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[Execution Version]
APPENDIX A
to
EAGLEFUNDING PURCHASE AGREEMENT
DEFINITIONS LIST
Attached.
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DEFINITIONS LIST
Unless otherwise defined therein, the capitalized terms used in the
documents listed below shall have the meanings set forth in the Definitions List
below.
1. Purchase and Contribution Agreement, dated as of June 27, 1997 (the
"Originator Purchase Agreement"), between the Originator and
Funding, as the same may be amended, restated, supplemented or
otherwise modified from time
to time.
2. Lease Receivables Purchase Agreement, dated as of June 27, 1997 (the
"EagleFunding Purchase Agreement"), among Funding, as "Seller",
EagleFunding as "Purchaser", the Originator as "Servicer" and
"Custodian" and the Deal Agent, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
3. Fee Letter Agreement, dated as of June 27, 1997 (the "Fee Letter"),
among the Originator, Funding, EagleFunding and the Deal Agent, as
the same may be amended, restated, supplemented or otherwise
modified from time to time.
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"Adjusted Base Rate" means, on any date, a per annum rate of
interest equal to the sum of the Base Rate on such date and 0.0%.
"Adjusted Eurodollar Rate" means, with respect to any Purchase
Period for all Capital allocated to such Purchase Period, an interest rate per
annum equal to the sum of a per annum rate equal to 0.50% and the Eurodollar
Rate with respect to such Purchase Period.
"Administration Agreement" means that certain Amended and Restated
Administration Agreement, dated as of October 25, 1996, between EagleFunding and
BSI (as assignee of Bank of Boston), as the same may be amended, supplemented,
or otherwise modified from time to time.
"Administrative Fee" has the meaning assigned to such term in the
Fee Letter.
"Administrator" means BSI, in its capacity as "Administrator" under
the Administration Agreement (as assignee of Bank of Boston), and any successor
thereto in such capacity.
"Advance" means an "Advance" funded to EagleFunding under the
Liquidity Agreement.
"Adverse Claim" means a lien, security interest, charge, encumbrance
or other right or claim of any Person, other than Permitted Encumbrances.
"Affiliate" means, with respect to any Person, a Person: (i) that
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such Person; (ii) that
beneficially owns or holds 5% or more of any class of the voting stock (or, in
the case of a Person that is not a corporation, 5% or more of the equity
interest) of such Person; or (iii) 5% or more of the voting stock (or, in the
case of a Person that is not a corporation, 5% or more of the equity interest)
of which is beneficially owned or held, directly or indirectly, by such Person.
The term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting stock or an equity interest, by
contract, or otherwise.
"Affiliated Obligor" means any Obligor which is an Affiliate of
another Obligor.
"Aggregate Reserves" means, on any day, an amount equal to the sum
of (i) the Loss Reserve as computed in the most recent Settlement Report and
(ii) the Excess Concentration Reserve as computed in the most recent Settlement
Report.
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"Agreement" means the EagleFunding Purchase Agreement.
"Alternative Rate" means, with respect to any Purchase Period for
all Capital allocated to such Purchase Period, an interest rate per annum equal
to the Adjusted Eurodollar Rate or the Adjusted Base Rate as the Seller shall
select in accordance with the terms of this Agreement; provided, however, that
the "Alternative Rate" for such Capital allocated to such Purchase Period shall
be the Adjusted Base Rate if (a) on or before the first day of such Purchase
Period, a Purchaser shall have notified the Deal Agent that a Eurodollar
Disruption Event has occurred, (b) such Purchase Period is a period of 1 to 29
days or (c) such Capital is less than $1,000,000.
"Bank of Boston" means BankBoston, N.A., a national banking
association, and any successor thereto.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. Section 101 et seq.), as amended from time to time, or any successor
statute.
"Base Rate" means, on any date, a fluctuating rate of interest per
annum equal to the higher of (a) the per annum rate of interest announced from
time to time by Bank of Boston at its head office in Boston, Massachusetts as
its "base rate", and (ii) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance which bears interest at the
Base Rate.
"Benefit Plan" means a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which the
Originator or any ERISA Affiliate is, or at any time within the immediately
preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BSI" means BancBoston Securities Inc., a Massachusetts
corporation, and any successor thereto.
"Business Day" means any day other than a Saturday, Sunday or public
holiday or the equivalent for banks in New York City or Boston, Massachusetts;
provided that, when used in connection with any Eurodollar Rate Advance or other
matters concerning the Eurodollar Rate, the term "Business Day" means any such
day on which dealings are carried on in the London interbank market and on which
banks are open for business in London, England.
"Buyer" means HPSC Capital Funding, Inc., a Delaware corporation, in
its capacity as "Buyer" under the Originator Purchase Agreement.
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"Capital" means the original amount paid to the Seller for each
Receivables Purchase under the EagleFunding Purchase Agreement pursuant to
Sections 2.01 and 2.02 of the EagleFunding Purchase Agreement, reduced from time
to time by Collections received and distributed on account of such Capital
pursuant to Section 2.04 thereof. If either EagleFunding or the Deal Agent is
required (or believes in good faith that it is required) by law to repay (as a
preference or otherwise) to any Obligor, the Originator, the Seller, a Lock-Box
Bank, a trustee for any Obligor, the Originator or the Seller, a court or any
other Person, any amount that previously caused a reduction in Capital, then
Capital shall be reinstated by the amount of such repayment and the Seller will
indemnify and hold EagleFunding or the Deal Agent harmless for the amount of
such repayment, interest thereon required (or believed in good faith by
EagleFunding or the Deal Agent to be required) to be paid in connection
therewith and all losses, liabilities, costs and expenses related thereto
(including but not limited to reasonable attorneys' fees and expenses).
"Capital Limit" means, on any day, (A) the Discounted Eligible
Receivables Balance on such day minus (B) the Aggregate Reserves on such day.
"Carrying Costs" means, at any time, the aggregate amount of (i) all
accrued and unpaid Yield, fees, premiums and other expenses owing by the Seller
to EagleFunding, the Deal Agent, the Swap Providers and/or the Servicer
(including, without limitation, all fees owed under the Fee Letter, collateral
audit fees and expenses, the Servicing Fee, the Liquidity Fee, and the
Administrative Fee) plus (ii) all ordinary course operating expenses incurred by
the Seller during such calendar month (including rent, salaries, professional
fees and expenses incurred in connection therewith).
