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EXECUTION COPY
EXHIBIT 10.44
AMENDMENT NO. 3 AND CONSENT
to
LEASE RECEIVABLES PURCHASE AGREEMENT [HPSC]
Dated as of June 27, 1997
THIS AMENDMENT NO. 3 AND CONSENT (this "Amendment") dated as of December
__, 2000, is entered into among HPSC CAPITAL FUNDING, INC., a Delaware
corporation ("▇▇▇▇▇"), as Seller (the "Seller"), EAGLEFUNDING CAPITAL
CORPORATION, a Delaware corporation ("EFCC"), as Purchaser (the "Purchaser"),
HPSC, INC., a Delaware corporation ("HPSC"), as Servicer (the "Servicer") and as
Custodian (the "Custodian"), ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC. (formerly known as
BancBoston Securities Inc.) as the current "Deal Agent" (the "Old Deal Agent")
and FLEET SECURITIES, INC. as the new "Deal Agent" (the "New 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 and as further amended pursuant to Amendment
No.2 dated as of April 30, 1998 (the "Receivables Purchase Agreement").
In connection with a proposed securitization transaction (the
"Transaction") to be entered into among HPSC, HPSC Equipment Receivables 2000-1
LLC I, a Delaware limited liability company and a wholly owned subsidiary of
HPSC ("LLCI") and HPSC Equipment Receivables 2000-1 LLC II, a Delaware limited
liability company and a wholly owned subsidiary of HPSC ("LLCII"), it is
contemplated that (i) EFCC will transfer certain Purchased Leases and related
property to ▇▇▇▇▇ pursuant to the terms of the Conduit Assignment Agreement
dated as of December __, 2000 among HPSC, ▇▇▇▇▇ and EFCC, a copy of which is
attached hereto as EXHIBIT A (the "Conduit Assignment Agreement"), (ii) ▇▇▇▇▇
will transfer certain Purchased Leases and related property to LLCI pursuant to
the terms of the Receivables Transfer Agreement dated as of December __, 2000,
by and among LLCI and LLCII as Issuers, HPSC as Servicer, HPSC and American
Commercial Finance Corporation as Originators and Transferors, and HPSC Bravo
Funding Corp. and HPSC Capital Funding, Inc., as Transferors, a copy of which is
attached hereto as EXHIBIT B (the "General Assignment Agreement"), and (iii)
▇▇▇▇▇ will transfer certain other Purchased Leases and related property to LLCII
pursuant to the terms of the General Assignment Agreement (the Conduit
Assignment Agreement and the General Assignment Agreement are sometimes referred
to herein, collectively, as the "Assignment Agreements").
In addition, the Old Deal Agent wishes to assign and delegate to the New
Deal Agent, and the New Deal Agent wishes to acquire and accept from the Old
Deal Agent, all of the
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right, title and interest, and the liabilities, obligations and duties, of the
"Deal Agent" in, to and under the Receivables Purchase Agreement.
The Seller, the Servicer and the Custodian have agreed with the New Deal
Agent, the Old Deal Agent and the Purchaser to make amendments to the
Receivables Purchase Agreement in order to give effect to the Transaction and
the other actions and modifications described in the foregoing paragraphs. Each
of the parties hereto has consented to such proposed amendments, as hereinafter
set forth.
SECTION 1. AMENDMENT AND CONSENT
(a) The parties hereto consent to the entry of each of EFCC and ▇▇▇▇▇ into
each of the Assignment Agreements to which it is a party, the participation of
each of EFCC and ▇▇▇▇▇ in the Transactions and the performance by each of EFCC
and ▇▇▇▇▇ of each of its respective obligations under each of the relevant
Assignment Agreements to which it is a party. In addition, the Receivables
Purchase Agreement is hereby amended to permit each of EFCC and ▇▇▇▇▇ to enter
into each of the Assignment Agreements to which it is a party and to require (i)
EFCC to assign and release its interests in certain Purchased Leases and related
property identified in the Conduit Assignment Agreement in favor of ▇▇▇▇▇
pursuant to the terms thereof, upon the receipt by EFCC and the "Release Amount"
thereunder, (ii) ▇▇▇▇▇ to assign and release its interests in certain Purchased
Leases and related property identified in the General Assignment Agreement in
favor of LLCI pursuant to the terms thereof, upon the receipt by ▇▇▇▇▇ of the
purchase price payable by LLCI to ▇▇▇▇▇ thereunder, and (iii) ▇▇▇▇▇ to assign
and release its interests in certain Purchased Leases and related property
identified in the General Assignment Agreement in favor of LLCII pursuant to the
terms thereof, upon the receipt by ▇▇▇▇▇ of the purchase price payable by LLCII
to ▇▇▇▇▇ thereunder.
(b) The Receivables Purchase Agreement is hereby amended to replace
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. (formerly known as BancBoston Securities Inc.) as the
"Deal Agent" with Fleet Securities, Inc., and Fleet Securities, Inc. shall
succeed to and become vested with all the rights, powers, privileges and duties
of the Deal Agent thereunder, and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. shall be discharged
from its duties and obligations as Deal Agent thereunder. Each of the parties
hereto waives any requirement of advance notice of such replacement. Upon the
effectiveness of this Amendment, the provisions of ARTICLE IX of the Receivables
Purchase Agreement shall continue in effect for the benefit of the Old Deal
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Deal Agent.
(c) Each reference in the Receivables Purchase Agreement to "DCR," or "DUFF
& ▇▇▇▇▇▇ CREDIT RATING CO." shall be deemed to be a reference to Fitch, Inc.
("Fitch"), and any rating category of Duff & ▇▇▇▇▇▇ Credit Rating Co. referenced
therein shall be deemed to be a reference to the corresponding rating category
of Fitch.
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become effective as
of the date hereof upon receipt by the New 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 each of the Assignment Agreements,
executed by each of the parties thereto, (iii) each of the deliveries required
to be made under each such Assignment Agreement on the "Closing Date"
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thereof, and (iv) written conformation from each of ▇▇▇▇▇'▇, Fitch and S&P of
the rating of the commercial paper notes of EFCC, after giving effect to the
Transaction and the amendments contemplated hereby.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SELLER, THE
SERVICER AND THE CUSTODIAN.
(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 Surviving Termination
Event, is in effect or is continuing, or will be in effect or be continuing
either before or after giving effect to the transactions anticipated hereby and
by the Assignment Agreements.
(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 EFCC 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.
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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 any other purpose.
SECTION 8. FEES AND EXPENSES. The Seller hereby confirms its agreement to
pay, or cause to be paid, on demand all reasonable costs and expenses in
connection with the preparation, execution and delivery of this Amendment, each
of the Assignment Agreements and any of the other instruments, documents and
agreements to be executed and/or delivered in connection herewith or therewith,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel to the New Deal Agent with respect thereto.
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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:
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Title:
Sixty ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
HPSC, INC., as Servicer and as Custodian
By:
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Title:
By:
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Title:
Sixty ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Vice President, Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC., as Old Deal
Agent
By: Fleet Securities, Inc., as its
attorney-in-fact
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
DIRECTOR
c/o Fleet Securities, Inc.
l00 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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FLEET SECURITIES, INC., as New Deal Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
DIRECTOR
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
EAGLEFUNDING CAPITAL CORPORATION
By: Fleet Securities, Inc., as its
attorney-in-fact
By /s/ [illegible signature]
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Title:
c/o Fleet Securities, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Lord Securities Corporation
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