EXHIBIT 10.5
RECEIVABLES INTEREST PURCHASE AGREEMENT
THIS RECEIVABLES INTEREST PURCHASE AGREEMENT, dated as of
August 5, 2002 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "ING PURCHASE AGREEMENT"), is entered into by
and among HPSC BRAVO FUNDING, LLC, a Delaware limited liability company, as
Seller (the "Seller"), HPSC, INC., a Delaware corporation, as Servicer (the
"SERVICER"), TRIPLE-A ONE FUNDING CORPORATION, a Delaware corporation
("TRIPLE-A"), BNY ASSET SOLUTIONS LLC, a Delaware limited liability company, as
back-up servicer (the "Back-up Servicer"), ING CAPITAL LLC ("ING"), a Delaware
limited liability company and CAPITAL MARKETS ASSURANCE CORPORATION, a New York
stock insurance company ("CAPMAC"), as "Collateral Agent" and as "Administrative
Agent" under the Triple-A Purchase Agreement defined below.
W I T N E S S E T H:
WHEREAS, Triple-A has agreed to purchase from the Seller the
Purchased Assets pursuant to the terms of that certain Second Amended and
Restated Lease Receivables Purchase Agreement, dated as of August 5, 2002, among
the Seller, the Servicer, Triple-A and CapMAC (as amended from time to time, the
"TRIPLE-A PURCHASE AGREEMENT"); and
WHEREAS, Triple-A desires to sell an interest in the Purchased
Assets to ING pursuant to the terms hereof and to use the proceeds therefrom to
reduce the Deferred Purchase Price;
NOW, THEREFORE, the Seller, the Servicer, Triple-A and ING
have agreed to the transfer of the ING Receivables Interest as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINITIONS. As used in this ING
Purchase Agreement or any certificate or other document made or delivered
pursuant hereto or thereto, the capitalized terms used herein and therein shall,
unless otherwise defined herein or therein, have the meanings assigned to them
in the Definitions List attached hereto as Appendix A, the terms of which are
incorporated herein by reference (the "DEFINITIONS LIST").
SECTION 1.02. ACCOUNTING TERMS. As used herein and in any
certificate or other document made or delivered pursuant hereto and thereto,
accounting terms not defined in the Definitions List and accounting terms partly
defined in the Definitions List to the extent not defined, shall have the
respective meanings given to them under GAAP.
SECTION 1.03. OTHER TERMS. (a) All other undefined terms
contained in this ING Purchase Agreement shall, unless the context indicates
otherwise, have the meanings provided for by the UCC to the extent the same are
used or defined therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this ING Purchase Agreement shall refer to
this ING Purchase Agreement as a whole and not to any particular
provision of this ING Purchase Agreement, and Section, subsection,
Schedule and Exhibit references are to this ING Purchase Agreement
unless otherwise specified.
(c) Capitalized terms used herein shall be equally applicable
to both the singular and plural forms of such terms.
SECTION 1.04. COMPUTATION OF TIME PERIODS. In this ING
Purchase Agreement, in the computation of periods of time from a specified date
to a later specified date, the word "from" shall mean "from and including" and
the words "to" and "until" shall each mean "to but excluding."
ARTICLE II
AMOUNT AND TERMS OF THE PURCHASES
SECTION 2.01. RECEIVABLES PURCHASE FACILITY. ING shall,
subject to the terms and conditions hereinafter set forth, make purchases from
Triple-A and the Seller of ING Receivables Interests from time to time on any
ING Receivables Interest Purchase Date during the period from the date the
conditions precedent in SECTION 3.01 are first satisfied to the ING Amortization
Date. Under no circumstances shall ING make any ING Receivables Interest
Purchase if, after giving effect to such ING Receivables Interest Purchase, (a)
the aggregate outstanding ING Capital hereunder would exceed the least of (i)
the ING Facility Limit or (ii) the ING Capital Limit, or (b) the aggregate
outstanding Combined Capital would exceed the least of (i) the Combined Facility
Limit or (ii) the Combined Capital Limit. The Capital Limit and Combined Capital
Limit in effect on any date shall be determined by reference to the most recent
Settlement Report delivered by the Seller to Triple-A and ING in accordance with
SECTION 5.02(f) of the Triple-A Purchase Agreement (i) as adjusted (A) on the
most recent Settlement Date to reflect additional Eligible Receivables sold on
such Settlement Date since the delivery of such Settlement Report and (B) on the
most recent ING Receivables Interest Purchase Date to reflect any additional ING
Receivable Interest Purchase since the delivery of such Settlement Report, and
(ii) as adjusted on any other date of determination to eliminate from the
Discounted Eligible Receivables Balance any Receivables which were Eligible
Receivables as of the dates reflected in the Settlement Report but which no
longer satisfy the criteria for Eligible Receivables.
SECTION 2.02. MAKING PURCHASES OF RECEIVABLES INTERESTS.
(a) SALE NOTICE. Whenever the Seller wishes to have ING
Receivables Interests sold to ING, it shall deliver to ING, with a copy
to the Collateral Agent and the Administrative Agent, a notice ("ING
SALE NOTICE") in substantially the form of EXHIBIT A hereto no later
than 10:00 A.M. (New York City time) on the second Business Day
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immediately prior to the proposed ING Receivables Interest Purchase
Date, with a copy to Triple-A. Each ING Sale Notice shall be by
telephone, telex, telecopy, cable or other facsimile transmission (in
the case of any such Sale Notice by telephone, confirmed immediately in
writing) and shall specify therein (i) the aggregate initial ING
Capital to be funded in connection with such ING Receivables Interest
Purchase, (ii) the date of such ING Receivables Interest Purchase and
(iii) the amount, if any, to be funded pursuant to the Triple-A
Purchase Agreement on such date.
(b) AMOUNT OF PURCHASED ASSETS; DEFERRED PURCHASE PRICE. The
consideration for each ING Receivables Interest Purchase shall consist
of ING Capital funded under this ING Purchase Agreement. The amount of
the Deferred Purchase Price under the Triple-A Purchase Agreement for
the Purchased Assets shall be reduced pursuant to the Triple-A Purchase
Agreement to reflect each related ING Receivables Interest Purchase.