"Carrying Costs Percentage" means a percentage, calculated as of the
last day of each month equal to the sum of (i) the sum of the per annum rates
used to calculate the Servicing Fee, the Administrative Fee and the Liquidity
Fee described in the Fee Letter plus (ii) a fraction (expressed as a percentage)
the numerator of which equals Carrying Costs described in clause (ii) of the
definition thereof which were incurred during the calendar month then ending and
the denominator of which equals the sum of the average amount of Capital
outstanding during such month.
"Certificate" means a certificate of assignment, substantially in
the form of Exhibit L to the Originator Purchase Agreement, evidencing the
assignment by the Originator to the Seller of the Transferred Assets.
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"Collateral Agent" means Bankers Trust Company, a New York banking
corporation, in its capacity as "Collateral Agent" pursuant to the Liquidity
Agreement and the Liquidity Security Agreement, and any successor "Collateral
Agent" thereunder.
"Collection Account" means that account defined as such in Section
6.11 of the EagleFunding Purchase Agreement.
"Collection Account Bank" means the bank maintaining
the Collection Account.
"Collection Date" means the date following the Termination Date on
which (i) the aggregate outstanding Capital has been reduced to zero and (ii)
EagleFunding and the Deal Agent have received all accrued Yield, fees and other
amounts payable under the EagleFunding Purchase Agreement and the other Facility
Documents.
"Collections" means, with respect to any Purchased Asset or other
Receivable, as applicable, all cash collections and other cash proceeds of such
Purchased Asset or Receivable, including, without limitation, all cash proceeds
of Related Security related thereto, and in the case of any Purchased Assets,
all cash collections of any Purchased Receivables included therein, and, in
either such case, any Collection of such Purchased Asset or Receivable deemed to
have been received pursuant to Section 2.04 of the EagleFunding Purchase
Agreement (it being understood that the Seller shall pay, or shall cause the
Originator to pay, all such deemed Collection amounts to EagleFunding by
depositing the amount thereof into the Lock-Box Account).
"Commercial Paper" means the short-term promissory notes of
EagleFunding denominated in dollars, issued by EagleFunding in connection with
the transactions contemplated by the Facility Documents, including any portion
of such short-term promissory notes that are identified on the books and records
of EagleFunding as issued in respect of the transactions contemplated by the
Facility Documents.
"Contract" means each Lease, Equipment Finance Agreement, Practice
Finance Loan or Non-Equipment Finance Agreement or other agreement or instrument
which is purported to be transferred to Funding under the Originator Purchase
Agreement, whether by purchase or contribution to Funding's capital, as
identified on Exhibit A of the Originator Purchase Agreement, as such exhibit
may be supplemented from time to time in connection with any subsequent Purchase
as described in Section 2.02(b) of the Originator Purchase Agreement.
"Contract File" means, with respect to each Contract, the following
documents:
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(i) The executed original counterpart of each Contract that
constitutes "chattel paper" under 9-105(1)(b) of the UCC or that
constitutes an "instrument" for purposes of 9-105(1)(i) of the UCC;
(ii) Any evidence of insurance and any other documents evidencing or
related to any insurance policy maintained by the related Obligor pursuant
to the Contract that covers physical damage to the Equipment;
(iii) If the related Contract is a Lease, copies of such documents,
if any, indicating that the Equipment was, as of the date such Contract
arose, owned by the Originator (or if originated by a Person other than
the Originator, owned by such Person and assigned to the Originator at the
time as the related Contract is assigned to the Originator) and kept on
file by the Originator in accordance with its customary procedures
relating to such type of Contract, such Obligor and such item of
Equipment; and
(iv) Copies (if available) of UCC financing statements filed by the
Originator with respect to the related Equipment or, if no such copies are
available, other documentary evidence confirming the filing thereof.
"Contract Payment" means each periodic installment payable by an
Obligor under a Contract for rent, principal and/or interest, excluding all
supplemental or additional payments required by the terms of such Contract with
respect to sales or other taxes, insurance, maintenance, ancillary products and
services and other specific charges.
"Contract Payment Date" means, with respect to any Contract, each
date on which a Contract Payment is or becomes due and payable thereunder.
"CP Dealer Fee" means, on any day, the fees payable to the Dealer in
respect of any Commercial Paper.
"CP Disruption" means the inability of EagleFunding, at any time,
whether as a result of a prohibition or any other event or circumstance
whatsoever, to raise funds through the issuance of its commercial paper notes
(whether or not constituting Commercial Paper as defined above) in the United
States commercial paper market.
"Credit and Collection Policy" means those credit and collection
policies and practices relating to the Contracts and the Receivables described
in Exhibit D of the Originator Purchase Agreement, as modified in compliance
with Section 5.03(c).
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"Custodian" means the Person appointed from time to time as
"Custodian" by the Deal Agent under Section 6.12 of the EagleFunding Purchase
Agreement (as of the date of the effectiveness of the EagleFunding Purchase
Agreement, the Custodian shall be the Servicer).
"Custodian Fee" means that portion of the Servicing Fee which is
allocated for the account of the Custodian as compensation for its duties
hereunder in the event that the Custodian is not the Servicer, as the Seller,
the Servicer, the Deal Agent and the Custodian may from time to time agree.
"DCR" means Duff & Phelps Credit Rating Co., and any successor
thereto.
"Deal Agent" means BSI, in its capacity as Deal Agent pursuant the
EagleFunding Purchase Agreement, and any successor Deal Agent thereunder.
"Dealer" means any dealer or placement agent in respect
of the Commercial Paper.
"Default Ratio" means the ratio (expressed as a percentage),
computed as of the last day of each month by dividing (i) two times the
aggregate Outstanding Balance of all Purchased Receivables that became Defaulted
Receivables or were written off the books of the Purchaser as uncollectible
during the six-month period then ending by (ii) the average aggregate
Outstanding Balances of all Purchased Receivables during such six-month period.
"Defaulted Receivable" means a Purchased Receivable at any time: (i)
as to which any Scheduled Contract Payment or part thereof is unpaid for more
than 180 days from its original due date, (ii) as to which the Obligor thereof
has taken any action, or suffered any event to occur, of the type described in
the definition of Insolvency Event or (iii) which, consistent with the Credit
and Collection Policy, has been or should be written off the Originator's or the
Seller's books (as the case may be) as uncollectible.
"Delinquency Ratio" means the ratio (expressed as a percentage),
computed as of the last day of each month, by dividing (i) the aggregate
Outstanding Balance of all Purchased Receivables which became Delinquent
Receivables during the month then ending, by (ii) the sum of the aggregate
Outstanding Balances of all Purchased Receivables as of the last day of the
third month next preceding such month (so that, for example, the Delinquency
Ratio calculated as of June 30th would have a denominator equal to the sum of
the Outstanding Balances of all Purchased Receivables as of March 31st).
