Exhibit 10.6


 


EXECUTION COPY


 


PURCHASE AGREEMENT


 


THIS PURCHASE AGREEMENT (“Agreement”), dated as
of October 6, 2003 is entered into between HPSC, INC., a corporation duly
organized and existing under the laws of Delaware, with its principal office at
60 State Street, Boston, Massachusetts 
02109 (“Seller”) and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (“Purchaser”), having an office at 20225 Watertower
Blvd., Suite 300, Brookfield, Wisconsin 
53045.


 


W I T N E S S E T H:


 


WHEREAS, Seller is, among other things, in the
business of leasing and financing the acquisition of various types of equipment
and financing leasehold improvements and working capital for practices of
professionals, and in connection therewith, has originated certain equipment
leases, loans and financing transactions; and


 


WHEREAS, Seller desires to sell to Purchaser, and
Purchaser desires to purchase from Seller, all of Seller’s right, title and
interest in such financing transactions (other than Seller’s right, title and
interest in the Equipment) and to grant to Purchaser a first priority perfected
security interest in the Equipment to secure all obligations of the Account
Party under the Account Documents and all obligations of Seller under the
Operative Documents;


 


WHEREAS, contemporaneously with this Agreement,
Purchaser and Seller are entering into that certain Services Agreement, of even
date herewith, pursuant to which, among other things, Seller will perform
certain lease portfolio management, administration and documentation services,
as agent for Purchaser (the “Services Agreement”) with respect to the
Accounts; and


 


WHEREAS, this Agreement is intended to state each
party’s agreement with respect to such sale and purchase.


 


NOW, THEREFORE, in consideration of these premises and
the mutual promises and covenants contained herein, the parties hereto,
intending to be legally bound, agree as follows:


 


1.                                      CERTAIN
DEFINITIONS


 


Account shall mean any financing
transaction listed on Exhibit A attached hereto and made a part hereof.


 


Account Documents shall mean, with
reference to each individual Account, the rental or lease agreements or loan or
finance agreement (whichever is applicable), any and all related schedules,
collateral security agreements, letters of credit, certificates of deposit,
guaranties, bills of sale, assignments, cross-default and/or cross collateral
agreements, maintenance agreements, licenses or license agreements, software
agreements and any other agreements, documents or instruments evidencing an obligation
under, providing security for, or otherwise executed and


 

















 


delivered by any Account
Party in connection with an Account, including any document evidencing any
Credit Enhancement.


 


Account Party shall mean any
borrower, renter, lessee, buyer, guarantor or other party named in any Account
Document (other than any Seller or its Affiliates) or otherwise obligated to
make payments on any Account.


 


Affiliate shall mean with respect to
any Person, any other Person that directly or indirectly controls, is
controlled by or is under common control with such Person.


 


Assignment shall mean the Bill of
Sale and Assignment substantially in the form of Exhibit B to this
Agreement.


 


Business Day shall mean any day
other than a day on which banking institutions in New York City are authorized
or required by law to close.


 


Closing Payment Amount shall mean
the Preliminary Purchase Price.


 


Confidential Information shall mean
all trade secrets or confidential or proprietary information disclosed orally,
visually or in writing by one party to this Agreement to the other party.  Confidential Information shall include,
without limitation,  all information
disclosed to Purchaser by Seller identifying, or with respect to, any customer
of Seller.  Confidential Information does
not include information that: (a) is approved for release by the written
authorization of Seller; (b) Purchaser can show was already in its possession
at the time of disclosure; (c) is or becomes publicly available by other than
unauthorized disclosure by Purchaser; (d) is received by Purchaser from a third
party who Purchaser reasonably believes is rightfully in possession of such
information free of any obligation to maintain its confidentiality; or (e) is
independently developed by Purchaser without access to the Confidential
Information.


 


Contract Rights shall mean the
rights of Seller under the Account Documents.


