PURCHASE AND SALE AGREEMENT
Dated as of November 13, 1998
among
THE ORIGINATORS NAMED HEREIN
SEQUA RECEIVABLES CORP.
and
SEQUA CORPORATION,
as the initial Servicer
TABLE OF CONTENTS
PAGE
ARTICLE I AGREEMENT TO PURCHASE AND SELL
1.1. Agreement to Purchase and Sell 1
1.2. Timing of Purchases 3
1.3. Consideration for Purchases 3
1.4. Purchase and Sale Termination Date 3
1.5. Intention of the Parties 3
ARTICLE II CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price 4
ARTICLE III CONTRIBUTION OF RECEIVABLES;PAYMENT OF PURCHASE PRICE
3.1. Contribution of Receivables 5
3.2. Initial Purchase Price Payment 5
3.3. Subsequent Purchase Price Payments 5
3.4. Settlement as to Specific Receivables 6
3.5. Reconveyance of Receivables 7
ARTICLE IV CONDITIONS OF PURCHASES
4.1. Conditions Precedent to Initial Purchase 7
4.2. Certification as to Representations and Warranties 9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
5.1. Organization and Good Standing 9
5.2. Due Qualification 9
5.3. Power and Authority; Due Authorization 10
5.4. Valid Sale or Contribution;
Binding Obligations 10
5.5. No Violation 10
5.6. Proceedings 11
5.7. Bulk Sales Act 11
5.8. Government Approvals 11
5.9. Financial Condition 11
5.10. Margin Regulations 11
5.11. Quality of Title 12
5.12. Accuracy of Information 12
5.13. Offices 12
5.14. Trade Names 13
5.15. Taxes 13
5.16. Licenses and Labor Controversies 13
5.17. Compliance with Applicable Laws 13
5.18. Reliance on Separate Legal Identity 13
5.19. Purchase Price 14
5.20. Certain Definitions 14
5.21 Year 2000 Problem 15
ARTICLE VI COVENANTS OF THE ORIGINATORS
6.1. Affirmative Covenants 15
6.2. Reporting Requirements 18
6.3. Negative Covenants 18
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS INRESPECT OF THE
RECEIVABLES
7.1. Rights of the Company 19
7.2. Responsibilities of Each Originator 20
7.3. Further Action Evidencing Purchases 20
7.4. Application of Collections 21
ARTICLE VIII PURCHASE AND SALE TERMINATION EVENTS
8.1. Purchase and Sale Termination Events 21
8.2. Remedies 22
ARTICLE IX INDEMNIFICATION
9.1. Indemnities by the Originators 23
ARTICLE X MISCELLANEOUS
10.1. Amendments, etc 25
10.2. Notices, etc 25
10.3. No Waiver; Cumulative Remedies 25
10.4. Binding Effect; Assignability 25
10.5. Governing Law 26
10.6. Costs, Expenses and Taxes 26
10.7. Submission to Jurisdiction 26
10.8. Waiver of Jury Trial 27
10.9. Captions and Cross References;
Incorporation by Reference 27
10.10. Execution in Counterparts 27
10.11. Acknowledgment and Agreement 27
SCHEDULES
SCHEDULE 5.13 Office Locations
SCHEDULE 5.14 Trade Names
EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Form of Company Note
EXHIBIT C Form of Opinion of Originator's Counsel
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (as amended,
supplemented or modified from time to time, this "Agreement"),
dated as of November 13, 1998, is among SEQUA CORPORATION, a
Delaware corporation ("Sequa"), individually and as the initial
Servicer, CHROMALLOY GAS TURBINE CORPORATION, a Delaware
corporation ("Gas Turbine"), CHROMALLOY CASTINGS TAMPA
CORPORATION, a Delaware corporation ("Castings"), CHROMALLOY
COMPRESSOR TECHNOLOGIES CORPORATION, a Delaware corporation
("Compressor"), CHROMALLOY H.I.T. LTD., a Delaware corporation
("HIT"), CHROMALLOY SAN DIEGO, a California corporation ("SD"),
CHROMALLOY WALLKILL CORP., a New York corporation ("Wallkill"),
SPECIALIZED OVERHAUL SERVICES GROUP, INC., a Delaware corporation
("SOSG"), ATLANTIC RESEARCH CORPORATION, a Delaware
corporation,("ARC") CASCO PRODUCTS CORPORATION, a Delaware
Corporation ("Casco"), MEGTEC SYSTEMS, INC., a Delaware
corporation ("MEGTEC") (Sequa, Gas Turbine, Castings, Compressor,
HIT, SD, Wallkill, SOSG, ARC, Casco and MEGTEC are collectively
herein sometimes referred to as the "Originators" and
individually as an "Originator"), and SEQUA RECEIVABLES CORP., a
New York corporation (the "Company"), as purchaser and
contributee.
DEFINITIONS
Unless otherwise indicated, certain terms that are
capitalized and used throughout this Agreement are defined in
Exhibit I to the Receivables Purchase Agreement of even date
herewith (as amended, supplemented or otherwise modified from
time to time, the "Receivables Purchase Agreement"), among the
Company, Sequa, as initial Servicer, LIBERTY STREET FUNDING CORP.
(the "Issuer"), and THE BANK OF NOVA SCOTIA, as Administrator
(together with its successors and assigns, the "Administrator").
BACKGROUND
1. The Company is a special purpose corporation, all of
the capital stock of which is wholly-owned by Sequa.
2. In order to finance their respective businesses, the
Originators wish to sell certain Receivables and Related Rights
from time to time to the Company, and the Company is willing, on
the terms and subject to the conditions set forth herein, to
purchase such Receivables and Related Rights from such
Originators.
3. The Company intends to sell to Issuer an undivided
variable percentage interest in its Receivables and Related
Rights pursuant to the Receivables Purchase Agreement in order to
finance its purchases of certain Receivables and Related Rights
hereunder.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree
as follows:
I. ARTICLE
AGREEMENT TO PURCHASE AND SELL
A. AGREEMENT TO PURCHASE AND SELL. On the terms and
subject to the conditions set forth in this Agreement (including
Article IV), and in consideration of the Purchase Price, each
Originator agrees to sell to the Company, and does hereby sell to
the Company, and the Company agrees to purchase from such
Originator, and does hereby purchase from such Originator,
without recourse and without regard to collectibility, all of
such Originator's right, title and interest in and to:
1. each Receivable of such Originator that existed and was
owing to such Originator as of the close of such Originator's
business on November 13, 1998 (the "Closing Date") (other than
the Receivables and Related Rights contributed by such Originator
to the Company pursuant to Section 3.1 (the "Contributed
Receivables"));
1. each Receivable created or originated by such
Originator from the close of such Originator's business on the
Closing Date to and including the Purchase and Sale Termination
Date;
1. all rights to, but not the obligations under, all
Related Security;
1. all monies due or to become due with respect to any of
the foregoing;
1. all books and records related to any of the foregoing;
and
1. all proceeds thereof (as defined in the applicable UCC)
received on or after the date hereof including, without
limitation, all funds which either are received by such
Originator, the Company or the Servicer from or on behalf of the
Obligors in payment of any amounts owed (including, without
limitation, finance charges, interest and all other charges) in
respect of Receivables, or are applied to such amounts owed by
the Obligors (including, without limitation, insurance payments,
if any, that such Originator or the Servicer (if other than
Originator) applies in the ordinary course of its business to
amounts owed in respect of any Receivable).