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"Delinquent Receivable" means a Purchased Receivable that is not a
Defaulted Receivable and (i) as to which any Scheduled Contract Payment or part
thereof, is unpaid for more than 90 days from its original due date or (ii)
which, consistent with the Credit and Collection Policy, has been or should be
classified as delinquent by the Originator.
"Designated Receivable" means a Purchased Receivable identified by
Funding to EagleFunding as a "Designated Receivable" pursuant to Section 2.02(a)
of the EagleFunding Purchase Agreement.
"Designated Termination Date" means the date of the declaration or
automatic occurrence of the Termination Date pursuant to Section 7.01 of the
Originator Purchase Agreement or Section 7.02 of the EagleFunding Purchase
Agreement.
"Dilution Factors" means with respect to the Purchased Receivables,
any credits, rebates, freight charges, cash discounts, volume discounts,
cooperative advertising expenses, royalty payments, warranties, cost of parts
required to be maintained by agreement (whether express or implied), allowances,
disputes, chargebacks, returned or repossessed goods, inventory transfers,
allowances for early payments and other allowances that are made or coordinated
with the Originator's usual practices.
"Discount Rate" means, with respect to any Receivable, the discount
rate used to calculate the aggregate Discounted Value of the Scheduled Contract
Payments payable under the related Contract as of the last day of the month
immediately preceding the month in which such Receivable was acquired from the
Originator. The Discount Rate for the Receivables so acquired on any date shall
be a rate equal to the sum of (i) the interest rate per annum quoted to the
Seller by the Swap Provider as the rate at which such Swap Provider is willing
to enter into an Interest Rate Hedge pursuant to which the Seller will pay a
fixed rate of interest calculated in conjunction with an Interest Rate Hedge
amortization prepared by the Seller and which complies with Section 5.01(n) of
the EagleFunding Purchase Agreement, and in return shall receive a floating
interest rate (calculated against the same principal amount) approximately equal
to the Eurodollar Rate, plus (ii) the Carrying Costs Percentage at such time;
provided, that the Seller may, at its option, with respect to the Receivables
transferred on any Settlement Date, designate a rate which is higher than the
rates calculated above to be the "Discount Rate" for such Receivables.
"Discounted Eligible Receivables Balance" means, as of any date of
determination, the aggregate of the Discounted Values for all Eligible
Receivables.
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"Discounted Receivables Balance" means, as of any date of
determination, the aggregate of the Discounted Values for all Purchased
Receivables.
"Discounted Value" means, with respect to any Receivable, the
present value of the aggregate amount of the remaining Scheduled Contract
Payments under the Contract relating thereto, with such aggregate amount
discounted to present value using the Discount Rate for such Scheduled Contract
Payments and a payment schedule as of the first day of each month commencing
with the first day of the month in which the Discounted Value is calculated and
assuming that each Scheduled Contract Payment is paid on the last Business Day
of the month in which such Scheduled Contract Payment is due; it being
understood that the Discounted Value for that portion of any Receivable which
constitute payments or charges excluded from the definition of Contract Payment
or which constitute the price for a purchase option shall be zero.
"DOL" means the United States Department of Labor and any successor
department or agency.
"EagleFunding" means EagleFunding Capital Corporation, a Delaware
corporation.
"EagleFunding Purchase Agreement" means the Lease Receivables
Purchase Agreement, dated as of June 27, 1997, among Funding, as Seller,
EagleFunding, as Purchaser, HPSC, as Servicer and Custodian, and BSI, as Deal
Agent, as the same may be amended, restated, supplemented or otherwise modified
from time to time.
"Eligible Obligor" means, at any time, an Obligor who is (x) a
licensed professional dental, medical or veterinary practitioner, or (y) a
corporation or similar entity engaged in a dental, medical or veterinary
practice, and which is licensed and/or qualified, as appropriate, in each
jurisdiction in which the nature of its practice would require such license or
qualification, and which (i) is not an Affiliate of the Seller or the
Originator; (ii) is not the subject of any Insolvency Proceeding; (iii) is not a
Identified Obligor, (iv) is a United States resident; (v) is not the United
States of America nor any state, or other local governmental agency, or any
department, agency or instrumentality thereof and (vi) is not an Obligor of any
Defaulted Receivable.
"Eligible Receivable" means, at any time, a Purchased Receivable:
(i) the Obligor of which is an Eligible Obligor;
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(ii) which is not a Delinquent Receivable or a Defaulted Receivable;
(iii) which, according to the Contract under which such Receivable
arises, is required to be paid in full within 84 months of the original
commencement date of such Contract (or such longer period as may be
consented to by the Deal Agent;
(iv) which, if arising under a Lease or a Equipment Finance Agreement
arises under a Contract pursuant to which the Equipment related thereto
has been installed and accepted by the related Obligor;
(v) [reserved];
(vi) which is either an "account" (as defined in Section 9-106 of the
UCC) or "chattel paper" (as defined in Section 9-105 of the UCC) or an
"instrument" (as defined in Section 9-105 of the UCC) as in effect in any
jurisdiction which has adopted Article 9 of the UCC and, if the Contract
is chattel paper, then there is only one counterpart of the Contract that
constitutes "chattel paper" for purposes of Section 9-105(l)(b) and 9-308
of the UCC;
(vii) which is denominated and payable only in United States
dollars in the United States;
(viii) which arises under a Contract which has been duly
authorized and which is in full force and effect and constitutes the
legal, valid and binding obligation of the Obligor enforceable against
such Obligor in accordance with its terms and is not subject (at the time
each determination of eligibility is made hereunder) to any dispute,
offset or counterclaim whatsoever;
(ix) which, together with the Contract related thereto, does not
contravene in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and regula
tions relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no party to the Contract related
thereto is in violation of any such law, rule or regulation applicable to
such Contract in any material respect;
(x) which has not been compromised, adjusted, rewritten or otherwise
modified (including by extension
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of time for payment or the granting of any discounts, allowances or
credits) for any reason unless such modification constitutes a Permitted
Extension;
(xi) which, (A)satisfies all applicable requirements of the Credit
and Collection Policy and (B) which is freely assignable and arises under
a Contract which is also freely assignable;
(xii) with respect to which, (A) prior to the Receivables Purchase
thereof, Funding has a first priority ownership interest therein, free and
clear of any Adverse Claim, and (B) from and after the Receivables
Purchase thereof, EagleFunding has a first priority ownership therein,
free and clear of any Adverse Claim;
