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[Execution Version]
LEASE RECEIVABLES PURCHASE AGREEMENT
Dated as of June 27, 1997
among
HPSC CAPITAL FUNDING, INC.,
as Seller
HPSC, INC.,
as Servicer and Custodian
EAGLEFUNDING CAPITAL CORPORATION
as Purchaser
and
BANCBOSTON SECURITIES INC.,
as Deal Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Definitions....................................1
SECTION 1.02. Accounting Terms.......................................2
SECTION 1.03. Other Terms............................................2
SECTION 1.04. Computation of Time Periods............................2
ARTICLE II
AMOUNT AND TERMS OF THE PURCHASES
SECTION 2.01. Receivables Purchase Facility..........................2
SECTION 2.02. Making Purchases from the Seller.......................3
SECTION 2.03. Reduction of Purchase Limit............................6
SECTION 2.04. Settlement Procedures..................................6
SECTION 2.05. Payments and Computations, Etc.........................8
SECTION 2.06. Compensation...........................................8
SECTION 2.07. Dividing or Combining of Capital and Purchase
Periods....................................9
SECTION 2.08. Increased Costs, Capital Adequacy......................9
SECTION 2.09. Taxes.................................................11
SECTION 2.10. Fees..................................................12
SECTION 2.11. Grant of Security Interest in Equipment
Collateral............................................12
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Receivables
Purchase..............................................13
SECTION 3.02. Conditions Precedent to Each Receivables
Purchase..............................................15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller..........16
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ARTICLE V
GENERAL COVENANTS
SECTION 5.01. Affirmative Covenants of the Seller...................23
SECTION 5.02. Reporting Requirements of the Seller and the
Servicer..............................................29
SECTION 5.03. Negative Covenants of the Seller......................30
ARTICLE VI
SERVICING, ADMINISTRATION, COLLECTION AND CUSTODY
SECTION 6.01. Designation of Servicer...............................34
SECTION 6.02. Duties of the Servicer................................35
SECTION 6.03. Rights of the Deal Agent..............................37
SECTION 6.04. Further Action Evidencing Transfers...................38
SECTION 6.05. Responsibilities of the Seller........................39
SECTION 6.06. Administration of Collections by Servicer.............40
SECTION 6.07. Application of Collections............................40
SECTION 6.08. Servicing Fee.........................................40
SECTION 6.09. Resignation; Successor Servicer.......................41
SECTION 6.10. Lock-Box Accounts; Collection Account.................42
SECTION 6.11. Collection Account....................................42
ARTICLE VII
WIND-DOWN EVENTS; REMEDIES
SECTION 7.01. Wind-Down Events......................................47
SECTION 7.02. Remedies..............................................49
ARTICLE VIII
INDEMNIFICATION; REPURCHASES
SECTION 8.01. Indemnities by the Seller.............................50
ARTICLE IX
THE DEAL AGENT
SECTION 9.01. Authorization and Action..............................54
SECTION 9.02. Deal Agent's Reliance, Etc............................54
SECTION 9.03. Deal Agent and Affiliates.............................55
SECTION 9.04. [Reserved]............................................55
SECTION 9.05. Resignation of the Deal Agent.........................55
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc......................................56
SECTION 10.02. Notices, Etc.........................................56
SECTION 10.03. No Waiver; Remedies..................................57
SECTION 10.04. Binding Effect; Assignability........................57
SECTION 10.05. GOVERNING LAW; WAIVER OF JURY TRIAL..................57
SECTION 10.06. Costs, Expenses and Taxes............................58
SECTION 10.07. Execution in Counterparts; Severability..............59
SECTION 10.08. No Bankruptcy Petition Against EagleFunding..........59
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APPENDICES
Appendix A Definitions List
LIST OF EXHIBITS
EXHIBIT A Form of Notice of Sale
EXHIBIT B Form of Opinion of Counsel for Seller
EXHIBIT C Form of Officer's Certificate
EXHIBIT D List of Offices of Seller and Where Records
are Kept
EXHIBIT E Form of Interest Rate Hedge Assignment
EXHIBIT F Form of Lock-Box Agreement
EXHIBIT G List of Lock-Box Accounts, Lock-Box Banks
and their Post Office Boxes
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LEASE RECEIVABLES PURCHASE AGREEMENT
LEASE RECEIVABLES PURCHASE AGREEMENT, dated as of June 27,
1997 (the "EagleFunding Purchase Agreement"), among HPSC CAPITAL FUNDING, INC.,
a Delaware corporation ("Funding"), as Seller (the "Seller"), EAGLEFUNDING
CAPITAL CORPORATION, a Delaware corporation ("EagleFunding"), as Purchaser (the
"Purchaser"), HPSC, INC., a Delaware corporation ("HPSC"), as Servicer (the
"Servicer") and as Custodian (the "Custodian"), and BANCBOSTON SECURITIES INC.,
a Massachusetts corporation ("BSI"), as Deal Agent (the "Deal Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Originator Purchase Agreement, the
Seller has agreed to purchase and otherwise acquire certain Transferred Assets
from time to time from HPSC (in such capacity, the "Originator") and the
Originator has agreed to act as Servicer of such Transferred Assets; and
WHEREAS, the Seller has requested that EagleFunding make
Receivables Purchases from the Seller, the proceeds of which shall be used by
the Seller to purchase new Transferred Assets from the Originator in accordance
with the terms of the Originator Purchase Agreement; and
WHEREAS, EagleFunding will fund such Receivables Purchases by
(i) the issuance of Commercial Paper or (ii) if EagleFunding fails for any
reason to issue Commercial Paper, by borrowing under the Liquidity Agreement,
dated as of the date hereof, among EagleFunding, the Liquidity Providers and the
Liquidity Agent; and
WHEREAS, subject to the terms and conditions set forth herein,
EagleFunding is willing to make the Receivables Purchases from the Seller.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Definitions. As used in this EagleFunding
Purchase Agreement or any certificate or other document made or delivered
pursuant hereto, the capitalized terms used herein and therein shall, unless
otherwise defined herein or therein, have the meanings assigned to them in the
Definitions List attached hereto as Appendix A, the terms of which are
incorporated herein by reference (the "Definitions List").
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SECTION 1.02. Accounting Terms. As used herein and in any
certificate or other document made or delivered pursuant hereto and thereto,
accounting terms not defined in the Definitions List and accounting terms partly
defined in the Definitions List to the extent not defined, shall have the
respective meanings given to them under GAAP.
SECTION 1.03. Other Terms. (a) All other undefined
terms contained in this EagleFunding Purchase Agreement shall, unless the
context indicates otherwise, have the meanings provided for by the UCC to the
extent the same are used or defined therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this EagleFunding Purchase Agreement shall refer to
this EagleFunding Purchase Agreement as a whole and not to any particular
provision of this EagleFunding Purchase Agreement, and Section, subsection,
Schedule and Exhibit references are to this EagleFunding Purchase Agreement
unless otherwise specified.
(c) Capitalized terms used herein shall be equally applicable
to both the singular and plural forms of such terms.
SECTION 1.04. Computation of Time Periods. In this
EagleFunding Purchase Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" shall mean "from and
including" and the words "to" and "until" shall each mean "to but excluding."
ARTICLE II
AMOUNT AND TERMS OF THE PURCHASES
SECTION 2.01. Receivables Purchase Facility. EagleFunding
shall subject to the terms and conditions herein after set forth, make purchases
of Receivables ("Receivables Purchases") from time to time on any Settlement
Date (except that the initial Receivables Purchase may be on a date other than a
Settlement Date) during the period from the date the conditions precedent in
Section 3.01 are satisfied to the Termination Date. Each Receivables Purchase
shall constitute an assignment and sale by the Seller, and a purchase and
acquisition by EagleFunding of Purchased Interests, including, without
limitation, designated Receivables identified as Eligible Receivables by the
Seller, and Related Security and Collections with respect thereto. Under no
circumstances shall EagleFunding make any Receivables Purchase if, after giving
effect to such Receivables Purchase, the
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aggregate outstanding Capital hereunder would exceed the least of (i) the
Purchase Limit, (ii) the Capital Limit, or (iii) the sum, on such Receivables
Purchase Date, of (a) the net proceeds from the sale of Commercial Paper plus
(b) the proceeds of Advances. The Capital Limit in effect on any date shall be
determined by reference to the most recent Settlement Report delivered by the
Seller to EagleFunding in accordance with Section 5.02(f) hereof (x) as adjusted
on the most recent Settlement Date to reflect additional Eligible Receivables
sold on such Settlement Date since the delivery of such Settlement Report and
(y) as adjusted on any other date of determination to eliminate from the
Discounted Eligible Receivables Balance any Receivables which were Eligible
Receivables as of the dates reflected in the Settlement Report but which no
longer satisfy the criteria for Eligible Receivables. The Capital of the initial
Receivables Purchase hereunder shall be in a minimum amount of $10,000,000, the
incremental Capital of each other Receivables Purchase hereunder shall be in a
minimum amount of $2,500,000. It is the intention of the parties hereto that
each Receivables Purchase to be made hereunder shall constitute either (A) a
"sale of accounts or chattel paper", as such term is used in Article 9 of the
UCC, or (B) a sale of "instruments", as such term is used in Article 9 of the
UCC. If at any time a court characterizes the transactions hereunder as loans by
EagleFunding to the Seller, then the Seller hereby pledges, grants a security
interest in and assigns to the Deal Agent, for the benefit of EagleFunding, all
of its right and title to and interest in the Purchased Interests, including the
Purchased Receivables and the Related Security, Collections and Equipment
related thereto, as security for such loans and for the payment and performance
of all obligations of the Seller hereunder.
SECTION 2.02. Making Purchases from the Seller.
(a) Sale Notice. Whenever the Seller wishes to sell
Receivables hereunder, it shall deliver to EagleFunding a notice ("Sale Notice")
in substantially the form of Exhibit A hereto no later than 10:00 A.M. (Boston,
Massachusetts time) at least three (3) Business Days prior to the proposed
Receivables Purchase Date. Each Sale Notice shall be by telephone, telex,
telecopy, cable or other facsimile transmission (in the case of any such Sale
Notice by telephone, confirmed immediately in writing) and shall specify therein
(1) the aggregate initial Capital to be funded in connection with such
Receivables Purchase, (2) the relevant Receivables Purchase Date, and (3) the
requested duration of the initial Purchase Period(s) for such Capital. In
addition, the Seller shall attach to each such Sale Notice a list of the
Receivables intended to be sold pursuant thereto, identifying each such
Receivable by its Obligor and Outstanding Balance, and a notation evidencing the
classification of each
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such Receivable as (I) an Eligible Receivable, and (II) a Designated Receivable
or a Non-Designated Receivable. The delivery of such Sale Notice by the Seller
to EagleFunding, together with the accompanying list of Receivables intended to
be sold pursuant thereto, shall be deemed to constitute the identification by
the Seller of each such Receivable to EagleFunding and the Deal Agent as an
Eligible Receivable.
(b) Consideration for Receivables Purchases. The consideration
for each Receivables Purchase shall consist of the Capital funded under this
EagleFunding Purchase Agreement and the obligation of the Purchaser to remit to
the Seller all Collections of the Receivables so purchased and actually received
by the Purchaser following the Collection Date, and to direct the Servicer and
the Deal Agent to remit all Collections received by each such Person directly to
the Seller, pursuant to the terms and conditions of Section 6.11(b) or Section
6.11(d), as applicable. Until the occurrence of the Collection Date, on each
Business Day, the outstanding amounts of accrued Yield, Carrying Costs, or other
amounts owed by (or to be paid on behalf of) the Seller under this EagleFunding
Purchase Agreement shall be automatically recomputed to reflect any changes
therein. The Purchased Interests shall become zero at such time, after the
Termination Date, as EagleFunding shall have recovered the aggregate outstanding
Capital and each of EagleFunding and the Deal Agent shall have received all
other amounts payable to EagleFunding and the Deal Agent, respectively, pursuant
to this EagleFunding Purchase Agreement and the Seller has received payment of
the amount of all Collections received by the Purchaser or the Deal Agent
following the Collection Date. EagleFunding shall remit, and shall direct each
of the Servicer and the Deal Agent to remit, in consideration of the sale of the
Purchased Interests, from and after the Collection Date, to the Seller, all
proceeds of Collections in respect of the Purchased Interests; provided that,
from and after the date following the Collection Date that the Outstanding
Balance of the Purchased Receivables is less than or equal to 10% of the
Outstanding Balance of the Purchased Receivables as of the Termination Date, the
Deal Agent may, in lieu of continuing to make such remittances on behalf of the
Purchaser, by at least three (3) Business Days' prior written notice to the
Seller, reassign to the Seller all of EagleFunding's right, title and interest
in and to the Purchased Assets in full satisfaction of the obligation of the
Purchaser to remit and direct each of the Deal Agent and the Servicer to remit
all Collections received following the Collection Date. It is expressly
understood and agreed that the Purchaser's and the Deal Agent's obligations to
remit all Collections received by each such Person, respectively, following the
Collection Date shall be limited solely to Collections and other proceeds of the
Purchased Interests actually received by
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each such Person, respectively, and that none of EagleFunding, the Deal Agent
nor any Liquidity Provider shall have any personal liability for the payment of
the amount of any such Collections.
(c) Selection of Purchase Periods. Promptly upon receiving
each Sale Notice, the Deal Agent shall, following its review of the Seller's
request set forth therein with respect to the initial Purchase Period(s) for
Capital to be funded in connection with such Sale Notice, select Purchase
Periods for all increases in outstanding Capital so that all outstanding Capital
is at all times allocated to a Purchase Period (it being understood that if the
Seller does not propose a specific Purchase Period, the Deal Agent shall select
such Purchase Period in its discretion). The Purchase Period for any Capital
shall be specified in the Sale Notice described in subsection (a) hereof. At
least one Business Day prior to the last day of each Purchase Period for any
Capital allocated to such Purchase Period, the Seller shall request new Purchase
Periods for such Capital; provided that, in the case of any Purchase Period for
Capital for which Yield is to be determined by reference to the Eurodollar Rate,
such request shall be given not later than 10:00 A.M. (Boston, Massachusetts
time) at least three (3) Business Days prior to the last day of the relevant
preceding Purchase Period. The Deal Agent shall, on the date of any Receivables
Purchase hereunder and, so long as any Capital related to such Receivables
Purchase is outstanding, on the first day of each successive Purchase Period for
such Capital, notify the Seller of the duration of the relevant Purchase Period
and the Yield which will be applicable to the Capital during such Purchase
Period. Any Purchase Period that commences before the Termination Date and would
otherwise end on a date occurring after the Termination Date shall end on the
Termination Date and the duration of any Purchase Period that commences on or
after the Termination Date shall be of such duration as shall be selected by the
Deal Agent in its discretion. In addition, if a CP Disruption shall have
occurred and be continuing, EagleFunding, or the Deal Agent on its behalf, may,
upon notice to the Originator and the Seller, terminate any Purchase Period then
in effect if EagleFunding has funded the Capital allocated to such Purchase
Period by issuing Commercial Paper. All outstanding Capital shall be assigned a
Purchase Period at all times, which Purchase Periods will be limited as set
forth in the definition thereof.
(d) Funding. EagleFunding shall, before 3:00 P.M. (Boston,
Massachusetts time) on the proposed Receivables Purchase Date of each
Receivables Purchase, subject to the applicable conditions set forth in Article
IV, make available to the Seller a wire transfer of such funds to the Seller in
accordance with the Seller's written wire transfer instructions.
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SECTION 2.03. Reduction of Purchase Limit. The Seller shall
have the right, at any time upon at least three (3) Business Days' notice to
EagleFunding, to terminate in whole or reduce in part the unused portion of the
Purchase Limit in a minimum amount of $5,000,000 and increments of $5,000,000 in
excess thereof; provided, that in no event shall the Purchase Limit be reduced
to less than the amount of Capital then outstanding. Any such termination shall
be without premium or penalty of any kind, except for any indemnification which
may be owed in connection with such termination pursuant to Section 2.06 and
Section 8.01.
SECTION 2.04. Settlement Procedures.
(a) Any Collections of Purchased Receivables received (or
deemed to have been received) by the Seller shall be remitted directly to
EagleFunding by depositing such Collections in the Lock-Box Account within one
Business Day of Seller's receipt (or deemed receipt) thereof. On each Payment
Date, the Seller shall pay to EagleFunding Yield on all outstanding Capital the
Purchase Period for which ends on such date.
(b) On each Settlement Date to occur prior to the Designated
Termination Date, the Seller shall either:
(i) at any time prior to the occurrence of the Termination
Date (other than the Designated Termination Date), sell additional
Receivables hereunder in accordance with the procedures and subject to
the conditions set forth in Section 2.01 such that, immediately
following such Receivables Purchase, the Capital Limit equals or
exceeds outstanding Capital, in which event the Deal Agent shall,
subject to the order of priority set forth in Section 6.11(b), remit
the Collections so set aside pursuant to Section 6.11 to the Seller in
consideration of the purchase price for such Receivables Purchase; or
(ii) out of the Collections set aside pursuant to Section
6.11, direct the Deal Agent to remit, subject to the order of priority
set forth in Section 6.11, an amount of such Collections to be applied
toward the reduction of outstanding Capital such that, following the
application of such Collections to outstanding Capital, the Capital
Limit equals or exceeds the outstanding Capital.
(c) On each Payment Date from and after the Designated
Termination Date, the Seller shall direct the Deal Agent, for the benefit of
EagleFunding, to distribute for application toward the
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reduction of outstanding Capital, all Collections so set aside but not to exceed
the sum of (i) the Capital allocated to such Purchase Period, (ii) all accrued
and unpaid Yield thereon, and (iii) the aggregate of all other amounts owed
hereunder by the Seller to EagleFunding and/or the Deal Agent, all as more fully
set forth in Section 6.11.
(d) If on any day the Outstanding Balance of any Purchased
Receivable is either (i) reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed merchandise, any defective or
rejected services, any cash discount or any other adjustment made or performed
by the Seller or any other Person (including, without limitation, those
described in the definition of "Dilution Factors"), or (ii) reduced or canceled
as a result of a setoff in respect of any claim by the Obligor thereof against
the Seller or any other Person (whether such claim arises out of the same or a
related transaction or an unrelated transaction), the Seller shall be deemed to
have received on such day a Collection of such Purchased Receivable in the
amount of such reduction, cancellation or adjustment. If on any day any of the
representations or warranties in Section 4.01(g) is no longer true with respect
to a Purchased Receivable or if the Seller has breached its obligations under
Section 5.01(j), then the Seller shall be deemed to have received on such day a
Collection of such Purchased Receivable: (x) if such representation, warranty or
covenant relates to the non-existence of any Adverse Claims, the Seller shall be
deemed to have received a Collection of such Purchased Receivable in the dollar
amount of the Adverse Claims attaching thereto and (y) if such representation or
warranty relates to the validity or perfection of the transfer of such Purchased
Receivable under this EagleFunding Purchase Agreement or the perfection of
EagleFunding's security interest in any Equipment as against the Obligor
thereunder, then the Seller be deemed to have received a Collection of such
Purchased Receivable in an amount equal to the Outstanding Balance thereof. To
the extent that any such deemed Collection reduces the Outstanding Balance of
such Purchased Receivable to zero, then, upon the Seller's payment to the Deal
Agent of such deemed Collection, the Deal Agent shall re-assign to the Seller
all of its right, title and interest in and to the relevant Purchased
Receivable, the Contract under which such Purchased Receivable arose and the
Related Security relating thereto.
(e) Although the Originator, the Seller and EagleFunding agree
that the Originator shall have no right to so terminate, reject or not assume a
Contract, if the Originator in its capacity as Servicer (or its successor in
interest, including a trustee appointed under the Bankruptcy Code) terminates,
rejects or does not assume a Contract, in whole or in part, prior
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to the expiration of the original term of such Contract, whether such rejection,
termination or non-assumption is made pursuant to an equitable cause, statute,
regulation, judicial proceeding or other applicable law (including, without
limitation, Section 365 of the Bankruptcy Code), then (i) the Seller shall be
deemed to have received Collections with respect to Purchased Receivables
arising under such Contract in an amount equal to (A) in the event of a
prepayment or termination of a Contract consented to by the Originator at the
Obligor's request, the excess, if any, of the Termination Amount over all
amounts paid by the Obligor on account of such termination or (B) in the event
of any other rejection, termination or non-assumption, the amount of the
Outstanding Balance thereof that has not been, or may not be paid as a result of
such rejection, termination or non-assumption. Upon the Seller's payment of any
such deemed Collections described in this Section 2.04(e), the Deal Agent shall
re-assign to the Seller all of its right, title and interest in and to the
relevant Purchased Receivable or Purchased Receivables, the Contracts under
which such Purchased Receivable(s) arose and the Related Security relating
thereto.
SECTION 2.05. Payments and Computations, Etc. All amounts to
be paid or deposited by the Seller hereunder shall be paid or deposited by the
Seller in immediately available funds to EagleFunding not later than 1:00 P.M.
(Boston, Massachusetts time) on the date on which payable. Payments received by
EagleFunding after such time shall be deemed to have been received on the next
Business Day. All payments by the Seller under this EagleFunding Purchase
Agreement shall be made without setoff, deduction or counterclaim and the Seller
agrees to pay on demand any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this EagleFunding Purchase Agreement. Whenever any
payment to be made hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next applicable
Business Day and interest shall be payable at the applicable rate during such
extension; provided, that if such extension would be inconsistent with one of
the provisions set forth in the definition of "Purchase Period", then such
provision shall control.
SECTION 2.06. Compensation. The Seller shall compensate
EagleFunding, upon its written request, for all losses, expenses and
liabilities, including, without limitation, any indemnification payments owed by
EagleFunding pursuant to the Liquidity Agreement, on account of any liquidation
or reemployment of deposits or other funds acquired by such party to make, fund
or maintain Capital hereunder, (i) if for any reason a
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Receivables Purchase does not occur on a date specified therefor in the Sale
Notice; (ii) if for any reason any payment, prepayment or conversion of any
Capital occurs on a date which is not the last day of the Purchase Period for
such Capital or (iii) as a consequence of any required conversion of any
Eurodollar Rate Advance prior to the last day of the Purchase Period for the
relevant Capital. Any request for compensation under this Section 2.06 shall be
accompanied by a copy of a statement from EagleFunding setting forth in
reasonable detail the basis for requesting compensation and the determination of
the amount thereof in such statement shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.07. Dividing or Combining of Capital and Purchase
Periods. The Seller may, on notice to and with the consent of the Deal Agent
received at least one Business Day prior to the last day of any Purchase Period,
either (a) divide such Capital so as to allocate such Capital to two or more
Purchase Periods, or (b) combine such Capital with other Capital originating on
such last day or having Purchase Periods ending on such last day so as to
allocate all such Capital to a single Purchase Period. On and after the
Termination Date, the Deal Agent shall have the right to divide and/or combine
Capital for purposes of allocation to Purchase Periods in any manner which it
may select in its sole discretion.
SECTION 2.08. Increased Costs, Capital Adequacy.
(a) If, after the date hereof due to either (i) the
introduction of or any change in or to the interpretation of any law or
regulation by the governmental authority that promulgated or administers
compliance with such law or regulation (other than laws or regulations with
respect to income taxes or any change by way of imposition or increase of
reserve requirements included in the Eurodollar Reserve Percentage) or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority or similar agency (whether or not having the force of
law), and taking into account the obligations of the Liquidity Providers under
the Liquidity Agreement and otherwise in connection with EagleFunding's
asset-supported financing business, any reserve or deposit or similar
requirement shall be imposed, modified or deemed applicable or, any basis of
taxation shall be changed or any other condition shall be imposed, and there
shall be any increase in the cost to EagleFunding (either directly or indirectly
through any increase in the costs to the Liquidity Providers) of making,
funding, or maintaining Receivables Purchases or in the cost to EagleFunding of
agreeing to make, fund, or maintain Receivables Purchases (including the
reduction of any sum received or Receivable hereunder), then the Seller shall
from time to time, upon demand by EagleFunding by
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the submission of the certificate described below, pay to EagleFunding
additional amounts sufficient to compensate EagleFunding for such increased
cost. A certificate setting forth in reasonable detail the amount of such
increased cost submitted to the Seller by EagleFunding shall be conclusive and
binding for all purposes, absent manifest error.
(b) If EagleFunding or any Liquidity Provider determines that
compliance with any law or regulation or any guideline or request or any written
interpretation from any central bank or other governmental authority or similar
agency (whether or not having the force of law) which is introduced, implemented
or received by EagleFunding or such Liquidity Provider after the date hereof,
affects or would affect capital adequacy or the amount of capital required or
expected to be maintained by EagleFunding or such Liquidity Provider or any
corporation controlling EagleFunding or such Liquidity Provider and that the
amount of such capital is increased by or based upon the existence of this
EagleFunding Purchase Agreement or upon the Advances or such Liquidity
Provider's commitment to lend under the Liquidity Agreement and other
commitments of that type, or has or would have the effect of reducing the rate
of return on capital, then, upon demand by EagleFunding by the submission of the
certificate described below, the Seller shall pay to EagleFunding, from time to
time as specified by EagleFunding, additional amounts sufficient to compensate
EagleFunding or such corporation in the light of such circumstances, to the
extent that EagleFunding reasonably determines such increase in capital to be
allocable to the Receivables Purchases or the existence of this EagleFunding
Purchase Agreement or to the extent that EagleFunding owes compensation to a
Liquidity Provider in respect of or on account of such events. A certificate
setting forth in reasonable detail such amounts submitted to the Seller by
EagleFunding shall be conclusive and binding for all purposes, absent manifest
error.
(c) In the event that EagleFunding requests compensation for
increased costs on behalf of any Liquidity Provider under this Section 2.08 and
such increased costs are not being requested by the other Liquidity Providers
generally or, if only one Liquidity Provider exists, by EagleFunding's liquidity
providers for similar transactions, then EagleFunding shall, promptly following
identification by the Seller of an "Eligible Assignee" (as defined in the
Liquidity Agreement) willing to accept such commitment, cause the Liquidity
Provider requesting such increased costs to assign its outstanding Advances and
commitments under the Liquidity Agreement to such Eligible Assignee, all as more
particularly described in Section 8.06(g) of the Liquidity Agreement.
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SECTION 2.09. Taxes. (a) All payments made by the Seller under
this EagleFunding Purchase Agreement shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
governmental authority having taxing authority, excluding net income taxes and
franchise taxes (imposed in lieu of income taxes) imposed on EagleFunding, as a
result of any present or former connection between the jurisdiction of the
government or taxing authority imposing such tax or any political subdivision or
taxing authority thereof or therein and EagleFunding (excluding a connection
arising solely from EagleFunding having executed, delivered or performed its
obligations or received a payment under, or enforced, this EagleFunding Purchase
Agreement) (all such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions and withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable by the Seller, (i) the sum
payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.09), EagleFunding receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Seller shall make
such deductions, and (iii) the Seller shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Seller agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies that arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
EagleFunding Purchase Agreement (hereinafter "Other Taxes").
(c) The Seller will indemnify EagleFunding for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.09) paid by
EagleFunding and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. Whenever any Taxes are payable by the
Seller, as promptly as possible thereafter the Seller shall send to
EagleFunding, a certified copy of an original official receipt received by the
Seller showing payment thereof. If the Seller fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to EagleFunding the required
receipts or other required documentary evidence, the Seller shall indemnify
EagleFunding for any incremental Taxes, interest or penalties that EagleFunding
is legally required to pay as a result of any such failure. The agreements in
this
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subsection shall survive the termination of this EagleFunding
Purchase Agreement.
(d) If, under the terms of the Liquidity Agreement,
EagleFunding is required to compensate any Liquidity Providers in respect of
taxes under circumstances similar to those described in this Section 2.09, then
immediately upon demand by EagleFunding, the Seller shall pay to EagleFunding
such additional amount or amounts as may be necessary to pay such Liquidity
Providers the amounts so due or otherwise reimburse EagleFunding for any such
amounts paid by it.
SECTION 2.10. Fees. In further consideration of the
Receivables Purchases to be made hereunder, the Seller agrees to pay to the Deal
Agent and EagleFunding all fees specified in the Fee Letter of even date
herewith, which fees will be due and payable at the times and in the manner set
forth in such Fee Letter.
SECTION 2.11. Grant of Security Interest in Equipment
Collateral. (a) As security for the payment and performance of all the
obligations of the Seller hereunder and as additional enhancement to enable
EagleFunding and the Liquidity Providers to fully recover Capital and accrued
and unpaid Yield and fees, the Seller hereby grants to the Deal Agent, for the
benefit of EagleFunding and the Liquidity Providers, a security interest in all
of the Seller's right, title and interest in and to the following, whether now
owned or hereafter acquired and whether now existing or hereafter arising (the
"Equipment Collateral"): all Equipment which is the subject of a Contract for
any Purchased Receivable and substitutions therefor and products and proceeds
thereof, including, without limitation, all payments under insurance (whether or
not the Deal Agent is the loss payee thereof) or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing.
(b) The Seller shall, at its expense, promptly execute and
deliver all further instruments and documents, and take all further action
(including, without limitation, the execution and filing of such financing or
continuation statements, or amendments thereto and assignments thereof), that
may reasonably be necessary or desirable, or that the Deal Agent may request, in
order to perfect and protect any security interest granted or purported to be
granted to the Deal Agent hereunder or to enable the Deal Agent to exercise and
enforce its rights and remedies hereunder with respect to any Equipment
Collateral. The Seller hereby authorizes the Deal Agent to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any part of the Equipment Collateral
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now existing or hereafter arising without the signature of the Seller where
permitted by law. A carbon, photographic or other reproduction of the
EagleFunding Purchase Agreement of any financing statement covering the
Equipment Collateral or any part thereof shall be sufficient as a financing
statement.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Receivables
Purchase. The agreement of EagleFunding to make a Receivables Purchase on the
occasion of the initial Receivables Purchase Date hereunder is subject to
satisfaction of the following conditions precedent:
(a) EagleFunding shall have received, on or before the initial
Receivables Purchase Date, all of the following, each fully executed and in form
and substance satisfactory to EagleFunding:
(i) This EagleFunding Purchase Agreement;
(ii) each of the Lock-Box Agreements;
(iii) A copy of the resolutions of the Board of Directors of
the Seller approving the Originator Purchase Agreement, this
EagleFunding Purchase Agreement, the other Facility Documents to which
it is a party and all other documents and instruments to be delivered
hereunder or thereunder by the Seller, certified by its Secretary or
Assistant Secretary;
(iv) A certificate of the Secretary or an Assist ant Secretary
of the Seller certifying (A) the names and true signatures of the
officers of the Seller authorized to sign this EagleFunding Purchase
Agreement and the other documents and instruments to be delivered by
the Seller pursuant hereto or thereto (on which certificate
EagleFunding may conclusively rely until such time as EagleFunding
shall receive from the Seller a revised certificate meeting the
requirements of this subsection (iv)) and (B) a true and complete copy
of the By-laws of the Seller;
(v) A certificate executed by an officer of the Seller
certifying that as of the initial Receivables Purchase Date, all of the
representations and warranties contained in Article IV hereof are true
and
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accurate in all material respects with the same force and effect as
though such representations and warranties had been made as of such
time;
(vi) The Certificate of Incorporation of the
Seller, certified by the Secretary of State of
Delaware;
(vii) Good Standing Certificates for the Seller
issued by the Secretaries of State of the State of
Delaware and The Commonwealth of Massachusetts;
(viii) Certificates executed by an officer of the
Seller and the Originator relating to solvency;
(ix) An opinion of Hill & Barlow, counsel to the Seller and
the Originator, in substantially the form of Exhibit B and as to such
other matters as EagleFunding may reasonably request;
(x) An opinion of Hill & Barlow, counsel to the Seller and the
Originator, in form and substance reasonably satisfactory to the Deal
Agent, to the effect that, in the event of any Insolvency Proceeding
filed by or against the Originator, the Transferred Assets would not be
treated as property of the Originator's estate and that the Seller's
assets and liabilities would not be substantively consolidated with
those of the Originator;
(xi) Acknowledgment copies of proper UCC-1 Financing
Statements executed by the Originator and by the Seller, as may be
necessary or, in the opinion of the Deal Agent, desirable under the UCC
of all appropriate jurisdictions, or any comparable law to perfect the
Deal Agent's interests in all Purchased Receivables, Contracts and
Related Security in which an interest may be acquired hereunder;
(xii) Certified copies of Requests for Information or Copies
(Form UCC-11) (or a similar search report certified by a party
acceptable to the Purchaser), dated a date reasonably near to the date
hereof, listing all effective financing statements which name the
Originator or the Seller (under its present name and any previous
names) as debtor and which are filed in the jurisdictions in which
filings were made pursuant to subsection (xi) of this Section 3.01,
together with copies of such financing statements;
(xiii) An Officer's Certificate in the form of Exhibit
C, executed by the President or the Treasurer of the Seller;
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(xiv) Original copies of the Originator Purchase Agreement,
and all documents described in Section 3.01 of the Originator Purchase
Agreement and not otherwise described above;
(xv) The Fee Letter;
(xvi) The Liquidity Agreement; and
(xvii) The Liquidity Security Agreement;
(b) All fees and expenses due and owing as of the initial Receivables
Purchase Date under the Fee Letter (including, without limitation, the
Structuring Fee) shall have been paid;
(c) Any existing Adverse Claims on the Transferred Assets
shall have been released;
(d) A copy of the resolutions of BSI's credit committee approving this
EagleFunding Purchase Agreement, the other Facility Documents and the other
transactions contemplated hereby and thereby; and
(e) Each of the Deal Agent and EagleFunding shall have received such
other approvals or documents as it may reasonably request.
SECTION 3.02. Conditions Precedent to Each Receivables
Purchase. The agreement of EagleFunding to make a Receivables Purchase on the
occasion of each Receivables Purchase Date (including the initial Receivables
Purchase) shall be subject (i) to EagleFunding's receipt of (A) a Settlement
Statement for the most recent calendar month then ended, (B) a notice from the
Custodian in substantially the form of Exhibit A to the Custodial Agreement
confirming that the Custodian has received the Contract Files required to be
delivered to it pursuant to Section 6.04(b) hereof and (C) such other approvals
or documents as EagleFunding may reasonably request, (ii) to the satisfaction of
the obligations of the Seller under Section 5.01(n) of this EagleFunding
Purchase Agreement, and (iii) to the condition precedent that on the Receivables
Purchase Date of such Receivables Purchase, before and after giving effect to
such Receivables Purchase and to the application of the proceeds therefrom, the
following statements shall be true (and each of the giving of the applicable
Sale Notice and the acceptance by the Seller of the proceeds of such Receivables
Purchase shall constitute a representation and warranty by the Seller that on
the Receivables Purchase Date of such Receivables Purchase, before and after
giving effect thereto and to the application of the proceeds therefrom, such
statements are true):
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21
(a) the representations and warranties contained in Article IV
hereof and all representations and warranties of the Originator in the
Originator Purchase Agreement are true and accurate as of the
Receivables Purchase Date in all material respects with the same force
and effect as though such representations and warranties had been made
as of such time;
(b) no event has occurred and is continuing, or would result
from such Receivables Purchase, which constitutes an Event of
Termination or an Unmatured Event of Termination or a Wind-Down Event
or Unmatured Wind-Down Event;
(c) the outstanding amount of all Capital after giving effect
to such Receivables Purchase shall be equal to or less than the Capital
Limit; and
(d) the proceeds of such Receivables Purchase shall be used to
fund a Purchase of Transferred Assets under the Originator Purchase
Agreement to occur simultaneously with such Receivables Purchase and
all conditions to such Purchase under the Originator Purchase Agreement
on such date have been satisfied or waived.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Seller. The Seller represents and warrants to EagleFunding that:
(a) Due Incorporation and Good Standing. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Seller is duly qualified to do
business as a foreign corporation and is in good standing in every jurisdiction
in which the nature of its business requires it to be so qualified or where the
ownership of its properties or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
materially adversely affect (i) the collectibility of the Purchased Interests,
(ii) the collectibility of any Receivable, (iii) the business, properties,
operations, prospects, profits or condition (financial or otherwise) of the
Seller or (iv) the ability of the Seller to perform its obligations hereunder
and under the other Facility Documents to which it is a party.
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(b) Due Authorization and No Conflict. The execution, delivery
and performance by the Seller of this EagleFunding Purchase Agreement and all
other Facility Documents and the transactions contemplated hereby and thereby,
including the acquisition of the Transferred Assets under the Originator
Purchase Agreement and the purchases contemplated hereunder, are within the
Seller's corporate powers, have been duly authorized by all necessary corporate
action, do not contravene (i) the Seller's charter or by-laws, (ii) any law,
rule or regulation applicable to the Seller, (iii) any contractual restriction
contained in any indenture, loan or credit agreement, lease, mortgage, security
agreement, bond, note, or other agreement or instrument binding on or affecting
the Seller or its property or (iv) any order, writ, judgment, award, injunction
or decree binding on or affecting the Seller or its property, and do not result
in or require the creation of any Adverse Claim upon or with respect to any of
its properties; and no transaction contemplated hereby requires compliance with
any bulk sales act or similar law. This EagleFunding Purchase Agreement and the
other Facility Documents to which the Seller is a party have been duly executed
and delivered on behalf of the Seller.
(c) Governmental and Other Consents. Except for the filing of
financing statements pursuant to the UCC required to perfect the security
interests granted hereunder or under the other Facility Documents and except for
consents under certain contractual agreements which have been obtained, no
authorization, consent, approval or other action by, and no registration,
qualification, designation, declaration, notice to or filing with, any
governmental authority or other Person is or will be necessary in connection
with the execution and delivery of this EagleFunding Purchase Agreement or any
other Facility Document to which the Seller is a party or any of the other
documents contemplated hereby or thereby, consummation of the transactions
herein or therein contemplated, or performance of or compliance with the terms
and conditions hereof or thereof, to ensure the legality, validity or
enforceability hereof or thereof.
(d) Enforceability of Facility Documents. This EagleFunding
Purchase Agreement and each of the other Facility Documents to which the Seller
is a party have been duly and validly executed and delivered by the Seller and
constitute the legal, valid and binding obligation of the Seller enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws relating to or affecting creditors'
rights generally and by equitable principles.
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(e) No Litigation. There are no actions, suits or proceedings
at law or in equity or by or before any governmental authority now pending or,
to the knowledge of the Seller, threatened against or affecting the Seller or
any property or rights of the Seller which purport to challenge the legality,
validity or enforceability of this EagleFunding Purchase Agreement or any other
Facility Document or which may materially impair the ability of the Seller to
carry on business substantially as now being conducted or which may materially
adversely affect the condition (financial or otherwise), operations or
properties of the Seller.
(f) Use of Proceeds. No proceeds of any Receivables Purchase
will be used by the Seller other than to fund a Purchase of Transferred Assets
from the Originator except that the Seller may net from the Purchase Price paid
to the Originator reasonable and necessary amounts for the funding of its
operating expenses.
(g) Valid Title and Perfected Interest. Each Receivable,
together with the Contract related thereto, is owned by the Seller free and
clear of any Adverse Claim except as provided herein and, upon the making of
each Receivables Purchase, EagleFunding shall acquire a valid and perfected
first priority undivided percentage ownership interest, to the extent of the
Purchased Interests, in each Purchased Receivable then existing or thereafter
arising and in the Related Security and Collections with respect thereto, in
each case free and clear of any Adverse Claim except as provided hereunder or
under the Liquidity Agreement or the Liquidity Security Agreement (except that
the Deal Agent will not have a perfected security interest in any Collateral
constituting Equipment which is owned by the Seller and located in a State other
than The Commonwealth of Massachusetts); and no effective financing statement or
other instrument similar in effect covering any Purchased Receivable or the
Related Security or Collections with respect thereto shall at any time be filed
except in favor of the Deal Agent in accordance with this EagleFunding Purchase
Agreement.
(h) Accuracy of Information. All certificates, reports,
financial statements and similar writings furnished by or on behalf of the
Seller to EagleFunding or the Deal Agent at any time pursuant to any requirement
of, or in response to any written request of any such party under, this
EagleFunding Purchase Agreement or any other Facility Document or any
transaction contemplated hereby or thereby, have been, and all such
certificates, reports, financial statements and similar writings hereafter
furnished by the Seller to such parties will be, true and accurate in every
respect material to the transactions contemplated hereby on the date as of which
any such certificate, report, financial statement or similar writing was or will
be
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delivered, and shall not omit to state any material facts or any facts necessary
to make the statements contained therein not materially misleading.
(i) Governmental Regulations. The Seller is not an "investment
company" or a company controlled by an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
or otherwise subject to any other federal or state statute or regulation
limiting its ability to incur indebtedness.
(j) Margin Regulations. The Seller is not engaged, principally
or as one of its important activities, in the business of extending credit for
the purpose of "purchasing" or "carrying" any "margin stock" (as each of the
quoted terms is defined or used in Regulation G, T, U or X). No part of the
proceeds of any Receivables Purchase has been used for so purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation G, T, U or X.
(k) Location of Chief Executive Office and Records. The chief
place of business and chief executive office of the Seller are located at the
address referred to in Exhibit D hereof and the locations of the offices where
the Seller keeps all the Records are listed on Exhibit D (or at such other
locations, notified to the Deal Agent in accordance with Section 5.01(f), in
jurisdictions where all action required by Section 6.04 has been taken and
completed).
(l) Lock-Box Accounts. Each Obligor under a Contract has,
within one month of the date of Purchase of such Contract, been instructed to
remit payment on the Purchased Receivables to a Post Office Box for remittance
to a Lock-Box Account or directly to a Lock-Box Account substantially in the
form of Exhibit G to the Originator Purchase Agreement. From and after the
initial Purchase Date, the Originator will have no right, title and/or interest
to any of the Lock-Box Accounts and will maintain no lock-box accounts in its
own name for the collection of such Receivables. The Seller has caused the
Originator to deliver to the Deal Agent a duplicate key to each Post Office Box
and has filed a standing delivery order with the United States Postal Service
authorizing the Deal Agent to receive mail delivered to each such Post Office
Box. The account numbers of all Lock-Box Accounts, together with the names and
addresses of all the Lock-Box Banks maintaining such Lock-Box Accounts and the
related Post Office Boxes, are specified in Exhibit H to the Originator Purchase
Agreement. The Seller has no other Lock-Box Accounts for the collection of the
Transferred Assets except for the Lock-Box Accounts.
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(m) No Trade Names. The Seller has no trade names,
fictitious names, assumed names or "doing business as" names.
(n) Separate Identity. The Seller is operated as an entity
separate from the Originator and each other Subsidiary of the Originator and (i)
has its own board of directors, (ii) has at least one director who is reasonably
acceptable to EagleFunding and who is not a direct, indirect or beneficial
stockholder, officer, director, employee, affiliate, associate, customer or
supplier of the Originator nor a relative of any thereof, nor a trustee in
bankruptcy for any Affiliate of the Originator, (iii) maintains its assets in a
manner which facilitates their identification and segregation from those of its
Affiliates, and has a separate telephone number from that of the Originator or
any Subsidiary of the Originator, (iv) has all office furniture, fixtures and
equipment necessary to operate its business and such furniture, fixtures and
equipment are either owned by the Seller or leased pursuant to written leases,
(v) conducts all intercompany transactions with the Originator and each other
Subsidiary of the Originator on terms which the Seller reasonably believes to be
on an arm's-length basis, (vi) has not guaranteed any obligation of the
Originator or any other Subsidiary of the Originator, nor has it had any of its
obligations guaranteed by any such entities and has not held itself out as
responsible for debts of any such entity or for the decisions or actions with
respect to the business and affairs of any such entity, (vii) has not, except as
otherwise expressly acknowledged under the Facility Documents, permitted the
commingling or pooling of its funds or other assets with the assets of the
Originator or any other Affiliate, (viii) has separate deposit and other bank
accounts to which neither the Originator nor any other Affiliate has any access
and does not at any time pool any of its funds with those of the Originator or
any such Affiliate, (ix) maintains financial records which are separate from
those of the Originator and each other Subsidiary of the Originator, (x)
compensates all employees, consultants and agents, or reimburses the Originator,
from the Seller's own funds, for services provided to the Seller by such
employees, consultants and agents, (xi) has agreed with the Originator to
allocate among themselves shared corporate operating services and expenses which
are not reflected in the Servicing Fee (including, without limitation, the
services of shared employees, consultants and agents and reasonable legal and
auditing expenses) on the basis of actual use or the value of services rendered,
and otherwise on a basis reasonably related to actual use or the value of
services rendered, (xii) pays directly for its own account for accounting and
payroll services, rent, lease and other expenses and does not have such
operating expenses paid by the Originator or any other Subsidiary of the
Originator, (xiii) conducts all of its business (whether in writing or orally)
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solely in its own name, (xiv) is not, directly or indirectly, named as a direct
or contingent beneficiary or loss payee on any insurance policy covering the
property of the Originator or any other Subsidiary of the Originator and has
entered into no agreement to be named as such a beneficiary or payee, (xv)
acknowledges that EagleFunding, the Deal Agent and the Liquidity Providers are
entering into the transactions contemplated by this EagleFunding Purchase
Agreement and the other Facility Documents in reliance on the Seller's identity
as a separate legal entity from the Originator and each other Subsidiary of the
Originator, and (xvi) practices and adheres to corporate formalities such as
complying with its By-laws and corporate resolutions and the holding of
regularly scheduled board of directors meetings.
(o) Subsidiaries. The Seller has no Subsidiaries and does not
own or hold, directly or indirectly, any capital stock or equity security of, or
any equity interest in, any Person.
(p) Facility Documents. The Originator Purchase Agreement is
the only agreement pursuant to which the Seller purchases Receivables or other
Transferred Assets. The Seller has furnished to EagleFunding true, correct and
complete copies of each Facility Document to which the Seller is a party, each
of which is in full force and effect. Neither the Seller nor any Affiliate
thereof is in default of any of its obligations thereunder in any material
respect. Upon the Purchase of each Receivable pursuant to the Originator
Purchase Agreement, the Seller shall be the lawful owner of, and have good title
to, such Receivable and all Transferred Assets relating thereto, free and clear
of any Adverse Claims. All such Transferred Assets are purchased without
recourse to the Originator except as described in the Originator Purchase
Agreement. The Purchases of the Transferred Assets by the Seller constitute
valid and true sales and transfers for consideration (and not merely a pledge of
such Transferred Assets for security purposes), enforceable against creditors of
the Originator and no Transferred Assets shall constitute property of the
Originator.
(q) Business. Since its incorporation, the Seller has
conducted no business other than the execution, delivery and performance of the
Facility Documents contemplated hereby, the purchase of Transferred Assets
thereunder, and such other activities as are incidental to the foregoing. The
Seller has incurred no Indebtedness except that expressly incurred hereunder and
under the other Facility Documents.
(r) Ownership of the Seller. One hundred percent (100%) of the
outstanding capital stock of the Seller is directly owned (both beneficially and
of record) by HPSC. Such stock is validly issued, fully paid and nonassessable
and there are no
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options, warrants or other rights to acquire capital stock from
the Seller.
(s) Taxes. The Seller has filed or caused to be filed all
Federal, state and local tax returns which are required to be filed by it, and
has paid or caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by it, other than any taxes or
assessments, the validity of which are being contested in good faith by
appropriate proceedings and with respect to which the Seller has set aside
adequate reserves on its books in accordance with GAAP and which proceedings
have not given rise to any Adverse Claim.
(t) Solvency. The Seller, both prior to and after giving
effect to the initial Purchase on the initial Purchase Date, and after giving
effect to each subsequent Purchase, (i) is not "insolvent" (as such term is
defined in Section 101(31)(A) of the Bankruptcy Code); (ii) is able to pay its
debts as they become due; and (iii) does not have unreasonably small capital for
the business in which it is engaged or for any business or transaction in which
it is about to engage.
(u) Diversification. After giving effect to the initial
Receivables Purchase on the initial Receivables Purchase Date, the number of
Contracts and the number of Obligors associated with the Purchased Receivables
shall equal or exceed 100, and, commencing no later than 120 days after the
initial Receivables Purchase, such number shall equal or exceed 300.
(v) Software. Each of (i) the Seller, (ii) the Servicer and
(iii) the Deal Agent has the right (whether by license, sublicense or
assignment) to use all of the computer software used by the Servicer and/or the
Originator to account for the Purchased Interests to the extent necessary to
administer the Purchased Interests, and, in the case of the Seller and the
Servicer, to assign (by way of sale or collateral pledge) or sublicense such
rights to use all of such software to the Deal Agent.
ARTICLE V
GENERAL COVENANTS
SECTION 5.01. Affirmative Covenants of the Seller. From the
initial Receivables Purchase Date until the later of the Termination Date or the
Collection Date, the Seller shall, unless the Deal Agent shall otherwise consent
in writing:
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(a) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders with respect to it, its
business and properties and all Receivables and related Contracts.
(b) Preservation of Corporate Existence. Preserve and maintain
its corporate existence, rights, franchises and privileges in the jurisdiction
of its incorporation, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction except where the failure to preserve
and maintain such existence, rights, franchises, privileges and qualifications
would not materially adversely affect (i) the collectibility of the Purchased
Interests, (ii) the collectibility of any Receivable, (iii) the business,
properties, operations, prospects, profits or condition (financial or otherwise)
condition of the Seller or (iv) the ability of the Seller to perform its
obligations hereunder and under the other Facility Documents to which it is a
party.
(c) Audits. At any time and from time to time upon prior
written notice to the Seller during regular business hours and on a quarterly
basis if requested, permit the Deal Agent, or its agents or representatives, (i)
to examine and make copies of and abstracts from all Records, and (ii) to visit
the offices and properties of the Seller for the purpose of examining such
Records, and to discuss matters relating to the Receivables or the Seller's
performance hereunder with any of the officers or employees of the Seller having
knowledge of such matters. Each such audit shall be at the sole expense of the
Seller (subject to the Seller's right under the Originator Purchase Agreement to
recover such expenses from the Originator).
(d) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing the Receivables in the
event of the destruction of the originals thereof) and keep and maintain, all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without limitation,
records adequate to permit the daily identification of all collections of and
adjustments to each Purchased Receivable).
(e) Performance and Compliance with Receivables and Contracts.
At its expense timely and fully perform and comply, and cause the Originator to
comply, in all material respects, with all material provisions, covenants and
other promises required to be observed by it or the Originator under the
Contracts.
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(f) Location of Records. Keep its chief place of business and
chief executive office, and the offices where it keeps the Records, at the
address of the Seller referred to in Section 4.01(k), or, in any such case, upon
30 days' prior written notice to the Deal Agent, at such other locations within
the United States where all action required by Section 6.04 shall have been
taken and completed.
(g) Credit and Collection Policies. Comply in all material
respects with the Credit and Collection Policy in regard to each Purchased
Receivable and the related Contract.
(h) Collections. Instruct all Obligors to cause all
Collections to be deposited directly to a Post Office Box or Lock-Box Account,
and if the Seller shall receive any Collections, the Seller shall hold such
Collections in trust for the benefit of the Deal Agent and deposit such
Collections into a Lock-Box Account or the Collection Account within one
Business Day following Seller's receipt thereof.
(i) Compliance with ERISA. Comply in all material respects
with the provisions of ERISA, the IRC, and all other applicable laws, and the
regulations and interpretations thereunder.
(j) Perfected Security Interest under Contracts. Take such
action with respect to each Purchased Receivable as is necessary to ensure that
the Seller maintains, as against the Obligor thereunder, a perfected first
priority security interest in any Equipment relating thereto free and clear of
Adverse Claims or, in the case of any Lease, to ensure that the Seller would
maintain such a perfected first priority security interest in the event that a
court or other Person were to determine that such Lease purported to transfer to
the Obligor an ownership (rather than a leasehold) interest in the Equipment
subject thereto (in each such case, including, without limitation, the filing of
a continuation statement with respect to a financing statement originally filed
under the UCC of any appropriate jurisdiction prior to the date on which the
effectiveness of such financing statement would lapse under the UCC of such
jurisdiction); provided, that the Seller shall not be required to file financing
statements or to maintain the effectiveness of previously filed financing
statements with respect to any Eligible Receivables the Outstanding Balance of
which originally is or has thereafter been reduced below $5,000, respectively,
so long as the aggregate Outstanding Balance of Receivables hereunder for which
no such financing statements are in effect at any time remains less than 10.0%
of the Discounted Eligible Receivables Balance hereunder; provided that such ten
percent limitation shall not apply from and after the Termination Date
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unless and to the extent that the Deal Agent specifically requests otherwise.
(k) Maintenance of Insurance. Maintain, or cause the Originator or
each Obligor to maintain, with respect to the Contracts and the Equipment
related thereto, casualty and general liability insurance which provide at least
the same coverage as a fire and extended coverage insurance policy as is
comparable for other companies in related businesses. Such insurance policies
(and self-insurance where permitted) shall be maintained in an amount which is
not less than the aggregate Discounted Value of the Purchased Receivables
hereunder arising under the relevant Contracts hereunder. Each such casualty and
liability policy if maintained by an Obligor, shall name the Originator or the
Seller as loss payee and additional insured, and the Originator shall have
assigned any such interest to the Seller. The Seller shall remit, or shall cause
to be remitted, the proceeds of any such insurance policy to a Lock-Box Account
or the Collection Account.
(l) Separate Identity. Take all actions required to maintain the
Seller's status as a separate legal entity. Without limiting the foregoing, the
Seller shall:
(i) conduct all of its business, and make all communications to
third parties (including all invoices (if any), letters, checks and
other instruments) solely in its own name (and not as a division of any
other Person), and require that its employees, if any, when conducting
its business identify themselves as such and not as employees of any
other Affiliate of the Seller (including, without limitation, by means
of providing appropriate employees with business or identification
cards identifying such employees as the Seller's employees);
(ii) compensate all employees, consultants and agents directly or
indirectly through reimbursement of the Originator each calendar
quarter, from the Seller's bank accounts, for services provided to the
Seller by such employees, consultants and agents and, to the extent any
employee, consultant or agent of the Seller is also an employee,
consultant or agent of any Affiliate of the Seller, allocate the
compensation of such employee, consultant or agent between the Seller
and such Affiliate on a basis which reflects the services rendered to
the Seller and such Affiliate;
(iii) pay its own operating expenses and liabilities from its own
funds, allocate all overhead expenses (including, without limitation,
telephone and other utility charges) for items shared between the
Seller and any
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Affiliate on the basis of actual use to the extent practicable and, to
the extent such allocation is not practicable, on a basis reasonably
related to actual use and allocate taxes on the basis of their
respective incomes in accordance with applicable federal regulations;
(iv) at all times have at least one "Independent Director", as
defined in and as required under the Seller's Certificate of
Incorporation and have at least one officer responsible for managing
its day-to-day business and manage such business by or under the
direction of its board of directors;
(v) maintain its books and records separate from those of any
Affiliate;
(vi) prepare its financial statements separately from those of
its other Affiliates and insure that any consolidated financial
statements of the Originator have notes to the effect that the Seller
is a separate corporate entity whose creditors have a claim on its
assets prior to those assets becoming available to its equity holders
and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other
assets with those of any other Affiliate, and not to hold its assets in
any manner that would create an appearance that such assets belong to
any other Affiliate, and not maintain bank accounts or other depository
accounts to which any Affiliate is an account party, into which any
Affiliate makes deposits or from which any Affiliate has the power to
make withdrawals;
(viii) not permit any Affiliate to pay its operating expenses
(except pursuant to allocation arrangements that comply with the
requirements of subsection (ii) or (iii) of this Section 5.01(l) or
pursuant to the terms of the Originator Purchase Agreement);
(ix) not guarantee any obligation of any Affiliate nor (to the
extent that the Seller has the legal power to prevent such) have any of
its obligations guaranteed by any such Affiliate, (either directly or
by seeking credit based on the assets of such Affiliate) or otherwise
hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number
separate from that of any Affiliate and which telephone number will be
answered in its own name, and have
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all its officers and employees conduct all of its business solely in
its own name;
(xi) hold regular meetings of its board of directors (not less
frequently than quarterly) in accordance with the provisions of its
Certificate of Incorporation and otherwise take such actions as are
necessary on its part to ensure that all corporate procedures required
by its Certificate of Incorporation and by-laws are duly and validly
taken;
(xii) maintain a separate office from the offices of any of its
Affiliates and identify such office by a sign in its own name;
(xiii) pay dividends only if (A) no other dividend has been paid
during the calendar month in which such dividend is paid, (B) such
dividend has been duly authorized by its board of directors in
accordance with applicable law and (C) its net worth, determined
immediately after giving effect to such dividend is at least
$2,000,000; and
(xiv) take such other actions as are necessary on its part to
ensure that the facts and assumptions set forth in the opinion
described in Section 3.01(a)(x) remain true and correct at all times.
(m) Taxes. File or cause to be filed, and (to the extent it has
legal power to cause such) cause each of its Affiliates with whom it shares
consolidated tax liability to file, all federal, state and local tax returns
which are required to be filed by it, except where the failure to file such
returns could not reasonably be expected to have a material adverse effect on
the collectibility of the Transferred Assets or the ability of the Seller to
perform its obligations hereunder or under any other Facility Document to which
it is a party or which could otherwise be reasonably expected to expose the
Seller to a material liability. The Seller shall pay or cause to be paid all
taxes shown to be due and payable on such returns or on any assessments received
by it, other than any taxes or assessments, the validity of which are being
contested in good faith by appropriate proceedings and with respect to which the
Seller or the applicable subsidiary shall have set aside adequate reserves on
its books in accordance with GAAP and which proceedings could not reasonably be
expected to have a material adverse effect on the collectibility of the
Transferred Assets or the ability of the Seller to perform its obligations
hereunder or under any other Facility Document to which it is a party or which
could otherwise be reasonably expected to expose the Seller to a material
liability.
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(n) Interest Rate Hedges. Concurrently with each Receivables
Purchase, enter into an Interest Rate Hedge with the Swap Provider as
contemplated in the definition of "Discount Rate", and transfer, assign and
otherwise convey to the Deal Agent for the benefit of EagleFunding all of the
Seller's rights in, to and under such Interest Rate Hedge pursuant to an
Interest Rate Hedge Assignment in substantially in the form of Exhibit E hereto,
together with a certificate executed by the Swap Provider in substantially the
form of Exhibit A to such Interest Rate Hedge Assignment. The Seller shall
thereafter maintain each such Interest Rate Hedge in full force and effect at
all times until the Capital associated with such Receivables Purchase has been
recovered in full by EagleFunding, based on an amortization schedule to be
mutually agreed upon by the Seller and the Deal Agent which matches the expected
amortization of the aggregate Purchased Receivables then outstanding and
relating to such Receivables Purchase (giving effect to expected prepayments,
defaults and dilutions relating thereto) and the terms of which are otherwise
reasonably satisfactory to the Deal Agent. The aggregate notional amount of all
such Interest Rate Hedges shall at all times be an amount equal to no less than
94% and no more than 100% of the sum of the outstanding Capital at such time.
The Seller shall perform all of its obligations under the Interest Rate Hedges
to the same extent as if its rights under the Interest Rate Hedges has not been
assigned hereunder and shall indemnify EagleFunding against any payments by such
party on account of the Seller's failure to perform its obligations under the
Interest Rate Hedges. The exercise by the Deal Agent of any of its rights
hereunder or under the Interest Rate Hedge Assignment shall not relieve the
Seller from such obligations.
(o) Facility Documents. Comply in all material respects with the
terms of and employ the procedures outlined in and enforce the obligations of
the Originator under the Originator Purchase Agreement, and all of the other
Facility Documents to which it is a party, take all such action to such end as
may be from time to time reasonably requested by the Deal Agent, maintain all
such Facility Documents in full force and effect and make to the Originator such
reasonable demands and requests for information and reports or for action as the
Seller is entitled to make thereunder and as may be from time to time reasonably
requested by the Deal Agent.
(p) Segregation of Collections. Prevent the deposit into any of
the Lock-Box Accounts of any funds other than Collections in respect of the
Transferred Assets and, to the extent that any such funds are nevertheless
deposited into any of such Lock-Box Accounts, promptly identify any such funds
to the Servicer for segregation and remittance to the owner thereof.
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(q) Diversification. Sell sufficient Receivables under this
EagleFunding Purchase Agreement so that, no later than 120 days after the
initial Receivables Purchase Date, the number of Contracts and the number of
Obligors associated with the Purchased Receivables shall have exceeded 300.
SECTION 5.02. Reporting Requirements of the Seller and the
Servicer. From the initial Receivables Purchase Date until the later of the
Termination Date or the Collection Date, unless the Deal Agent shall otherwise
consent in writing,
(a) the Seller shall furnish to the Deal Agent and to the
Purchaser (and, in the case of each of clauses (i) and (ii) below, to each
director of the Seller):
(i) as soon as available and in any event within 20 days
after the end of each calendar month, a balance sheet of the Seller as
of the end of such month, certified by the chief financial officer,
chief accounting officer or treasurer of the Seller (which balance
sheet may be included in the Settlement Report for the related month);
(ii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Seller, a copy of the balance
sheet of the Seller as of the end of such year, reported on by
nationally recognized independent public accountants acceptable to the
Deal Agent (the Deal Agent acknowledges that any of the "Big 6"
accounting firms will be acceptable to the Deal Agent);
(iii) promptly upon receipt thereof, copies of (A) all annual
and quarterly financial statements delivered to the Seller by the
Originator pursuant to the Originator Purchase Agreement and (B) all
other reports and other written information not specified above which
are required to be delivered by the Originator (individually, or as
Servicer) to the Seller pursuant to the terms of the Originator
Purchase Agreement;
(iv) as soon as possible and in any event within five
Business Days after the occurrence of each Event of Termination or
Wind-Down Event or each Unmatured Event of Termination or Unmatured
Wind-Down Event, the statement of the chief financial officer, chief
accounting officer or treasurer of the Seller setting forth details of
such Event of Termination, Wind-Down Event, Unmatured Event of
Termination, or Unmatured Wind-Down Event, and the action which the
Seller proposes to take with respect thereto;
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(v) promptly after the filing or receiving thereof, copies
of all reports and notices with respect to any Reportable Event defined
in Article IV of ERISA which the Seller or any Affiliate files under
ERISA with the IRS or the PBGC or the DOL or which the Seller receives
from the PBGC;
(vi) on or before the 15th day of each month (or if such day
is not a Business Day, the immediately succeeding Business Day), or at
such more frequent intervals as may be required in writing by the Deal
Agent to the Seller from time to time, a copy of the Settlement Report
for the most recently concluded calendar month (or the last day of such
shorter interval, as the case may be), which shall include a summary of
the portfolio of Interest Rate Hedges as of such day;
(vii) promptly, from time to time, such other information,
documents, records or reports respecting the Purchased Receivables or
the conditions or operations, financial or otherwise, of the Seller as
the Deal Agent may from time to time reasonably request in order to
protect the interests of the Deal Agent or of EagleFunding under or as
contemplated by this EagleFunding Purchase Agreement; and
(b) the Servicer shall furnish to the Deal Agent and to the
Purchaser, promptly upon the effectiveness thereof, any change in the Credit and
Collection Policy.
SECTION 5.03. Negative Covenants of the Seller. From the initial
Receivables Purchase Date until the later of the Termination Date or the
Collection Date, the Seller shall not, without the written consent of the Deal
Agent:
(a) Sales, Liens, Etc. Against Receivables and Related Security.
Except as otherwise provided herein, 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 Purchased Receivable, Related Security,
Collections, or any related Contract, or upon or with respect to any Lock-Box
Account to which any Collections of any Purchased Receivable are sent, or assign
any right to receive income in respect thereof, or upon any other Transferred
Asset, except that the Seller shall have no responsibility for any Adverse Claim
created by an Obligor upon or with respect to any Equipment owned by such
Obligor so long as such Adverse Claim is subordinate to the security interest of
the Seller in such Equipment.
(b) Extension or Amendment of Receivables. Except for actions of
the Servicer otherwise permitted hereunder and in the
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Originator Purchase Agreement, extend, amend or otherwise modify, the terms of
any Receivable, or amend, modify or waive, any term or condition of any Contract
related thereto, whether for any reason relating to a negative change in the
related Obligor's creditworthiness or inability to make any payment under the
related Contract or otherwise.
(c) Change in Business or Credit and Collection Policy. Make any
change in the character of its business or in the Credit and Collection Policy,
which change would, in either case, impair the collectibility of any Transferred
Asset.
(d) Change in Payment Instructions to Obligors. Add or terminate
any bank as a Lock-Box Bank from those listed in Exhibit I to the Originator
Purchase Agreement or make any change in its instructions to Obligors regarding
payments to be made to the Seller or payments to be made to any Lock-Box Bank,
unless the Deal Agent shall have received (i) ten Business Days' prior notice of
such addition, termination or change, (ii) prior to the effective date of such
addition, termination or change, (x) executed copies of Lock-Box Agreements
executed by each new Lock-Box Bank and the Seller and (y) copies of all
agreements and documents signed by either the Seller or the respective Lock-Box
Bank with respect to any new Lock-Box Account, and (iii) the prior written
consent of the Purchaser to such addition, termination or change (which consent
shall not be unreasonably withheld).
(e) Stock, Merger, Consolidation, Etc. Sell any shares of any
class of its capital stock to any Person (other than the Originator) or
consolidate with or merge into or with any other corporation, or purchase or
otherwise acquire all or substantially all of the assets or capital stock, or
other ownership interest of, any Person or sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to any Person, except for the
conveyances of a security interest in favor of the Deal Agent as expressly
permitted under the terms of this EagleFunding Purchase Agreement.
(f) Change in Corporate Name. Make any change to its corporate
name, or use any trade names, fictitious names, assumed names or "doing business
as" names.
(g) ERISA Matters. (i) Engage or permit any ERISA Affiliate to
engage in any prohibited transaction for which an exemption is not available or
has not previously been obtained from the DOL; (ii) permit to exist any
accumulated funding deficiency, as defined in Section 302(a) of ERISA and
Section 412(a) of the IRC, or funding deficiency with respect to any Benefit
Plan other than a Multiemployer Plan; (iii) fail to make
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any payments to any Multiemployer Plan that the Seller or any ERISA Affiliate
may be required to make under the agreement relating to such Multiemployer Plan
or any law pertaining thereto; (iv) terminate any Benefit Plan so as to result
in any liability; or (v) permit to exist any occurrence of any reportable event
described in Title IV of ERISA which represents a material risk of a liability
of the Seller or any ERISA Affiliate under ERISA or the IRC; provided, however,
the Seller's ERISA Affiliates may take or allow such prohibited transactions,
accumulated funding deficiencies, payments, terminations and reportable events
described in clauses (i) through (iv) above so long as such events occurring
within any fiscal year of the Seller, in the aggregate, involve a payment of
money by or an incurrence of liability of any such ERISA Affiliate in an amount
which does not exceed $500,000.
(h) Terminate or Reject Contracts. Without limiting Section
5.03(b), terminate or reject any Contract prior to the term of such Contract,
whether such rejection or early termination is made pursuant to an equitable
cause, statute, regulation, judicial proceeding or other applicable law
(including, without limitation, Section 365 of the Bankruptcy Code), unless, in
the case of a Practice Finance Loan, prior to such termination or rejection, the
Seller pays the Deal Agent, for the benefit of EagleFunding, an amount equal to
the Termination Amount owed with respect thereto.
(i) Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness except for (i) Indebtedness to EagleFunding, the Deal Agent or any
Liquidity Provider expressly contemplated hereunder, (ii) ordinary course
expenses (to the extent, if any, that such ordinary course expenses constitute
Indebtedness) in an aggregate amount outstanding at any time not to exceed
$10,000 (exclusive of taxes) and (iii) Indebtedness to the Originator pursuant
to the Originator Purchase Agreement.
(j) Guarantees. Guarantee, endorse or otherwise be or become
contingently liable (including by agreement to maintain balance sheet tests) in
connection with the obligations of any other Person, except endorsements of
negotiable instruments for collection in the ordinary course of business and
reimbursement or indemnification obligations in favor of EagleFunding, the Deal
Agent, or any Liquidity Provider as provided for under this EagleFunding
Purchase Agreement.
(k) Limitation on Transactions with Affiliates. Enter into, or be
a party to any transaction with any Affiliate, except for:
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(i) the transactions contemplated by the Originator Purchase
Agreement;
(ii) transactions related to the allocation of shared overhead
expenses or taxes as described in clause (iii) of Section 5.01(l); and
(iii) to the extent not otherwise prohibited under this
EagleFunding Purchase Agreement, other transactions in the nature of
employment contracts and directors' fees, upon fair and reasonable
terms materially no less favorable to the Seller than would be obtained
in a comparable arm's-length transaction with a Person not an
Affiliate.
(l) Facility Documents. Except as otherwise permitted under
Section 10.01, (a) terminate, amend or otherwise modify any Facility Document to
which it is a party, or grant any waiver or consent thereunder, (b) without the
prior consent of the Deal Agent, exercise any discretionary rights granted to
the Seller under the Originator Purchase Agreement pursuant to provisions
thereof providing for certain actions to be taken "with the consent of the
Buyer", "acceptable to the Buyer" as "specified by the Buyer", "in the
reasonable judgment of the Buyer" or similar provisions (it being understood
that inaction by the Seller shall not be considered to be an exercise of such
discretionary rights) or (c) without the prior written consent of the Deal
Agent, consent to any amendment or modification of the Credit and Collection
Policy.
(m) Charter and By-Laws. Amend or otherwise modify its Certificate
of Incorporation or By-laws in any manner which requires the consent of the
"Independent Director" (as defined in the Seller's Certificate of Incorporation)
without the prior written consent of the Deal Agent and delivery of an opinion
of counsel that such amendment shall not alter the conclusions set forth in the
legal opinion described in Section 3.01(a)(x).
(n) Lines of Business. Conduct any business other than that
described in Section 4.01(q), or enter into any transaction with any Person
which is not contemplated by or incidental to the performance of its obligations
under the Facility Documents.
(o) Accounting Treatment. Prepare any financial statements or
other statements (including any tax filings which are not consolidated with
those of the Originator) which shall account for the transactions contemplated
by the Originator Purchase Agreement in any manner other than as the sale of, or
a capital contribution of, the Transferred Assets by the Originator
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to the Seller (it being understood that non-recognition of such transaction due
to the application of consolidated financial reporting principles under GAAP or
the filing of tax returns on a consolidated basis shall not constitute a
violation of this covenant).
(p) Limitation on Investments. Make or suffer to exist any loans
or advances to, or extend any credit to, or make any investments (by way of
transfer of property, contributions to capital, purchase of stock or securities
or evidences of indebtedness, acquisition of the business or assets, or
otherwise) in, any Affiliate or any other Person except for (i) Permitted
Investments, (ii) the purchase of Receivables and other Transferred Assets
pursuant to the terms of the Originator Purchase Agreement and (iii) so long as
the aggregate outstanding Capital hereunder is less than the Capital Limit then
in effect, the acceptance of investments in exchange for Defaulted Receivables
in an effort to maximize the recoveries thereon.
(q) Fair Selection. In connection with (i) each designation of
Purchased Receivables under Section 2.02 as either Designated Receivables or
Non-Designated Receivables, and (ii) each repurchase of Designated Receivables
pursuant to Section 8.02, select Receivables on a basis which is adverse to
either of EagleFunding or the Deal Agent.
ARTICLE VI
SERVICING, ADMINISTRATION, COLLECTION AND CUSTODY
SECTION 6.01. Designation of Servicer. The servicing,
administering and collection of the Purchased Receivables and the other
Purchased Interests shall be conducted by the Person (the "Servicer") designated
by the Deal Agent from time to time in accordance with this Section 6.01. Until
the Deal Agent gives notice to the Originator of the designation of a new
Servicer, the Originator is hereby designated as, and hereby agrees to perform
the duties and obligations of, the Servicer pursuant to the terms hereof. The
Deal Agent may at any time from and after the occurrence of a Servicing
Termination Event, or earlier upon the written request of the Seller, designate
as Servicer any other Person to succeed the Originator or any Successor
Servicer, on the condition in each case that any such Person so designated shall
agree to perform, and shall have assumed, the duties and obligations of the
Servicer pursuant to the terms hereof (including, without limitation Section
6.09(c)). The Servicer may, with the prior written consent of EagleFunding and
the Deal
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Agent, subcontract with any other Person for servicing, administering or
collecting the Purchased Interests, provided that the Servicer shall remain
liable for the performance of the duties and obligations of the Servicer
pursuant to the terms hereof. The Servicer shall use reasonable care in
performing its duties as Servicer hereunder and, without limiting the foregoing,
shall service the Purchased Receivables in accordance with the Credit and
Collection Policy.
SECTION 6.02. Duties of the Servicer. (a) The Servicer shall take
or cause to be taken all such actions as may be necessary or advisable to
collect each Purchased Receivables from time to time, all in accordance with
applicable laws, rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy. Each of the Seller,
EagleFunding and the Deal Agent hereby appoints as its agent the Servicer, from
time to time designated pursuant to Section 6.01, to enforce its respective
rights and interests in and under the Purchased Receivables, the Related
Security related thereto and the related Collections. The Servicer will at all
times apply the same standards and follow the same procedures with respect to
the decision to commence, and in prosecuting and litigating with respect to
Purchased Receivables as it applies and follows with respect to accounts,
chattel paper and instruments which are not Purchased Receivables. In no event
shall the Servicer be entitled to make the Deal Agent or EagleFunding a party to
any litigation without the Deal Agent's and EagleFunding's express prior written
consent. The Servicer shall segregate and set aside for the account of
EagleFunding all Collections of the Purchased Receivables and Related Security
in accordance with Section 2.05 of the Originator Purchase Agreement and Section
6.06 hereof and shall cause all such Collections to be remitted to a Lock-Box
Account and/or deposited directly into the Collection Account within one
Business Day after identification thereof by the Servicer and in any event
within four Business Days after the Servicer's receipt thereof. The Servicer
shall promptly review all checks and other instruments returned to it by the
Lock-Box Bank on account of restrictive endorsements, improper payees, incorrect
amounts or for any other reason and shall not deposit any such checks or
instruments in its own accounts unless it is determined to the Deal Agent's
satisfaction that such amounts do not constitute Collections; any such checks or
instruments which are determined to be Collections of the Purchased Receivables
or Related Security related thereto shall be promptly remitted to the Lock-Box
Account or the Collection Account as provided above. Provided that the
Termination Date shall not have occurred, the Originator, while it is Servicer,
may, in accordance with the Credit and Collection Policy, (i) amend, modify or
waive any term or condition of any Contract to reflect any Permitted Extension,
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(ii) adjust the Outstanding Balance of any Purchased Receivable to reflect the
reductions, adjustments or cancellations described in the first sentence of
Section 2.04(d) of this EagleFunding Purchase Agreement, (iii) in the case of a
Practice Finance Loan, so long as such prepayment would not cause a Wind-Down
Event under this EagleFunding Purchase Agreement, and subject to the payment of
any Termination Amount payable under such Contract, consent to the prepayment or
early termination of a Contract, and (iv) amend, modify or waive any provision
of a Delinquent Receivable or Defaulted Receivable so as to maximize the
collectibility thereof (it being understood that neither the Originator nor the
Seller may take any of the actions referred to in clauses (i) through (iv) above
at any time (x) after the occurrence of the Termination Date, or (y) during
which the Originator is not the Servicer, absent the prior consent of the Deal
Agent). The Servicer shall hold in trust for the Seller and EagleFunding in
accordance with their respective interests, all Records. Notwithstanding
anything to the contrary contained herein, following the occurrence of a
Wind-Down Event, the Deal Agent shall have the absolute and unlimited right to
direct the Servicer (whether the Servicer is the Originator or otherwise) to
commence or settle any legal action to enforce collection of any Receivable or
other Transferred Asset or to foreclose upon or repossess any Related Security.
(b) The Servicer shall, as soon as practicable following receipt,
turn over to the Originator the collections of any receivable which is not a
Transferred Asset, less, in the event the Originator is not the Servicer, all
reasonable and appropriate out-of-pocket costs and expenses of such Servicer of
servicing, collecting and administering such receivable.
(c) Notwithstanding anything to the contrary contained in this
EagleFunding Purchase Agreement, the Servicer, if the Deal Agent or its
designee, shall have no obligation to collect, enforce or take any other action
described in this Article VI with respect to any receivable that is not a
Purchased Receivable other than to deliver to the Seller the Collections and
documents with respect to any such receivable as described in the first two
sentences of Section 6.02(b) and to exercise the same degree of care with
respect to Collections and documents in its possession as it would exercise with
respect to its own property.
(d) In the event the Servicer accepts in payment of any Purchased
Receivable the taking or repossession of the Equipment the sale or lease of
which gave rise to such Purchased Receivable, the Servicer agrees to use its
reasonable efforts to resell or re-lease such Equipment for the account of
EagleFunding and shall remit to the Deal Agent the gross sale proceeds thereof
or, to the extent such Equipment is re-leased, shall deliver to
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the Deal Agent the chattel paper or other documents evidencing the rights to
payment arising from such re-lease, all of which documents shall constitute
Contracts and which rights to payment shall constitute Purchased Receivables,
and all of which Contracts and Purchased Receivables shall constitute part of
the Purchased Interests. Neither EagleFunding nor the Deal Agent shall have any
obligation to take any action or commence any proceedings to realize upon any
Purchased Receivable or to enforce any of its rights or remedies with respect
thereto. Any moneys collected by the Servicer pursuant to this subsection
6.02(d) shall be segregated by the Servicer, held in trust by the Servicer for
EagleFunding and shall be remitted to a Lock-Box Account or to the Collection
Account within one Business Day after identification thereof by the Servicer and
in any event within four Business Days after the Servicer's receipt thereof.
(e) The Servicer shall maintain all books of account and other
records pertaining to the Purchased Receivables and the other Purchased
Interests in such form as will enable EagleFunding or its designees to determine
at any time the status thereof. The Servicer will permit EagleFunding, the Deal
Agent and any Person designated by EagleFunding or the Deal Agent, during
regular business hours, to inspect, audit, check and make abstracts from all
books, accounts, records, or other papers pertaining to such Purchased
Interests. From time to time, at the request of EagleFunding or the Deal Agent,
the Servicer, at its own expense, will (i) deliver to EagleFunding and the Deal
Agent and any Person designated by EagleFunding or the Deal Agent any records
and invoices pertaining to the Purchased Interests and evidence thereof as
EagleFunding, the Deal Agent or such designee may deem necessary to enable it to
enforce its rights thereunder, and (ii) mark each computer record relating to,
and each invoice or other evidence of, the Purchased Interests (whether or not
such computer record or other item is the property of EagleFunding) as
EagleFunding or the Deal Agent may direct to reflect the interests of
EagleFunding and the Deal Agent in such Purchased Interests. The Servicer will
either (x) segregate, from all the documents relating to other receivables then
owned or being serviced by the Servicer, all documents relating to the Purchased
Interests, or (y) mark all documents relating to the Purchased Interests so as
to make such documents readily identifiable as property of EagleFunding and with
such legend as shall be specified by the Deal Agent, and will, in either such
event, hold all such documents in trust for EagleFunding and safely keep such
documents in filing cabinets or other suitable containers marked to show
EagleFunding's interest.
SECTION 6.03. Rights of the Deal Agent. At any time after the
occurrence of a Wind-Down Event:
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(a) The Deal Agent may notify the Obligors of the Purchased
Receivables, or any of them, of EagleFunding's ownership interest in
the Purchased Interests and direct such Obligors, or any of them, that
payment of all amounts payable under any Purchased Receivable be made
directly to EagleFunding or its designee (including, without
limitation, the Deal Agent).
(b) The Seller shall, at the Deal Agent's or EagleFunding's
request and at the Seller's expense, give notice of EagleFunding's
interest in the Purchased Interests to each Obligor (in substantially
the form of the Notice of Assignment) and direct that payments be made
directly to EagleFunding or its designee (including, without
limitation, the Deal Agent).
(c) The Seller shall, at the Deal Agent's request, assemble all
Records which the Deal Agent reasonably believes are necessary or
appropriate for the administration and enforcement of the Purchased
Interests, and shall make the same available to the Deal Agent at a
place selected by the Deal Agent or its designee.
(d) Each of the Seller and EagleFunding hereby authorize the Deal
Agent to take any and all steps in the Seller's name and on behalf of
the Seller necessary or desirable, in the determination of the Deal
Agent, to collect all amounts due under any and all Purchased
Receivables or Related Security related thereto, including, without
limitation, endorsing the Seller's name on checks and other instruments
representing Collections and enforcing such Purchased Receivables and
the related Contracts.
SECTION 6.04. Further Action Evidencing Transfers. (a) The Seller
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
EagleFunding may reasonably request in order to protect or more fully evidence
EagleFunding's ownership interest in the Purchased Receivables, the Related
Security and the Collections related thereto, or to enable EagleFunding to
exercise or enforce any of its rights hereunder or under any related document.
Without limiting the generality of the foregoing, the Seller will mark its
master data processing records evidencing such Purchased Receivables, Related
Security and Collections related thereto with a legend, acceptable to
EagleFunding, evidencing that EagleFunding has acquired an ownership interest
therein as
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provided in this EagleFunding Purchase Agreement and, upon the request of
EagleFunding, will 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 or as EagleFunding may reasonably
request. The Seller hereby authorizes EagleFunding to file one or more financing
or continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the Purchased Receivables, Related Security and
Collections related thereto now existing or hereafter arising without the
signature of the Seller where permitted by law. A carbon, photographic or other
reproduction of this EagleFunding Purchase Agreement or any financing statement
covering the Purchased Receivables, Related Security and Collections related
thereto, or any part thereof, shall be sufficient as a financing statement. If
the Seller fails to perform any of its agreements or obligations under this
EagleFunding Purchase Agreement, EagleFunding may (but shall not be required to)
itself perform, or cause performance of, such agreement or obligation, and the
expenses of EagleFunding incurred in connection therewith shall be payable by
the Seller upon EagleFunding's demand therefor; provided, however, prior to
taking any such action, EagleFunding shall give notice of such intention to the
Seller and provide the Seller with a reasonable opportunity to take such action
itself.
(b) The Seller shall, on or prior to the date of each Receivables
Purchase hereunder, deliver or cause to be delivered the related Contract File
to the Custodian, in suitable form for transfer by delivery, or accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to EagleFunding. In the event that the Seller or the
Servicer receives any other instrument or any writing constituting chattel paper
which, in either event, evidences a Purchased Receivable or other Purchased
Interests, the Seller or the Servicer as applicable shall deliver such
instrument or chattel paper to the Custodian on behalf of EagleFunding within
three (3) Business Days after receipt, in suitable form for transfer by
delivery, or accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to EagleFunding.
SECTION 6.05. Responsibilities of the Seller. Anything herein to
the contrary notwithstanding, the Seller shall (i) perform all of its
obligations under the Contracts to the same extent as if such Contracts had not
been transferred to EagleFunding hereunder and the exercise by EagleFunding or
its assigns of their respective rights hereunder shall not relieve Seller from
such obligations and (ii) pay when due any taxes, including without limitation,
sales, excise and personal property taxes payable in connection with the
Purchased Interests, unless
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the Seller is contesting the payment of such taxes in good faith and by
appropriate proceedings and with respect to which no Adverse Claim has been
asserted or filed.
SECTION 6.06. Administration of Collections by Servicer. (a) The
Servicer shall identify on a timely basis all Collections which are on account
of the Purchased Interests, including all deposits to Lock Box Accounts. On each
Business Day, all Collections received in the Lock Box Accounts for the prior
Business Day (and such Business Day, if practicable) shall be transferred to the
Collection Account. If the Servicer receives any cash or checks, drafts, wire
transfers or other instruments for the payment of money on account or otherwise
in respect of the Purchased Interests, the Servicer shall segregate such cash
and other items, hold such cash and other items in trust for the benefit of
EagleFunding and the Deal Agent and shall cause such cash and other items
(properly endorsed, where required, so that such items may be collected by
EagleFunding) to be deposited in a Lock Box Account or directly in the
Collection Account immediately after the date any such cash or other item shall
have been identified as being on account of a Purchased Interest.
SECTION 6.07. Application of Collections. All Collections on
account of the Purchased Receivables of each Obligor shall be applied in the
order of maturity thereof unless specifically identified otherwise in writing by
such Obligor or directed by a court of competent jurisdiction. Any payment by an
Obligor in respect of any indebtedness or other obligations owed by such Obligor
to the Seller or the Servicer shall, except as otherwise specified by such
Obligor or otherwise required by law, be applied as a Collection of a Receivable
of such Obligor (in the order of the age by invoice date of such Receivables,
starting with the oldest such Receivable) to the extent of any amounts then due
and payable thereunder before being applied to any other indebtedness of such
Obligor to the Seller or the Servicer. The Servicer shall not influence or
instruct any Obligor who is indebted to the Seller in respect of any
indebtedness not included in the Purchased Interests to direct that its
remittances be applied to any such indebtedness prior to being applied to the
Purchased Interests.
SECTION 6.08. Servicing Fee. On each Settlement Date, as full
compensation for its servicing activities hereunder, the Servicer shall be
entitled to receive a fee (the "Servicing Fee") in an amount equal to 1.00%
times the Outstanding Balance of the Purchased Receivables as of the last day of
the prior calendar month times a fraction, the numerator of which is the number
of actual days elapsed in such calendar month and the denominator of which
equals 360, provided, that, if the Servicer hereunder is
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also the Servicer under the Originator Purchase Agreement, the Servicing Fee
hereunder shall be deemed paid to the extent of any payment by the Seller of the
"Servicing Fee" specified and defined in the Originator Purchase Agreement. In
the event that EagleFunding (or the Deal Agent) appoints a successor Servicer,
the Servicing Fee may be adjusted as required by such successor Servicer and as
agreed to by EagleFunding and the Deal Agent.
SECTION 6.09. Resignation; Successor Servicer. (a) The obligation
of the Servicer to service the Purchased Receivables is personal to the Servicer
and the parties recognize that another Person may not be qualified to perform
such obligations. Accordingly, the Servicer's obligation to service the
Purchased Interests hereunder shall be specifically enforceable and shall be
absolute and unconditional in all circumstances, including, without limitation,
after the occurrence and during the continuation of any Wind-Down Event or
Servicing Termination Event hereunder; provided, however, that a Successor
Servicer may be appointed pursuant to this Section 6.09.
(b) Notwithstanding the foregoing, the Servicer may resign from
the obligations and duties hereby imposed on it as Servicer upon determination
that (i) the performance of its duties hereunder is no longer permissible under
any applicable law and (ii) there is no reasonable action which the Servicer
could take to make the performance of its duties hereunder permissible under any
such applicable law. Any determination permitting the resignation of the
Servicer shall be evidenced as to clause (i) above by an opinion of counsel to
such effect delivered to EagleFunding and the Deal Agent. Except to the extent
inconsistent with any such applicable law, no such resignation shall become
effective until a Successor Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with the remaining provisions of this
Section 6.09.
(c) The Deal Agent shall, as promptly as possible after the
Servicer has given notice pursuant to Section 6.09(b) above or at any time after
the Deal Agent's designation of a successor Servicer pursuant to Section 6.01,
appoint a successor servicer (the "Successor Servicer") and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Deal Agent. Upon its appointment, the Successor Servicer shall
be the successor in all respects to the Servicer with respect to servicing
functions under this EagleFunding Purchase Agreement shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof, and all references in this EagleFunding
Purchase Agreement or any other
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Facility Documents to the Servicer shall be deemed to refer to the Successor
Servicer. The Servicer agrees to cooperate with the Successor Servicer in
effecting the transfer of its responsibilities, duties, liabilities and rights
hereunder, including, without limitation, the execution and delivery of
assignments of financing statements, the transfer to the Successor Servicer of
all cash amounts held by the Servicer or thereafter received with respect to the
Purchased Interests, the transfer of electronic records relating to the
Purchased Interests in such form as the Successor Servicer may reasonably
request and the transfer of all related Records, correspondence and other
documents relating to the Purchased Interests.
SECTION 6.10. Lock-Box Accounts; Collection Account. The Seller
has established and will maintain a system of operations, accounts and
instructions to the Lock-Box Banks and will establish and maintain the
Collection Account as provided in this Section 6.10. Pursuant to a Lock-Box
Agreement, each Lock-Box Bank shall be irrevocably instructed to wire all funds
in each Lock-Box Account to the Collection Account, which Collection Account
shall be maintained in the name of the Deal Agent. Neither the Seller, nor any
Person claiming by, through or under the Seller shall have any control over the
use of, or any right to withdraw any item or amount from, any Lock-Box Account
or the Collection Account except as expressly provided in the Lock-Box
Agreements. The Deal Agent on behalf of EagleFunding is hereby irrevocably
authorized and empowered, as the Seller's attorney-in-fact, to endorse any item
deposited in a Post Office Box or presented for deposit in any Lock-Box Account
or the Collection Account requiring the endorsement of the Seller, which
authorization is coupled with an interest.
SECTION 6.11. Collection Account. (a) The Seller shall establish
for the sole and exclusive benefit of the Deal Agent on behalf of itself,
EagleFunding, the Seller and their respective assigns, a cash collateral account
(the "Collection Account"). The Collection Account shall be a special purpose
segregated deposit account maintained with Bank of Boston but shall be under the
sole dominion and control of, and in the name of, the Deal Agent. All funds held
in the Collection Account, including investment earnings thereon, shall be
invested in Permitted Investments at the direction of the Seller; provided,
however, that from and after the Termination Date or otherwise upon the
occurrence and during the continuance of any Wind-Down Event, the Deal Agent
shall have the sole right to restrict the maturities of any investments held in
the Collection Account and to direct the withdrawal of any such investments for
the purposes of paying Capital, Yield and any Obligations owed hereunder. The
Deal Agent shall have the sole and exclusive right to withdraw or order a
transfer of funds from the Collection Account in
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accordance with the terms and provisions of this Section 6.11; provided,
however, that the Deal Agent agrees to turn over to the Originator any funds
which are deposited in the Collection Account and which do not constitute
Collections or other proceeds of Purchased Interests, less all reasonable and
appropriate out-of-pocket costs and expenses incurred by the Deal Agent in
connection with such misdirected funds.
(b) All Collections and other proceeds of the Purchased Interests
in the Collection Account shall be held in trust for the benefit of the Deal
Agent, EagleFunding, and the Seller and, except as otherwise provided in Section
6.11(d) below with respect to any Business Day from and after the Designated
Termination Date, such Collections and other proceeds shall be used solely for
the following purposes and in the following order of priority:
(i) To remit to the Seller any Collections representing sales or
other taxes or insurance payments for the purpose of satisfying the
Seller's obligations in respect of such taxes or insurance;
(ii) (A) First, to pay Yield and other Carrying Costs, except for
any accrued and unpaid amounts owing to the Swap Providers under the
Interest Rate Hedges, which are then due and payable, and (B) second,
to be retained in the Collection Account to the extent of any accrued
and unpaid amounts of Yield and other Carrying Costs which are not then
due and payable, until the next relevant payment date therefor, and not
to be applied to any of the following items;
(iii) If such day is a Settlement Date, to repay Capital as
provided in Section 2.04(b);
(iv) To pay any accrued and unpaid amounts owing to the Swap
Providers under the Interest Rate Hedges;
(v) To pay any other Obligations which are due and owing at such
time; and
(vi) If such day is a Settlement Date, to be remitted to the
Seller in partial satisfaction of the Purchaser's obligation under
Section 2.02(b); provided, however, that such funds shall only be
remitted to the Seller to the extent that, after giving effect to such
transfer of funds and such Purchases, the amount of Capital then
outstanding does not exceed the Capital Limit then in effect.
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The Seller, in making any request for funds to be withdrawn from the Collection
Account, shall certify to each of the Deal Agent and the Collection Account Bank
that the funds will be used for one of the purposes described above in this
Section 6.11(b).
If, on any Business Day prior to the Designated Termination Date,
the Collections of Purchased Interests on deposit in the Collection Account and
available for withdrawal under clause (ii)(A) above are less than the amount of
the obligations described in such clause, such available funds shall be
allocated in the priority set forth in Section 6.11(c) below; if, on any such
Business Day, the Collections of Purchased Interests on deposit in the
Collection Account and available for withdrawal under clause (v) above are less
than the amount of the obligations described in such clause, such available
funds shall be allocated to the Persons to whom such obligations are owed
ratably according to the respective amounts owed.
(c) On each Business Day prior to the Designated Termination Date,
to the extent that the Collections of Purchased Interests on deposit in the
Collection Account and available under clause (ii)(A) of Section 6.11(b) are
insufficient to pay all Carrying Costs which are then due and payable, such
funds shall be applied to the Carrying Costs in the following order of priority:
(i) To pay any accrued and unpaid Yield;
(ii) To pay the pro-rata portion of any accrued and unpaid fees
then owing under the Fee Letter;
(iii) To pay the pro-rata portion of any accrued and unpaid
expenses of the Deal Agent which are allocable to this EagleFunding
Purchase Agreement;
(iv) To pay any accrued and unpaid Servicing Fee; and
(v) To pay ordinary course expenses of the Seller to the extent
the same are due or past due.
If, on any such Business Day, the Collections of Purchased Interests on deposit
in the Collection Account and available for withdrawal under any of clause (ii)
or (v) above are less than the amount of the obligations described in such
clause, such available funds shall be allocated to the Persons to whom such
obligations are owed ratably according to the respective amounts owed.
(d) On each Business Day from and after the Designated Termination
Date, Collections and other proceeds of Purchased
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Interests shall be withdrawn from the Collection Account solely upon direction
of the Deal Agent to be applied against the Obligations in the following order
of priority:
(i) To remit to the Seller any Collections representing sales or
other taxes or insurance payments for the purpose of satisfying the
Seller's obligations in respect of such taxes or insurance;
(ii) (A) First, to pay any accrued and unpaid Servicing Fee (if
the Servicer is a party other than the Originator or an Affiliate
thereof) which is then due and payable, and (B) second, to be retained
in the Collection Account to the extent of any accrued and unpaid
amounts of such Servicing Fee which are not then due and payable, until
the next relevant payment date therefor, and not to be applied to any
of the following items;
(iii) (A) First, to pay accrued and unpaid Yield, and (B) second,
to be retained in the Collection Account to the extent of any accrued
and unpaid amounts of such Yield which are not then due and payable,
until the next relevant Payment Date, and not to be applied to any of
the following items;
(iv) (A) First, to pay any accrued and unpaid amounts owing to
Swap Providers under the Interest Rate Hedges which are then due and
payable, and (B) second, to be retained in the Collection Account to
the extent of any such accrued and unpaid amounts which are not then
due and payable, until the next relevant payment date therefor, and not
to be applied to any of the following items;
(v) To pay all amounts of Capital then outstanding;
(vi) (A) First, to pay the accrued and unpaid expenses of the Deal
Agent which are then due and payable, and (B) second, to be retained in
the Collection Account to the extent of any accrued and unpaid amounts
of such expenses which are not then due and payable, until the next
relevant payment date therefor, and not to be applied to any of the
following items;
(vii)(A) First, to pay the portion of any other accrued and unpaid
fees owing under the Fee Letter which are then due and payable, and (B)
second, to be retained in the Collection Account to the extent of any
accrued and unpaid amounts of such fees which are not then due and
payable, until the next relevant payment date therefor, and not to be
applied to any of the following items;
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(viii) (A) First, to pay to pay the portion of any other accrued
and unpaid Obligations which have not been paid pursuant to clauses (i)
through (v) above and which are then due and payable, and (B) second,
to be retained in the Collection Account to the extent of any accrued
and unpaid amounts of such Obligations which are not then due and
payable, until the next relevant payment date therefor, and not to be
applied to any of the following items;
(ix) To pay any other Carrying Costs which are due and owing but
have not been paid pursuant to clauses (i) through (viii) above; and
(x) To pay any accrued and unpaid Servicing Fee owed to the
Originator or an Affiliate thereof.
If, on any such Business Day, the funds on deposit in the Collection Account and
available for withdrawal under any of clauses (iii), (iv), (vi), (vii), (viii)
or (ix) above are less than the amount of the obligations described in such
clause, such available funds shall be allocated to the Persons to whom such
obligations are owed ratably according to the respective amounts owed. Any funds
remaining in the Collection Account after payment of the foregoing Obligations
and other fees and expenses shall be remitted to the Seller in consideration of
the Purchaser's obligation under Section 2.02(b).
SECTION 6.12. Custodian. All original counterpart copies of the
Contracts, and all other components of the Contract Files in respect of the
Purchased Interests shall at all times prior to the Collection Date be held by
the Person (the "Custodian") so designated from time to time in accordance with
this Section 6.12. Until the Deal Agent gives notice to the Seller of the
designation of a new Custodian, the Originator is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Custodian pursuant
to the terms hereof. In the event, as a result of an audit or otherwise, the
Deal Agent reasonably believes that the performance and practices of the
Custodian threaten in any manner the perfection or priority of the Deal Agent's
interests in the Purchased Interests, the Deal Agent may, upon two Business Days
prior written notice, designate as Custodian either the Servicer (if not already
the Custodian) or the Deal Agent or any Affiliate of Bank of Boston and,
following the occurrence of a Servicing Termination Event or a Wind-Down Event,
any other Person to succeed the Originator or any successor Custodian, on the
condition in each case that any such Person so designated shall agree to perform
the duties and obligations of the Custodian pursuant to the terms hereof. Upon
taking possession of an original Contract File and the contents thereof, the
Custodian hereby agrees (i) to maintain possession
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of such original copies in trust for the Purchaser and the Deal Agent, (ii) to
exercise the same degree of care with respect to the possession of such Contract
File as it would if such Contract File were its own property, and (iii) to
return the original copy of the relevant Contract to the Servicer within two
Business Days of the Servicer's request therefor to the extent the Servicer
requires such original copy to conduct further business with, or take
enforcement action against, the Obligor of such Contract. Upon the appointment
of a successor Custodian, the Custodian being replaced shall make all Contract
Files available to the successor Custodian at a place selected by such successor
Custodian.
ARTICLE VII
WIND-DOWN EVENTS; REMEDIES
SECTION 7.01. Wind-Down Events. Each of the following events shall
constitute a "Wind-Down Event" within the meaning of this EagleFunding Purchase
Agreement:
(a) The occurrence of any Event of Termination under the
Originator Purchase Agreement;
(b) The Servicer or the Custodian (if the Seller or any Affiliate
of the Seller) shall fail to perform or observe any term, covenant or agreement
hereunder (other than as referred to in clause (ii) of this Section 7.01(b)) and
such failure shall remain unremedied for three Business Days after written
notice from the Deal Agent or (ii) either of the Servicer (if the Seller or any
Affiliate of the Seller) or the Seller shall fail to make any payment or deposit
to be made by it hereunder when due and, solely in the case of any such payments
which do not constitute payments of Capital or Yield, such failure shall remain
unremedied for three (3) Business Days after written notice from the Deal
Agent; or
(c) The Seller shall fail to perform or observe any term, covenant
or agreement contained in Section 5.03 and any such failure shall remain
unremedied for five (5) Business Days after written notice from the Deal Agent;
or
(d) Any representation or warranty made or deemed to be made by
the Seller (or any of its officers) under or in connection with this
EagleFunding Purchase Agreement, any Settlement Report or other information or
report delivered pursuant hereto shall prove to have been false or incorrect in
any material respect when made; provided, however, that (i) to the extent any
breach of any such representation or warranty may be cured within
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ten (10) Business Days, the Seller shall have ten (10) Business Days after
learning of such breach to make such representation and warranty true and
correct and (ii) if any such false or incorrect representation or warranty has
given rise to a deemed Collection as provided under Section 2.04 of this
EagleFunding Purchase Agreement, then, upon the Seller's payment of such deemed
Collection at the time and in the manner required under this EagleFunding
Purchase Agreement, the breach of such representation or warranty shall not give
rise to a Wind-Down Event under this subsection (d); or
(e) The Seller shall fail to perform or observe any other term,
covenant or agreement contained in this EagleFunding Purchase Agreement on its
part to be performed or observed and any such failure shall remain unremedied
for ten (10) Business Days after written notice from the Deal Agent (it being
understood that if any such failure gives rise to a deemed Collection under
Section 2.04 of this EagleFunding Purchase Agreement, then, the payment of such
deemed Collection at the time and in the manner required under this EagleFunding
Purchase Agreement shall be deemed a remedy of such failure); or
(f) The interest of the Deal Agent on behalf of the Purchaser in
the Purchased Interests shall for any reason, except to the extent permitted by
the terms hereof, cease to create a valid and perfected first priority interest
in such Purchased Interests; provided, however, if any such failure results in a
deemed Collection under Section 2.04 of this EagleFunding Purchase Agreement and
the Seller satisfies in full its payment obligations under such section with
respect to such deemed Collection, then such failure shall not give rise to a
Wind-Down Event under this subsection (f); or
(g) (i) An Insolvency Event shall occur with respect to the Seller
or (ii) the Seller shall take any corporate action to authorize the filing of
any Insolvency Proceeding; or
(h) As of the close of business on any Settlement Date, the
Capital Limit shall be less than the aggregate outstanding Capital; or
(i) The Originator shall cease to own 100% of the issued and
outstanding stock of the Seller; or
(j) There shall have occurred, since the initial Receivables
Purchase Date, a material adverse change in the financial condition of the
Seller or there shall have occurred any event which materially and adversely
affects the collectibility of the Receivables generally or the ability of the
Seller to perform hereunder; or
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(k) Either of EagleFunding or the Deal Agent shall determine that
continuation of this EagleFunding Purchase Agreement without exercise of
remedies under Section 7.02 will impose a material adverse regulatory,
accounting or tax impact on EagleFunding or the Deal Agent; or
(l) The sum of the Delinquency Ratios for each of the three most
recently concluded calendar months divided by a factor of three shall exceed
5.25%; or
(m) The Default Ratio shall exceed 3.25%; or
(n) [reserved];
(o) [reserved];
(p) The Seller shall fail to pay any principal or premium or
interest on any Indebtedness having a principal amount of $1,000,000 or greater,
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness; or any other default under any
agreement or instrument relating to any such Indebtedness of the Seller or any
other event, shall occur and shall continue after the applicable grace period,
if any, specified in such agreement or instrument if the effect of such default
or event is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or any such Indebtedness shall be declared to be due and
payable or required to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or
(q) The PBGC or the IRS shall have filed notice of one or more
Adverse Claims against the Seller (unless such Adverse Claim does not purport to
cover the Purchased Interests), and such notice shall have remained in effect
for more than thirty (30) days unless, prior to the expiration of such period,
such liens shall have been adequately bonded by the Seller; or
(r) A Servicing Termination Event shall have occurred; or
(s) As of the last day of any month, the average annualized
monthly prepayment rate (i.e., prepayments as a percentage of gross Receivables
balances) of all Receivables which have been prepaid for the twelve-month period
then ended shall exceed 10%.
SECTION 7.02. Remedies. During the existence of a Wind-Down Event,
the Deal Agent on behalf of EagleFunding may, by
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written notice to the Seller, take any or all of the following actions, at the
same or different times: (i) declare the Termination Date to have occurred; (ii)
declare the Obligations to be immediately due and payable and/or the commitment
of the Purchaser to make Receivables Purchases hereunder to be terminated; (iii)
pursue any other remedy under this EagleFunding Purchase Agreement and the other
Facility Documents and (iv) exercise any rights and remedies of a secured party
under Article 9 of the UCC, which rights and remedies shall be cumulative to
those provided for under this EagleFunding Purchase Agreement and the other
Facility Documents; provided, however, that in the case of any event described
in clause (i) of subsection 7.01(g) above, or in subsection 7.01(h) above, then,
automatically upon the occurrence of such event without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by
the Seller, anything contained herein to the contrary notwithstanding, the
Termination Date shall be deemed to have occurred automatically and any
Obligations owed hereunder shall be immediately due and payable. The rights and
remedies of a secured party which may be exercised by the Deal Agent pursuant to
clause (iv) of this Section 7.02 shall include, without limitation, the right to
(y) identify and engage a Successor Servicer to act as Servicer for the
Receivables in the event of a Servicing Termination Event, and (z) without
notice except as specified below solicit and accept bids for and sell the
Purchased Interests or any part thereof in one or more parcels at a public or
private sale, at any exchange, broker's board or at any of the Deal Agent's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Deal Agent may deem commercially reasonable. The Seller
agrees that, to the extent notice of sale shall be required by law, 10 Business
Days' notice to the Seller of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification and that it shall be commercially reasonable for the Deal Agent to
sell the Purchased Interests on an as-is basis, without representation or
warranty of any kind. The Deal Agent shall not be obligated to make any sale of
Purchased Interests regardless of notice of sale having been given and may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
ARTICLE VIII
INDEMNIFICATION; REPURCHASES
SECTION 8.01. Indemnities by the Seller. (a) Without limiting any
other rights which EagleFunding may have hereunder
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or under applicable law, the Seller hereby agrees to indemnify EagleFunding and
its permitted successors and assigns (including, without limitation,
EagleFunding, and the Deal Agent) and their respective officers, directors,
agents and employees (each, an "Indemnified Party"), from and against any and
all damages, losses, claims, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of the foregoing
being collectively referred to as "Indemnified Amounts") awarded against or
incurred by any Indemnified Party relating to or resulting from any of the
following (excluding, however, (i) Indemnified Amounts to the extent resulting
from gross negligence or willful misconduct on the part of an Indemnified Party
or (ii) recourse (except with respect to payment and performance obligations
provided for in this EagleFunding Purchase Agreement) for uncollectible
Receivables):
(i) the transfer of any Receivable which was not, as of the
Receivables Purchase Date, an Eligible Receivable;
(ii) any representation or warranty made or deemed made by the
Seller or the Originator (or any of their respective officers) under or
in connection with the Originator Purchase Agreement or this
EagleFunding Purchase Agreement, any Settlement Report or any other
information or report delivered by the Seller or the Originator
pursuant hereto, which shall have been false or incorrect in any
material respect when made or deemed made or delivered;
(iii) the failure by the Seller or the Originator (individually or
as Servicer) to comply with any term, provision or covenant contained
in this EagleFunding Purchase Agreement or the Originator Purchase
Agreement, or any agreement executed in connection with this
EagleFunding Purchase Agreement or the Originator Purchase Agreement or
with any applicable law, rule or regulation with respect to any
Purchased Receivable, the related Contract, the Related Security or the
other Purchased Interests, or the nonconformity of any Purchased
Receivable, the related Contract, the Related Security or the other
Purchased Interests with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in EagleFunding or
to transfer to EagleFunding an ownership interest in the Purchased
Interests, free and clear of any Adverse Claim (including, without
limitation, free and clear of any Permitted Encumbrance except in favor
of EagleFunding or its assignees)
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whether existing on the Receivables Purchase Date or at any time
thereafter;
(v) the failure to file, or any delay in filing (other than
solely as a result of the action or inaction of EagleFunding),
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws against
the Obligor with respect to any Contract or Receivables which are, or
are purported to be, Purchased Interests, whether at the time of any
Purchase or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any
Purchased Receivable (including, without limitation, a defense based on
such Purchased Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale
or lease of the Equipment and/or services related thereto or the
furnishing or failure to furnish such Equipment and/or services;
(vii) any failure of the Seller or the Originator, as Servicer or
otherwise, to perform its duties or obligations in accordance with the
provisions of Article VI hereof or Article VI of the Originator
Purchase Agreement;
(viii) any products liability claim or personal injury or property
damage suit or other similar or related claim or action of whatever
sort arising out of or in connection with the Equipment or any other
goods, merchandise and/or services which are the subject of any
Receivable or Contract;
(ix) the failure to pay when due any taxes, including, without
limitation, sales, excise or personal property taxes payable in
connection with the Purchased Interests;
(x) the termination, rejection or non-assumption by the Seller
of any Contract prior to the original term of such Contract, whether
such rejection, early termination or non-assumption is made pursuant to
an equitable cause, statute, regulation, judicial proceeding or other
applicable laws (including, without limitation, Section 365 of the
Bankruptcy Code);
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(xi) the failure of the Seller, the Originator and the Obligors
under the Contracts to maintain casualty and liability insurance for
the Equipment related to the Purchased Receivables in an amount at
least equal to the Discounted Receivables Balance for such Purchased
Receivables;
(xii) the failure of any Lock-Box Bank to remit any funds in the
Lock-Box Accounts as required hereunder; and
(xiii) the commingling of Collections of any Transferred Assets
with any other funds of the Seller.
Any amounts subject to the indemnification provisions of this Section 8.01 shall
be paid by the Seller to the applicable Indemnified Party within two Business
Days following the Indemnified Party's demand therefor.
SECTION 8.02. Repurchases of Designated Receivables. The following
rights are in addition to and not in limitation of any other rights or remedies
that the Purchaser and/or the Deal Agent may have hereunder.
(a) The Seller may, at any time upon not less than five Business
Days' prior written notice to the Deal Agent, elect to repurchase the Purchased
Asset relating to and including any Designated Receivable, which Purchase shall
take place on the Settlement Date next succeeding the Deal Agent's receipt of
such notice, for the repurchase price specified in subsection (d) of this
Section 8.02.
(b) [Reserved].
(c) At any time following the Termination Date when the Discounted
Receivables Balance is less than ten percent (10%) of the Discounted Receivables
Balance as of the Termination Date, the Seller may notify the Deal Agent of its
intent to repurchase all remaining Purchased Interests. On the Settlement Date
next succeeding any such notice, the Seller shall repurchase all outstanding
Purchased Interests for the repurchase price specified in subsection (d) of this
Section 8.02.
(d) In the case of a repurchase from the Purchaser by the Seller
of a Purchased Asset pursuant to this Section 8.02, the Seller shall, on the
Settlement Date coinciding with such repurchase pay to the Deal Agent as a
reduction of Capital an amount equal to the Outstanding Balance of the related
Purchased Receivable. The proceeds of any such repurchase shall be deemed to be
Collections of such Purchased Asset received by the Seller, and the amount of
each such Collection shall be applied as
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provided in Section 2.04. The repurchase of any Purchased Asset shall not
relieve the Seller of its obligation under Section 2.04(a) to pay Yield on the
Capital outstanding with respect to such Purchased Asset through the Payment
Date relating to such Capital. Any such repurchase shall be made without
recourse or warranty, express or implied (other than a representation and
warranty that such Asset is free and clear of any Adverse Claim created by or
through the Purchaser).
ARTICLE IX
THE DEAL AGENT
SECTION 9.01. Authorization and Action. EagleFunding hereby
appoints and authorizes the Deal Agent to take such action as agent on its
behalf and to exercise such powers under this EagleFunding Purchase Agreement as
are delegated to the Deal Agent by the terms hereof, together with such powers
as are reasonably incidental thereto, including, without limitation, the power
and authority to hold and to perfect any ownership interest or security interest
created pursuant hereto or in connection herewith on behalf of the Purchaser.
SECTION 9.02. Deal Agent's Reliance, Etc. Neither the Deal Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them as Deal Agent under or in
connection with this EagleFunding Purchase Agreement (including, without
limitation, any action taken or omitted to be taken by it or them if the Deal
Agent is designated as Servicer pursuant to Section 6.01) or any other agreement
executed pursuant hereto, except for its or their own negligence or willful
malfeasance or misfeasance. Without limiting the foregoing, the Deal Agent: (i)
may consult with legal counsel (including counsel for the Seller), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Person and shall not be responsible to any other Person
for any statements, warranties or representations made in or in connection with
this EagleFunding Purchase Agreement or in connection with any of the other
agreements executed pursuant hereto; (iii) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this EagleFunding Purchase Agreement on the part of the Seller
or to inspect the property (including the books and records) of the Seller; (iv)
shall not be responsible to EagleFunding or any
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other Person for the due execution, legality, validity, enforce ability,
genuineness or sufficiency of value of this EagleFunding Purchase Agreement or
any other agreement, instrument or document furnished pursuant hereto; and (v)
shall incur no liability under or in respect of this EagleFunding Purchase
Agreement or any other agreement executed pursuant hereto, by acting upon any
notice (including notice by telephone with respect to notices under Section
2.02), consent, certificate or other instrument or writing (which may be by
telex or facsimile) believed by it to be genuine and signed or sent by the
proper party or parties. Notwithstanding anything in this Section 9.02 to the
contrary, the foregoing provisions of this Section 9.02 shall not run in favor
of the Deal Agent in connection with any claim against the Deal Agent made by
EagleFunding.
SECTION 9.03. Deal Agent and Affiliates. With respect to any
interests which may be assigned by EagleFunding to Bank of Boston pursuant to
Section 10.04, Bank of Boston shall have the same rights and powers under this
EagleFunding Purchase Agreement as would EagleFunding if it were holding such
interests and may exercise the same as though it were not the Deal Agent. Bank
of Boston and its Affiliates may generally engage in any kind of business with
the Seller, the Originator or any Obligor, any of their respective Affiliates
and any Person who may do business with or own securities of the Seller, the
Originator or any Obligor or any of their respective Affiliates, all as if Bank
of Boston were not the Deal Agent and without any duty to account therefor to
EagleFunding or any Liquidity Provider.
SECTION 9.04. [Reserved].
SECTION 9.05. Resignation of the Deal Agent. The Deal Agent may
resign as Deal Agent hereunder at any time by giving not less than five (5)
Business Days' prior written notice to EagleFunding, the Seller, the Servicer
and the Custodian, such resignation to be effective on the earlier of (i) the
appointment and acceptance of a successor Deal Agent as provided below and (ii)
the 30th day following delivery of such notice. Upon any such resignation,
EagleFunding shall appoint a financial institution of its choosing as Deal
Agent. Following the appointment of a successor Deal Agent and such successor
Deal Agent's acceptance thereof, such successor Deal Agent shall succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning Deal Agent as Deal Agent hereunder, and the resigning Deal Agent shall
be discharged from its duties and obligations as Deal Agent hereunder. After the
Deal Agent's resignation, the provisions of this Article IX shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Deal Agent.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment to or waiver of any
provision of this EagleFunding Purchase Agreement nor consent to any departure
by the Seller, shall in any event be effective unless the same shall be in
writing and signed by (i) the Deal Agent, EagleFunding and the Seller (with
respect to an amendment) or (ii) the Deal Agent and EagleFunding (with respect
to a waiver or consent by it) or the Seller (with respect to a waiver or consent
by it), as the case may be, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that, at any time that the Commercial Paper is being rated by
one or more of Moody's, S&P and DCR (as applicable) (each, a "Rating Agency"),
at the request of EagleFunding, no material amendment or modification of any
other material provisions hereof, shall be effective absent written confirmation
by each such Rating Agency that such amendment or modification will not result
in a withdrawal or downgrading of the then-current rating of the Commercial
Paper by such Rating Agency. EagleFunding shall send, or shall cause to be sent,
copies of all amendments, modifications or supplements to this EagleFunding
Purchase Agreement to each Rating Agency then rating the Commercial Paper, at
the request of EagleFunding, prior to the execution thereof by all parties
thereto. This EagleFunding Purchase Agreement contains a final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement (together with
the exhibits hereto) among the parties hereto with respect to the subject matter
hereof, superseding all prior oral or written understandings.
SECTION 10.02. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telex communication and communication by facsimile copy) and mailed,
telexed, transmitted or delivered, as to each party hereto, at its address set
forth under its name on the signature pages hereof or at such other address as
shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall be effective, upon receipt, or
in the case of delivery by mail, five days after being deposited in the mails,
or, in the case of notice by telex, when telexed against receipt of answer back,
or in the case of notice by facsimile copy, when verbal communication of receipt
is obtained, in each case addressed as
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aforesaid, except that notices and communications pursuant to Article II shall
not be effective until received.
SECTION 10.03. No Waiver; Remedies. No failure on the part of the
Deal Agent or EagleFunding to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 10.04. Binding Effect; Assignability. This EagleFunding
Purchase Agreement shall be binding upon and inure to the benefit of the Seller,
EagleFunding, the Deal Agent and their respective successors and permitted
assigns (which successors of the Seller shall include a trustee in bankruptcy).
The Seller may not assign any of its rights and obligations hereunder or any
interest herein without the prior written consent of EagleFunding and the Deal
Agent. Each of EagleFunding and the Deal Agent may assign at any time its rights
and obligations hereunder and interests herein to any other Person without the
consent of the Seller. Without limiting the foregoing, the Seller hereby
acknowledges that EagleFunding has agreed pursuant to the Liquidity Agreement
and certain related agreements that, subject to the restrictions set forth
therein, certain parties providing credit enhancements and/or liquidity for
EagleFunding in connection with the EagleFunding Purchase Agreement shall be
entitled to exercise EagleFunding's rights under this EagleFunding Purchase
Agreement and in addition, shall constitute third-party beneficiaries of this
EagleFunding Purchase Agreement. The Seller hereby consents to the foregoing and
agrees to cooperate with any such Person electing to exercise EagleFunding's
rights under this EagleFunding Purchase Agreement. This EagleFunding Purchase
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 such time, after the Termination Date, as the Collection Date shall occur;
provided, however, that the rights and remedies with respect to any breach of
any representation and warranty made by the Seller pursuant to Article IV and
Article VIII shall be continuing and shall survive any termination of this
EagleFunding Purchase Agreement.
SECTION 10.05. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS
EAGLEFUNDING PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT
THE VALIDITY OR PERFECTION OF THE INTERESTS OF THE DEAL AGENT IN THE COLLATERAL
OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THE
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SELLER HEREBY AGREES TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE
STATE OF NEW YORK, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT
AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL
DIRECTED TO THE SELLER AT THE ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME
SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID, OR, AT THE OPTION
OF EITHER EAGLEFUNDING OR THE DEAL AGENT, BY SERVICE UPON CT CORPORATION SYSTEM,
1633 BROADWAY, NEW YORK, NEW YORK 10019, WHICH THE SELLER HEREBY IRREVOCABLY
APPOINTS AS ITS AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS. THE
SELLER HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR DEAL AGENT ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN
CONNECTION WITH THIS EAGLEFUNDING PURCHASE AGREEMENT. INSTEAD, ANY DISPUTE
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. WITH RESPECT
TO THE FOREGOING CONSENT TO JURISDICTION, THE SELLER HEREBY WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 10.05
SHALL AFFECT THE RIGHT OF EAGLEFUNDING OR THE DEAL AGENT TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF EAGLEFUNDING OR THE
DEAL AGENT TO BRING ANY ACTION OR PROCEEDING AGAINST THE SELLER OR ITS PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 10.06. Costs, Expenses and Taxes. (a) The Seller agrees to
pay on demand all reasonable costs and expenses in connection with the
preparation, execution, delivery and administration (including periodic auditing
fees as provided for in Section 5.01(c) and any requested amendments, waivers or
consents) of this EagleFunding Purchase Agreement and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for EagleFunding and the Deal Agent with
respect thereto and with respect to advising EagleFunding and the Deal Agent as
to its rights and remedies under this EagleFunding Purchase Agreement, and the
other agreements executed pursuant hereto and all costs and expenses, if any
(including reasonable counsel fees and expenses), in connection with the
enforcement of this EagleFunding Purchase Agreement and the other agreements and
documents to be delivered hereunder.
(b) In addition, the Seller shall pay any and all stamp, sales,
excise and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this
EagleFunding Purchase Agreement or the other agreements and documents to be
delivered
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hereunder, and agrees to indemnify the Deal Agent, EagleFunding and their
respective assignees against any liabilities with respect to or resulting from
any delay in paying or omission to pay such taxes and fees.
SECTION 10.07. Execution in Counterparts; Severability. This
EagleFunding Purchase 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. In case any provision in or
obligation under this EagleFunding Purchase Agreement shall be invalid, illegal
or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 10.08. No Bankruptcy Petition Against EagleFunding. The
Seller covenants and agrees (which agreement shall, pursuant to the terms of
this EagleFunding Purchase Agreement, be binding upon its successors and
assigns) that it will not institute against EagleFunding, or join any other
Person in instituting against EagleFunding, any Insolvency Proceeding under
bankruptcy law or under any similar federal or state law, so long as any
promissory notes issued by the Purchaser shall be outstanding or there shall not
have elapsed one year and one day since the last day on which any such
promissory notes shall have been outstanding. The provisions of this Section
10.08 shall survive the termination of this EagleFunding Purchase Agreement.
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IN WITNESS WHEREOF, the parties below have caused this
EagleFunding Purchase Agreement to be duly executed by their duly authorized
officers and delivered as of the day and year first above written.
HPSC CAPITAL FUNDING, INC.
By: /s/ [illegible signature]
--------------------------------
Title: President
Address: Sixty State Street
35th Floor
Boston, MA 02109-1803
Attn: President
Telephone:(617) 720-7250
Telecopy: (617) 720-7299
HPSC, INC., as Servicer and as Custodian
By: /s/ Renee Lefebvre
--------------------------------
Title: V.P. CFO
By:
--------------------------------
Title:
Address: Sixty State Street
35th Floor
Boston, MA 02109-1803
Attn: Vice President, Finance
Telephone:(617) 720-7251
Telecopy: (617) 720-7272
66
EAGLEFUNDING CAPITAL CORPORATION
By: BancBoston Securities Inc., its
attorney-in-fact
By: /s/ [illegible signature]
--------------------------------
Title: MD
Address: 100 Federal Street
Boston, MA 02110
Mail Stop: 01-09-02
Attn: Mitchell Feldman
Telephone:(617) 434-5760
Telecopy: (617) 434-9591
BANCBOSTON SECURITIES INC., as Deal
Agent
By: /s/ [illegible signature]
--------------------------------
Title: MD
Address: 100 Federal Street
Boston, MA 02110
Mail Stop: 01-09-02
Attn: Mitchell Feldman
Telephone:(617) 434-5760
Telecopy: (617) 434-9591