(c) FUNDING. ING shall, before 3:00 P.M. (New York City time)
on the proposed ING Receivables Interest Purchase Date of each ING
Receivables Interest Purchase, subject to the applicable conditions set
forth in ARTICLE III, on behalf of Triple-A, make available to the
Seller a wire transfer of such funds in accordance with the Seller's
written wire transfer instructions.
(d) CHARACTERIZATION. It is the express intent of the parties
hereto that the conveyance of the ING Receivables Interest by Triple-A
to ING be construed as a sale of the ING Receivables Interest by
Triple-A to ING and not as a pledge of the ING Receivables Interest by
Triple-A to ING to secure a debt or other obligation of Triple-A.
However, if, notwithstanding the aforementioned intent of the parties,
the ING Receivables Interest is held to be property of Triple-A, then,
(a) it is the express intent of the parties that such conveyance be
deemed a pledge of the ING Receivables Interest by Triple-A to ING to
secure a debt or other obligation of Triple-A, and (b) (i) this
Agreement shall also be deemed to be a security agreement within the
meaning of Article 9 of the Uniform Commercial Code of the applicable
jurisdiction, and (ii) the conveyance provided for herein shall be
deemed to be a grant by Triple-A to ING of a security interest in all
of Triple-A's right, title and interest in and to the ING Receivables
Interest, and all amounts payable to the holder of the ING Receivables
Interest in accordance with the terms thereof, and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property. Triple-A shall take such
actions, at the expense of the Seller and ING, as may be necessary to
ensure that, if this Agreement were deemed to create a security
interest in the ING Receivables Interest, such security interest would
be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of
this Agreement. Triple-A does hereby consent to the filing by ING of
financing statements to perfect the transactions contemplated hereby
without the signature of Triple-A.
SECTION 2.03. REDUCTION OF ING CAPITAL. (a) On each Settlement
Date, subject to SECTION 5.01, the amount required to be distributed to ING
pursuant to clause (ii) of SECTION 2.04 hereof in reduction of ING Capital shall
be an amount equal to the excess of ING Capital over the ING Capital Limit, such
that, following the application of such payments to outstanding ING Capital, the
ING Capital Limit equals or exceeds the outstanding ING Capital.
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(b) Immediately upon the consummation of a sale of securities
by or on behalf of the Seller or an Affiliate thereof, secured, in
whole or in part, by all or a portion of the Purchased Assets, the
entire outstanding amount of ING Capital shall be due and payable to
ING, PROVIDED, however, that, if the proceeds of such sale are not
sufficient to pay all amounts due under the Triple-A Purchase Agreement
in connection therewith, the funds shall be paid to the Collateral
Agent for distribution in accordance with SECTION 6.11 of the Triple-A
Purchase Agreement and such payment shall be subject to the priority of
payments and other terms described in SECTION 5.01.
SECTION 2.04. PAYMENT DATE ALLOCATIONS. On each Settlement
Date, the Administrative Agent shall, subject to SECTION 5.01, distribute to
ING, the ING Yield and other ING Obligations, to the extent payable pursuant to
SECTION 6.11 of the Triple-A Purchase Agreement, to be applied by ING as
follows:
(i) To pay ING Yield;
(ii) To repay ING Capital; and
(iii) To pay any other ING Obligations which may be due and
owing at such time.
SECTION 2.05. PAYMENTS AND COMPUTATIONS, ETC. All amounts to
be distributed by the Administrative Agent hereunder shall, subject to SECTION
5.01, be distributed by the Administrative Agent pursuant to SECTION 6.11 of the
Triple-A Purchase Agreement in immediately available funds to ING not later than
2:00 P.M. (New York City time) on the date on which payable. Payments received
by ING after such time shall be deemed to have been received on the next
Business Day.
SECTION 2.06. ING TRIGGER EVENTS. Each of the following events
shall constitute an "ING TRIGGER EVENT" within the meaning of this ING Purchase
Agreement:
(a) On any Settlement Date, the Default Ratio is greater
than 1.5%; or
(b) On any Settlement Date, the Delinquency Ratio is
greater than 1.5%; or
(c) On any Settlement Date, the ING 180 Day Delinquency
Ratio is greater than 4.000%.
PROVIDED, THAT, an ING Trigger Event shall be deemed to be cured and no longer
continuing if both the Default Ratio and the Delinquency Ratio are less than or
equal to 1.5% and the ING 180 Day Delinquency Ratio is less than or equal to
4.000%, as computed on each of three consecutive Settlement Dates following an
ING Trigger Event, and no other ING Trigger Event or any ING Wind-Down Event has
occurred and no ING Amortization Date has occurred, and is continuing.
SECTION 2.07. INCREASED COSTS, CAPITAL ADEQUACY.
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(a) If, after the date hereof due to either (i) the
introduction of or any change in or to the interpretation of any law or
regulation by the governmental authority that promulgated or
administers compliance with such law or regulation (other than laws or
regulations with respect to income taxes) or (ii) the compliance with
any guideline or request from any central bank or other governmental
authority or similar agency (whether or not having the force of law),
and ING's asset-supported financing business, any reserve or deposit or
similar requirement shall be imposed, modified or deemed applicable or,
any basis of taxation shall be changed or any other condition shall be
imposed, and there shall be any increase in the cost to ING of making,
funding or maintaining ING Receivables Interest Purchases or in the
cost to ING of agreeing to make, fund or maintain ING Receivables
Interest Purchases, then the Seller shall from time to time, upon
demand by ING by the submission of the certificate described below, but
subject to SECTION 5.01, pay to ING additional amounts sufficient to
compensate ING for such increased cost. A certificate setting forth in
reasonable detail the amount of such increased cost submitted to the
Seller by ING (as applicable) shall be conclusive and binding for all
purposes, absent manifest error.
(b) If ING determines that compliance with any law or
regulation or any guideline or request or any written interpretation
from any central bank or other governmental authority or similar agency
(whether or not having the force of law) which is introduced,
implemented or received by ING after the date hereof, affects or would
affect capital adequacy or the amount of capital required or expected
to be maintained by ING or any corporation controlling ING and that the
amount of such capital is increased by or based upon this ING Purchase
Agreement or has or would have the effect of reducing the rate of
return on capital, then, upon demand by ING by the submission of the
certificate described below, the Seller shall pay to ING, from time to
time as specified by ING, additional amounts sufficient to compensate
ING or such corporation in the light of such circumstances, to the
extent that ING reasonably determines such increase in capital to be
allocable to the ING Receivables Interest Purchases or the existence of
this ING Purchase Agreement in respect of or on account of such events.
A certificate setting forth in reasonable detail such amounts submitted
to the Seller by ING shall be conclusive and binding for all purposes,
absent manifest error.
(c) All amounts payable pursuant to this SECTION 2.07 shall be
subject to the provisions of SECTION 5.01.
SECTION 2.08. TAXES. (a) All payments made by the Seller under
this ING Purchase Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any governmental
authority having taxing authority, excluding net income taxes and franchise
taxes (imposed in lieu of income taxes) imposed on ING, as a result of any
present or former connection between the jurisdiction of the government or
taxing authority imposing such tax or any political subdivision or taxing
authority thereof or therein and ING (excluding a connection arising solely from
ING having executed, delivered or performed its obligations or received a
payment under, or enforced, this ING Purchase Agreement) (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "TAXES"). If
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any Taxes are required to be withheld from any amounts payable by the Seller,
(i) the sum payable shall be increased as may be necessary so that, after making
all required deductions (including deductions applicable to additional sums
payable under this SECTION 2.08), ING (as applicable) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Seller shall make such deductions, and (iii) the Seller shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Seller agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this ING Purchase Agreement (hereinafter
"OTHER TAXES").
(c) The Seller will indemnify ING for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this SECTION 2.08)
paid by ING and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Whenever any Taxes
or other Taxes are payable by the Seller, as promptly as possible
thereafter, the Seller shall send to ING a certified copy of an
original official receipt received by the Seller showing payment
thereof. If the Seller fails to pay any Taxes or other Taxes when due
to the appropriate taxing authority or fails to remit to ING the
required receipts or other required documentary evidence, the Seller
shall indemnify ING for any incremental Taxes, interest or penalties
that ING is legally required to pay as a result of any such failure.
The agreements in this subsection shall survive the termination of this
ING Purchase Agreement.
(d) All amounts payable pursuant to this SECTION 2.08 shall be
subject to the provisions of SECTION 5.01.
SECTION 2.09. FEES. In further consideration of the ING
Receivables Interest Purchases to be made hereunder, the Seller agrees, subject
to SECTION 5.01, to pay to the ING all fees specified in the ING Fee Letter
dated as of August 5, 2002, which fees will be due and payable at the times and
in the manner set forth in such ING Fee Letter.
SECTION 2.10. (a) HEDGING REQUIREMENTS. At any time on or
after the Designated Termination Date, ING shall have the right to withdraw any
amounts on deposit in the Reserve Account and to enter into an interest rate cap
agreement (a "Hedge Agreement") with a financial institution (the "Swap
Counterparty") with a short term rating of at least "A-1+" from Standard &
Poor's Ratings Group (or "A-1" if such institution has a long term credit rating
of "AA" or higher) and "P-1" from Xxxxx'x Investors Services Inc., and otherwise
reasonably acceptable to ING. At any time, unless otherwise agreed to by ING in
its sole discretion, the Hedge Agreement must have a notional balance not less
than the amount of ING Capital outstanding and require such Counterparty to make
payments when the One-Month Libor rate exceeds 8.0% and shall otherwise be in
form and substance satisfactory to the Agent.
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(b) RESERVE ACCOUNT. In order to fund the Hedge Agreement, ING
shall establish an account (the "Reserve Account") for the benefit of
the ING. On the Closing Date, ING shall cause to be deposited in the
Reserve Account the amount of $262,968 from the proceeds of the initial
ING Receivables Interest Purchase. The Reserve Account shall be
established at the corporate trust department of a commercial bank
reasonably satisfactory to ING, bearing the following designation: "ING
Receivables Interest Reserve Account, for the benefit of ING Capital
LLC". Until all of the ING Obligations have bee paid in full, ING shall
possess all right, title and interest in all funds on deposit from time
to time in the Reserve Account and in all proceeds thereof. Amounts on
deposit in the Reserve Account shall be invested in any no-load money
market fund rated (including money market funds managed or advised by
ING) in the highest short-term rating category or equivalent highest
long-term rating category by the Rating Agency. On each ING Receivables
Interest Purchase Date and three Business Days prior to each Settlement
Date, ING shall estimate the cost of purchasing a Hedge Agreement. If
such cost multiplied by 1.25 (the "Required Reserve Amount") is greater
than the amount then on deposit in the Reserve Account, ING shall
deposit such difference (the "Required Deposit") from the proceeds of
any ING Receivables Interest Purchase (if such date is an ING
Receivables Interest Purchase Date) or from any amount available on the
related Payment Date pursuant to clause (iii) of Section 2.04 hereof
(in excess of any other ING Obligations due and payable on such Payment
Date). Any amounts on deposit in the Reserve Account in excess of the
Required Reserve Amount shall be withdrawn by ING and disbursed to the
Seller. Upon the payment in full of all ING Obligations, ING shall
withdraw any amounts on deposit in the Reserve Account and disburse
such amounts to the Seller.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ING RECEIVABLES
INTEREST PURCHASE. The agreement of ING to make an ING Receivables Interest
Purchase on the occasion of the first ING Receivables Interest Purchase after
the date hereof is subject to satisfaction of the following conditions
precedent:
(a) ING shall have received, on or before the initial ING
Receivables Interest Purchase Date, all of the following, each fully
executed and in form and substance satisfactory to ING:
(i) This ING Purchase Agreement;
(ii) The Triple-A Purchase Agreement;
(iii) The Master Amendment and Waiver dated as of the date
hereof, by and among the Seller, Triple-A and CapMac;
(iv) A copy of the resolutions of the Board of Managers of the
Seller and a copy of the resolutions of the Board of Directors of
Triple-A approving this ING Purchase Agreement and all other documents
and instruments to be delivered hereunder
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or thereunder by the Seller and Triple-A, certified by its Manager,
Secretary or Assistant Secretary;
(v) A certificate of the Manager, Secretary or an Assistant
Secretary of the Seller and Triple-A certifying (A) the names and true
signatures of the officers of the Seller and Triple-A authorized to
sign this ING Purchase Agreement and the other documents and
instruments to be delivered by the Seller pursuant hereto and thereto;
(vi) The Certificates of Incorporation of Triple-A and the
Certificate of Formation of the Seller, each certified by the Secretary
of State of Delaware;
(vii) Good Standing Certificates for the Seller and Triple-A
issued by the Secretaries of the States of Delaware and Massachusetts;
(viii) Such amendments, if any, to the UCC-1 Financing
Statements filed against Originator and Seller as ING may reasonably
request in connection with this ING Purchase Agreement and the
amendments to the Triple-A Purchase Agreement;
(ix) UCC-1 Financing Statement field against Triple-A;
(x) Reliance letters with respect to opinions of counsel
issued in connection with the execution of the Triple-A Purchase
Agreement;
(xi) Opinions of counsel to the Seller and the Servicer
regarding corporate matters, and enforceability under this ING Purchase
Agreement and the Triple-A Purchase Agreement;
(xii) An Officer's Certificates in the form of EXHIBIT B,
executed by the Manager, President or the Treasurer of the Seller
regarding no defaults under Triple-A Purchase Agreement; and
(xiii) ING Fee Letter executed by Seller;
(b) All fees and expenses due and owing as of the initial
Receivables Purchase Date under the ING Fee Letter shall have been
paid;
(c) ING shall have received an ING Sale Notice from the Seller
requesting that ING Purchase all ING Receivables Interests with respect
to Receivables currently purchased under the Triple-A Purchase
Agreement; and
(d) ING shall have received such other approvals or documents
as it may reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH ING RECEIVABLES
INTEREST PURCHASE. The agreement of ING to make an ING Receivables Interest
Purchase on the occasion of each ING Receivables Interest Purchase Date
(including the initial ING Receivables Interest Purchase) shall be subject (a)
to ING's receipt from the Seller and/or the Servicer of (i) a Settlement
Statement for the most recent calendar month then ended, (ii) a notice from the
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Custodian in substantially the form of Exhibit A to the Custodial Agreement
confirming that the Custodian has received the Contract Files required to be
delivered to it pursuant to SECTION 6.04(b) of the Triple-A Purchase Agreement
and (iii) such other approvals or documents from the Seller and the Servicer as
ING may reasonably request and (b) to the condition precedent that on the ING
Receivables Interest Purchase Date of such ING Receivables Interest Purchase,
before and after giving effect to such ING Receivables Interest Purchase and to
the application of the proceeds therefrom, the following statements shall be
true (and each of the giving of the applicable ING Sale Notice and the
acceptance by the Seller of the proceeds of such ING Receivables Interest
Purchase shall constitute a representation and warranty by the Seller that on
the ING Receivables Interest Purchase Date of such ING Receivables Interest
Purchase, before and after giving effect thereto and to the application of the
proceeds therefrom, such statements are true):
(i) the representations and warranties contained in Article IV
of the Triple-A Purchase Agreement and all representations and
warranties of the Originator in the Purchase Agreement are true and
accurate as of the ING Receivables Interest Purchase Date in all
material respects with the same force and effect as though such
representations and warranties had been made as of such time;
(ii) no event has occurred and is continuing, or would result
from such ING Receivables Interest Purchase, which constitutes an ING
Wind-Down Event, an ING Trigger Event, an ING Amortization Date or an
Unmatured Wind-Down Event;
(iii) the outstanding amount of all ING Capital after giving
effect to such ING Receivables Interest Purchase shall be equal to or
less than the ING Capital Limit and the outstanding amount of all
Combined Capital after giving effect to such ING Receivables Interest
Purchase shall be equal to or less than the Combined Capital Limit; and
(iv) the proceeds of such ING Receivables Interest Purchase
shall be used (A) to fund a Purchase of Transferred Assets under the
Purchase Agreement to occur simultaneously with such ING Receivables
Interest Purchase, and all conditions to such Purchase under the
Purchase Agreement on such date have been satisfied or waived or (B) as
a partial prepayment of the Deferred Purchase Price of Receivables
previously purchased by Triple-A pursuant to the terms of the Triple-A
Purchase Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to ING that:
(a) DUE INCORPORATION AND GOOD STANDING. The Seller is a
limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The
Seller is duly qualified to do business as a foreign limited liability
company and is in good standing in every jurisdiction in which the
nature of its business requires it to be so qualified or where the
ownership of its properties or the nature of its activities makes such
qualification necessary, except where the failure to be
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so qualified would not materially adversely affect (i) the
collectibility of the Purchased Assets, (ii) the collectibility of any
Receivable, (iii) the business, properties, operations, prospects,
profits or condition (financial or otherwise) of the Seller or (iv) the
ability of the Seller to perform its obligations hereunder and under
the other Facility Documents to which it is a party.
(b) Due Authorization and No Conflict. The execution, delivery
and performance by the Seller of this ING Purchase Agreement and the
transactions contemplated hereby and thereby are within the Seller's
company powers, have been duly authorized by all necessary company
action, do not contravene (i) the Seller's certificate of formation or
limited liability company agreement, (ii) any law, rule or regulation
applicable to the Seller, (iii) any contractual restriction contained
in any indenture, loan or credit agreement, lease, mortgage, security
agreement, bond, note, or other agreement or instrument binding on or
affecting the Seller or its property or (iv) any order, writ, judgment,
award, injunction or decree binding on or affecting the Seller or its
property, and do not result in or require the creation of any Adverse
Claim upon or with respect to any of its properties; and no transaction
contemplated hereby requires compliance with any bulk sales act or
similar law. This ING Purchase Agreement has been duly executed and
delivered on behalf of the Seller.
(c) GOVERNMENTAL AND OTHER CONSENTS. No authorization,
consent, approval or other action by, and no registration,
qualification, designation, declaration, notice to or filing with, any
governmental authority or other Person is or will be necessary in
connection with the execution and delivery of this ING Purchase
Agreement or any of the other documents contemplated hereby,
consummation of the transactions herein or therein contemplated, or
performance of or compliance with the terms and conditions hereof or
thereof, to ensure the legality, validity or enforceability hereof or
thereof.
(d) ENFORCEABILITY OF FACILITY DOCUMENTS. This ING Purchase
Agreement has been duly and validly executed and delivered by the
Seller and constitutes the legal, valid and binding obligation of the
Seller enforceable in accordance with its respective terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
relating to or affecting creditors' rights generally and by equitable
principles.
(e) NO LITIGATION. There are no actions, suits or proceedings
at law or in equity or by or before any governmental authority now
pending or, to the knowledge of the Seller, threatened against or
affecting the Seller or any property or rights of the Seller which
purport to challenge the legality, validity or enforceability of this
ING Purchase Agreement or which may materially impair the ability of
the Seller to carry on business substantially as now being conducted or
which may materially adversely affect the condition (financial or
otherwise), operations or properties of the Seller.
(f) SOLVENCY. The Seller, both prior to and after giving
effect to the initial ING Receivables Interest Purchase on the initial
ING Receivables Interest Purchase Date, and after giving effect to each
subsequent ING Receivables Interest Purchase, (i) is not "insolvent"
(as such term is defined in Section 101(31)(A) of the Bankruptcy Code);
(ii) is able to pay its debts as they become due; and (iii) does not
have unreasonably small capital for
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the business in which it is engaged or for any business or transaction
in which it is about to engage.
ARTICLE V
INTERCREDITOR ISSUES
SECTION 5.01. PRIORITY OF PAYMENTS.
(a) Until the Collection Date, the ING Obligations are hereby,
and shall continue to be, subject and subordinate in priority and
payment to the Obligations, as set forth under SECTION 6.11 of the
Triple-A Purchase Agreement, PROVIDED, however, that Triple-A and the
Seller shall not amend SECTION 6.11 of the Triple-A Purchase Agreement
to change the priority of payment of the ING Yield or other ING
Obligations without the prior written consent of ING. Subject to the
provisions set forth in SECTION 6.11 of the Triple-A Purchase
Agreement, no payment shall be made with respect to any Collections on
account of the ING Obligations, and ING shall not take or receive any
Collections, directly or indirectly, in cash or other property or by
setoff or in any other manner, including, without limitation, from or
by way of collateral, payment of all or any of the ING Obligations,
unless and until the Collection Date has occurred. Notwithstanding any
provision in any other section of this ING Purchase Agreement to the
contrary, ING hereby acknowledges and agrees that the Seller's payment
obligations under this Agreement shall be without recourse to the
Seller or the Purchased Assets except to the extent of funds or other
proceeds thereof which may be allocated for payment thereof in
accordance with the provisions of SECTION 6.11 of the Triple-A Purchase
Agreement, and shall be without recourse to Triple-A or any of its
assets except to the extent of the proceeds of the Purchased Assets
which may be so allocated as set forth above. Unless and until such
funds or other proceeds are available to pay any such amount, any ING
Obligations shall not be payable until the earliest date on which
proceedings of the type described in SECTION 5.01(c) could be initiated
against the Seller pursuant to such Section.
(b) If ING shall receive any cash distributions in respect of
any Collections in excess of what ING is entitled to pursuant to
SECTION 6.11 of the Triple-A Purchase Agreement, ING shall hold the
same in trust, as trustee, for the benefit of Triple-A and shall
promptly deliver the same to or at the direction of Triple-A in
precisely the form received (except for the endorsement or assignment
thereof by ING) without recourse or warranty.
(c) Until ninety-one days after the Collection Date, ING
hereby covenants and agrees that it will not take any Enforcement
Action or, without the prior written consent of the Collateral Agent,
otherwise acquiesce, petition or otherwise invoke or cause any other
person to invoke the process of the United States of America, any state
or other political subdivision thereof or any other jurisdiction, any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government for the purpose
of commencing or sustaining a case against the Seller, under the
Bankruptcy Code or any state Bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of
11
the Seller or all or any part of its property or assets or ordering the
winding-up or liquidation of the affairs of the Seller. ING hereby
appoints the Collateral Agent as its agent, and grants to the
Collateral Agent an irrevocable power of attorney coupled with an
interest, and its proxy, for the purpose of exercising any and all
rights and taking any and all actions available to ING in connection
with any case by or against the Seller under the Bankruptcy Code, or
any state bankruptcy, insolvency or similar law, including without
limitation, the right to vote to accept or reject a plan, to file a
claim, to make any election under Section 1111(b) of the Bankruptcy
Code with respect to the ING Receivable Interests and to file a motion
to modify the automatic stay with respect to the Purchased Assets.
(d) ING covenants and agrees that it will not institute
against Triple-A, or join any other Person in instituting against
Triple-A, any Insolvency Proceeding under bankruptcy law or under any
similar federal or state law.
SECTION 5.02. ING ACKNOWLEDGEMENT. (a) ING acknowledges that:
(i) ING has, independently and without reliance upon Triple-A, the
Administrative Agent, the Collateral Agent, the Surety or MBIA (collectively,
the "MBIA PARTIES"), and based on such documents and information as ING has
deemed appropriate, made ING's own credit analysis and decision to purchase the
ING Receivables Interests and ING accepts responsibility therefor; (ii) none of
the MBIA Parties has provided ING, and ING has not relied on or used in any
other way, any credit analysis of the ING Receivable Interests prepared by any
MBIA Party or an investigation or assessment of risk with respect to the ING
Receivable Interests prepared by any MBIA Party, and (iii) any information
provided to ING by any MBIA Party regarding the ING Receivable Interests is
provided without any warranty or representation, express or implied, as to its
accuracy or completeness and is subject to independent verification by ING.
(b) ING hereby acknowledges that no MBIA Party has made any
representations or warranties with respect to the ING Receivable Interests and
no MBIA Party shall have any responsibility for (i) the collectibility of the
ING Receivable Interests, (ii) the validity, enforceability or legal effect of
any of the ING Receivable Interests, (iii) the validity, sufficiency or
effectiveness of the lien created or to be created by the ING Receivable
Interests, or (iv) the financial condition of the Originator or the Seller. ING
assumes all risk or loss in connection with ING Receivable Interests, from the
failure or refusal of the Obligors to pay amounts due thereon, and defaults by
the Obligors to pay amounts due thereon, and defaults by the Obligors under the
underlying document or the enforceability of any of the underlying documents for
reasons other than gross negligence or willful misconduct by any MBIA Party. ING
hereby agrees to the appointment of CapMAC as Collateral Agent and
Administrative Agent under the Triple-A Purchase Agreement and further
acknowledges that (i) it has no right, title or interest in or to any of the
Surety Bonds or the rights and remedies of any MBIA Parties under the Insurance
Agreement; (ii) the Administrative Agent is solely an agent for Triple-A and has
no duties or obligations on behalf of Triple-A to ING except as otherwise
expressly provided herein; and (iii) the duties of the Collateral Agent set
forth in the Triple-A Purchase Agreement are limited as set forth therein.
SECTION 5.03. NO CREATION OF A PARTNERSHIP OR EXCLUSIVE
PURCHASE RIGHT. Nothing contained in this ING Purchase Agreement, and no action
taken pursuant hereto, shall
12
be deemed to constitute the arrangement between any MBIA Party and ING a
partnership, association, joint venture or other entity. Triple-A shall have no
obligation whatsoever to offer to ING the opportunity to purchase any ING
Receivable Interests. ING shall have no obligation whatsoever to purchase from
Triple-A any ING Receivable Interests.
SECTION 5.04. ASSIGNMENT OF RIGHTS. If the Collection Date has
occurred, but the Combined Collection Date has not occurred, Triple-A and the
Collateral Agent shall, at the request of ING, assign all of their rights in the
Triple-A Purchase Agreement and the other ING Facility Documents to ING. Such
assignment shall be without recourse, representation or warranty of any kind
other than that such assigned rights are not subject to any lien created by
Triple-A and/or the Collateral Agent and shall not include any rights or
remedies which relate solely to such parties' rights under the Surety Bonds
and/or the Insurance Agreement and ING shall agree, as a condition precedent to
such assignment, to release the MBIA Parties from any and all claims and
obligations of such parties arising in connection with the Triple-A Purchase
Agreement and/or this ING Purchase Agreement.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. DESIGNATION OF SERVICER. ING acknowledges and
agrees that the servicing, administering and collection of the Purchased
Receivables and the other Purchased Assets shall be conducted by the Servicer
designated by the Collateral Agent from time to time in accordance with SECTION
6.01 of the Triple-A Purchase Agreement.
SECTION 6.02. BACK-UP SERVICER. (a) The parties hereby appoint
BNY ASSET SOLUTIONS LLC, to act as Back-up Servicer with respect to the
Purchased Receivables and the other Purchased Assets.
(b) The Back-up Servicer, prior to becoming the successor
Servicer, shall perform the following duties and obligations:
(i) On or prior to the fifth Business Day prior to each
related Settlement Date, the Back-up Servicer shall review the summary
and settlement report worksheets contained in the Settlement Report and
will verify that the correct balances have been inserted based solely
on the formulas contained in the Settlement Report. The Back-up
Servicer shall not be required to review or verify any other
information contained in the Settlement Report. The Back-up Servicer
shall notify the Servicer in writing of any disagreements with the
summary and settlement worksheet in the Settlement Date based on such
review not later than the 2nd Business Day preceding the related
Settlement Date to the extent such Settlement Report was received on or
prior to the fifth Business Day prior to the related Settlement Date
and as soon as practicable if it is received after such date.
(ii) If the Servicer disagrees with the notice provided under
paragraph (i) above by the Back-up Servicer or if the Servicer has not
reconciled such discrepancy, the Back-up Servicer agrees to confer with
the Servicer to resolve such disagreement as promptly as practicable
and shall settle such discrepancy with the Servicer if possible,
13
and notify Triple-A, the Collateral Agent and ING in writing of the
resolution thereof. The Servicer hereby agrees to cooperate at its own
expense with the Back-up Servicer in reconciling any discrepancies
therein. If after the notification provided under paragraph (i) above
by the Back-up Servicer and prior to the related Settlement Date, such
discrepancy is not resolved, the Back-up Servicer shall promptly notify
in writing Triple-A, the Collateral Agent and ING of the continued
existence of such discrepancy. Following receipt of such notice by the
Triple-A, the Collateral Agent and ING, the Servicer shall deliver to
the Back-up Servicer no later than two Business Days after such
receipt, a certificate describing the nature and amount of such
discrepancy and the actions the Servicer proposes to take with respect
thereto.
(b) In the event that the Back-up Servicer shall become the
Servicer under the Triple-A Purchase Agreement, the Back-up Servicer
shall service and administer the Purchased Receivables and the other
Purchased Assets and perform all of its duties thereunder in accordance
with customary and usual procedures employed by institutions servicing
commercial loans, which institutions are considered prudent by the
Back-up Servicer, and in accordance with the Back-up Servicer's own
customary practices, or if a higher standard, the highest degree of
skill and attention that the Back-up Servicer exercises with respect to
contracts comparable to the Contracts that the Back-up Servicer
services for itself.
(c) The Back-up Servicer undertakes to perform only such
duties and obligations as are specifically set forth in this Agreement
and the Triple-A Purchase Agreement if the Back-up Servicer shall
become the Servicer, it being expressly understood by all parties
hereto that there are no implied duties or obligations of the Back-up
Servicer hereunder. Without limiting the generality of the foregoing,
the Back-up Servicer, except as expressly set forth herein, shall have
no obligation to supervise, verify, monitor or administer the
performance of the Servicer. The Back-up Servicer shall have no
liability for any act or omission of the Servicer. Neither the Back-up
Servicer nor any of its members, managers, officers, directors,
employees or agents shall be liable, directly or indirectly, for any
damages or expenses arising out of the services performed under this
Agreement other than damages or expenses which result from the gross
negligence or willful misconduct of it or them.
SECTION 6.03. BACK-UP SERVICING FEE. On each Settlement Date,
as full compensation for its servicing activities hereunder, the Back-up
Servicer shall be entitled to receive a fee (the "BACK-UP SERVICING FEE") in an
amount equal to 0.04% TIMES the Outstanding Balance of the Purchased Receivables
as of the last day of the prior calendar month TIMES one-twelfth, PROVIDED,
THAT, if the Back-up Servicer is also the Servicer under the Triple-A Purchase
Agreement, the Back-up Servicing Fee hereunder shall be deemed paid to the
extent of any payment by the Seller of the "Servicing Fee" specified and defined
in the Triple-A Purchase Agreement.
SECTION 6.04. INDEMNITY FOR LIABILITY CLAIMS. The Seller
hereby agrees to indemnify, defend and hold harmless the Back-up Servicer (which
shall include any of its directors, employees, officers and agents) against and
from any and all costs, expenses, losses, damages, claims and liabilities
arising out of or resulting from the Triple-A Purchase Agreement
14
or this ING Purchase Agreement. The Back-up Servicer shall not be entitled to
any indemnification for any costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from the willful misconduct or gross
negligence of the Back-up Servicer or its directors, employees, officers or
agents.
ARTICLE VII
ING WIND-DOWN EVENTS; REMEDIES
SECTION 7.01. ING WIND-DOWN EVENTS. Each of the following
events shall constitute an "ING WIND-DOWN EVENT" within the meaning of this ING
Purchase Agreement:
(a) The occurrence of any Event of Termination under the
Purchase Agreement or any "Wind-Down Event" under the Triple-A Purchase
Agreement; or
(b) The Seller shall fail to perform or observe any term,
covenant or agreement contained in this ING Purchase Agreement and any
such failure shall remain unremedied for five Business Days after
written notice from ING; or
(c) As of the close of business on any Settlement Date or ING
Receivables Interest Purchase Date, the ING Capital Limit shall be less
than the aggregate outstanding ING Capital; or
(d) There shall have occurred, since the initial ING
Receivables Interest Purchase Date, a material adverse change in the
financial condition of the Seller or there shall have occurred any
event which materially and adversely affects the collectibility or the
Receivables generally or the ability of the Seller to perform hereunder
or under the Triple-A Purchase Agreement; or
(e) ING Capital shall not have been reduced to zero pursuant
to SECTION 2.03 (b) hereof within one Business Day of the consummation
of any sale referred to in such section; or
(f) ING shall determine that continuation of this ING Purchase
Agreement without exercise of remedies under Section 7.02 will impose a
material adverse regulatory impact on ING.
SECTION 7.02. REMEDIES. Subject to ARTICLE V hereof, during
the existence of an ING Wind-Down Event, ING may, by written notice to the
Seller, take any or all of the following actions, at the same or different
times: (a) declare the ING Obligations to be immediately due and payable; (b)
pursue any other remedy under this ING Purchase Agreement and (c) exercise any
rights and remedies of a secured party under Article 9 of the UCC, which rights
and remedies shall be cumulative to those provided for under this ING Purchase
Agreement; PROVIDED, that, unless and until the Collection Date has occurred,
all payments from the Seller owing to ING hereunder shall be paid to the
Administrative Agent for distribution in accordance with SECTION 6.11 of the
Triple-A Purchase Agreement and ING's recourse to the Purchased Assets and any
other assets of the Seller shall be limited in accordance with ARTICLE V. From
and after the occurrence of the Collection Date and the assignment of rights
contemplated
15
under SECTION 5.04, ING may exercise any remedies available to Triple-A or the
Collateral Agent under the Triple-A Purchase Agreement and the other ING
Facility Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment to or waiver of
any provision of this ING Purchase Agreement, shall in any event be effective
unless the same shall be in writing and signed by the parties hereto. This ING
Purchase Agreement, together with the Triple-A Purchase Agreement, contains a
final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire
agreement (together with the exhibits hereto) among the parties hereto with
respect to the subject matter hereof, superseding all prior oral or written
understandings.
SECTION 8.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including telex communication and communication by facsimile copy)
and mailed, telexed, transmitted or delivered, as to each party hereto, at its
address set forth under its name on the signature pages hereof or at such other
address as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be effective, upon
receipt, or in the case of delivery by mail, five days after being deposited in
the mails, or, in the case of notice by telex, when telexed against receipt of
answer back, or in the case of notice by facsimile copy, when verbal
communication of receipt is obtained, in each case addressed as aforesaid,
except that notices and communications pursuant to Article II shall not be
effective until received.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of
ING, Triple-A, the Collateral Agent or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. BINDING EFFECT; ASSIGNABILITY. This ING Purchase
Agreement shall be binding upon and inure to the benefit of the Seller, ING,
Triple-A, the Collateral Agent and the Administrative Agent their respective
successors and permitted assigns (which successors of the Seller shall include a
trustee in bankruptcy). The Seller may not assign any of its rights and
obligations hereunder or any interest herein without the prior written consent
of ING, Triple-A and the Collateral Agent. Each of Triple-A and ING may assign
at any time its rights and obligations hereunder and interests herein to any
other Person without the consent of the Seller. Without limiting the foregoing,
the Seller and Triple-A hereby acknowledges that ING may sell or participate all
or an interest in the ING Receivables Interest to one or more parties. This ING
Purchase Agreement shall create and constitute the continuing obligations of the
parties hereto in accordance with its terms, and shall remain in full force and
effect until such time, after the Termination Date, as the Combined Collection
Date shall occur.
16
SECTION 8.05. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS ING
PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE INTERESTS OF THE COLLATERAL AGENT IN THE COLLATERAL OR
REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS
OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THE SELLER HEREBY AGREES TO
THE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK, AND
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE SELLER AT THE
ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE
U.S. MAILS, POSTAGE PREPAID, OR, AT THE OPTION OF EITHER TRIPLE-A OR ING, BY
SERVICE UPON CT CORPORATION SYSTEM, 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000,
WHICH THE SELLER HEREBY IRREVOCABLY APPOINTS AS ITS AGENT FOR THE PURPOSE OF
ACCEPTING SERVICE OF PROCESS. THE SELLER HEREBY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE SELLER AND TRIPLE-A AND/OR THE ING ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN
CONNECTION WITH THIS ING PURCHASE AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN
COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. WITH RESPECT TO THE
FOREGOING CONSENT TO JURISDICTION, THE SELLER HEREBY WAIVES ANY OBJECTION BASED
ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 8.05 SHALL AFFECT THE
RIGHT OF TRIPLE-A OR ING TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR AFFECT THE RIGHT OF TRIPLE-A OR ING TO BRING ANY ACTION OR PROCEEDING
AGAINST THE SELLER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 8.06. COSTS, EXPENSES AND TAXES. (a) The Seller agrees
to pay on demand all reasonable costs and expenses in connection with the
preparation, execution, delivery and administration of this ING Purchase
Agreement and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for
Triple-A, ING and the Collateral Agent with respect thereto and with respect to
advising Triple-A, ING and the Collateral Agent as to its rights and remedies
under this ING Purchase Agreement or the ING Purchase Agreement, and the other
agreements executed pursuant hereto and all costs and expenses, if any
(including reasonable counsel fees and expenses), in connection with the
enforcement of this ING Purchase Agreement and the other agreements and
documents to be delivered hereunder.
(a) In addition, the Seller shall pay any and all stamp,
sales, excise and other taxes and fees payable or determined to be
payable in connection with the execution,
17
delivery, filing and recording of this ING Purchase Agreement, the ING
Purchase Agreement or the other agreements and documents to be
delivered hereunder, and agrees to indemnify the Collateral Agent,
Triple-A, ING and their respective assignees against any liabilities
with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
(b) All payments owing from the Seller under this SECTION 8.06
shall be subject to the provisions of SECTION 5.01.
SECTION 8.07. EXECUTION IN COUNTERPARTS; SEVERABILITY. This
ING Purchase Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. In case any provision in or
obligation under this ING Purchase Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
18
IN WITNESS WHEREOF, the parties below have caused this ING
Purchase Agreement to be duly executed by their duly authorized officers and
delivered as of the day and year first above written.
HPSC BRAVO FUNDING, LLC, as Seller
By: /s/ Xxxx Xxxxxxxx
---------------------------
Title: Manager
Address: Sixty Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
HPSC, INC., as Servicer
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Title: Chairman and Chief Executive
Officer
Address: Sixty Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Vice President, Finance
Telephone:
Telecopy:
19
TRIPLE-A ONE FUNDING CORPORATION
By: CAPITAL MARKETS ASSURANCE
CORPORATION, its Attorney-in-Fact
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Title: Director
Address: 000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Head of Exposure Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ING CAPITAL LLC
By: /s/ Xxxxxx Xxxxx
---------------------------
Title: Managing Director
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx XxXxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
20
CAPITAL MARKETS ASSURANCE CORPORATION, as
Administrative Agent and Collateral Agent
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Title: Vice-President
Address: 000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Head of Exposure
Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BNY ASSET SOLUTIONS LLC, as Back-up
Servicer
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------
Title: Managing Director
Address: 000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx, 00000
Attn: Risk Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
21
RECEIVABLES INTEREST PURCHASE AGREEMENT
Dated as of August 5, 2002
among
HPSC BRAVO FUNDING, LLC,
HPSC, INC.
TRIPLE-A ONE FUNDING CORPORATION
and
ING CAPITAL LLC
and
BNY ASSET SOLUTIONS LLC
as
Back-Up Servicer
and
CAPITAL MARKETS ASSURANCE CORPORATION
as Administrative Agent and Collateral Agent
TABLE OF CONTENTS
ARTICLE I.........................................................................................................1
DEFINITIONS.......................................................................................................1
SECTION 1.01. CERTAIN DEFINITIONS.............................................................................1
SECTION 1.02. ACCOUNTING TERMS................................................................................1
SECTION 1.03. OTHER TERMS.....................................................................................2
SECTION 1.04. COMPUTATION OF TIME PERIODS.....................................................................2
ARTICLE II........................................................................................................2
AMOUNT AND TERMS OF THE PURCHASES.................................................................................2
SECTION 2.01. RECEIVABLES PURCHASE FACILITY...................................................................2
SECTION 2.02. MAKING PURCHASES OF RECEIVABLES INTERESTS.......................................................2
SECTION 2.03. REDUCTION OF ING CAPITAL........................................................................3
SECTION 2.04. PAYMENT DATE ALLOCATIONS........................................................................4
SECTION 2.05. PAYMENTS AND COMPUTATIONS, ETC..................................................................4
SECTION 2.06. ING TRIGGER EVENTS..............................................................................4
SECTION 2.07. INCREASED COSTS, CAPITAL ADEQUACY...............................................................4
SECTION 2.08. TAXES...........................................................................................5
SECTION 2.09. FEES............................................................................................6
SECTION 2.10. (a) HEDGING REQUIREMENTS........................................................................6
ARTICLE III.......................................................................................................7
CONDITIONS OF PURCHASES...........................................................................................7
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ING RECEIVABLES INTEREST PURCHASE...............................7
SECTION 3.02. CONDITIONS PRECEDENT TO EACH ING RECEIVABLES INTEREST PURCHASE..................................8
ARTICLE IV........................................................................................................9
REPRESENTATIONS AND WARRANTIES....................................................................................9
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE SELLER....................................................9
ARTICLE V........................................................................................................11
INTERCREDITOR ISSUES.............................................................................................11
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE SELLER............................................................11
SECTION 5.02. ING ACKNOWLEDGEMENT............................................................................12
SECTION 5.03. NO CREATION OF A PARTNERSHIP OR EXCLUSIVE PURCHASE RIGHT.......................................12
SECTION 5.04. ASSIGNMENT OF RIGHTS...........................................................................13
ARTICLE VI.......................................................................................................13
ADMINISTRATION AND COLLECTION....................................................................................13
SECTION 6.01. DESIGNATION OF SERVICER........................................................................13
SECTION 6.02. BACK-UP SERVICER...............................................................................13
SECTION 6.03. BACK-UP SERVICING FEE..........................................................................14
SECTION 6.04. INDEMNITY FOR LIABILITY CLAIMS.................................................................14
ARTICLE VII......................................................................................................15
ING WIND-DOWN EVENTS; REMEDIES...................................................................................15
SECTION 7.01. WIND-DOWN EVENTS...............................................................................15
SECTION 7.02. REMEDIES.......................................................................................15
ARTICLE VIII.....................................................................................................16
MISCELLANEOUS....................................................................................................16
SECTION 8.01. AMENDMENTS, ETC................................................................................16
SECTION 8.02. NOTICES, ETC...................................................................................16
SECTION 8.03. NO WAIVER; REMEDIES............................................................................16
SECTION 8.04. BINDING EFFECT; ASSIGNABILITY..................................................................16
SECTION 8.05. GOVERNING LAW; WAIVER OF JURY TRIAL............................................................17
SECTION 8.06. COSTS, EXPENSES AND TAXES......................................................................17
SECTION 8.07. EXECUTION IN COUNTERPARTS; SEVERABILITY........................................................18
ii
APPENDICES
APPENDIX A DEFINITIONS LIST
LIST OF EXHIBITS
EXHIBIT A Form of Sale Notice
EXHIBIT B Form of Officer's Certificate