All purchases and contributions hereunder shall be made without
recourse, but shall be made pursuant to and in reliance upon the
representations, warranties and covenants of each Originator set
forth in this Agreement and each other Transaction Document. The
Company's foregoing commitment to purchase such Receivables and
the proceeds and rights described in subsections (c) through (f)
of this Section 1.1 (collectively, the "Related Rights") is
herein called the "Purchase Facility."
A. TIMING OF PURCHASES.
1. CLOSING DATE PURCHASES. Each Originator's entire
right, title and interest in (i) each Receivable that existed and
was owing to Originator as of the close of such Originator's
business on the Closing Date, (other than Contributed
Receivables), and (ii) all Related Rights with respect thereto
shall be deemed to have been sold to the Company on the Closing
Date.
1. REGULAR PURCHASES. After the Closing Date, each
Receivable created or originated by each Originator and described
in Section 1.1(b) hereof and all Related Rights shall be
purchased and owned by the Company (without any further action)
upon the creation or origination of such Receivable.
A. CONSIDERATION FOR PURCHASES. On the terms and subject
to the conditions set forth in this Agreement, the Company agrees
to make all Purchase Price payments to the respective
Originators, and to reflect all contributions, in accordance with
Article III.
A. PURCHASE AND SALE TERMINATION DATE. The "Purchase and
Sale Termination Date" shall be the earlier to occur of (a) the
date of the termination of this Agreement pursuant to Section 8.2
and (b) the Payment Date immediately following the day on which
the Sequa shall have given notice to the Company that the
Originators desire to terminate this Agreement.
As used herein, "Payment Date" means (i) the Closing
Date and (ii) each Business Day thereafter that the Originators
are open for business.
A. INTENTION OF THE PARTIES. It is the express intent of
the parties hereto that the transfers of the Receivables and
Related Rights by each Originator to the Company, as contemplated
by this Agreement be, and be treated as, sales or contributions,
as applicable, and not as loans secured by the Receivables and
Related Rights. If, however, notwithstanding the intent of the
parties, such transfers are deemed to be loans, such Originator
hereby grants to the Company a first priority security interest
in all of such Originator's right, title and interest in and to
the Receivables and the Related Rights now existing and hereafter
created, all monies due or to become due and all amounts received
with respect thereto, and all proceeds thereof, to secure all of
such Originator's obligations hereunder.
I. ARTICLE
CALCULATION OF PURCHASE PRICE
A. CALCULATION OF PURCHASE PRICE. On each Servicer Report
Date, the Servicer shall deliver to the Company, the
Administrator and each Originator a report in substantially the
form of Exhibit A (each such report being herein called a
"Purchase Report") with respect to the matters set forth therein
and the Company's purchases of Receivables from each Originator
1. that are to be made on the Closing Date (in the case of
the Purchase Report to be delivered on the Closing Date), or
1. that were made during the period commencing on the
Servicer Report Date immediately preceding such Servicer Report
Date to (but not including) such Servicer Report Date (in the
case of each subsequent Purchase Report).
The "Purchase Price" (to be paid to each Originator in accordance
with the terms of Article III) for the Receivables and the
Related Rights that are purchased hereunder shall be determined
in accordance with the following formula:
PP = OB X FMVD
where:
PP = Purchase Price for each Receivable as
calculated on the relevant Payment Date.
OB = the Outstanding Balance of such Receivable.
FMVD = Fair Market Value Discount, as measured on
such Payment Date, which is equal to the
quotient (expressed as percentage) of (a) one
divided by (b) the sum of (i) one, plus (ii)
the product of (A) the Prime Rate on such
Payment Date, and (B) a fraction, the
numerator of which is the Days' Sales
Outstanding (calculated as of the last day of
the calendar month next preceding such
Payment Date) and the denominator of which is
365.
"Prime Rate" means a per annum rate equal to the "prime
rate" as published in the "Money Rates" section of The Wall
Street Journal or such other publication as determined by the
Administrator in its sole discretion.
I. ARTICLE
CONTRIBUTION OF RECEIVABLES;
PAYMENT OF PURCHASE PRICE
A. CONTRIBUTION OF RECEIVABLES. On the Closing Date,
Sequa shall, and hereby does, contribute to the capital of the
Company, Receivables and Related Rights with respect thereto
consisting of each Receivable of Sequa that existed and was owing
to Sequa on the Closing Date, beginning with the oldest of such
Receivables and continuing chronologically thereafter, and all or
an undivided interest in the most recent of such contributed
Receivables such that the aggregate Outstanding Balance of all
such contributed Receivables shall be equal to $50,000,000.
A. INITIAL PURCHASE PRICE PAYMENT. On the terms and
subject to the conditions set forth in this Agreement, the
Company agrees to pay to each Originator the Purchase Price for
the purchase of Receivables to be made on the Closing Date,
partially in cash in the amount of the proceeds of the purchase
made by the Issuer on the Closing Date under the Receivables
Purchase Agreement, and partially by issuing a promissory note in
the form of Exhibit B to such Originator with an initial
principal balance equal to the remaining Purchase Price (as such
promissory note may be amended, supplemented, indorsed or
otherwise modified from time to time, together with all
promissory notes issued from time to time in substitution
therefor or renewal thereof in accordance with the Transaction
Documents, being herein called the ("Company Note").
A. SUBSEQUENT PURCHASE PRICE PAYMENTS. On each Business
Day falling after the Closing Date and on or prior to the
Purchase and Sale Termination Date, on the terms and subject to
the conditions set forth in this Agreement, the Company shall pay
to each Originator the Purchase Price for the Receivables sold by
such Originator to the Company on such Business Day, in cash, to
the extent provided under Section 1.2 of the Receivables Purchase
Agreement, and to the extent any of such Purchase Price remains
unpaid, such remaining portion of such Purchase Price shall be
paid by means of an automatic increase to the outstanding
principal amount of the Company Note issued to such Originator.
Servicer shall make all appropriate record keeping
entries with respect to the Company Notes or otherwise to reflect
the foregoing payments and to reflect adjustments pursuant to
Section 3.4, and Servicer's books and records shall constitute
rebuttable presumptive evidence of the principal amount of and
accrued interest on any Company Note at any time. Furthermore,
Servicer shall hold the Company Notes for the benefit of the
Originators, and all payments under the Company Notes shall be
made to the Servicer for the account of the applicable payee
thereof. Each Originator hereby irrevocably authorizes Servicer
to ▇▇▇▇ the Company Notes "CANCELLED" and to return such Company
Notes to the Company upon the final payment thereof after the
occurrence of the Purchase and Sale Termination Date.