(xiii) which arises under a Contract, none of the parties to which
have done or failed to do anything which would or might permit any other
party thereto to terminate such Contract or to suspend or reduce any
payments or obligations due or to become due thereunder;
(xiv) which does not constitute a "consumer lease" under the UCC;
(xv) which, if it arises under a Lease, such Lease requires the
Obligor to maintain insurance against loss or damage to the Equipment
subject to such Lease under an insurance policy which names the Originator
or the Seller as loss payee and which interest as loss payee has been
transferred to the Seller pursuant to the Originator Purchase Agreement
and to the Deal Agent pursuant to the EagleFunding Purchase Agreement;
(xvi) which arises under a Contract, no portion of which has been,
or is subject to rejection, early termination or non-assumption, prior to
the original term of such Contract, except, in the case of a Practice
Finance Loan, pursuant to a provision therein requiring payment of a
Termination Amount upon any such rejection, early termination or
non-assumption;
(xvii) which arises under a Contract that requires payments to be
made on a regular periodic basis (which basis shall be no less frequently
that monthly) and which payments, in the case of any Lease, do not
represent the payment of interim rents;
(xviii) which arises under a Contract that requires the Obligor to
be in possession of any Equipment subject thereto and does not permit the
subleasing of such Equipment to any
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other Person, and which Equipment is not in fact then subleased to any
Person;
(xix) to the extent that the amounts thereon are not payable on
account of sales taxes;
(xx) as to which the Deal Agent has not notified the Originator that
the Deal Agent has determined, in its reasonable discretion, that such
Receivable (or class of Receivables) is not acceptable for eligibility
hereunder (which notice shall state the reason(s) the Deal Agent has
elected to make such determination);
(xxi) which was originated by the Originator in the ordinary course
of its business;
(xxii) the Contract for which is either (A) a Lease in substantially
the form of Exhibit K-1 to the Originator Purchase Agreement; or (B) a
Equipment Finance Agreement in substantially the form of Exhibit K-2 to
the Originator Purchase Agreement; or (C) a Non-Equipment Finance
Agreement in substantially the form of Exhibit K-3 to the Originator
Purchase Agreement; or (D) a Practice Finance Loan in substantially the
form of Exhibit K-4 to the Originator Purchase Agreement;
(xxiii) with respect to which the Originator has filed and maintained
the effectiveness of UCC financing statements against the Obligor in order
to perfect any security interest granted under such Contract in the
related Equipment, provided that the failure to file or maintain the
effectiveness of any financing statements for an otherwise Eligible
Receivable whose Outstanding Balance is less than $5,000 shall, so long as
such failure is permitted by Section 5.01(j) of the EagleFunding Purchase
Agreement, not cause such Receivable to become ineligible;
(xxiv) the Contract for which was originated no earlier than December
1, 1993;
(xxv) the Obligor of which has been notified of the Seller's interest
as required under the Originator Purchase Agreement;
(xxvi) with respect to which the Contract File has been delivered to
the Custodian as contemplated under the EagleFunding Purchase Agreement;
(xxvii) with respect to which the Originator has marked the related
Contract with a legend, acceptable to the Deal
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Agent, evidencing that EagleFunding has acquired an ownership interest
therein; and
(xxviii) with respect to which the representations and warranties
contained in clauses (i) (ii) (iv) and (v) of Section 4.01(r) of the
Originator Purchase Agreement are true and correct in all material
respects and with respect to which all other representations and
warranties contained in such Section 4.01(r) are true and correct in all
material respects as of the date or dates therein made, in each such case
as if such representations and warranties were made with respect to the
Purchased Receivables only.
"Equipment" means each item of equipment that is the subject of a
Contract, including all parts, accessions and modifications thereto and all
replacements thereof.
"Equipment Finance Agreement" means a finance agreement
substantially in the form of Exhibit K-2 to the Originator Purchase Agreement,
evidencing an Obligor's indebtedness to the Originator on account of a loan
other than a Practice Finance Loan, the collateral securing repayment of which
constitutes primarily Equipment.
"ERISA" means the U.S. Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" means any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the IRC) as the Originator; (ii) partnership or other trade or business (whether
or not incorporated) under common control (within the meaning of Section 414(c)
of the IRC) with the Originator or (iii) member of the same affiliated service
group (within the meaning of Section 414(m) of the IRC) as the Originator, any
corporation described in clause (i) above or any partnership or other trade or
business described in clause (ii) above.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate" means, with respect to any Purchase Period for all
Capital allocated to such Purchase Period, an interest rate per annum equal to
the quotient, stated as a percentage, of (i) the per annum rate determined by
the Deal Agent at which Dollar deposits for such Purchase Period are offered by
Bank of Boston based on information presented on Telerate Page 3750 as of 11:00
a.m. London time on the second Business Day prior to the first day of such
Purchase Period,
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divided by (ii) a number equal to 1.00 minus the Eurodollar Reserve Percentage,
if applicable.
"Eurodollar Rate Advance" means an Advance which bears interest at a
rate per annum calculated by reference to the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day with respect to a
Purchase Period to which Capital has been allocated under the EagleFunding
Purchase Agreement, means the maximum rate (expressed as a decimal) at which any
lender subject thereto would be required to maintain reserves under Regulation D
of the Board of Governors of the Federal Reserve System (or any successor or
similar regulations relating to such reserve requirements) against Eurocurrency
Liabilities, if such liabilities were Outstanding. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in the maximum rate described above.
"Event of Termination" has the meaning assigned to that term in
Section 7.01 of the Originator Purchase Agreement.
"Excess Concentration Reserve" means, on any day, an amount equal to
the sum of:
(a) the aggregate amount of the Excess Obligor Concentration Amounts
for all Obligors on such day;
(b) the amount by which the aggregate Outstanding Balance of all
Eligible Receivables which constitute Non-Equipment Finance Agreements on
such day exceeds 35% of the Discounted Eligible Receivables Balance on
such day;
(c) the amount by which the aggregate Outstanding Balance of all
Eligible Receivables which constitute Practice Finance Loans on such day
exceeds 10% of the Discounted Eligible Receivables Balance on such day;
and
(d) the amount by which the aggregate Outstanding Balance on such day
of all Eligible Receivables owing from Obligors which are the Obligors of
Eligible Receivables having an aggregate Outstanding Balance of greater
than $250,000 exceeds 30% of the Discounted Eligible Receivables Balance
on such day.
