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Exhibit 10.35
EXECUTION COPY
CONSENT
to
AMENDED AND RESTATED
LEASE RECEIVABLES PURCHASE AGREEMENT
THIS CONSENT (this "Consent") dated as of December 20, 2000, is entered
into among HPSC BRAVO FUNDING CORP., a Delaware corporation ("Bravo"), as Seller
(the "Seller"), TRIPLE-A ONE FUNDING CORPORATION, a Delaware corporation
("Triple-A"), as Purchaser (the "Purchaser"), HPSC, INC., a Delaware corporation
("HPSC"), as Servicer (the "Servicer"), CAPITAL MARKETS ASSURANCE CORPORATION
("CapMAC"), as the Administrative Agent and the Collateral Agent (the
"Administrative Agent" and the "Collateral 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 Purchaser,
the Administrative Agent and the Collateral Agent are parties to that certain
Amended and Restated Lease Receivables Purchase Agreement dated as of March 31,
2000, as amended through the date hereof (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) Triple-A will release its interest in certain Purchased
Receivables and related property to Bravo pursuant to the terms of the Release
Agreement dated as of December 20, 2000 among HPSC, Bravo, Triple-A and CapMAC,
a copy of which is attached hereto as EXHIBIT A (the "Release Agreement"), and
(ii) Bravo will transfer certain Purchased Receivables and related property to
LLCI or LLCII pursuant to the terms of the Receivables Transfer Agreement dated
as of December 1, 2000 among Bravo, LLCI, LLCII and certain other entities, a
copy of which is attached hereto as EXHIBIT B (the "Receivables Transfer
Agreement", the "Receivables Transfer Agreement" and the Release Agreement are
sometimes referred to herein, collectively, as the "Assignment Agreements").
The Seller, the Servicer, the Administrative Agent and the Collateral Agent
have agreed with the Purchaser to effect the Transaction and the other actions
and modifications described in the foregoing paragraph. Each of the parties
hereto has consented to such proposed Transaction, as hereinafter set forth.
SECTION 1. CONSENT. The parties hereto consent to the entry of each of
Triple-A and Bravo into each of the Assignment Agreements to which it is a
party, the participation of each of Triple-A and Bravo in the Transaction and
the performance by each of Triple-A and Bravo of each of its respective
obligations under each of the relevant Assignment Agreements to
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which it is a party. In addition, the Receivables Purchase Agreement is hereby
amended to permit each of Triple-A and Bravo to enter into each of the
Assignment Agreements to which it is a party and to require (i) Triple-A to
release its interests in certain Purchased Receivables and related property
identified in the Release Agreement pursuant to the terms thereof, upon the
receipt by Triple-A of the "Release Amount" thereunder, and (ii) Bravo to assign
its interests in certain Initial Conveyed Assets identified and defined in the
Receivables Transfer Agreement pursuant to the terms thereof, upon the receipt
by Bravo of the purchase amount payable to Bravo thereunder. Notwithstanding
anything to the contrary herein, the parties hereto do not consent to any
assignment of any assets by Bravo other than the assignment on the date hereof
of the Initial Conveyed Assets (as defined in the Receivables Transfer
Agreement).
SECTION 2. CONDITIONS PRECEDENT. This Consent shall become effective as of
the date hereof upon receipt by the Administrative Agent or its counsel of (i)
counterpart signature pages of this Consent, executed by each of the parties
hereto, (ii) counterpart signature pages of each of the Assignment Agreements,
executed by each of the parties thereto, and (iii) each of the deliveries
required to be made under each such Assignment Agreement on the "Closing Date"
thereof.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
SERVICER.
(a) Upon the effectiveness of this Consent, each of the Seller and the
Servicer 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, 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 and the Servicer hereby represents and warrants that
this Consent 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 Consent, (i) each reference in the
Receivables Purchase Agreement to the "Triple-A 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.
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(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 Consent shall not
operate as a waiver of any right, power or remedy of the Administrative Agent,
the Collateral 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 Consent 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 Consent shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. HEADINGS. Section headings in this Consent 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 Consent, 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 Administrative Agent with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
HPSC BRAVO FUNDING CORP., as Seller
By: /s/ [illegible signature]
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Title: Chairman
Sixty ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
HPSC, INC., as Servicer
By: /s/ [illegible signature]
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Title: VP, CFO
By:
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Title:
Sixty ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Vice President, Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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TRIPLE-A ONE FUNDING CORPORATION,
as Purchaser
By: Capital Markets Assurance Corporation,
as its attorney-in-fact
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Head of Exposure Management
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
CAPITAL MARKETS ASSURANCE
CORPORATION,
as Administrative Agent and Collateral Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Head of Exposure Management
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
signature page 2 to
Consent