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EXHIBIT 10.4
AMENDMENT NO. 2
to
LEASE RECEIVABLES PURCHASE AGREEMENT
Dated as of June 27, 1997
THIS AMENDMENT NO. 2 ("Amendment") dated as of April 30, 1998, is
entered into 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"). Capitalized terms used
herein without definition shall have the meanings ascribed thereto in the
"Receivables Purchase Agreement" referred to below.
PRELIMINARY STATEMENTS. Each of the Seller, the Servicer, the
Custodian, the Purchaser and the Deal Agent are parties to that certain Lease
Receivables Purchase Agreement dated as of June 27, 1997, as amended pursuant to
Amendment No.1 dated as of January 30, 1998 (the "Receivables Purchase
Agreement").
The Seller, the Servicer and the Custodian have agreed with the
Deal Agent and the Purchaser to make an amendment to the Receivables Purchase
Agreement. Each of the parties hereto has consented to such proposed amendment,
as hereinafter set forth.
SECTION 1. AMENDMENT TO THE RECEIVABLES PURCHASE AGREEMENT. The
Receivables Purchase Agreement is, effective as of the date first written above
and subject to the satisfaction of the conditions precedent set forth in Section
2 hereof, hereby amended to delete the reference to "$100,000,000" in the
definition of the term "Purchase Limit" set forth in Appendix A of the
Receivables Purchase Agreement, and to replace the same with a reference to
"$150,000,000".
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective as of April 30, 1998 upon receipt by the Deal Agent or its counsel of
(i) counterpart signature pages of this Amendment, executed by each of the
parties hereto, (ii) counterpart signature pages of Amendment No. 1 to the
Liquidity Agreement, dated as of April __, 1998, executed by each of the parties
thereto, and (iii) written confirmation from each of Moody's, DCR and S&P of the
rating of the commercial paper notes of EagleFunding, after giving effect to the
amendments contemplated by this Amendment and Amendment No. 1 to the Liquidity
Agreement.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
SELLER AND THE SERVICER.
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(a) Upon the effectiveness of this Amendment, each of the Seller,
the Servicer and the Custodian hereby (i) reaffirms all covenants,
representations and warranties made by it in the Receivables Purchase Agreement
to the extent the same are not amended hereby, (ii) agrees that all such
covenants, representations and warranties shall be deemed to have been re-made
as of the effective date of this Amendment, and (iii) represents and warrants
that no Event of Termination, Unmatured Event of Termination, Wind-Down Event,
Unmatured Wind-Down Event, Servicing Termination Event or event which with the
giving of notice or the passage of time or both would constitute a Servicing
Termination Event, is in effect or is continuing.
(b) Each of the Seller, the Servicer and the Custodian hereby
represents and warrants that this Amendment constitutes its legal, valid and
binding obligation, enforceable against such Person in accordance with its
terms.
SECTION 4. REFERENCE TO AND EFFECT ON THE FACILITY DOCUMENTS.
(a) Upon the effectiveness of this Amendment, (i) each reference
in the Receivables Purchase Agreement to "this EagleFunding Purchase Agreement",
"this Agreement", "hereunder", "hereof", "herein" or words of like import shall
mean and be a reference to the Receivables Purchase Agreement, as amended
hereby, and (ii) each reference to the Receivables Purchase Agreement in any
other Facility Document or any other document, instrument or agreement executed
and/or delivered in connection therewith, shall mean and be a reference to the
Receivables Purchase Agreement as amended hereby.
(b) Except as specifically amended above, the terms and
conditions of the Receivables Purchase Agreement, of all other Facility
Documents and any other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Deal Agent or
the Purchaser under the Receivables Purchase Agreement or any other Facility
Document or any other document, instrument or agreement executed in connection
therewith, nor constitute a waiver of any provision contained therein, in each
case except as specifically set forth herein.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. HEADINGS. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for
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any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized as of the
date first above written.
HPSC CAPITAL FUNDING, INC.
By: /s/ John W. Everets
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Title: President
Sixty State Street
35th Floor
Boston, MA 02109-1803
Attn: President
Telecopy: (617) 720-7299
HPSC, INC., as Servicer and as Custodian
By: /s/ John W. Everets
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Title: Chairman and CEO
By: /s/ John W. Everets
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Title: Chairman and CEO
Sixty State Street
35th Floor
Boston, MA 02109-1803
Attn: Vice President, Finance
Telecopy: (617) 720-7272
EAGLEFUNDING CAPITAL CORPORATION
By: BancBoston Securities Inc., its
attorney-in-fact
By: /s/ Mitchell B. Feldman
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Title: Managing Director
100 Federal Street
Boston, MA 02110
Mail Stop: 01-09-02
Attn: Mitchell Feldman
Telecopy: (617) 434-1533
BANCBOSTON SECURITIES INC., as Deal Agent
By: /s/ Mitchell R. Feldman
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Title: Managing Director
100 Federal Street
Boston, MA 02110
Mail Stop: 01-09-02
Attn: Mitchell Feldman
Telecopy: (617) 434-1533