"Excess Obligor Concentration Amount" means, on any day, for any
Obligor, the amount by which the aggregate Outstanding Balances of Eligible
Receivables owing by such Obligor at such time exceeds:
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(i) an amount equal to $300,000 (at any time during which the
Discounted Eligible Receivables Balance is less than or equal to $20,000,000);
and
(ii) the lesser of (x) the product of 1.50% and the Discounted
Eligible Receivables Balance on such day, and (y) $1,000,000 (at all other
times).
"Facility Documents" means, collectively, the Originator Purchase
Agreement, the EagleFunding Purchase Agreement, the Lock-Box Agreements, the
Liquidity Agreement, the Liquidity Security Agreement, the Interest Rate Hedge
Assignment and all Interest Rate Hedges and all other agreements, financing
statements, documents and instruments delivered pursuant thereto or in
connection therewith, in each case as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day for such transactions received by Bank of
Boston from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain fee letter, dated as of June 27,
1997, among Funding, EagleFunding, and the Deal Agent, as the same may be
amended, supplemented, restated or otherwise modified from time to time.
"Funding" means HPSC Capital Funding, Inc., a Delaware corporation.
"GAAP" means generally accepted accounting principles as in effect
from time to time and applied on a basis consistent with the audited financial
statements described in Section 4.01(e) of the Originator Purchase Agreement.
"HPSC" means HPSC, Inc., a Delaware corporation.
"Identified Obligor" means, at any time, any Obligor of whom the Deal
Agent has, following three Business Days' notice, advised the Originator that
such Obligor shall be considered an "Identified Obligor".
"Indebtedness" of any Person means (i) indebtedness of such Person
for borrowed money, (ii) obligations of such Person evidenced by bonds,
debentures, notes or other similar
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instruments, (iii) obligations of such Person to pay the deferred purchase price
of property or services, (iv) obligations of such Person as lessee under leases
which shall have been or should be, in accordance with GAAP, recorded as capital
leases, (v) obligations secured by any lien or other charge upon property or
assets owned by such Person, even though such Person has not assumed or become
liable for the payment of such obligations, (vi) obligations of such Person in
connection with any letter of credit issued for the account of such Person and
(vii) obligations of such Person under direct or indirect guaranties in respect
of, and obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (vi)
above.
"Indemnified Party" has the meaning assigned to such term in Section
8.01 of the EagleFunding Purchase Agreement.
"Insolvency Event" means with respect to any Person, any of the
following events: such Person shall generally not pay its debts as such debts
become due or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any case or
proceeding shall be instituted by or against such Person seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, dissolution, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property.
"Insolvency Proceeding" means any proceeding of the sort described in
the definition of Insolvency Event.
"Interest Rate Hedge Assignment" means an assignment in substantially
the form of Exhibit F to the EagleFunding Purchase Agreement pursuant to which
the Seller assigns to the Deal Agent all of its rights to payment under the
Interest Rate Hedges.
"Interest Rate Hedges" means interest rate swap or similar agreements
entered into by the Seller with the Swap Provider to provide protection to, or
minimize the impact upon, the Seller and EagleFunding of increasing interest
rates under the EagleFunding Purchase Agreement.
"Interim Financials" has the meaning assigned to that term in Section
4.01(e) of the Originator Purchase Agreement.
"IRC" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor statute.
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18
"IRS" means the Internal Revenue Service of the United States of
America.
"Lease" means a lease agreement between the Originator and an Obligor
substantially in the form of Exhibit K-1 to the Originator Purchase Agreement,
pursuant to which the Originator originally leased Equipment to such Obligor.
"Liquidity Agent" means Bank of Boston in its capacity as the
"Liquidity Agent" for the Liquidity Providers under the Liquidity Agreement, or
any successor "Liquidity Agent" thereto.
"Liquidity Agreement" means that certain Liquidity Agreement dated as
of June 27, 1997, by and among EagleFunding, as Borrower, the Liquidity
Providers party thereto, the Liquidity Agent, and the Collateral Agent as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"Liquidity Providers" means the financial institutions party to the
Liquidity Agreement as "Liquidity Providers" thereunder.
"Liquidity Security Agreement" means that certain Liquidity Security
Agreement dated as of June 27, 1997, by and between EagleFunding and the
Collateral Agent, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Lock-Box Account" means an account maintained at a Lock-Box Bank for
the purpose of receiving Collections.
"Lock-Box Agreement" means an agreement, in substantially the form of
Exhibit G to the Originator Purchase Agreement, among the Originator, the
Seller, the Deal Agent and a Lock-Box Bank which agreement sets forth the rights
of the Deal Agent, the Originator, the Seller and the Lock-Box Bank with respect
to the disposition and application of the Collections received into the
applicable Lock-Box Account, including, without limitation, the right of the
Deal Agent to direct the Lock-Box Bank to remit all Collections of Transferred
Assets subject to a Purchase under the Originator Purchase Agreement directly to
the Deal Agent.
"Lock-Box Bank" means any of the banks holding one or more lock-box
accounts for receiving Collections from the Receivables.
"Loss Reserve" means, on any day, an amount equal to the greater of:
(a) the product of (i) 13.63% and (ii) Capital outstanding
on such day; or
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(b) $1,000,000.
"Moody's" means Moody's Investors Service, Inc., and any successor
thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Originator or any ERISA Affiliate.
"Non-Designated Receivable" means a Purchased Receivable identified
by Funding to EagleFunding as a "Non-Designated Receivable" pursuant to Section
2.02(a) of the EagleFunding Purchase Agreement.
"Non-Equipment Finance Agreement" means a finance agreement
substantially in the form of Exhibit K-3 to the Originator Purchase Agreement,
evidencing an Obligor's indebtedness to the Originator on account of a loan
other than a Practice Finance Loan, the collateral securing repayment of which
does not constitute primarily Equipment.
"Notice of Assignment" means a Notice of Assignment in substantially
the form of Exhibit B to the Originator Purchase Agreement.
"Obligations" means all present and future indebtedness and other
liabilities and obligations (howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, or due or to become due) of the
Seller to EagleFunding, the Deal Agent and/or the Indemnified Parties, arising
under or in connection with the EagleFunding Purchase Agreement or the
transactions contemplated hereby and shall include, without limitation, all
liability for Yield, closing fees, audit fees, expense reimbursements,
indemnifications, and other amounts due or to become due under the Facility
Documents, including, without limitation, interest, fees and other obligations
that accrue after the commencement of an Insolvency Proceeding (in each case
whether or not allowed as a claim in such Insolvency Proceeding).
"Obligor" means each Person obligated to make payments under a
Contract.
