1
EXHIBIT 10.51
HPSC EQUIPMENT RECEIVABLES 2000-1 LLC I
HPSC EQUIPMENT RECEIVABLES 2000-1 LLC II
EQUIPMENT CONTRACT-BACKED NOTES, SERIES 2000-1
$30,000,000 FLOATING RATE EQUIPMENT CONTRACT-BACKED VARIABLE FUNDING NOTES,
SERIES 2000-1
PURCHASE AGREEMENT
December 14, 2000
Credit Suisse First Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Section 1. Introductory. HPSC Equipment Receivables 2000-1 LLC I ("LLC I")
and HPSC Equipment Receivables 2000-1 LLC II ("LLC II") (LLC I and LLC II,
together, the "ISSUERS"), Delaware limited liability companies, propose, subject
to the terms and conditions stated herein, to issue and sell to Alpine
Securitization Corp. (the "PURCHASER") its Equipment Contract-Backed Variable
Funding Notes, Series 2000-1, (the "NOTES"), to be issued under an indenture,
dated as of December 1, 2000 (the "INDENTURE"), by and among the Issuers, HPSC,
Inc., an Originator and as Servicer, ("HPSC"), (in such capacities, an
"Originator" and the "Servicer," as applicable), American Commercial Financial
Corporation (an "Originator" or "ACFC" and together with HPSC in its capacity as
an Originator, the "Originators") and BNY Midwest Trust Company, as indenture
trustee (the "INDENTURE TRUSTEE"). In addition, simultaneously with the issuance
of the Notes, and subject to the a note purchase agreement among the Issuers,
American Commercial Finance Corporation ("ACFC") and Credit Suisse First Boston
Corporation ("CSFB"), dated December 1, 2000 (the "Class A-F Note Purchase
Agreement"), the Issuers propose to (i) sell to CSFB its Equipment
Contract-Backed Notes, Series 2000-1, Class A, Class B1, Class B2, Class C,
Class D and Class E Notes (collectively, the "SALE NOTES") and (ii) to issue and
engage CSFB to use its best efforts to place the Class F Notes (the "Best
Efforts Notes"). The Securities Act of 1933, as amended, is herein referred to
as the "SECURITIES ACT". Capitalized terms used herein but not otherwise defined
shall have the meanings set forth in the Indenture.
Section 2. Representations and Warranties of the Issuers, ACFC and HPSC.
Each of HPSC, ACFC and the Issuers jointly and severally represent and warrant
to the Purchaser, as of the Closing Date, that:
(a) A preliminary offering circular and an offering circular relating
to the Notes to be offered by the Purchaser have been prepared by the
Issuers. Such preliminary offering circular (the "PRELIMINARY OFFERING
CIRCULAR") and offering circular (the "OFFERING CIRCULAR"), as supplemented
by any additional information and documents concerning the Notes delivered
by or on behalf of the Issuers to prospective purchasers are hereinafter
collectively referred to as the "OFFERING DOCUMENT". On the
2
date of this Agreement and the Closing Date, the Offering Document does not
include, or will not include, as the case may be, any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) The Issuers are limited liability companies duly formed, validly
existing and in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own their properties and
conduct their business as described in the Offering Document; and the
Issuers are duly qualified to do business as foreign entities in good
standing in all other jurisdictions in which their ownership or lease of
property or the conduct of their business requires such qualification.
(c) Each of HPSC and ACFC is a corporation duly formed, validly
existing and in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and each of HPSC and
ACFC is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(d) The Indenture has been duly authorized and on the Closing Date the
Indenture will have been duly executed and delivered, will conform to the
description thereof contained in the Offering Document and will constitute
valid and legally binding obligations of the Issuers, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(e) The Notes have been duly authorized; and when the Notes are
delivered and paid for pursuant to this Agreement on the Closing Date, such
Notes will have been duly executed, authenticated, issued and delivered and
will conform to the description thereof contained in the Offering Document
and will constitute valid and legally binding obligations of the Issuers,
enforceable against the Issuers in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Transaction Documents
and in connection with the issuance and sale of the Notes by the Issuers.