 


Credit Enhancement shall mean any
(a) security deposit, unapplied advance or rental or lease payment, (b)
investment certificate, certificate of deposit, hypothecation of investment or
deposit account or like instrument, (c) letter of credit, repurchase agreement,
agreement of indemnity or guarantee, or (d) recourse agreement, in each case,
pledged, assigned, or transferred as security for the performance of any
obligation pursuant to an Account Document.


 


Equipment shall mean the equipment,
Software, all merchandise, leasehold improvements and other physical assets
related to the Accounts.


 


Event of Bankruptcy shall be deemed
to have occurred with respect to a Person when:


 


(a)                                  Such Person shall
consent to the appointment of a custodian, receiver, trustee or liquidator (or
other similar official) of itself, or of a substantial part of its property, or
shall admit in writing its inability to pay its debts generally as they come
due, a court of competent jurisdiction shall determine that such Person is
generally not paying its debts as they come due or such Person shall make a
general assignment for the benefit of creditors;


 


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(b)                                 Such Person shall file
a voluntary petition in bankruptcy or a voluntary petition or an answer seeking
reorganization in a proceeding under any bankruptcy laws (as now or hereafter
in effect) or an answer admitting the material allegation of a petition filed
against such Person in any such proceeding, or such Person shall, by voluntary
petition, answer or consent, seek relief under the provisions of any now
existing or future bankruptcy or other similar law providing for the
reorganization or winding up of debtors, or providing for an agreement,
composition, extension or adjustment with its creditors;


 


(c)                                  any assignment of
rights or delegations of duties by such Person with respect to its duties or
rights under this Agreement, except as specifically permitted under this
Agreement, or any attempt to make such an assignment or delegation; and


 


(d)                                 a petition against
such Person in a proceeding under applicable bankruptcy laws or other
insolvency laws, as now or hereafter in effect, shall be filed and shall not be
stayed, withdrawn or dismissed within 30 days thereafter, or if, under the
provisions or any law providing for reorganization or winding up of debtors
which may apply to such Person, any court of competent jurisdiction shall
assume jurisdiction, custody or control of such Person, or any substantial part
of its property, and such jurisdiction, custody or control shall remain in
force unrelinquished, unstayed or unterminated for a period of 30 days.


 


Financial Institution shall mean any
commercial bank, finance company or any other Person primarily engaged in the
business of providing financial services or financial products.


 


Governmental Entity shall mean a
federal, state, provincial, local, county, municipality or other governmental,
regulatory or administrative agency, department, commission, board, bureau, or
other authority or instrumentality, domestic or foreign.


 


Lockbox Account shall have the
meaning given to such term in the Services Agreement.


 


Lockbox Account Documents shall have
the meaning given to such term in the Services Agreement.


 


Loss shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense (including, without
limitation, reasonable attorneys’ fees and other professional or expert fees),
and damages to, loss of use of or decrease in value.


 


Lien shall mean any lien, security
interest, claim or encumbrance.


 


Operative Documents shall mean this
Agreement, the Assignment and the Services Agreement.


 


Payments shall mean all loan, lease
or rental payments due or to become due on an Account after the date hereof,
but excluding any payments required to be made to Seller in respect of any
Retained Payment Rights.


 


Permitted Assignee shall mean any
Person that (a) is a Financial Institution, and (b) has agreed to be bound by Section 7(o)
of this Agreement.


 


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Person shall mean any natural
person, trust, corporation, limited liability company, estate, joint stock
association, partnership, firm or Governmental Entity.


 


Preliminary Purchase Price shall
have the meaning specified in Section 3(b)(i).


 


Purchase Date shall mean the date on
which Purchaser purchases the Purchased Assets and delivers the Closing Payment
Amount to Seller.


 


Purchase Price shall have the
meaning specified in Section 3(b)(i).


 


Purchased Assets shall mean the
Accounts, the Contract Rights and the rights to receive all Payments.


 


Retained Payment Rights shall mean
(a) any payments required to be made to Seller in respect of any indemnity
claim on account of Tax or third party obligations incurred by Seller in
connection with any Equipment, Account or Account Document, (b) any payments
required to be paid to Seller as compensation in lieu of insurance required to
be maintained pursuant to the Account Documents, (c) for so long as Seller is
Initial Servicer under the Services Agreement, any security deposits, late
fees, returned check and miscellaneous fees, payments in lieu of taxes and all
sales, use and property taxes and (d) provided that Purchaser has received all
Payments with respect to the applicable Account, purchase option or lease
renewal payments.


 


Services Agreement shall have the
meaning specified in the preamble hereto.


 


Services Fee shall have the meaning
specified in the Services Agreement.


 


Software shall mean any proprietary
software, in object code, licensed to an Account Party in connection with or in
relation to any Equipment.


 


Subsidiary shall mean, with respect
to any Person, any entity of which more than 50% of the voting stock or other
equity interest is owned directly or indirectly by such Person, or which is
controlled by such Person, pursuant to any management agreement or otherwise.


 


Taxes shall mean any and all
federal, state, local or foreign taxes, fees, charges or assessments of any
nature upon or in regard to the Purchased Assets or the Account Documents,
levied or assessed at any time, including, but not limited to, any sales, use,
transfer or similar taxes, transactions, intangibles, ad valorem, value-added,
registration, title, license, stamp, personal property, Federal highway use,
custom, duty or other tax, governmental fee or other like assessment or charge
of any kind whatsoever (other than and not including income or franchise taxes),
together with any interest, penalties or additions thereto.


 


UCC shall mean the Uniform
Commercial Code as in effect in the applicable jurisdiction.


 


2.                                      REPRESENTATIONS
AND WARRANTIES


 


(a)                                  Representations and Warranties of
Seller.  Seller, as of
the date hereof, hereby makes the following representations and warranties to
Purchaser, each of which is true and correct on the Purchase Date:


 


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(i)                                     Organization,
Power and Qualification.


 


(A)                              Seller
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and is duly qualified and in good standing to
do business in each jurisdiction in which the character of its properties or
the nature of its activities requires such qualifications;


 


(B)                                Seller
has full corporate power and authority to enter into the Operative Documents
and to take any action and execute any documents required by the terms thereof;


 


(C)                                The
Operative Documents and all related transactions (including, without
limitation, the ability to transfer and convey the Purchased Assets and to
grant a first priority perfected security interest in all of its right, title
and interest in the Equipment or assign a first priority perfected security
interest in the Equipment) have been duly authorized by all necessary corporate
proceedings, and the Operative Documents have been duly and validly executed
and delivered by Seller, and are legal, valid and binding obligations of
Seller, enforceable in accordance with their terms;


 


(D)                               No
consent, approval, authorization, order, registration or qualification of, or
with, any court or regulatory authority or other Governmental Entity, the
absence of which would adversely affect the legal and valid execution, delivery
and performance by Seller of the Operative Documents or the documents and
instruments contemplated thereby or the taking by Seller of any actions
contemplated therein, is required;


 


(E)                                 None
of Seller’s execution and delivery of the Operative Documents, Seller’s
consummation of the transactions contemplated thereby or Seller’s fulfillment
of or compliance with the terms and conditions of the Operative Documents
conflicts with or results in a breach of or a default under any of the terms,
conditions or provisions of any legal restriction by which Seller is a party or
is bound (including, without limitation, any judgment, order, injunction,
decree or ruling of any court or Governmental Entity, or any federal, state,
local or other law, statute, rule or regulation) or any covenant or agreement
or instrument to which Seller is a party, or by which Seller or any of Seller’s
property is bound, and none of such execution, delivery, consummation or
compliance by Seller will violate or result in a violation of the Certificate
of Incorporation or By-Laws of Seller;


 


(F)                                 All
vendors with respect to the Equipment have been paid in full and Seller has
valid title to the Purchased Assets and the Equipment (or a first priority
perfected security interest in the Equipment), free and clear of any Lien
(other than the Lien of the Account Documents), and upon consummation of the
transactions contemplated hereby, Seller will convey to Purchaser the Purchased
Assets and a first priority perfected security interest in all of its right,
title and interest in the Equipment or assign to Purchaser its first priority
perfected security 