"Originator" means HPSC.
"Originator Purchase Agreement" means that certain Purchase and
Contribution Agreement, dated as of June 27, 1997, between the Originator and
Funding, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Originator Purchase Assets" means all right, title and interest of
Funding in, to and under the Originator Purchase
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20
Agreement, including, without limitation, all obligations due and to become due
to Funding from the Originator under or in connection therewith, whether
constituting fees, expenses, costs, indemnities, insurance recoveries, damages
for breach or otherwise, and all rights, remedies, powers, privileges and claims
of Funding against the Originator under or with respect to the Originator
Purchase Agreement.
"Other Taxes" has the meaning assigned to such term in Section
2.09(b) of the EagleFunding Purchase Agreement.
"Outstanding Balance" means, with respect to any Purchased Receivable
at any time, the Discounted Value of the remaining Scheduled Contract Payments
under the related Contract, as such amounts are adjusted as a result of any of
the events described in Section 2.05 of the Originator Purchase Agreement.
"Payment Date" means, with respect to any Capital, the last day of
the Purchase Period then applicable to such Capital.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Permitted Encumbrance" means any of the following:
(a) liens, charges or other encumbrances for taxes and other
governmental assessments which are not yet due and payable;
(b) workers', mechanics', suppliers', carriers', warehousemen's,
landlords' liens and deposits, pledges or liens to secure statutory
obligations, surety or appeal bonds or other liens of like general
nature incurred in the ordinary course of business and not in
connection with the borrowing of money, provided in each case, the
obligation secured is not overdue or, if overdue, is being contested
in good faith by appropriate actions or proceedings, and provided,
further, that such liens do not, in the reasonable opinion of the
Seller, materially detract from the value of the Contract or the
Equipment subject thereto;
(d) liens, charges or encumbrances created in favor of the Seller
pursuant to the Originator Purchase Agreement or in favor of the Deal
Agent, or otherwise granted to EagleFunding or to a Liquidity Provider in
the Facility Documents; or
(e) with respect to Equipment, liens thereon created in favor of the
Originator pursuant to a Contract and assigned to the Seller pursuant to
the Originator Purchase Agreement.
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"Permitted Extension" means an extension of a Scheduled Contract
Payment in the ordinary course of business for reasons unrelated to an Obligor's
creditworthiness for a period not to exceed 2 months.
"Permitted Investments" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof having maturities on or before the first Settlement Date
after the date of acquisition; (ii) time deposits and certificates of deposit
having maturities on or before the first Settlement Date after the date of
acquisition, maintained with or issued by any commercial bank having capital and
surplus in excess of $500,000,000 and having the highest commercial paper rating
available by each of S&P, Moody's and DCR (if rated by DCR); (iii) money market
funds which have the highest applicable rating available by each of S&P, Moody's
and DCR (if rated by DCR); (iv) repurchase agreements having maturities on or
before the first Settlement Date after the date of acquisition for underlying
securities of the types described in clauses (i) and (ii) above or clause (v)
below with any institution with the highest long term debt rating and commercial
paper rating available by each of S&P, Moody's and DCR (if rated by DCR); and
(v) commercial paper maturing on or before the first Settlement Date after the
date of acquisition and having the highest commercial paper rating available by
each of S&P, Moody's and DCR (if rated by DCR).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, government (or any agency or political subdivision thereof) or other
entity.
"Plan" means an employee benefit plan defined in Section 3(3) of
ERISA in respect of which the Originator or any ERISA Affiliate is, or within
the immediately preceding six years was, an "employer" as defined in Section
3(5) of ERISA.
"Post Office Box" means each post office box to which Obligors are
directed to mail payments in respect of the Receivables.
"Practice Finance Loan" means a note or instrument substantially in
the form of Exhibit K-4 to the Originator Purchase Agreement, evidencing an
Obligor's indebtedness to the Originator on account of a loan made to finance
working capital needs of such Obligor, in connection with such Obligor's
professional dental, medical or veterinary practice.
"Purchase" means a purchase (whether by means of cash payment or by
capital contribution) of Transferred Assets to Funding from the Originator
pursuant to Sections 2.01 and 2.02 of the Originator Purchase Agreement.
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22
"Purchase Date" means, with respect to any Purchase, the date on
which such purchase occurs.
"Purchase Limit" means, as of any date of determination, the lesser
of (i) $100,000,000, as such amount may be reduced pursuant to Section 2.03 of
the EagleFunding Purchase Agreement, and (ii) an amount requested by the Seller
and agreed to by the Deal Agent. Notwithstanding anything in the foregoing
sentence to the contrary, at all times on and after the Termination Date, the
"Purchase Limit" shall mean the aggregate outstanding Capital at such time.
"Purchased Assets" (i) at all times prior to the Termination Date,
(a) all then outstanding Purchased Receivables, (b) all Related Security
relating to such Purchased Receivables and (c) all Collections with respect to,
and other proceeds of, such Receivables; and (ii) at all times on and after the
Termination Date, (a) all Purchased Receivables outstanding as of the close of
business on the day preceding the Termination Date (including any interest or
finance charges accruing after the Termination Date which relate to any
Purchased Receivables outstanding as of the close of business on the day
preceding the Termination Date), (b) all Related Security relating to such
Purchased Receivables and (c) all Collections with respect to, and other
proceeds of, such Receivables.
"Purchased Interests" means, at any time, all then out standing
Purchased Assets, Originator Purchase Assets, payments owing to Funding or the
Deal Agent (as applicable) under Interest Rate Hedges relating to Purchased
Assets, and all Collections with respect to, and other proceeds of, the
Purchased Assets, including, without limitation, all Collections of a Purchased
Asset relating to payments due thereunder at any time during the month in which
such Purchased Asset became a Purchased Asset.
"Purchase Period" means, with respect to any outstanding Capital, a
period selected in accordance with Section 2.02 and Section 2.07 of the
EagleFunding Purchase Agreement.
Such Purchase Period shall be:
(i) if such Capital is funded through the issuance of Commercial
Paper, a period of from 1 to 60 days;
(ii) if such Capital is funded through Base Rate Advances, a period
of from 1 to 31 days;
(iii) if such Capital is funded through Eurodollar Rate Advances, a
period of one, two or three months;
provided, however, that
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(x) whenever the last day of a Purchase Period would otherwise occur
on a day other than a Business Day, the last day of such Purchase Period
shall be extended to occur on the next succeeding Business Day, unless
such extension would cause the last day of a Purchase Period described in
clause (iii) above to occur in the next following calendar month, in which
event the last day of such Purchase Period shall be deemed to occur on the
immediately preceding Business Day;
(y) whenever a Purchase Period described in clause (iii) above
commences on the last Business Day in a month or on a date for which there
is no numerically corresponding day in the month in which such Purchase
Period would otherwise end, the last day of such Purchase Period shall
occur on the last Business Day of the month in which such Purchase Period
ends; and
(z) no Purchase Period described in clause (iii) above may end later
than the Scheduled Termination Date.
"Purchased Receivables" means all Receivables purchased by
EagleFunding pursuant to the EagleFunding Purchase Agreement.
"Purchaser" means EagleFunding.
"Receivable" means all rights to payment arising under a Contract,
including, without limitation, (i) Contract Payments, including, but not limited
to, any rent, principal or interest payments, (ii) Termination Payments and
(iii) Residual Realizations, together with all supplemental or additional
payments required by the terms of such Contract with respect to insurance,
maintenance, ancillary products and services and other specific charges.
"Receivables Purchase" means a purchase of Receivables by
EagleFunding from the Seller pursuant to Sections 2.01 and 2.02 of the
EagleFunding Purchase Agreement.
"Receivables Purchase Date" means, with respect to any Receivables
Purchase, the date on which such Receivables Purchase is funded, which date,
other than in the case of the initial Receivables Purchase, shall be a
Settlement Date.
"Records" means all Contracts and other documents, books, records
and other information (including without limitation, computer programs, tapes,
discs, punch cards, data processing software and related property and rights)
maintained with respect to Contracts and the related Obligors.
"Related Security" means with respect to any Contract:
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(i) all security interests or liens and property subject thereto from
time to time purporting to secure payment of the Receivables arising under
such Contract, whether pursuant to such Contract or otherwise;
(ii) the assignment to Funding, and to the Deal Agent, of all UCC
financing statements covering any Equipment or covering any collateral
securing payment of the Receivables arising under such Contract;
(iii) all guarantees, indemnities, warranties, letters of credit,
insurance policies and proceeds and premium refunds thereof and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of the Receivables arising under such
Contract whether pursuant to the Contract related to such Receivable or
otherwise;
(iv) all of the Originator's right, title and interest in, to and
under the Equipment related to such Contract, whether as an ownership
interest, as collateral security, or which was repossessed from an Obligor
of a Receivable, to the extent that the Outstanding Balance of such
Receivable remains unpaid;
(v) all Records; and
(vi) all Collections and other proceeds of the foregoing, including,
without limitation, all insurance and condemnation proceeds and all
security deposits related to the relevant Equipment.
"Reportable Event" means any of the events described in Section 4043
of ERISA.
"Residual Realization" means, with respect to any Equipment, the
amount received or receivable by Funding or the Servicer upon the sale or other
disposition of the Equipment, whether from the Obligor upon the exercise of any
purchase option or from a sale or from insurance proceeds or otherwise.
"Revolving Credit Agreement" means the Revolving Credit Agreement
dated December 12, 1996, as amended as of March 26, 1997 and June 26, 1997, by
and among HPSC as borrower, American Commercial Finance Corporation, a Delaware
corporation, Bank of Boston, Bank of America Illinois, NationsBank, N.A.,
CoreStates Bank, N.A., The Sumitomo Bank, Limited (collectively, the "Banks"),
and Bank of Boston as managing agent for the Banks, as such agreement may be
amended, restated, supplemented or otherwise modified from time to time
hereafter.
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"Scheduled Contract Payments" means the Contract Payments due under
each Contract, as set forth in the appendix to Exhibit A of the Originator
Purchase Agreement (including any supplement to such exhibit delivered under
Section 2.02(b) thereof and also including any modification to such appendix as
the result of any modification, waiver or amendment to any Contract undertaken
in conformity with the Originator Purchase Agreement), excluding, however, (i)
in the case of any Contract which is not a Lease, starting with the final
Contract Payment owed thereunder and proceeding in reverse order of maturity,
the Contract Payments (or portions thereof) equal to any security deposit
related to such Contract and (ii) any Contract Payment that is due more than 84
months after the Original commencement date of such Contract. The term
"Scheduled Contract Payment" does not include any Contract Payment which is
payable in respect of any Residual Realization or which otherwise reflects the
residual value of the related Equipment.
"Scheduled Liquidity Commitment Termination Date" has the meaning
assigned to that term in the Liquidity Agreement.
"Scheduled Termination Date" means June 27, 2000.
"Seller" means HPSC Capital Funding, Inc., a Delaware corporation, in
its capacity as "Seller" under the EagleFunding Purchase Agreement.
"Servicer" has the meaning assigned to that term in Section 6.01 of
the EagleFunding Purchase Agreement.
"Servicing Fee" has the meaning assigned to that term in Section 6.08
of the EagleFunding Purchase Agreement.
"Servicing Termination Event" means either of the following events:
(a)(i) An Insolvency Event shall occur with respect to the Servicer
or the Custodian or (ii) the Servicer or the Custodian shall take any corporate
action to authorize the filing of any Insolvency Proceeding; or
(b) There shall have occurred a failure on the part of the Servicer
to observe or perform any of its duties or obligations as Servicer under the
EagleFunding Purchase Agreement or as "Servicer" under the Originator Purchase
Agreement, as determined by the Deal Agent in the exercise of its reasonable
judgment; or
(c) In the event that the Servicer is the Originator, an "Event of
Default" shall have occurred under the Revolving Credit Agreement, and either
(i) such event shall continue
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uncured and unwaived thereunder for more than 45 days after the occurrence
thereof, or (ii) the "Agent" under the Revolving Credit Agreement shall have
accelerated the maturity of the Indebtedness of the Originator thereunder or
exercised any of its other remedies thereunder (as appropriate).
"Settlement Date" means the 20th day of each month; provided, that if
in any month such day is not a Business Day, the "Settlement Date" for such
month shall be the first Business Day to occur after such 20th day.
"Settlement Report" means a report, in substantially the form of
Exhibit C to the Originator Purchase Agreement, furnished by the Originator to
the Seller pursuant to Section 2.05(b) thereof and to the Deal Agent pursuant to
Section 5.02(f) of the EagleFunding Purchase Agreement.
"Structuring Fee" has the meaning assigned to such term in the Fee
Letter.
"S&P" means Standard & Poor's Ratings Services, and any successor
thereto.