(g) The execution, delivery and performance of each of the Transaction
Documents and the issuance and sale of the Notes and compliance with the
terms and provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Issuers,
HPSC, ACFC or any Affiliate thereof or any of their
2
3
properties, or any agreement or instrument to which any Issuer, HPSC, ACFC
or any Affiliate thereof is a party or by which any Issuer, HPSC, ACFC or
any Affiliate thereof is bound or to which any of the properties of the
Issuers, HPSC, ACFC or any Affiliate thereof is subject, or the
organizational documents of the Issuers, HPSC, ACFC or any Affiliate
thereof, and each Issuer has full power and authority to authorize, issue
and sell the Notes as contemplated by this Agreement.
(h) This Agreement and each other Transaction Document to which any
Issuer is a party have each been duly authorized, executed and delivered by
such Issuer. This Agreement and the other Transaction Documents to which
HPSC or ACFC is a party have each been duly authorized, executed and
delivered by HPSC and ACFC, as applicable.
(i) Each Issuer, ACFC and HPSC each have good and marketable title to
all real properties and all other properties and assets owned by it, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to be
made thereof by them; and except as disclosed in the Offering Document,
each of HPSC and ACFC holds any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by it.
(j) Each of the Issuers, ACFC and HPSC possesses adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by it and
has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to any Issuer, ACFC or HPSC, would individually or in
the aggregate have a material adverse effect on the condition (financial or
other), business, properties or results of operations of such Issuer, HPSC,
ACFC or any Affiliate thereof ("MATERIAL ADVERSE EFFECT").
(k) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting any Issuer, ACFC or HPSC
or any of their respective properties that, if determined adversely to such
Issuer, ACFC or HPSC, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of such Issuer, ACFC or HPSC to perform its obligations under any
of the Transaction Documents, or which are otherwise material in the
context of the sale or placement of the Notes; and no such actions, suits
or proceedings are threatened or, to any Issuer's, ACFC's or HPSC's
knowledge, contemplated.
(l) Neither Issuer is an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940 (the "INVESTMENT COMPANY ACT") ; and neither Issuer is, nor after
giving effect to the offering and sale of the Notes and the application of
the proceeds thereof as described in the Offering Document, will be, an
"investment company" as defined in the Investment Company Act.
3
4
(m) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Notes are listed on any
national securities exchange registered under Section 6 of the United
States Securities Exchange Act of 1934 ("EXCHANGE ACT").
(n) The offer and sale of the Notes in the manner contemplated by this
Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof and it is not necessary to
qualify an indenture in respect of the Notes under the United States Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(o) The Issuers have not entered and will not enter into any
contractual arrangement with respect to the distribution of the Notes
except for this Agreement. The issuers have entered into a contractual
arrangement with respect to the distribution of the Sale Notes and Best
Efforts Notes and such arrangement is governed by the Class A-F Note
Purchase Agreement.
(p) There is no "substantial U.S. market interest" as defined in Rule
902(n) of Regulation S in the Notes.
(q) Upon execution and delivery of the Receivables Transfer Agreement,
the Issuers will have acquired the Originators' right, title and interest
in and to the Contracts free and clear of all Liens.
(r) Upon the execution and delivery of the Receivables Transfer
Agreement, the Issuers will have the power and authority to pledge the
Contracts to the Indenture Trustee on behalf of the Noteholders.
(s) Each of the representations and warranties of the Issuers, ACFC
and HPSC set forth in each of the Transaction Documents to which it is a
party is true and correct in all material respects.
(t) Any taxes, fees and other governmental charges in connection with
the execution and delivery of the Transaction Documents or the execution,
delivery and sale of the Notes have been or will be paid prior to the
Closing Date.
Section 3. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions set forth herein,
the Issuers agree to sell to the Purchaser and the Purchaser agrees to
purchase from the Issuers the Notes.
(b) The Purchaser shall have all the rights and remedies of the Notes
as set forth herein and in the Indenture.
Section 4. Representations of the Purchaser; Resales.
4
5
(a) The Purchaser represents that it is an "accredited investor"
within the meaning of Regulation D under the Securities Act.
(b) The Purchaser acknowledges that the Notes have not been registered
under the Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act.
