dated as of November 8,
2000 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
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. 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, and by the Third Amendment, dated as of May
15, 2000 (the "Agreement").
. 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
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herein without definition and that are defined in the Agreement
shall have the same meanings herein as in the Agreement.
2. Amendments to Agreement. Subsection (g) of Exhibit V to
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the Agreement is hereby amended and restated in its entirety as
follows:
(g) (i) the (A) Default Ratio shall exceed 7% or (B) the
Delinquency Ratio shall exceed 10% or (ii) the average for
three consecutive calendar months of: (A) the Default Ratio
shall exceed 6% or (B) the Delinquency Ratio shall exceed 8%.
3. Representations and Warranties. Each of the Seller and
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the Servicer hereby represents and warrants to the Administrator
and the Issuer as follows:
() Representations and Warranties. The representations
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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).
() Enforceability. The execution and delivery by such
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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.
() Termination Event. No Termination Event or
Unmatured Termination Event has occurred and is continuing.
4. Effectiveness. This Amendment shall become effective as
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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;
(b) a written statement from Moody's and Standard &
Poor's that this Amendment will not result in a downgrade or
withdrawal of the rating of the Notes; and
(c) such other documents and instruments as the
Administrator may reasonably request.
5. Effect of Amendment. Except as expressly amended and
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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
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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
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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
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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.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
SEQUA RECEIVABLES CORP.
By:
Name:
Title:
SEQUA CORPORATION
By
Name:
Title:
LIBERTY STREET FUNDING CORP.
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as
Administrator
By:
Name:
Title:
PURCHASERS:
Consented and Agreed:
THE BANK OF NOVA SCOTIA, as a
Purchaser under the Liquidity
Agreement
By:
Name:
Title:
Consented and Agreed:
LLOYDS TSB BANK PLC, as a
Purchaser under the Liquidity
Agreement
By:
Name:
Title:
By:
Name:
Title:
