EXHIBIT 10.8
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT"), dated as of August
5, 2002, is made by and among, on the one hand, FLEET NATIONAL BANK, a national
banking association ("FLEET"), KEYBANK NATIONAL ASSOCIATION, a national banking
association ("KEYBANK"), BANKNORTH, N.A., a national association ("BANKNORTH"),
PNC BANK, NATIONAL ASSOCIATION, a national association ("PNC"), CITIZENS BANK OF
MASSACHUSETTS, a Massachusetts chartered bank ("CITIZENS"; and together with
Fleet, Keybank, PNC and Banknorth, each an "EXISTING LENDER", and individually
and collectively, the "EXISTING LENDERS"), and FLEET NATIONAL BANK, a national
banking association, as administrative agent for such Existing Lenders (in such
capacity, "EXISTING AGENT"; Existing Agent together with Existing Lenders are
collectively referred to as the "SELLER"), and on the other hand, FOOTHILL
CAPITAL CORPORATION, a California corporation, which will, subject to the terms
hereof, become party to the Existing Credit Agreement (as hereinafter defined)
(in such capacity, "NEW LENDER") and as the new agent for the New Lender and any
additional lenders that from time to time are made party to the Existing Credit
Agreement as "Banks" (in such capacity, "NEW AGENT"; New Agent together with the
New Lenders, are collectively referred to as the "BUYER").
RECITALS
A. Seller is party to that certain Fourth Amended and Restated Credit
Agreement, dated as of May 12, 2000, with HPSC, INC., a Delaware corporation
("HPSC"), and AMERICAN COMMERCIAL FINANCE CORPORATION, a Delaware corporation
("ACFC"; ACFC together with HPSC are hereinafter referred to each as a "LOAN
PARTY" and individually and collectively, jointly and severally, as the "LOAN
PARTIES"), as amended by that certain First Amendment to Fourth Amended and
Restated Credit Agreement dated as of December 1, 2000, as further amended by
that certain Second Amendment to Fourth Amended and Restated Credit Agreement
dated as of December 31, 2000, and as further amended by that certain Third
Amendment to Fourth Amended and Restated Credit Agreement dated as of May 8,
2001, as further amended by that certain Fourth Amendment to Fourth Amended and
Restated Credit Agreement dated as of May 6, 2002, and as further amended by
that certain Fifth Amendment to Fourth Amended and Restated Credit Agreement
dated as of June 5, 2002 (as so amended, restated, supplemented or otherwise
modified prior to the date hereof, the "EXISTING CREDIT AGREEMENT").
B. Seller also is party to, or the beneficiary of, certain security
agreements, notes, Uniform Commercial Code financing statements, guaranties,
stock pledge agreements, and certain other documents with or relating to HPSC
and its Subsidiaries (such security agreements, notes, financing statements,
guaranties, stock pledge agreements, and other documents, together with the
Existing Credit Agreement, are referred to herein, individually and
collectively, as the "EXISTING CREDIT DOCUMENTS").
C. Pursuant to the Existing Credit Documents, certain loans and other
extensions of credit have been made by Seller to, and other indebtedness to
Seller has arisen with respect to, the Loan Parties (the principal amount
thereof, the "LOANS").
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D. On the terms and conditions set forth below, Buyer desires to
acquire for its own account from Seller, and Seller desires to transfer to
Buyer, by assignment in accordance with the provisions of this Agreement,
without direct or indirect recourse to Seller in regard to the Loans or the
Existing Credit Documents, Seller's interest in all of the aggregate outstanding
principal amount of the Loans (as of the Closing Date) and accrued and unpaid
interest, fees, and costs with respect thereto and the Existing Credit Documents
as provided below. Buyer shall assume as of the Closing Date all of Seller's
obligations under the Existing Credit Documents.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
(a) CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"AGREEMENT" has the meaning set forth in the introductory paragraph
hereto.
"ASSIGNED AMOUNT" has the meaning set forth in SECTION 2.
"ASSIGNMENT" means the assignment by Seller, without recourse (except
pursuant to the terms of this Agreement), of the Assigned Amount and the related
acceptance and assumption by Buyer effected as provided in this Agreement.
"BANKING DAY" means a day other than a Saturday or Sunday on which
commercial banks are open for business in Los Angeles, California or Boston,
Massachusetts.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended
and recodified from time to time.
"BUYER" has the meaning set forth in the introductory paragraph of this
Agreement.
"CLAIM" has the meaning set forth in Section 101 of the Bankruptcy
Code.
"CLOSING" means the time on or after the Closing Date when the
Assignment is consummated.
"CLOSING DATE" means August 6, 2002, or such other date upon which the
parties may mutually agree in writing.
"COLLATERAL" means all property, including the Negotiable Collateral,
described in the Existing Credit Documents, or any of them, as collateral or
security for the Assigned Amount or any part thereof, or for any guaranty
thereof or secondary obligation with respect thereto.
"DOLLARS" and the sign "$" each means lawful money of the United States
of America.
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"EXISTING AGENT" has the meaning set forth in the introductory
paragraph of this Agreement.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the Recitals
to this Agreement.
"EXISTING CREDIT DOCUMENTS" has the meaning set forth in the Recitals
to this Agreement.
"EXISTING LENDER" and "EXISTING LENDERS" have the respective meanings
set forth in the Recitals to this Agreement.
"LOANS" has the meaning set forth in the Recitals.
"LOAN PARTY" and "LOAN PARTIES" have the respective meanings set forth
in the introductory paragraph of this Agreement.
"NEGOTIABLE COLLATERAL" means all of a Person's present letters of
credit, notes, drafts, instruments, "investment property" as that term is
defined in Section 9-102(a)(49) of the Massachusetts Uniform Commercial Code,
documents, personal property leases (wherein such Person is the lessor), and
chattel paper.
"NEW AGENT" has the meaning set forth in the introductory paragraph of
this Agreement.
"NEW LENDERS" has the meaning set forth in the introductory paragraph
of this Agreement.
"NEW LETTERS OF CREDIT" means the letters of credit issued by Xxxxx
Fargo Bank, National Association, a national banking association, for the
benefit of Fleet, in an aggregate amount of $137,500.
"PERSON" means an individual, corporation, partnership, joint venture,
trust, unincorporated organization or any other entity of whatever nature.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" has the meaning set forth in the introductory paragraph of
this Agreement.
"TRANSFER DOCUMENTS" means this Agreement, Uniform Commercial Code
assignment statements, and any other assignment-related documents prepared by
Buyer to Buyer's and Seller's reasonable satisfaction, to be executed by Seller
to the order of Buyer in order to effectuate the Assignment.
(b) INTERPRETATION. In this Agreement, except to the extent the context
otherwise requires: (i) any reference in this Agreement to a Section, a
Schedule, or an Exhibit is a reference to a section hereof, a schedule hereto,
or an exhibit hereto, respectively, and to a
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subsection hereto or a clause is, unless otherwise stated, a reference to a
subsection or a clause of the Section or subsection in which the reference
appears; (ii) the words "hereof," "herein," "hereto," "hereunder" and the like
mean and refer to this Agreement as a whole and not merely to the specific
Article, Section, subsection, paragraph, or clause in which the respective word
appears; (iii) the meaning of defined terms shall be equally applicable to both
the singular and plural forms of the terms defined; (iv) the term "including" is
not used with limitation as to the referenced matters; and (v) the captions and
headings are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 2. ASSIGNMENT AND ASSUMPTION.
(a) ASSIGNMENT AND ASSUMPTION. Subject to and upon the terms and
conditions stated in this Agreement, Seller agrees to sell, assign, and transfer
to Buyer, without direct or indirect recourse or retained liability of any kind,
and Buyer agrees to purchase from Seller, on the Closing Date: (i) all of
Seller's right, title, and interest in the Loans in the principal amounts set
forth on SCHEDULE 4 and (ii) the amount of any unpaid interest accrued thereon
in the amounts set forth on SCHEDULE 4 and any accrued and unpaid fees, costs
and expenses, if any, with respect to such Loans in the amounts set forth on
SCHEDULE 4 (such principal, interest, fees, costs and expenses so sold being
collectively called herein the "ASSIGNED AMOUNT"); together with (iii) all of
Seller's rights and remedies under the Existing Credit Documents and with
respect to all Collateral for such Assigned Amounts. Buyer hereby agrees, for
its own account and risk, to accept such Assignment and to assume, comply with,
and perform, on and after the Closing Date, all of Seller's duties, liabilities,
obligations, and responsibilities of every type or nature whatsoever and
howsoever arising under or as a result of the Existing Credit Documents subject
to such Assignment. As of and after the Closing Date, Buyer shall be bound as a
party to the Existing Credit Documents and by the obligations of Seller
thereunder to the fullest extent permitted under the applicable Existing Credit
Documents.
(b) RETAINED RIGHTS. The following rights and claims (collectively, the
"RETAINED RIGHTS") shall belong to and be retained by the Seller: (i) any and
all rights, interests and claims under the Existing Credit Documents, including
those arising under Sections 17, 18 and 19 of the Existing Credit Agreement,
which would survive satisfaction in full of all other obligations under the
Existing Credit Documents, including, without limitation, those rights,
interests and claims in the nature of indemnity, warranty, reimbursement or the
like relating to actual out-of-pocket payments by or on behalf of the Seller
prior to or after the Closing Date; and (ii) all rights with respect to letters
of credit currently outstanding under the Existing Credit Documents, including,
without limitation, all rights in and to letter of credit applications,
reimbursement agreements and the like; provided that, the foregoing
notwithstanding, this clause (b) shall not impair, reduce, limit, restrict or
exclude any concurrent rights of the Buyer as transferee under the Existing
Credit Agreement; provided, further, any exercise by Seller of any Retained
Rights shall not be deemed an action impairing, reducing, limiting, restricting
or excluding concurrent rights of the Buyer.
SECTION 3. PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE EXISTING CREDIT
DOCUMENTS, THE TRANSFER DOCUMENTS, AND THE NEGOTIABLE COLLATERAL.
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The purchase price for the Assignment hereunder shall be the Assigned
Amount. Such purchase price shall be paid by Buyer to Seller in immediately
available funds not later than 12:00 noon (California time) on the Closing Date.
On the Closing Date, immediately upon (a) the payment of the entire purchase
price by Buyer to Seller and Seller's written acknowledgement of its receipt
thereof to Buyer, (b) Seller's receipt of a fully executed counterpart of this
Agreement, and (c) Seller's receipt of the New Letters of Credit, Seller shall
deliver to Buyer the originals (or duplicates thereof in the case of
recorded/filed documents or as otherwise approved by Buyer in writing) of each
of the Existing Credit Documents in Seller's possession, the Transfer Documents,
and the Negotiable Collateral pledged under the Existing Credit Documents that
are in Seller's possession.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
(a) MUTUAL REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENT.
Buyer and each Person composing Seller each represents and warrants to the other
that, as to itself (and not for or on behalf of others), as of the Closing Date:
(i) it has all requisite power and authority to execute and
deliver this Agreement and the other Transfer Documents and to perform its
respective obligations hereunder and thereunder;
(ii) its execution and delivery of this Agreement and the other
Transfer Documents, and the performance of its respective obligations hereunder
and thereunder, have been authorized by all necessary corporate action and do
not violate any laws or orders by which it is bound or require any consents of
third parties; and
(iii) each of this Agreement and the other Transfer Documents
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms thereof, except as enforceability may be limited by
the Bankruptcy Code, and by other applicable insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditor rights
or remedies generally.
(b) REPRESENTATIONS AND WARRANTIES OF SELLER. Each Person composing
Seller represents and warrants to Buyer as to itself (and not for or on behalf
of others) that, as of the Closing Date:
(i) the Assigned Amount constitutes the total indebtedness with
respect to the Loans owed by the Loan Parties to Seller as of the Closing Date;
(ii) Seller owns the Loans, Seller's interest in the Loans and
the Existing Credit Documents free and clear of liens, charges, and
encumbrances, and Seller has not granted any participation in the Loans to any
Person;
(iii) Seller has not entered into any contractual subordination
of the Loans under the Existing Credit Documents;
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(iv) Attached hereto as SCHEDULE 6 are copies of (A) a Security
Agreement dated as of June 23, 1994, between HPSC and the Existing Agent; (B) a
Security Agreement dated as of June 23, 1994, between ACFC and the Existing
Agent, and (C) Omnibus Amendment No. 4 to Security Documents dated as of May 12,
2000, by and among HPSC, ACFC and the Existing Agent;
(v) Attached hereto as SCHEDULE 2 is a copy of Stock Certificate
No. 1 issued by American Commercial Finance Corporation in the name of HPSC,
Inc.;
(vi) Seller has not engaged or dealt with any broker, agent, or
finder in connection with the transaction contemplated by this Agreement in such
a manner as to give rise to a claim for a brokerage commission or finder's fee
that could become a liability of Buyer or that could give such a broker, agent,
or finder a legal basis for enjoining the consummation of the transaction
contemplated by this Agreement or asserting any interest in the Loans or the
Collateral; and
(vii) Existing Lenders are the only "Banks" (as that term that
is defined in the Existing Credit Agreement) that is party to, or the
beneficiary of, the Existing Credit Agreement and the other Existing Credit
Documents.
(c) REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller that, as of the Closing Date:
(i) Buyer has conducted an independent investigation of the Loan
Parties and their properties and assets, including, any securitizations and
other existing indebtedness as to which the Loan Parties and/or their properties
or assets are subject, and is not relying on Seller (except as to the accuracy
of Seller's representations and warranties contained herein); and
(ii) Except as provided in SECTION 5(a), Buyer is not relying on
any continuing cooperation or assistance from Seller after the Closing Date with
respect to the Loans;
(iii) Buyer is a "United States person" within the meaning of
Paragraph 7701(a)(30) of the Internal Revenue Code of 1986, as amended; and
(iv) Buyer has not engaged or dealt with any broker, agent, or
finder in connection with the transaction contemplated by this Agreement in such
a manner as to give rise to a claim for a brokerage commission or finder's fee
that could become a liability of Seller or that could give such a broker, agent,
or finder a legal basis for enjoining the consummation of the transaction
contemplated by this Agreement or asserting any interest in the Loans or the
Collateral.
(d) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The foregoing
representations and warranties of Seller and Buyer shall survive the execution
and delivery of this Agreement and consummation of the transactions contemplated
hereby for a period of one hundred and eighty (180) days. Except as expressed
herein, the Loans are being sold "AS-IS" and "WITH ALL FAULTS" and there shall
be no other representations, warranties, agreements, or other obligations by
Seller to Buyer or by Buyer to Seller, whether express or implied besides those
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contained herein. Seller understands that Buyer's representations and warranties
in this Agreement are exclusive, and that Buyer does not make any other
representations or warranties, whether express or implied in this integrated
Agreement. Buyer understands that Seller's representations and warranties in
this Agreement are exclusive, and that Seller does not make any other
representations or warranties, whether expressed or implied in this integrated
Agreement.
SECTION 5. COVENANTS.
(a) COOPERATION AND REASONABLE EFFORTS. Each of Seller and Buyer hereby
agrees (i) to use its respective reasonable efforts and to cooperate with the
other to obtain or effect any necessary or desirable consents, approvals, and
notices in connection with the assignment of the Assigned Amount and the
Collateral from Seller to Buyer, and (ii) to execute and deliver all such
further agreements, assignments, instruments, notices, certificates, documents
and assurances and to perform such acts, as shall be reasonably required to
effectuate the purposes of this Agreement; PROVIDED THAT any action by Seller
shall be, as between Seller and Buyer, at the expense of Buyer, and Seller shall
not be required to incur any liability or to subject itself to any recourse as a
result of performing this SECTION 5(a). Without limiting the generality of the
foregoing, and subject to the terms hereof, as of the Closing, Seller authorizes
Buyer to file assignments of any and all UCC financing statement filed by Seller
prior to the date hereof with respect to a Loan Party.
(b) PAYMENTS RECEIVED BY SELLER AND BUYER. If any amount of principal,
interest, fees or other amount in respect of the Assigned Amount is received or
recovered by Seller, and such amount is due and/or payable to Buyer pursuant to
the terms of this Agreement, Seller shall promptly make payment of such amount
to Buyer after receipt thereof. If any amount of principal, interest, fees or
other amount in respect of the Assigned Amount is received or recovered by
Buyer, and such amount is due and/or payable to Seller pursuant to the terms of
this Agreement, Buyer shall promptly make payment of such amount to Seller after
receipt thereof. In addition, nothing herein shall require Seller or Buyer to
make any payment on a day which is not a Banking Day or after the time on any
Banking Day after which it is not reasonably possible to wire transfer funds to
Buyer's or Seller's bank in the ordinary course. Seller and Buyer shall
cooperate with each other to minimize any delay in payment of any amount payable
to either Buyer or Seller under this Agreement.
(c) BUYER NOT TO ACT IN SELLER'S NAME. Buyer shall not institute or
take any action (including any judicial action or proceeding) in the name of
Seller or any subsidiary or affiliate of Seller, PROVIDED THAT Buyer shall
advise the Loan Parties and any other parties to the Existing Credit Documents
whose notification is required pursuant to the terms of the Existing Credit
Documents, and may advise any other third parties, of the assignment of the
Loans and Existing Credit Documents and that Buyer is the assignee of Seller
with respect thereto and shall also specify Buyer's notice/contact information
in accordance with the Existing Credit Documents. From and after the Closing
Date, Buyer shall not mislead any Loan Party as to Buyer's identity and shall
promptly disclose in writing to each Loan Party that Buyer has become the owner
of the Loans and the assignee of the Existing Credit Documents.
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SECTION 6. ACKNOWLEDGMENTS OF BUYER; NON-RELIANCE.
(a) Buyer acknowledges and confirms to Seller that Buyer has itself
been, and will continue to be, independently and without reliance on Seller,
based on such documents and information as it has deemed appropriate (including
financial information with respect to each Loan Party), solely responsible for
making its own independent appraisal of and investigations into each Loan Party
and its respective Subsidiaries and its own credit analysis and decision to
enter into the Transfer Documents and to consummate the Assignment. Buyer also
acknowledges and agrees, except as set forth in SECTION 4, that (x) Seller has
made no representation or warranty to Buyer with respect to, and Buyer has not
relied upon and will not hereafter rely upon Seller regarding (among other
things and without implying any other representations or warranties), and (y)
apart from any liability of Seller to Buyer for any breach of any provision of
this Agreement or as otherwise expressly provided herein, Seller shall not
directly or indirectly have, suffer or incur any liability whatsoever to Buyer
or any of its respective successors or assigns on account of, or as a
consequence of: (i) the execution, legality, validity, enforceability,
genuineness, sufficiency, value, or collectability of the Assigned Amount, or
the Existing Credit Documents or the value, perfection, validity, or
enforceability of, or priority of liens with respect to, any Collateral,
including any inability or failure for any reason whatsoever to be able to
enforce any Existing Credit Document or other obligation or Collateral acquired
by Buyer from Seller, including on account of any defense or offset and whether
or not related to any acts or omissions of Seller before the Closing Date; (ii)
any loss, impairment, or other adverse effect with respect to the Assigned
Amount or any other obligation owing in connection with any of the Existing
Credit Documents or the Loans or any Collateral, whether or not related to any
acts or omissions of Seller or any other Person at any time before the Closing
Date, including as a result of any offset or defense of any kind whatsoever,
whether or not resulting from any conduct of Seller, from the operation of any
provision of the Bankruptcy Code, or otherwise; (iii) the creditworthiness,
financial condition, other condition, affairs, status, or nature of each Loan
Party, its Subsidiaries, or any other Person; or (iv) any representations,
warranties, or statements made in, or in connection with, the Existing Credit
Documents by any Person (other than any representation, warranty, or statement
made by Seller in this Agreement), or any information provided by Seller (other
than as expressly provided in this Agreement or any schedule hereto), any Loan
Party, its Subsidiaries, or any other Person under or in connection with any
Existing Credit Document or the transactions therein contemplated.
(b) CERTAIN CIRCUMSTANCES. Without limiting the generality of
subsection (a), Buyer acknowledges that certain defaults may exist with respect
to some or all of the Existing Credit Documents.
SECTION 7. PAYMENTS.
All payments hereunder shall be made on a Banking Day, without setoff,
deduction, or counterclaim, and in Dollars and immediately available funds, to
the accounts designated by each party on SCHEDULE 4 or to such other account as
either party may designate by written notice to the other party.
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SECTION 8. NOTICES.
All notices and other communications provided for hereunder or under
the other Transfer Documents shall, unless otherwise stated herein, be in
writing (including by facsimile) and shall be mailed, sent or delivered at or to
the address or facsimile number of the respective party or parties set forth on
SCHEDULE 5, or at or to such other address or facsimile number as such party or
parties shall have designated in a written notice to the other party or parties.
All such notices and communications shall be effective (i) if delivered by hand,
upon delivery; and (ii) if sent by mail or facsimile, upon receipt.
SECTION 9. NO WAIVER; CUMULATIVE REMEDIES.
No failure on the part of Seller or Buyer to exercise, and no delay in
exercising, any right, remedy, power, or privilege hereunder or under any other
Transfer Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power, or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power, or privilege. The rights and remedies under this Agreement and the other
Transfer Documents are cumulative and not exclusive of any rights, remedies,
powers, and privileges that may otherwise be available to Seller or Buyer.
SECTION 10. COSTS AND EXPENSES.
Seller and Buyer shall each absorb its own costs and expenses
(including fees and disbursements of counsel) in connection with the
negotiation, preparation, and execution of this Agreement and the other Transfer
Documents. In the event of any legal action to enforce or construe any provision
of this Agreement, the nonprevailing party or parties thereto shall pay to the
prevailing party the reasonable costs and expenses (including court costs and
attorneys' fees) actually incurred by such prevailing party therein. Nothing
herein is intended to limit the rights of Seller or Buyer to recover such costs
and expenses from any Loan Party.
SECTION 11. NO THIRD PARTY BENEFICIARIES.
The representations and warranties of Seller and Buyer in this
Agreement and the other Transfer Documents are made only by Seller to Buyer
personally and by Buyer to Seller personally and are not assignable by Buyer or
by Seller, and are not subject to enforcement by any other Person. This
Agreement and the other Transfer Documents are entered into for the sole
protection and benefit of the parties hereto and their respective successors and
assigns, and no other Person shall be a direct or indirect beneficiary of, or
shall have any direct or indirect cause of action or claim in connection with,
this Agreement and the other Transfer Documents.
SECTION 12. GOVERNING LAW.
THIS AGREEMENT AND THE OTHER TRANSFER DOCUMENTS SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 13. ENTIRE AGREEMENT; AMENDMENT.
(a) ENTIRE AGREEMENT. This Agreement and the other Transfer Documents
constitute the entire agreement of Seller and Buyer with respect to the matters
set forth herein and supersede and any and all prior drafts, agreements,
commitments, discussions and understandings, oral or written, with respect
hereto or to any other Transfer Document.
(b) AMENDMENTS. This Agreement may not be modified, amended or
otherwise altered except by a writing signed by Seller and Buyer.
SECTION 14. SEVERABILITY.
Whenever possible, each provision of this Agreement and the other
Transfer Documents shall be interpreted in such manner as to be effective and
valid under all applicable laws and regulations. If, however, any provision of
this Agreement or any such other Transfer Document shall be prohibited by or
invalid under any such law or regulation in any jurisdiction, such provision
shall, as to such jurisdiction, be deemed modified to the minimum extent
necessary in order to conform to the requirements of such law or regulation, or,
if for any reason such provision is not deemed so modified, shall be ineffective
and invalid only to the extent of such prohibition or invalidity, without
affecting the remaining provisions of this Agreement and the other Transfer
Documents or the validity or effectiveness of such provision in any other
jurisdiction.
SECTION 15. SCHEDULES AND EXHIBITS.
All schedules and exhibits to this Agreement shall be deemed to be an
integral part hereof.
SECTION 16. JURY TRIAL WAIVER.
EACH OF SELLER AND BUYER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH OF SELLER AND BUYER REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
SECTION 17. RESIGNATION AND TERMINATION OF AGENCY.
In furtherance of the Assignment set forth in Section 2, and in
accordance with and pursuant to Section 16.9 of the Existing Credit Agreement,
Existing Agent hereby confirms that as of the Closing, it resigns as "Agent"
under the Existing Credit Agreement and relinquishes all of its rights, powers,
privileges and duties as "Agent" thereunder; PROVIDED, HOWEVER, that each
Existing Lender hereby waives the notice of resignation required under Section
16.9 of the Existing Credit Agreement and any other provision set forth in any
Existing
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Credit Document which would otherwise qualify or restrict the assignment and
resignation of the Existing Agent as "Agent" set forth in this Agreement; and
PROVIDED, FURTHER, that the provisions of the Existing Credit Agreement shall
inure to the benefit of the Existing Agent as to any actions taken or omitted to
be taken by it while it was "Agent" under the Existing Credit Agreement. The
parties hereto acknowledge that after the Closing the Existing Agent shall have
not continuing obligations or duties in connection with its activities as
"Agent."
SECTION 18. COUNTERPARTS.
This 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 taken together shall
constitute but one and the same agreement. Delivery of an executed counterpart
of this Agreement by telefacsimile shall be equally as effective as delivery of
an original executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by telefacsimile also shall deliver an
original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FLEET NATIONAL BANK,
a national banking association,
as Existing Agent and as an Existing Lender
By /s/ Xxxxxxxx X. Xxxxx
---------------------------------------
Name Xxxxxxxx X. Xxxxx
-------------------------------------
Title Banking Officer
-------------------------------------
KEYBANK NATIONAL ASSOCIATION,
a national banking association,
as an Existing Lender
By /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Name Xxxxxxxx X. Xxxxxxx
-------------------------------------
Title Senior Vice President
-------------------------------------
BANKNORTH, N.A.
a national association,
as an Existing Lender
By /s/ Xxxx Xxxxxxxx
----------------------------------------
Name Xxxx Xxxxxxxx
--------------------------------------
Title Senior Vice President
-------------------------------------
PNC BANK, NATIONAL ASSOCIATION
a national association,
as an Existing Lender
By /s/ Xxxxxx Xxxxxx
---------------------------------------
Name Xxxxxx Xxxxxx
-------------------------------------
Title Assistant Vice President
------------------------------------
CITIZENS BANK OF MASSACHUSETTS,
as an Existing Lender
By /s/ Xxxxx Xxxxxxx
---------------------------------------
Name Xxxxx Xxxxxxx
-------------------------------------
Title Vice President
------------------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
as Buyer
By /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name Xxxxxx X. Xxxxx
-------------------------------------
Title Senior Vice President
------------------------------------
ACKNOWLEDGEMENT OF LOAN PARTIES
Each of HPSC, INC., a Delaware corporation ("HPSC"), and AMERICAN
COMMERCIAL FINANCE CORPORATION, a Delaware corporation ("ACFC"; ACFC together
with HPSC are hereinafter referred to each as a "LOAN PARTY", and individually
and collectively, jointly and severally, as the "LOAN PARTIES"), hereby
acknowledges and agrees that: (i) it has received a copy of, reviewed, and is
familiar with the contents of, the foregoing Purchase and Sale Agreement, dated
as of August 2, 2002 (the "PURCHASE AND SALE AGREEMENT"), by and among, on the
one hand, the banks identified as existing lenders on the signature pages hereto
(individually and collectively, jointly and severally, the "EXISTING LENDERS"),
and FLEET NATIONAL BANK, a national banking association ("FLEET"), KEYBANK
NATIONAL ASSOCIATION, a national banking association ("KEYBANK"), BANKNORTH,
N.A., a national association ("BANKNORTH"), PNC BANK, NATIONAL ASSOCIATION, a
national association ("PNC"), CITIZENS BANK OF MASSACHUSETTS, a Massachusetts
chartered bank ("CITIZENS"; and together with Fleet, Keybank, PNC and Banknorth,
each an "EXISTING LENDER", and individually and collectively, jointly and
severally, the "EXISTING LENDERS"), and FLEET NATIONAL BANK, a national banking
association, as administrative agent for such Existing Lenders (in such
capacity, "EXISTING AGENT"; Existing Agent together with Existing Lenders are
collectively referred to as the "SELLER"), and on the other hand, FOOTHILL
CAPITAL CORPORATION, a California corporation, which will, subject to the terms
hereof, become party to the Existing Credit Agreement (as hereinafter defined)
(in such capacity, "NEW LENDER") and as the new agent for the New Lender and any
additional lenders that from time to time are made party to the Existing Credit
Agreement as "Banks" (in such capacity, "NEW AGENT"; New Agent together with New
Lender, are collectively referred to as the "BUYER"); (ii) all terms used herein
have the meaning ascribed thereto in the Purchase and Sale Agreement unless
otherwise defined herein; (iii) the purchase of the Assigned Amount by Buyer
from Seller has occurred as of the Closing Date; (iv) SCHEDULE 1 of the Purchase
and Sale Agreement accurately and correctly describes all of the Existing Credit
Documents and does not omit any material documents or agreements that should be
listed thereon, nor does it fail to include any amendments or modifications
relating thereto (other than those being entered into between the undersigned
and Buyer following the purchase by Buyer of the Loans); (v) attached as
SCHEDULE 2 to the Purchase and Sale Agreement is a true and complete copy of
each stock certificate that was delivered to Existing Administrative Agent in
connection with the Existing Credit Agreement, (vi) SCHEDULE 3 of the Purchase
and Sale Agreement accurately and correctly describes substantially all of the
Negotiable Collateral pledged by any Loan Party to Seller as Collateral, in
connection with the Existing Credit Documents, and does not omit any material
instruments or other documents that should be listed thereon, nor does it fail
to include any amendments or modifications relating thereto (other than those
being entered into between the undersigned and Buyer following the purchase by
Buyer of the Loans); and (vii) the Assigned Amount represents the correct amount
of Obligations (as defined in the Existing Credit Agreement), other than any
Obligations constituting contingent reimbursement obligations on account of the
Letters of Credit (as such term is defined in the Existing Credit Agreement)
owed by the Loan Parties as of the Closing Date, and no Loan Party has any
defenses, offsets, counterclaims, or deductions with respect to the Assigned
Amount, or, if any such items may have existed, they are hereby waived for the
benefit of Buyer and Seller. Each Loan Party further ratifies and reaffirms each
of its obligations to Seller described in Section 2(b) of the Purchase and Sale
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
acknowledgment as of the date of the Purchase and Sale Agreement.
HPSC, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
AMERICAN COMMERCIAL FINANCE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
SCHEDULE 1
TO PURCHASE AND SALE AGREEMENT
LOAN DOCUMENTS
SCHEDULE 1
TO PURCHASE AND SALE AGREEMENT
LOAN DOCUMENTS
1. Fourth Amended and Restated Credit Agreement dated May 12, 2002 among HPSC,
Inc. and Fleet National Bank individually and as Agent, and the Banks named
therein.
2. First Amendment dated as of December 1, 2000 to Fourth Amended and Restated
Credit Agreement dated May 12, 2002 among HPSC, Inc. and Fleet National
Bank individually and as Agent, and the Banks named therein.
3. Second Amendment dated as of December 31, 2000 to Fourth Amended and
Restated Credit Agreement dated May 12, 2002 among HPSC, Inc. and Fleet
National Bank individually and as Agent, and the Banks named therein.
4. Third Amendment dated as of May 8, 2001 to Fourth Amended and Restated
Credit Agreement dated May 12, 2002 among HPSC, Inc. and Fleet National
Bank individually and as Agent, and the Banks named therein.
5. Fourth Amendment dated as of May 6, 2002 to Fourth Amended and Restated
Credit Agreement dated May 12, 2002 among HPSC, Inc. and Fleet National
Bank individually and as Agent, and the Banks named therein.
6. Fifth Amendment dated as of June 5, 2002 to Fourth Amended and Restated
Credit Agreement dated May 12, 2002 among HPSC, Inc. and Fleet National
Bank individually and as Agent, and the Banks named therein.
7. Security Agreement dated as of June 23, 1994 between American Commercial
Finance Corporation and The First National Bank of Boston, as Agent
8. Security Agreement dated as of June 23, 1994 between HPSC, Inc. and The
First National Bank of Boston, as Agent
9. Guaranty dated as of June 23, 1994 between American Commercial Finance
Corporation and The First National Bank of Boston, as Agent
10. Stock Pledge Agreement dated as of June 23, 1994 between HPSC, Inc. and The
First National Bank of Boston
11. Omnibus Amendment No. 4 to Security Documents dated as of May 12, 2000 by
and among HPSC, Inc. American Commercial Finance Corporation and Fleet
National Bank.
12. UCC financing statements listed on Schedule P-1 of the Fifth Amended and
Restated Loan and Security Agreement by and among HPSC, Inc., the Lenders
that are signatories thereto and Foothill Capital dated August 5, 2002.
13. Subsequent Transfer Agreement, dated as of March 20, 2001, by and among
HPSC, Inc. and American Commercial Finance Corporation as Originators, HPSC
Bravo Funding Corp. as Transferor and HPSC Equipment Receivables 2000-1 LLC
I and HPSC Equipment Receivables 2001-1 LLC II as Issuers.
14. Confirmation Grant of Security Interest, dated as of March __, 2001, by
HPSC, Inc. to Fleet National Bank pursuant to the Fourth Amended and
Restated Credit Agreement dated May 12, 2002, as amended, modified or
supplemented and in effect from time to time.
SCHEDULE 2
TO PURCHASE AND SALE AGREEMENT
STOCK CERTIFICATE
Certificate No. 1 of ACFC, representing one share of common stock of ACFC.
SCHEDULE 3
TO PURCHASE AND SALE AGREEMENT
NEGOTIABLE COLLATERAL
======================================================================================================================
INSTRUMENT
DATE MAKER PRINCIPAL AMOUNT
======================================================================================================================
Term Promissory Note July 30, 1998 Virginia Commonwealth Textiles, $1,100,000
L.L.C.
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note July 30, 1998 Virginia Commonwealth Textiles, 1,800,000
L.L.C.
----------------------------------------------------------------------------------------------------------------------
Demand Promissory Note December 9, 1997 Xxxxxxxx Leasing Co., Inc. 400,000
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note December 9, 1997 Xxxxxx Xxxxxx & Sons, Inc. 650,000
----------------------------------------------------------------------------------------------------------------------
Demand Promissory Note September 11, 1997 NICON Filter Corporation 400,000
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note September 11, 1997 NICON Filter Corporation 700,000
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note May 28, 1997 The A. D. Xxxxx Company 1,750,000
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note November 7, 1996 Automatic Plating of Bridgeport, 500,000
Inc.
----------------------------------------------------------------------------------------------------------------------
Demand Promissory Note August 6, 1998 Tastex Corporation 250,000
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note July 30, 0000 Xxxxxxx Xxxxxx Company 1,500,000
----------------------------------------------------------------------------------------------------------------------
Additional Loan Promissory Note October 15, 1998 Virginia Commonwealth Textiles, 250,000
L.L.C.
----------------------------------------------------------------------------------------------------------------------
Additional Loan Promissory Note October 15, 1998 Virginia Commonwealth Textiles, 250,000
L.L.C.
----------------------------------------------------------------------------------------------------------------------
Demand Promissory Note January 15, 1999 Progressive Plating Technology, 235,000
Inc.
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note March 26, 1999 Teachers Square, Inc. 6,000,000
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note September 2, 1999 Equipment Service, Inc. 1,800,000
----------------------------------------------------------------------------------------------------------------------
Promissory Note September 2, 1999 Equipment Service, Inc. 600,000
----------------------------------------------------------------------------------------------------------------------
======================================================================================================================
INSTRUMENT
DATE MAKER PRINCIPAL AMOUNT
======================================================================================================================
Promissory Note September 2, 1999 Equipment Service, Inc. 200,000
----------------------------------------------------------------------------------------------------------------------
Additional Advance Promissory March 31, 2000 Teachers Square, Inc. 750,000
Note
----------------------------------------------------------------------------------------------------------------------
Revolving Promissory Note October 13, 1999 Accent Lamp and Shade Company, 1,400,000
Inc.
----------------------------------------------------------------------------------------------------------------------
TOTAL: $20,535,000.00
----------------------------------------------------------------------------------------------------------------------
SCHEDULE 4
TO PURCHASE AND SALE AGREEMENT
OUTSTANDING LOAN BALANCE
Outstanding Loan balance as of August 6, 2002: $50,364,154.41, which is
comprised of the following:
1. Principal of $50,000,000.
2. Interest of $341,376.71 through August 6, 2002.
3. Fees, costs and expenses of $22,601.47.
PAYMENT INSTRUCTIONS
SELLER
Fleet National Bank
ABA #: 000-000-000
Account #: 0000000-41515
Attn: Agency Services Boston
Account Name: Commercial Loan Suspense
Ref: HPSC, Inc.
BUYER
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Credit: Foothill Capital Corporation
Account number 323-266193
Ref: HPSC, Inc.
SCHEDULE 5
TO PURCHASE AND SALE AGREEMENT
NOTICE ADDRESSES
IF TO BUYER: FOOTHILL CAPITAL CORPORATION
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Loan Portfolio Manager
Fax No. 000.000.0000
WITH COPIES TO: XXXXXXX, PHLEGER & XXXXXXXX LLP
000 X. Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx Hilson, Esq.
Fax No. (000) 000-0000
IF TO SELLER:
FLEET NATIONAL BANK BANK NORTH FINANCIAL GROUP
Mail Stop: XX XX 00000X 0 Xxx Xxxxxxx Xxxxxxxxx Xxxx
000 Xxxxxxx Xxxxxx Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx Attn: Xxx Xxxxxxxxx
Phone: 000-000-0000 PHFG Corporate Banking
Fax: 000-000-0000 Phone: 000-000-0000
E-Mail: xxxxxxxx_x_xxxxx@xxxxx.xxx Fax: 000-000-0000
E-Mail: XXxxxxxxxx@xxxxxxxxx.xxx
FLEET NATIONAL BANK CITIZENS BANK
Mail Stop: XX XX 00000X 00 Xxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000 Attn: Xxxxx Xxxxxxx
Attn: C. Xxxxxxxxxxx Xxxxx Phone: 000-000-0000
Phone: 000-000-0000 Fax: 000-000-0000
Fax: 000-000-0000 E-Mail: Xxxxx.Xxxxxxx@XxxxxxxxXxxx.xxx
E-Mail: x_xxxxxxxxxxx_xxxxx@xxxxx.xxx
FLEET NATIONAL BANK PNC BUSINESS CREDIT
0 Xxxxxxx Xxxxxx 00 Xxxx 00xx Xxxxxx
XX XX 00000X 00xx Xxxxx
Xxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx Attn: Xxxxxx Xxxxxx
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 or 5833 Fax: 000-000-0000
E-Mail: Xxxxx_X_Xxxx@Xxxxx.xxx E-Mail: xxxxxx.xxxxxx@xxxxxxxxxxxxxxxxx.xxx
KEYBANK NATIONAL ASSOCIATION XXXXXXX & ANGEL
000 Xxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx Attn: xxxx Xxxxx
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 E-Mail: Xxxxxx@xxxxx.xxx
E-Mail: xxxxxxxx_x_xxxxxxx@xxxxxxx.xxx