(c) The Purchaser agrees that it and each of its affiliates will not
offer or sell the Notes in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
or (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. The Purchaser agrees, with
respect to resales made in reliance on Rule 144A of any of the Notes, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such
Notes has been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
(d) One of the following statements is true and correct: (i) the
Purchaser is not an "employee benefit plan" within the meaning of Section
3(3) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of the
Code (a "PLAN") and it is not directly or indirectly acquiring the Notes on
behalf of, as investment manager of, as named fiduciary of, as trustee of,
or with assets of a Plan, or (ii) the proposed acquisition or transfer will
qualify for a statutory or administrative prohibited transaction exemption
under ERISA or Section 4975(c)(1) of the Code for which a statutory or
administrative exception is available.
(f) In addition to the foregoing, the Purchaser will not transfer the
Notes to any person or entity that does not have a short-term debt rating
of A1, P1 and F1, by Standard and Poor's, Xxxxx'x and Fitch, respectively.
Section 5. Certain Covenants of the Issuers. The Issuers agree with the
Purchaser that:
(a) At any time the Notes are Outstanding, the Issuers will promptly
furnish or cause to be furnished to each Purchaser and, upon request of
holders and prospective purchasers of the Notes, to such holders and
purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Notes. The Issuers will pay the expenses of printing and distributing to
the Purchaser all such documents.
5
6
(b) The Issuers will pay all expenses incidental to the performance of
their respective obligations under the Transaction Documents including (i)
all expenses in connection with the execution, issuance, authentication,
packaging and initial delivery of the Notes, the preparation of the
Transaction Documents and the printing of the Offering Document and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Notes; (ii) any expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Notes for sale under the laws of such jurisdictions in
the United States and Canada as the Purchaser designates and the printing
of memoranda relating thereto, (iii) expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchaser.
(c) In connection with the offering, until the Purchaser shall have
notified the Issuers of the resale of the Notes, neither the Issuers nor
any of their respective affiliates have or will, either alone or with one
or more other persons, bid for or purchase for any account in which it or
any of its affiliates has a beneficial interest any Notes or attempt to
induce any person to purchase any Notes; and neither they nor any of their
respective affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the price
of, the Notes.
Section 6. Conditions of the Purchaser's Obligations. The obligations of
the Purchaser to purchase and pay for the Notes on the Closing Date will be
subject to the accuracy of the representations and warranties on the part of the
Issuers, ACFC and HPSC herein, the accuracy of the statements of officers of the
Issuers made pursuant to the provisions hereof, to the performance by the
Issuers of their respective obligations hereunder and to the following
additional conditions precedent:
(a) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of the Purchaser, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Notes, whether in the primary market or in respect of dealings in the
secondary market, or (ii) (A) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any Issuer or its
Affiliates which, in the judgment of the Purchaser, is material and adverse
and makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Notes; (B) any downgrading in
the rating of any debt securities of any Issuer or its Affiliates by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of any Issuer or its Affiliates (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (C) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of any Issuer or
its Affiliates on any exchange or in the over-the-counter market; (D) any
banking moratorium declared by U.S. Federal or
6
7
New York authorities; or (E) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Purchaser, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or
sale of and payment for the Notes.
(b) The Notes shall have been duly authorized, executed,
authenticated, delivered and issued, and each of the Transaction Documents
shall have been duly authorized, executed and delivered by the respective
parties thereto and shall be in full force and effect, and all conditions
precedent contained in the Transaction Documents shall have been satisfied.
(c) The Purchaser shall have received from counsel to each party to
the Transaction Documents, written opinions dated the Closing Date and in
form and substance satisfactory to the Purchaser, covering such matters as
the Purchaser may reasonably request, including but not limited to the
following:
(i) Corporate Opinions. An opinion in respect of each party to
the Transaction Documents that such party has been duly formed,
existing and in good standing under the laws of its State of
formation, with all requisite power and authority to own its
properties and conduct its business; and such party is duly qualified
to do business as a foreign entity in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(ii) Legal, Valid, Binding and Enforceable. An opinion in respect
of each party to the Transaction Documents that each Transaction
Document to which it is a party has been duly authorized, executed and
delivered and constitutes valid and legally binding obligations of
each party enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(iii) Notes. An opinion that the Notes have been duly authorized,
executed, authenticated, issued and delivered and conform to the
description thereof contained in the Offering Document; and constitute
valid and legally binding obligations of the Issuers enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(iv) No Consents Required. An opinion in respect of each party to
the Transaction Documents that in respect such party, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the
transactions contemplated by the Transaction Documents.