A. SETTLEMENT AS TO SPECIFIC RECEIVABLES AND DILUTION.
1. If on the day of purchase or contribution of any
Receivable from any Originator hereunder, any of the
representations or warranties set forth in Section 5.4 or 5.11 of
such Originator is not true with respect to such Receivable or as
a result of any action or inaction of such Originator, on any day
any of such representations or warranties set forth in Section
5.4 or 5.11 is no longer true with respect to such a Receivable
(OTHER THAN A REPRESENTATION OR WARRANTY SET FORTH IN SECTION
5.11(c) WHICH IS NO LONGER TRUE AS A RESULT OF AN OBLIGOR'S
PAYMENT OBLIGATION BEING DISCHARGED IN BANKRUPTCY), then the
Purchase Price (or in the case of a Contributed Receivable, the
Outstanding Balance of such Receivable (the "Contributed Value"))
with respect to such Receivables shall be reduced by an amount
equal to the Outstanding Balance of such Receivable and shall be
accounted to such Originator as provided in subsection (c) below;
provided, that if the Company thereafter receives payment on
account of Collections due with respect to such Receivable, the
Company promptly shall deliver such funds to such Originator.
1. If, on any day, the Outstanding Balance of any
Receivable (including any Contributed Receivable) purchased (or
contributed) hereunder is reduced or adjusted as a result of any
defective, rejected, returned goods or services, or any discount
or other adjustment made by any Originator, the Company or the
Servicer or any offset, setoff or dispute between such Originator
or the Servicer and an Obligor as indicated on the books of the
Company (or, for periods prior to the Closing Date, the books of
such Originator), then the Purchase Price or the Contributed
Value, as the case may be, with respect to such Receivable shall
be reduced by the amount of such net reduction and shall be
accounted to Originator as provided in subsection (c) below.
1. Any reduction in the Purchase Price (or Contributed
Value) of any Receivable pursuant to subsection (a) or (b) above
shall be applied as a credit for the account of the Company
against the Purchase Price of Receivables subsequently purchased
by the Company from such Originator hereunder; provided, however
if there are no purchases of Receivables from such Originator (or
insufficiently large purchases of Receivables) to create a
Purchase Price sufficient to so apply such credit against, the
amount of such credit
a. shall be paid in cash to the Company by such Originator
in the manner and for application as described in the following
proviso, or
a. shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under, the Company
Note payable to such Originator to the extent permitted under
Section 1(m) of Exhibit IV of the Receivables Purchase Agreement;
provided, further, that at any time (y) when a Termination Event
or Unmatured Termination Event exists under the Receivables
Purchase Agreement or (z) on or after the Purchase and Sale
Termination Date, the amount of any such credit shall be paid by
such Originator to the Company by deposit in immediately
available funds into the Concentration Account for application by
Servicer to the same extent as if Collections of the applicable
Receivable in such amount had actually been received on such
date.
1. Each Purchase Report (other than the Purchase Report
delivered on the Closing Date) shall include, in respect of the
Receivables previously generated by each Originator (including
the Contributed Receivables), a calculation of the aggregate
reductions described in subsection (a) or (b) relating to such
Receivables since the last Purchase Report delivered hereunder,
as indicated on the books of the Company (or, for such period
prior to the Closing Date, the books of the Originators).
A. RECONVEYANCE OF RECEIVABLES. In the event that an
Originator has paid to the Company the full Outstanding Balance
of any Receivable pursuant to Section 3.4, the Company shall
reconvey such Receivable to such Originator, without
representation or warranty, but free and clear of all liens
created by the Company.
I. ARTICLE
CONDITIONS OF PURCHASES
A. Conditions Precedent to Initial Purchase. The initial
purchase hereunder is subject to the condition precedent that the
Company shall have received, on or before the Closing Date, the
following, each (unless otherwise indicated) dated the Closing
Date, and each in form, substance and date satisfactory to the
Company:
1. A copy of the resolutions of the Board of Directors of
each Originator approving the Transaction Documents to be
delivered by it and the transactions contemplated hereby and
thereby, certified by the Secretary or Assistant Secretary of
such Originator;
1. Good standing certificates for each Originator issued
as of a recent date acceptable to Servicer by the Secretary of
State of the jurisdiction of such Originator's incorporation and
the jurisdiction where such Originator's chief executive office
is located;
1. A certificate of the Secretary or Assistant Secretary
of each Originator certifying the names and true signatures of
the officers authorized on such Originator's behalf to sign the
Transaction Documents to be delivered by it (on which certificate
the Company and Servicer (if other than such Originator) may
conclusively rely until such time as the Company and the Servicer
shall receive from Originator a revised certificate meeting the
requirements of this subsection (c));
1. The articles of incorporation of each Originator, duly
certified by the Secretary of State of the Jurisdiction of such
Originator's incorporation as of a recent date acceptable to
Servicer, together with a copy of the by-laws of such Originator,
each duly certified by the Secretary or an Assistant Secretary of
such Originator;
1. Copies of the proper financing statements (Form UCC-1)
that have been duly executed and name each Originator as the
debtor/seller and the Company as the secured party/purchaser (and
Issuer as assignee of the Company) of the Receivables generated
by such Originator and Related Rights or other, similar
instruments or documents, as may be necessary or, in Servicer's
or the Administrator's opinion, desirable under the UCC of all
appropriate jurisdictions or any comparable law of all
appropriate jurisdictions to perfect the Company's ownership
interest in all Receivables and Related Rights in which an
ownership interest may be assigned to it hereunder;
1. A written search report from a Person satisfactory to
Servicer and the Administrator listing all effective financing
statements that name any Originator as debtor or assignor and
that are filed in the jurisdictions in which filings were made
pursuant to the foregoing subsection (e), together with copies of
such financing statements (none of which, except for those
described in the foregoing subsection (e), shall cover any
Receivable or any Related Right), and tax and judgment lien
search reports from a Person satisfactory to Servicer and the
Administrator showing no evidence of such liens filed against any
Originator;
1. Favorable opinions of general counsel to the
Originators, in the forms of Exhibit C;
1. Evidence (i) of the execution and delivery by each of
the parties thereto of each of the other Transaction Documents to
be executed and delivered in connection herewith and (ii) that
each of the conditions precedent to the execution, delivery and
effectiveness of such other Transaction Documents has been
satisfied to the Company's satisfaction; and
1. A certificate from an officer of each Originator to the
effect that Servicer and Originator have placed on the most
recent, and have taken all steps reasonably necessary to ensure
that there shall be placed on subsequent, summary master control
data processing reports the following legend (or the substantive
equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN
SOLD TO SEQUA RECEIVABLES CORP. PURSUANT TO A PURCHASE AND SALE
AGREEMENT, DATED AS OF November 13, 1998, AMONG SEQUA
CORPORATION, THE ORIGINATORS NAMED THEREIN AND SEQUA RECEIVABLES
CORP.; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS
BEEN GRANTED TO LIBERTY STREET FUNDING CORP., PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF November 13, 1998,
AMONG SEQUA CORPORATION, SEQUA RECEIVABLES CORP., LIBERTY STREET
FUNDING CORP., AND THE BANK OF NOVA SCOTIA, AS ADMINISTRATOR."
1. CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES.
Each Originator, by accepting the Purchase Price related to each
purchase of Receivables (and Related Rights)generated by such
Originator, shall be deemed to have certified that the
representations and warranties contained in Article V are true
and correct on and as of such day, with the same effect as though
made on and as of such day.
I. ARTICLE
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
In order to induce the Company to enter into this
Agreement and to make purchases and accept contributions
hereunder, each Originator, hereby makes with respect to itself
the representations and warranties set forth in this Article V.
A. ORGANIZATION AND GOOD STANDING. Such Originator has
been duly organized and is validly existing as a corporation in
good standing under the laws of the state of its incorporation,
with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business
is presently conducted.
A. DUE QUALIFICATION. Such Originator is duly licensed or
qualified to do business as a foreign corporation in good
standing in the jurisdiction where its chief executive office and
principal place of business are located and in all other
jurisdictions in which (a) the ownership or lease of its property
or the conduct of its business requires such licensing or quali-
fication and (b) the failure to be so licensed or qualified has
not had and could not reasonably be expected to have a Material
Adverse Effect.
A. POWER AND AUTHORITY; DUE AUTHORIZATION. Such
Originator has (a) all necessary corporate power, authority and
legal right (i) to execute and deliver, and perform its
obligations under, each Transaction Document to which it is a
party, and (ii) to generate, own, sell, contribute and assign
Receivables and Related Rights on the terms and subject to the
conditions herein and therein provided; and (b) duly authorized
such execution and delivery and such sale, contribution and
assignment and the performance of such obligations by all
necessary corporate action.
A. VALID SALE OR CONTRIBUTION; BINDING OBLIGATIONS. Each
sale or contribution, as the case may be, of Receivables and
Related Rights made by such Originator pursuant to this Agreement
shall constitute a valid sale or contribution, as the case may
be, transfer, and assignment thereof to the Company, enforceable
against creditors of, and purchasers from, such Originator; and
this Agreement constitutes, and each other Transaction Document
to be signed by such Originator, when duly executed and
delivered, will constitute, a legal, valid, and binding
obligation of such Originator, enforceable in accordance with its
terms; except in each case as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
A. NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Transaction
Documents and the fulfillment of the terms hereof or thereof will
not (a) conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse
of time or both) a default under (i) such Originator's
certificate of incorporation or by-laws, or (ii) any indenture,
loan agreement, mortgage, deed of trust, or other agreement or
instrument to which it is a party or by which it is bound, (b)
result in the creation or imposition of any Adverse Claim upon
any of its properties pursuant to the terms of any such
indenture, loan agreement, mortgage, deed of trust, or other
agreement or instrument, other than the Transaction Documents, or
(c) violate any law or any order, rule, or regulation applicable
to it of any court or of any federal, state or foreign regulatory
body, administrative agency, or other governmental instrumen-
tality having jurisdiction over it or any of its properties.
A. PROCEEDINGS. There is no litigation or, to such
Originator's knowledge, any proceeding or investigation pending
before any court, regulatory body, arbitrator, administrative
agency, or other tribunal or governmental instrumentality (a)
asserting the invalidity of any Transaction Document, (b) seeking
to prevent the sale or contribution of Receivables and Related
Rights to the Company or the consummation of any of the other
transactions contemplated by any Transaction Document, or (c)
seeking any determination or ruling that could reasonably be
expected to have a Material Adverse Effect.
A. BULK SALES ACT. No transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
A. GOVERNMENT APPROVALS. Except for the filing of the UCC
financing statements referred to in Article IV, all of which, at
the time required in Article IV, shall have been duly made and
shall be in full force and effect, no authorization or approval
or other action by, and no notice to or filing with, any govern-
mental authority or regulatory body is required for such
Originator's due execution, delivery and performance of any
Transaction Document to which it is a party, as seller.
A. FINANCIAL CONDITION.
1. On the date hereof, and on the date of each sale of
Receivables by each Originator to the Company (both before and
after giving effect to such sale), such Originator shall be
Solvent.
1. The consolidated balance sheets of Sequa and its
consolidated subsidiaries as of December 31, 1997 and the related
statements of income and shareholders' equity of Sequa and its
consolidated subsidiaries for the fiscal year then ended
certified by Sequa's independent accountants, copies of which
have been furnished to the Company, present fairly the
consolidated financial position of Sequa and its consolidated
subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles consistently
applied; and since such date no event has occurred that has had,
or is reasonably likely to have, a Material Adverse Effect.
A. MARGIN REGULATIONS. No use of any funds acquired by
such Originator under this Agreement will conflict with or
contravene any of Regulations T, U and X promulgated by the Board
of Governors of the Federal Reserve System from time to time.
A. QUALITY OF TITLE.
1. Each Receivable (together with the Related Rights)
which is to be sold or contributed to the Company hereunder is or
shall be owned by such Originator, free and clear of any Adverse
Claim. Whenever the Company makes a purchase, or accepts a
contribution, hereunder, it shall have acquired a valid and
perfected ownership interest (free and clear of any Adverse
Claim) in all Receivables generated by such Originator and all
Collections related thereto, and in such Originator's entire
right, title and interest in and to the other Related Rights with
respect thereto.
1. No effective financing statement or other instrument
similar in effect covering any Receivable generated by such
Originator or any right related to any such Receivable is on file
in any recording office except such as may be filed in favor of
the Company or the Originators, as the case may be, in accordance
with this Agreement or in favor of the Issuer in accordance with
the Receivables Purchase Agreement.
1. Unless otherwise identified to the Company in the
related Purchase Report, each Receivable purchased or contributed
hereunder is on the date of purchase or contribution an Eligible
Receivable.
A. ACCURACY OF INFORMATION. No factual written
information furnished or to be furnished in writing by such
Originator, to the Company, the Issuer or the Administrator for
purposes of or in connection with any Transaction Document or any
transaction contemplated hereby or thereby is, and no other such
factual written information hereafter furnished (and prepared) by
such Originator, to the Company, the Issuer, or the Administrator
pursuant to or in connection with any Transaction Document, taken
as a whole, will be inaccurate in any material respect as of the
date it was furnished or (except as otherwise disclosed to the
Company at or prior to such time) as of the date as of which such
information is dated or certified, or shall contain any material
misstatement of fact or omitted or will omit to state any
material fact necessary to make such information, in the light of
the circumstances under which any statement therein was made, not
materially misleading on the date as of which such information is
dated or certified.
A. OFFICES. Such Originator's principal place of business
and chief executive office is located at the address set forth
under such Originator's signature hereto, and the offices where
such Originator keeps all its books, records and documents
evidencing the Receivables, the related Contracts and all other
agreements related to such Receivables are located at the
addresses specified on Schedule 5.13 (or at such other locations,
notified to Servicer and the Administrator in accordance with
Section 6.1(f), in jurisdictions where all action required by
Section 7.3 has been taken and completed).
A. TRADE NAMES. Except as disclosed on Schedule 5.14,
such Originator does not use any trade name other than its actual
corporate name. From and after the date that fell five (5) years
before the date hereof, such Originator has not been known by any
legal name other than its corporate name as of the date hereof,
nor has such Originator been the subject of any merger or other
corporate reorganization except as disclosed on Schedule 5.14.
A. TAXES. Such Originator has filed all material tax
returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be
owing, except any such taxes which are not yet delinquent or are
being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
generally accepted accounting principles shall have been set
aside on its books.
A. LICENSES AND LABOR CONTROVERSIES.
1. Such Originator has not failed to obtain any licenses,
permits, franchises or other governmental authorizations
necessary to the ownership of its properties or to the conduct of
its business, which violation or failure to obtain would be
reasonably likely to have a Material Adverse Effect; and
1. There are no labor controversies pending against such
Originator that have had (or are reasonably likely to have) a
Material Adverse Effect.
A. COMPLIANCE WITH APPLICABLE LAWS. Such Originator is in
compliance, in all material respects, with the requirements of
(i) all applicable laws, rules, regulations, and orders of all
governmental authorities (including, without limitation,
Regulation Z, laws, rules and regulations relating to usury,
truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and
privacy and all other consumer laws applicable to the Receivables
and related Contracts) (excluding with respect to environmental
matters which are covered by clause (ii)), and (ii) to the best
of its knowledge, all applicable environmental laws, rules,
regulations and orders of all governmental authorities.
A. RELIANCE ON SEPARATE LEGAL IDENTITY. Such Originator
is aware that Issuer and the Administrator are entering into the
Transaction Documents to which they are parties in reliance upon
the Company's identity as a legal entity separate from any
Originator.
A. PURCHASE PRICE. The purchase price payable by the
Company to such Originator hereunder is intended by such
Originator and Company to be consistent with the terms that would
be obtained in an arm's length sale.
A. CERTAIN DEFINITIONS. With respect to this Agreement,
the terms "Material Adverse Effect" and "Solvent" are defined as
follows:
"MATERIAL ADVERSE EFFECT" means, with respect to any
event or circumstance, a material adverse effect on:
(i) the business, assets, or financial condition of any
Originator;
(ii) the ability of any Originator or the Servicer (if
it is the Originator) to perform its obligations under the
Receivables Purchase Agreement or any other Transaction
Document to which it is a party or the performance of any
such obligations;
(iii) the validity or enforceability of the Receivables
Purchase Agreement or any other Transaction Document;
(iv) with respect to this Agreement, the status,
existence, perfection, priority or enforceability of
Company's interest in the Receivables or Related Rights; or
(v) the validity or enforceability of the Receivables.
"Solvent" means, with respect to any Person at any time,
a condition under which:
(i) the fair value and present fair saleable value of
such Person's total assets is, on the date of determination,
greater than such Person's total liabilities (including
contingent and unliquidated liabilities) at such time;
(ii) such Person is and shall continue to be able to
pay all of its liabilities as such liabilities mature; and
(iii) such Person does not have unreasonably small
capital with which to engage in its current and in its
anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light
of all the facts and circumstances then existing, represents
the amount which can reasonably be expected to become an
actual or matured liability;
(B) the "fair value" of an asset shall be the amount
which may be realized within a reasonable time either through
collection or sale of such asset at its regular market value;
(C) the "regular market value" of an asset shall be the
amount which a capable and diligent business person could
obtain for such asset from an interested buyer who is willing
to purchase such asset under ordinary selling conditions; and
(D) the "present fair saleable value" of an asset means
the amount which can be obtained if such asset is sold with
reasonable promptness in an arm's length transaction in an
existing and not theoretical market.
5.21. YEAR 2000 PROBLEM. Such Originator has reviewed
the areas within its business and operations which could be
adversely affected by, and has developed or is developing a
program to address on a timely basis, the risk that certain
computer applications used by such Originator may be unable to
recognize and perform properly date-sensitive functions involving
dates prior to and after December 31, 1999 (the "Year 2000
Problem"). The Year 2000 Problem is not likely to result in any
material adverse change in such Originator's business.
I. ARTICLE
COVENANTS OF THE ORIGINATORS
A. AFFIRMATIVE COVENANTS. From the date hereof until the
first day following the Purchase and Sale Termination Date, each
Originator will, unless the Company and the Administrator shall
otherwise consent in writing:
1. COMPLIANCE WITH LAWS, ETC. Comply in all material
respects with all applicable laws, rules, regulations and orders,
including those with respect to the Receivables generated by it
and the related Contracts and other agreements related thereto.
1. PRESERVATION OF CORPORATE EXISTENCE. Preserve and
maintain its corporate existence, rights, franchises and privi-
leges in the jurisdiction of its incorporation, and qualify and
remain qualified in good standing as a foreign corporation in
each jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualification could
reasonably be expected to have a Material Adverse Effect.
1. RECEIVABLES REVIEW. (i) At any time and from time to
time (but, (a) prior to the occurrence of a Purchase and Sale
Termination Event or Unmatured Purchase and Sale Termination
Event or (b) unless, in the opinion of the Administrator
reasonable grounds for insecurity exist with respect to the
collectibility of the Receivables or such Originator's
performance or ability to perform its obligations under this
Agreement, no more frequently than annually) during regular
business hours, upon reasonable prior notice, permit the Company
and/or the Administrator, or their respective agents or
representatives, (A) to examine, to audit and make copies of and
abstracts from all books, records and documents (including,
without limitation, computer tapes and disks) in the possession
or under the control of such Originator relating to the
Receivables and Related Rights, including, without limitation,
the Contracts and other agreements related thereto, and (B) to
visit such Originator's offices and properties for the purpose of
examining such materials described in the foregoing clause (A)
and discussing matters relating to the Receivables and Related
Rights or such Originator's performance hereunder with any of the
officers or employees of such Originator having knowledge of such
matters; and (ii) without limiting the provisions of clause (i)
next above, from time to time (but, (a) prior to the occurrence
of a Purchase and Sale Termination Event or Unmatured Purchase
and Sale Termination Event or (b) unless, in the opinion of the
Administrator reasonable grounds for insecurity exist with
respect to the collectibility of the Receivables or such
Originator's performance or ability to perform its obligations
under this Agreement, no more frequently than annually) on
request of the Administrator, permit certified public accountants
or other auditors acceptable to the Administrator to conduct a
review of its books and records with respect to the Receivables
and Related Rights.
1. KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain an
ability to recreate records evidencing the Receivables in the
event of the destruction of the originals thereof.
1. PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND
CONTRACTS. At its expense timely and fully perform and comply
with all provisions, covenants and other promises required to be
observed by it under the related Contracts and all other
agreements related to the Receivables and Related Rights.
1. LOCATION OF RECORDS. Keep its principal place of
business and chief executive office, and the offices where it
keeps its records concerning or related to Receivables and
Related Rights, at the address(es) referred to in Schedule 5.13
or, upon 30 days' prior written notice to the Company and the
Administrator, at such other locations in jurisdictions where all
action required by Section 7.3 shall have been taken and
completed.
1. CREDIT AND COLLECTION POLICIES. Comply in all material
respects with its Credit and Collection Policy in connection with
the Receivables and the related Contracts.
1. SEPARATE CORPORATE EXISTENCE OF THE COMPANY. Take such
actions as shall be required in order that:
a. the Company's operating expenses (other than certain
organization expenses and expenses incurred in connection with
the preparation, negotiation and delivery of the Transaction
Documents) will not be paid by such Originator;
a. the Company's books and records will be maintained
separately from those of such Originator;
a. all financial statements of such Originator that are
consolidated to include the Company will contain detailed notes
clearly stating that (A) all of the Company's assets are owned by
the Company, and (B) the Company is a separate entity with
creditors who have received interests in the Company's assets;
a. Such Originator will strictly observe corporate
formalities in its dealing with the Company;
a. Except as otherwise provided in the Receivables
Purchase Agreement in connection with the servicing of
Receivables, such Originator shall not commingle its funds with
any funds of the Company;
a. Such Originator will maintain arm's length
relationships with the Company, and such Originator will be
compensated at market rates for any services it renders or
otherwise furnishes to the Company; and
a. Such Originator will not be, and will not hold itself
out to be, responsible for the debts of the Company or the
decisions or actions in respect of the daily business and affairs
of the Company.
1. POST OFFICE BOXES. Within 30 days after the date
hereof, deliver to the Administrator a certificate from an
authorized officer of such Originator to the effect that (i) the
name of the renter of all post office boxes into which
Collections may from time to time be mailed have been changed to
the name of the Company (unless such post office boxes are in the
name of the relevant Lock-Box Banks) and (ii) all relevant
postmasters have been notified that each of Servicer and the
Administrator are authorized to collect mail delivered to such
post office boxes (unless such post office boxes are in the name
of the relevant Lock-Box Banks).
A. REPORTING REQUIREMENTS. From the date hereof until the
first day following the Purchase and Sale Termination Date, each
Originator shall, unless the Administrator and the Company shall
otherwise consent in writing, furnish to the Company and the
Administrator:
1. PROCEEDINGS. Promptly after such Originator has
knowledge thereof, written notice to the Company and the
Administrator of (i) all pending proceedings and investigations
of the type described in Section 5.6 not previously disclosed to
the Company and/or the Administrator and (ii) all material
adverse developments that have occurred with respect to any
previously disclosed proceedings and investigations.
1. OTHER. Promptly, from time to time, such other
information, documents, records or reports respecting the Receiv-
▇▇▇▇▇, the Related Rights or such Originator's performance
hereunder that the Company or the Administrator may from time to
time reasonably request in order to protect the interests of the
Company, the Issuer, the Administrator or any other Affected
Person under or as contemplated by the Transaction Documents.
A. NEGATIVE COVENANTS. From the date hereof until the
date following the Purchase and Sale Termination Date, each
Originator agrees that, unless the Administrator and the Company
shall otherwise consent in writing (which consent shall not be
unreasonably withheld), it shall not:
1. SALES, LIENS, ETC. Except as otherwise provided
herein or in any other Transaction Document, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create
or suffer to exist any Adverse Claim upon or with respect to, any
Receivable or related Contract, Collections or Related Security,
or any interest therein, or assign any right to receive income in
respect thereof.
1. EXTENSION OR AMENDMENT OF RECEIVABLES. Except as
otherwise permitted in Section 4.2(a) of the Receivables Purchase
Agreement or in accordance with the Credit and Collection Policy,
extend, amend or otherwise modify the terms of any Receivable in
any material respect, or amend, modify or waive, in any material
respect, any term or condition of any Contract related thereto
(which term or condition relates to payments under, or the
enforcement of, such Contract).
1. CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY.
Make any change in the character of its business or materially
alter its Credit and Collection Policy, which change would, in
either case, materially change the credit standing required of
particular Obligors or potential Obligors or impair, in any
material respect, the collectibility of the Receivables generated
by it.
1. RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES OR
CHATTEL PAPER. Take any action to cause or permit any Receivable
generated by it to become evidenced by any "instrument" or
"chattel paper" (as defined in the applicable UCC) unless such
"instrument" or "chattel paper" shall be delivered to the Company
(which in turn shall deliver the same to the Issuer (or the
Administrator on its behalf)).
1. MERGERS, ACQUISITIONS, SALES, ETC. Merge or
consolidate with another Person (except pursuant to a merger or
consolidation involving such Originator where such Originator is
the surviving corporation), or convey, transfer, lease or
otherwise dispose of (whether in one or in a series of
transactions), all or substantially all of its assets (whether
now owned or hereafter acquired), other than pursuant to this
Agreement.
1. LOCK-BOX BANKS. Make any changes in its instructions
to Obligors regarding Collections or add or terminate any Lock-
Box Bank unless the requirements of Section 1(i) of Exhibit IV to
the Receivables Purchase Agreement have been met.
1. ACCOUNTING FOR PURCHASES. Account for or treat
(whether in financial statements or otherwise) the transactions
contemplated hereby in any manner other than as sales of the
Receivables and Related Security by such Originator to the
Company.
1. TRANSACTION DOCUMENTS. Enter into, execute, deliver or
otherwise become bound by any agreement, instrument, document or
other arrangement that restricts the right of such Originator to
amend, supplement, amend and restate or otherwise modify, or to
extend or renew, or to waive any right under, this Agreement or
any other Transaction Documents.
I. ARTICLE
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
A. RIGHTS OF THE COMPANY. Each Originator hereby
authorizes the Company and the Servicer or their respective
designees to take any and all steps in such Originator's name
necessary or desirable, in their respective determination, to
collect all amounts due under any and all Receivables and Related
Rights, including, without limitation, endorsing such
Originator's name on checks and other instruments representing
Collections and enforcing such Receivables and the provisions of
the related Contracts that concern payment and/or enforcement of
rights to payment.
A. RESPONSIBILITIES OF EACH ORIGINATOR. Anything herein
to the contrary notwithstanding:
1. Each Originator agrees to (A) direct, and hereby grants
to each of the Company and the Administrator the authority to
direct, all Obligors of Receivables originated by such Originator
to make payments of such Receivables directly to a Lock-Box
Account at a Lock-Box Bank, and (B) to transfer any Collections
that it receives directly, to Servicer (for deposit to such a
Lock-Box Account) within one Business Day of receipt thereof, and
agrees that all such Collections shall be deemed to be received
in trust for the Company.
1. Each Originator shall perform its obligations
hereunder, and the exercise by the Company or its designee of its
rights hereunder shall not relieve such Originator from such
obligations.
1. None of the Company, Servicer, Issuer or the
Administrator shall have any obligation or liability to any
Obligor or any other third Person with respect to any
Receivables, Contracts related thereto or any other related
agreements, nor shall the Company, Servicer, Issuer or the
Administrator be obligated to perform any of the obligations of
any Originator thereunder.
1. Each Originator hereby grants to Administrator an
irrevocable power of attorney, with full power of substitution,
coupled with an interest, to take in the name of such Originator
all steps necessary or advisable to indorse, negotiate or
otherwise realize on any writing or other right of any kind held
or transmitted by such Originator or transmitted or received by
the Company (whether or not from such Originator) in connection
with any Receivable or Related Right.
A. FURTHER ACTION EVIDENCING PURCHASES. Each Originator
agrees that from time to time, at its expense, it will promptly
execute and deliver all further instruments and documents, and
take all further action that the Company or Servicer may
reasonably request in order to perfect, protect or more fully
evidence the Receivables (and the Related Rights) purchased by,
or contributed to, the Company hereunder, or to enable the
Company to exercise or enforce any of its rights hereunder or
under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Company,
each Originator will:
1. execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and
such other instruments or notices, as may be necessary or
appropriate; and
1. ▇▇▇▇ the summary master control data processing records
with the legend set forth in Section 4.1(i).
Each Originator hereby authorizes the Company or its designee to
file one or more financing or continuation statements, and
amendments thereto and assignments thereof, relative to all or
any of the Receivables (and the Related Rights) now existing or
hereafter generated by such Originator. If any Originator fails
to perform any of its agreements or obligations under this
Agreement, the Company or its designee may (but shall not be
required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of the Company or its
designee incurred in connection therewith shall be payable by
such non-performing Originator as provided in Section 9.1.
A. APPLICATION OF COLLECTIONS. Any payment by an Obligor
in respect of any indebtedness owed by it to any Originator
shall, except as otherwise specified by such Obligor or otherwise
required by contract or law and unless otherwise instructed by
the Company or the Administrator, be applied first, as a
Collection of any Receivables of such Obligor, in the order of
the age of such Receivables, starting with the oldest of such
Receivables, and second, to any other indebtedness of such
Obligor.
I. ARTICLE
PURCHASE AND SALE TERMINATION EVENTS
A. PURCHASE AND SALE TERMINATION EVENTS. Each of the
following events or occurrences described in this Section 8.1
shall constitute a "Purchase and Sale Termination Event":
1. The Facility Termination Date (as defined in the
Receivables Purchase Agreement) shall have occurred; or
1. Any Originator shall fail to make any payment or
deposit to be made by it hereunder when due and such failure
shall remain unremedied for two Business Day after notice; or
1. Any representation or warranty made or deemed to be
made by any Originator (or any of its officers) under or in
connection with this Agreement, any other Transaction Document or
any other information or report delivered pursuant hereto or
thereto shall prove to have been false or incorrect in any
material respect when made or deemed made; or
1. Any Originator shall fail to perform or observe in any
material respect any agreement contained in any of Sections
6.1(h) or 6.3; or
1. Any Originator shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on
its part to be performed or observed and such failure shall
remain unremedied for thirty (30) days after written notice
thereof shall have been given by Servicer, the Administrator or
the Company to such Originator; or
a. Any Originator or any of its subsidiaries shall
generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against such Originator
or any of its subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for all or any substantial part
of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), such proceeding
shall remain undismissed or unstayed for a period of 30 days; or
any Originator or any of its subsidiaries shall take any
corporate action to authorize any of the actions set forth in
clause (i) above in this Section 8.1(f); or
1. A contribution failure shall occur with respect to any
benefit plan sufficient to give rise to a lien under Section
302(f) of ERISA, or the Internal Revenue Service shall, or shall
indicate its intention in writing to any Originator to, file
notice of a lien asserting a claim or claims pursuant to the Code
with regard to any of the assets of such Originator, or the
Pension Benefit Guaranty Corporation shall, or shall indicate its
intention in writing to such Originator or an ERISA Affiliate to,
either file notice of a lien asserting a claim pursuant to ERISA
with regard to any assets of such Originator or an ERISA
Affiliate or terminate any benefit plan that has unfunded benefit
liabilities.
A. REMEDIES.
a. OPTIONAL TERMINATION. Upon the occurrence of a
Purchase and Sale Termination Event, the Company shall have the
option by notice to the Originators (with a copy to the
Administrator) to declare the Purchase and Sale Termination Date
to have occurred.
a. REMEDIES CUMULATIVE. Upon any termination of the
Purchase Facility pursuant to this Section 8.2, the Company shall
have, in addition to all other rights and remedies under this
Agreement or otherwise, all other rights and remedies provided
under the UCC of each applicable jurisdiction and other
applicable laws, which rights shall be cumulative.
I. ARTICLE
INDEMNIFICATION
A. INDEMNITIES BY THE ORIGINATORS. Without limiting any
other rights which the Company may have hereunder or under
applicable law, each Originator, severally and for itself alone,
and Sequa, jointly and severally with each Originator, hereby
agrees to indemnify the Company and each of its assigns,
officers, directors, employees and agents (each of the foregoing
Persons being individually called a "Purchase and Sale
Indemnified Party"), forthwith on demand, from and against any
and all damages, losses, claims, judgments, liabilities and
related costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively called
"Purchase and Sale Indemnified Amounts") awarded against or
incurred by any of them arising out of or as a result of the
following:
1. the transfer by such Originator of an interest in any
Receivable or Related Right to any Person other than the Company;
1. the breach of any representation or warranty made by
such Originator under or in connection with this Agreement or any
other Transaction Document, or any information or report
delivered by such Originator pursuant hereto or thereto which
shall have been false or incorrect in any respect when made or
deemed made;
1. the failure by such Originator to comply with any
applicable law, rule or regulation with respect to any Receivable
or the related Contract, or the nonconformity of any Receivable
or the related Contract with any such applicable law, rule or
regulation;
1. the failure to vest and maintain vested in the Company
an ownership interest in the Receivables generated by such
Originator and the Related Rights free and clear of any Adverse
Claim;
1. the failure of such Originator to file with respect to
itself, or any delay by such Originator 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 or purported Receivables generated by
such Originator or any Related Rights, whether at the time of any
purchase or contribution or at any subsequent time;
1. any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable or purported Receivable generated by such Originator
(including, without limitation, 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
goods or services related to any such Receivable or the
furnishing of or failure to furnish such goods or services;
1. any product liability claim arising out of or in
connection with goods or services that are the subject of any
Receivable;
1. any litigation, proceeding or investigation against
such Originator;
1. any tax or governmental fee or charge (other than any
tax excluded pursuant to the proviso below), all interest and
penalties thereon or with respect thereto, and all out-of-pocket
costs and expenses, including the reasonable fees and expenses of
counsel in defending against the same, which may arise by reason
of the purchase, contribution or ownership of the Receivables or
any Related Right connected with any such Receivables; and
1. any failure of such Originator to perform its duties or
obligations in accordance with the provisions of this Agreement
or any other Transaction Document;
excluding, however, (i) Purchase and Sale Indemnified Amounts to
the extent resulting from gross negligence or willful misconduct
on the part of a Purchase and Sale Indemnified Party, (ii) any
indemnification which has the effect of recourse for non-payment
of the Receivables due to credit reasons to any indemnitor
(except as otherwise specifically provided under this Section
9.1) and (iii) any tax based upon or measured by net income or
gross receipts.
If for any reason the indemnification provided above in
this Section 9.1 is unavailable to a Purchase and Sale
Indemnified Party or is insufficient to hold such Purchase and
Sale Indemnified Party harmless, then each of the Originators,
severally and for itself alone, and Sequa, jointly and severally
with each Originator, shall contribute to the amount paid or
payable by such Purchase and Sale Indemnified Party as a result
of such loss, claim, damage or liability to the maximum extent
permitted under applicable law.
I. ARTICLE
MISCELLANEOUS
A. AMENDMENTS, ETC.
1. The provisions of this Agreement may from time to time
be amended, modified or waived, if such amendment, modification
or waiver is in writing and consented to by the Company, the
Administrator and the Originators (with respect to an amendment)
or by the Company (with respect to a waiver or consent by it).
1. No failure or delay on the part of the Company,
Servicer, any Originator or any third party beneficiary in
exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on the Company, Servicer, or any Originator in any case shall
entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Company or Servicer
under this Agreement shall, except as may otherwise be stated in
such waiver or approval, be applicable to subsequent
transactions. No waiver or approval under this Agreement shall
require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
A. NOTICES, ETC. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be
in writing (including facsimile communication) and shall be
personally delivered or sent by express mail or courier or by
certified mail, postage-prepaid, or by facsimile, to the intended
party at the address or facsimile number of such party set forth
under its name on the signature pages hereof or at such other
address or facsimile number as shall be designated by such party
in a written notice to the other parties hereto. All such
notices and communications shall be effective, (i) if personally
delivered or sent by express mail or courier or if sent by
certified mail, when received, and (ii) if transmitted by
facsimile, when sent, receipt confirmed by telephone or
electronic means.
A. NO WAIVER; CUMULATIVE REMEDIES. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
A. BINDING EFFECT; ASSIGNABILITY. This Agreement shall be
binding upon and inure to the benefit of the Company and each
Originator and their respective successors and permitted assigns;
provided, however, that no Originator may assign its rights
hereunder or any interest herein or delegate its duties hereunder
without the prior consent of the Company and the Administrator.
This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms,
and shall remain in full force and effect until the date after
the Purchase and Sale Termination Date on which the Originators
have received payment in full for all Receivables and Related
Rights purchased pursuant to Section 1.1 hereof. The rights and
remedies with respect to any breach of any representation and
warranty made by any Originator pursuant to Article V and the
indemnification and payment provisions of Article IX and
Section 10.6 shall be continuing and shall survive any
termination of this Agreement.
A. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
A. COSTS, EXPENSES AND TAXES. In addition to the
obligations of the Originators under Article IX, each Originator
agrees to pay on demand:
1. all reasonable costs and expenses in connection with
the enforcement of this Agreement and the other Transaction
Documents; and
1. all stamp and other similar taxes and fees payable or
determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement or the other
Transaction Documents, and agrees to indemnify each Purchase and
Sale Indemnified Party against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes
and fees.
A. SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
COURT OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, OVER ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b)
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES
FEDERAL COURT; (c) WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING; (d) CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 10.2;
AND (e) TO THE EXTENT ALLOWED BY LAW, AGREES THAT A NONAPPEALABLE
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS SECTION 10.7 SHALL AFFECT THE COMPANY'S RIGHT TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY
ACTION OR PROCEEDING AGAINST ANY ORIGINATOR OR ITS RESPECTIVE
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.
A. WAIVER OF JURY TRIAL. EACH PARTY HERETO EXPRESSLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER
TRANSACTION DOCUMENT, OR UNDER ANY AMENDMENT, INSTRUMENT OR
DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
A. CAPTIONS AND CROSS REFERENCES; INCORPORATION BY
REFERENCE. The various captions (including, without limitation,
the table of contents) in this Agreement are included for
convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in
this Agreement to any underscored Section or Exhibit are to such
Section or Exhibit of this Agreement, as the case may be. The
Exhibits hereto are hereby incorporated by reference into and
made a part of this Agreement.
A. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate 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.
A. ACKNOWLEDGMENT AND AGREEMENT. By execution below, each
Originator expressly acknowledges and agrees that all of the
Company's rights, title, and interests in, to, and under this
Agreement shall be assigned by the Company to the Issuer pursuant
to the Receivables Purchase Agreement, and such Originator
consents to such assignment. Each of the parties hereto
acknowledges and agrees that the Administrator and the Issuer are
third party beneficiaries of the rights of the Company arising
hereunder and under the other Transaction Documents to which such
Originator is a party.
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.
SEQUA RECEIVABLES CORP.
By:
Name:
Title:
SEQUA RECEIVABLES CORP.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SEQUA CORPORATION, as initial Servicer
By:
Name:
Title:
SEQUA CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
ORIGINATORS:
ATLANTIC RESEARCH CORPORATION
By:
Name:
Title:
ATLANTIC RESEARCH CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CASCO PRODUCTS CORPORATION
By:
Name:________________________________
Title:_______________________________
CASCO PRODUCTS CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CHROMALLOY GAS TURBINE CORPORATION
By:
Name:________________________________
Title:_______________________________
CHROMALLOY GAS TURBINE CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
MEGTEC SYSTEMS, INC.
By:
Name:________________________________
Title:_______________________________
MEGTEC SYSTEMS, INC.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
SEQUA CORPORATION
By:
Name:________________________________
Title:_______________________________
SEQUA CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CHROMALLOY CASTINGS TAMPA
CORPORATION
By:
Name:________________________________
Title:_______________________________
CHROMALLOY CASTINGS TAMPA CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CHROMALLOY COMPRESSOR TECHNOLOGIES CORPORATION
By:
Name:
Title:
CHROMALLOY COMPRESSOR TECHNOLOGIES CORPORATION
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CHROMALLOY H.I.T. LTD.
By:
Name:________________________________
Title:_______________________________
CHROMALLOY H.I.T. LTD.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CHROMALLOY SAN DIEGO
By:
Name:________________________________
Title:_______________________________
CHROMALLOY SAN DIEGO
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
CHROMALLOY WALLKILL CORP.
By:
Name:________________________________
Title:_______________________________
CHROMALLOY WALLKILL CORP.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
SPECIALIZED OVERHAUL SERVICES
GROUP, INC.
By:
Name:________________________________
Title:_______________________________
SPECIALIZED OVERHAUL SERVICES
GROUP, INC.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
Facsimile:
SCHEDULE 5.13
OFFICE LOCATIONS
SCHEDULE 5.14
TRADE NAMES
EXHIBIT A
FORM OF PURCHASE REPORT
EXHIBIT B
FORM OF COMPANY NOTE
EXHIBIT C
FORM OF OPINION OF ORIGINATOR'S COUNSEL