"Stop Event" means the occurrence of, without giving effect to any
waiver thereof, (i) a Wind-Down Event of the type described in Section 7.01(h)
of the EagleFunding Purchase Agreement, (ii) the occurrence of the acceleration
of all of EagleFunding's Indebtedness to the Liquidity Providers under the
Liquidity Agreement as the result of the occurrence of an "Event of Default"
thereunder or any similar occurrence, or (iii) an Insolvency Event with respect
to the Servicer (if the Servicer is the Originator or an Affiliate thereof). For
purposes of the Administration Agreement, the three Stop Events described in the
foregoing sentence shall be the sole Stop Events under this Agreement.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the Board of Directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successor Servicer" means any Person which succeeds to the
Originator as the Servicer in accordance with the terms and provisions of the
EagleFunding Purchase Agreement.
"Swap Provider" means Bank of Boston or such other financial
institution reasonably acceptable to the Deal Agent which enters into an
Interest Rate Hedge with the Seller, provided that the Swap Provider must at all
times be a nationally recognized financial institution having a long-term debt
rating
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of at least A by S&P, at least A2 by Moody's, and at least A by DCR (if rated by
DCR).
"Taxes" has the meaning assigned to such term in Section 2.10(a) of
the EagleFunding Purchase Agreement.
"Termination Amount" means, with respect to any Contract which has
been prepaid or otherwise terminated prior to its stated maturity or termination
date, an amount equal to the then Outstanding Balance payable thereunder plus
the reasonable costs incurred in connection with such prepayment or termination,
including but not limited to the reasonable costs of any lien terminations and
similar expenses.
"Termination Date" means the earliest of (i) that Business Day which
the Originator designates as the Termination Date by notice to Funding and the
Deal Agent at least 60 days prior to such Business Day, (ii) that Business Day
which Funding designates as the Termination Date by notice to the Originator and
the Deal Agent at least 60 days prior to such Business Day, (iii) the date of
the declaration or automatic occurrence of the Termination Date pursuant to
Section 7.01 of the Originator Purchase Agreement, or Section 7.02 of the
EagleFunding Purchase Agreement, (iv) the date on which the "Liquidity
Commitments" of the Liquidity Providers under the Liquidity Agreement shall
terminate, and (v) the Scheduled Termination Date.
"Termination Payment" means any amount or amounts payable by an
Obligor upon termination or prepayment of a Contract prior to the payment of all
Contract Payments.
"Transferred Assets" means, at any time, Receivables, the related
Contracts, the related Equipment, all Related Security with respect to the
foregoing and all Collections with respect to, and other proceeds of, the
foregoing.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the State of New York, except that, with respect to the perfection or
priority of any security interest created under the UCC, the term "UCC" means
the Uniform Commercial Code as in effect in the jurisdiction whose law governs
the perfection and effect of perfection or non-perfection of such security
interest.
"Unmatured Event of Termination" means any event which, with the
giving of notice or the passage of time or both, would constitute an Event of
Termination.
"Unmatured Wind-Down Event" means any event which, with the giving of
notice or the passage of time or both, would constitute a Wind-Down Event.
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"Weighted Average Remaining Term" means the weighted average
remaining maturities of the Purchased Assets calculated to equal (i) the
aggregate amount of the remaining Scheduled Contract Payments of each Purchased
Receivable times the remaining term of such Purchased Receivable (expressed in
years, or fractions thereof), divided by (ii) the aggregate amount of the
remaining Scheduled Contract Payments of all the Purchased Receivables (each
such calculation to include, for purposes of calculating the Weighted Average
Remaining Term on any Settlement Date, any Purchased Receivables to be purchased
on such date).
"Wind-Down Event" has the meaning assigned to such term in Section
7.01 of the EagleFunding Purchase Agreement.
"Yield" means, with respect to all Capital during any Purchase
Period, the product of
YR x C x ED
--
AD
where:
C = the Capital allocated to such Purchase Period.
YR = the Yield Rate for the Capital allocated to such Purchase
Period.
ED = the actual number of days elapsed during such Purchase Period.
AD = 360; provided, however, that if the applicable Yield Rate is
the Base Rate, then AD = 365 or 366 days, as applicable, for
the current year.
provided, however that (i) no provision of this Agreement shall require the
payment or permit the collection of Yield in excess of the maximum permitted by
applicable law and (ii) Yield shall not be considered paid by any distribution
if at any time such distribution is rescinded or must otherwise be returned for
any reason.
"Yield Rate" for any Capital allocated to any Purchase Period means:
(i) at all times during which a Wind-Down Event is not in effect:
(a) to the extent that as of the first day of such Purchase
Period, EagleFunding funds such Capital, or portion thereof, for such
Purchase Period by issuing
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Commercial Paper, the rate (or if more than one rate, the weighted average
of the rates) at which Commercial Paper of EagleFunding having a term
equal to such Purchase Period and to be issued to fund the Purchase or
maintenance of such Capital by EagleFunding may be sold by any Dealer
selected by EagleFunding, as agreed between each such Dealer and
EagleFunding and notified by EagleFunding to the Deal Agent, including an
increment to such rate sufficient in amount to enable the Purchaser to
collect all amounts of CP Dealer Fees payable in respect of all Commercial
Paper issued for the term of such Purchase Period; provided, however, if
the rate (or rates) as agreed between any such Dealer and EagleFunding
with regard to any Purchase Period for any Capital is a discount rate (or
rates), the "Yield Rate" for such Purchase Period shall be the rate (or if
more than one rate, the weighted average of the rates) resulting from
converting such discount rate (or rates) to an interest-bearing equivalent
rate (or rates) per annum; provided further, however, that EagleFunding
shall not fund Capital by issuing Commercial Paper for any Purchase Period
if, on the first day of such Purchase Period, a Stop Event or a Wind Down
Event shall then be in effect; or
(b) to the extent that as of the first day of such Purchase
Period, EagleFunding funds or maintains such Capital, or portion thereof,
for such Purchase Period through the making of Base Rate Advances, a per
annum rate equal to the Adjusted Base Rate for such Purchase Period or
such other rate as the Deal Agent and the Seller shall agree to in
writing; or
(c) to the extent that as of the first day of such Purchase
Period, EagleFunding funds or maintains such Capital, or portion thereof,
for such Purchase Period through the making of Eurodollar Rate Advances
under the Liquidity Agreement, a per annum rate equal to the Adjusted
Eurodollar Rate for such Purchase Period; and
(ii) at all times during which a Wind-Down Event is in effect, the sum of
(a) the applicable rate for such Capital as determined pursuant to any of
subclauses (a), (b) and (c) of clause (i) above, and (b) a per annum rate equal
to 2.0%.
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