7
8
(v) Litigation. An opinion in respect of each party to the
Transaction Documents that in respect of such party, there are no
pending actions, suits or proceedings against or affecting such party,
any of its subsidiaries or any of their respective properties that, if
determined adversely to such party or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of such party to
perform its obligations under the Transaction Documents; and no such
actions, suits or proceedings are threatened or, to such counsel's
knowledge, contemplated.
(vi) Non-Contravention. An opinion in respect of each party to
the Transaction Documents that in respect of such party the execution,
delivery and performance of the Transaction Documents to which it is a
party will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over such party or any subsidiary of such party or
any of their properties, or any agreement or instrument to which such
party or any such subsidiary is a party or by which such party or any
such subsidiary is bound or to which any of the properties of such
party or any such subsidiary is subject, or the organizational
documents of such party or any such subsidiary.
(vii) Securities Laws. An opinion that it is not necessary in
connection with (i) the offer, sale and delivery of Notes by the
Issuers to the Purchaser pursuant to this Agreement, or (ii) the
resale of the Notes by the Purchaser in the manner contemplated by
this Agreement, to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
(viii) Investment Company Act. An opinion that neither Issuer is,
nor after giving effect to the offering and sale of the Notes and the
application of the proceeds as described in the Offering Document will
be, an "investment company" as defined in the Investment Company Act.
(ix) Federal Income Tax. An opinion that for U.S. federal income
tax purposes (a) neither of the Issuers will be treated as an
association (or a publicly traded partnership) taxable as a
corporation, (b) the Notes will be treated as indebtedness of the
Issuers.
(x) True Sale. A true sale opinion to the effect that (i) in the
event that the transferor of Contracts pursuant to the Receivables
Transfer Agreement were to become a debtor in a case under the
Bankruptcy Code, a court of competent jurisdiction would hold that the
Contracts and other assets sold to the Issuers under the Receivables
Transfer Agreement would not constitute property of such transferor's
bankruptcy estate, and (ii) the transfer of the Contracts by the
Originators pursuant to the Receivables Transfer Agreement constitutes
a sale of the Contracts by the Originators to the Issuers.
8
9
(xi) Non-Consolidation. An opinion to the effect that in the
event that HPSC or ACFC were to become a debtor in a case under the
Bankruptcy Code, a court of competent jurisdiction would not disregard
the separate existence of any of the Issuers and the Originators so as
to order the substantive consolidation of the assets and liabilities
of (a) the Issuers on the one hand and (b) HPSC or ACFC on the other
hand.
(xii) Security Interests. An opinion to the effect that (i) in
the event that the transfer of Contracts from the Transferors to the
Issuers shall be considered a loan secured by the Contracts, upon
execution of the Receivables Transfer Agreement and upon possession of
the Contracts in the State of Massachusetts and the filing of
financing statements related thereto, the Issuers will have a
perfected first priority security interest in the Contracts and other
assets which may be perfected by filing, and (ii) upon execution of
the Indenture and upon possession of the Contracts in the Commonwealth
of Massachusetts and the filing of financing statements related
thereto, the Indenture Trustee will have a perfected first priority
security interest in the Contracts and other assets which may be
perfected by filing.
(h) The Sale Notes and the Best Efforts Notes have been sold pursuant to
the Class A-F Note Purchase Agreement.
The Purchaser may in its sole discretion waive compliance with any
conditions to the obligations of the Purchaser hereunder.
Section 7. Indemnification and Contribution.
(a) Each of the Issuers, ACFC and HPSC jointly and severally agrees
(i) to indemnify and hold harmless the Purchaser, its partners, directors
and officers and each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Purchaser may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (A) any breach of any of the
representations and warranties of any Issuer, ACFC, or HPSC contained
herein, or (B) any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or
supplement thereto, or any related preliminary offering circular, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
including any losses, claims, damages or liabilities arising out of or
based upon any Issuer's failure to perform its obligations under Section
5(a) of this Agreement, and (ii) will reimburse the Purchaser for any legal
or other expenses reasonably incurred by the Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Issuers, ACFC nor HPSC will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission
9
10
from any of such documents in reliance upon and in conformity with written
information furnished to the Issuers by the Purchaser specifically for use
therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below.
(b) The Purchaser will indemnify and hold harmless the Issuers, their
directors and officers and each person, if any, who controls the Issuers
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which the Issuers may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering
circular, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Issuers by the Purchaser specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred
by the Issuers in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by the
Purchaser consists of the third, sixth and eighth paragraphs under the
caption "PLAN OF DISTRIBUTION"; provided, however, that the Purchaser shall
not be liable for any losses, claims, damages or liabilities arising out of
or based upon any Issuer's failure to perform its obligations under Section
5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability
10
11
on any claims that are the subject matter of such action and does not
include a statement as to or an admission of fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Issuers on the one hand and the Purchaser on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuers on the one hand and
the Purchaser on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Purchaser on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Issuers bear to the
total discounts and commissions received by the Purchaser from the Issuers
under this Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers or the Purchaser and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Purchaser shall
not be required to contribute any amount in excess of the amount by which
the total price at which the Notes purchased by it were resold exceeds the
amount of any damages which the Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(e) The obligations of the Issuers, ACFC and HPSC under this Section
shall be in addition to any liability which the Issuer may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Purchaser within the meaning of the Securities Act or
the Exchange Act; and the obligations of the Purchaser under this Section
shall be in addition to any liability which the Purchaser may otherwise
have and shall extend, upon the same terms and conditions, to each person,
if any, who controls the Issuers within the meaning of the Securities Act
or the Exchange Act.
Section 8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuers or their officers and of the Purchaser set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results
11
12
thereof, made by or on behalf of the Purchaser, the Issuers or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated as a result of a default by the Purchaser or if for any reason the
purchase of the Notes by the Purchaser is not consummated, the Issuers shall
remain responsible for the expenses to be paid or reimbursed by any of them
pursuant to Section 5 and the respective obligations of the Issuers and the
Purchaser pursuant to Section 7 shall remain in effect. If the purchase of the
Notes by the Purchaser is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to a default by the
Purchaser or the occurrence of any event specified in clause (C), (D) or (E) of
Section 6(a)(ii), the Issuers will reimburse the Purchaser for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by it
in connection with the offering of the Notes.
Section 9. Severability Clause. Any part, provision, representation, or
warranty of this Agreement which is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
Section 10. Notices. All communications hereunder will be in writing and,
(A) if sent to the Purchaser will be mailed, delivered or telegraphed and
confirmed to the Purchaser, at Credit Suisse First Boston, New York Branch,
Eleven Madison Avenue, 5th Floor, New York, NY 10010-3629, Attention: Asset
Backed Conduit, or (B) if sent to the Issuers, will be mailed, delivered or
telegraphed and confirmed to them at 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxxxxx, 00000-0000 or (C) if sent to HPSC will be mailed, delivered or
telegraphed and confirmed to it at 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxxxxx, 00000-0000 or (D) if sent to ACFC will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxx Xxxx Xxxxxx, X. Xxxxxxxx,
Xxxxxxxxxxx 00000; provided, however, that any notice to the Purchaser pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to the
Purchaser.
Section 11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Notes shall be entitled to
enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Issuers as if such holders were
parties thereto.
Section 12. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICT OF LAW PROVISIONS. The Issuers, ACFC and HPSC hereby submit to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 13. Counterparts, Etc. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof between the Purchaser, HPSC, ACFC and the Issuers. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement
12
13
may be signed in any number of counterparts each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
Section 14. No Petition. During the term of this Agreement and for one year
and one day after the termination hereof, none of the parties hereto or any
affiliate thereof will file any involuntary petition or otherwise institute any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy or similar law against
the Issuers.
[The remainder of this page intentionally left blank]
13
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Issuers
and the Purchaser.
Very truly yours,
HPSC EQUIPMENT RECEIVABLES 2000-1 LLC I
By: HPSC, Inc., its sole member
By: _____________________________
Name:
Title:
HPSC EQUIPMENT RECEIVABLES 2000-1 LLC II
By: HPSC, Inc., its sole member
By: _____________________________
Name:
Title:
HPSC, INC.
By: _____________________________
Name:
Title:
AMERICAN COMMERCIAL FINANCE CORPORATION
By: _____________________________
Name:
Title:
14
15
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
ALPINE SECURITIZATION CORP.
By: Credit Suisse First Boston, New York Branch,
Attorney-in-fact
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
15