 


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interest in
the Equipment and Purchaser will be entitled to all of the benefits due and
owing to Seller under the Account Documents relating to the Purchased Assets
and the Equipment;


 


(G)                                There
is no action, suit or proceeding pending, or, to the knowledge of Seller,
threatened, against Seller in any court or by or before any Governmental Entity
which would materially affect the ability of Seller to carry out the
transactions contemplated by the Operative Documents; and


 


(H)                               The
chief executive office of Seller is the address stated in the recitals above.


 


(ii)                                  Account
Representations.


 


(A)                              Each
Account and Account Document is genuine and all of the Purchased Assets and
Seller’s interest in the Equipment are assignable by Seller to Purchaser
without the prior written consent of, or prior notice to, any Account Party;


 


(B)                                Each
Account was originated in connection with the sale, financing or refinancing of
one or more units of Equipment for commercial or other business use, and all
costs, fees and expenses of Seller incurred in connection with the closing or
commencement of each such Account and any Account Document have been paid;


 


(C)                                Each
Account was originated by Seller in the ordinary course of the business of
Seller;


 


(D)                               The
terms and conditions contained in the Account Documents reflect the entire
agreement between parties thereto and there are no other oral or written
agreements or representations to which Seller is a party in connection
therewith;


 


(E)                                 Seller
has not directly or indirectly, in any way, extended or otherwise restructured
the terms or conditions of any Account Document, or made any extension or other
accommodation to any Account Party for purposes of changing or beneficially
affecting the delinquency status of any Account;


 


(F)                                 Purchaser
has been provided with a copy of each form of lease agreement, rental
agreement, finance agreement and loan agreement affecting or relating to any
Purchased Assets and there has been no material deviations therefrom in any
provisions that could reasonably be expected to have a material adverse effect
on the enforceability of any of the Account Documents;


 


(G)                                All
names, addresses, amounts, dates, signatures and other statements of facts
contained in the Account Documents are genuine, true and correct in all
material respects, to the extent that any inaccuracy or lack of 


 


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correctness
would reasonably be expected to have an adverse effect upon the enforceability
of any Account Document;


 


(H)                               Exhibit
A correctly reflects the total amount of Payments to be made on each
Account that will be payable to Purchaser as part of the Purchased Assets after
the date hereof (net of any amounts on Schedule 2(a)(ii)(Q) and net
of any sales, use or similar taxes thereon);


 


(I)                                    No
Payment on an Account having a due date after the date hereof has been prepaid;


 


(J)                                   Each
Account Document complies in all material respects with all applicable federal,
state, local and other laws, rules, regulations and requirements promulgated by
any Governmental Entity with respect to the creation of such obligation, the
billing or collection of discounts, fees or similar charges, the amount of
interest or other charges which may be collected and the disclosure of
discounts, fees, interest or other charges, including without limitation, laws
pertaining to usury, truth-in-lending, installment or conditional sales and
sales financing; each Account Document represents the legal, valid and binding
obligation of such Account Party, enforceable under all applicable laws against
such Account Party in accordance with its terms, except to the extent that enforcement
of remedies may be limited by applicable bankruptcy, insolvency or similar
laws; neither the billing and collection nor the enforcement of any Account
Document in accordance with express contractual terms thereof will result in
the violation of any laws heretofore enacted by or regulations promulgated or
heretofore issued by any Governmental Entity;


 


(K)                               No
Account is delinquent in the payment of any amount due thereunder, no Event of
Bankruptcy has occurred and is continuing with respect to any Account Party,
each Account is without default as to payment thereunder or under any Account
Document and no Account or Account Document is subject to any legally valid
defense, setoff, claim, recoupment, deduction, right of rescission or
counterclaim;


 


(L)                                 There
are no claims, suits, actions, administrative, arbitration or other proceedings
or governmental investigations, including, without limitation, any
counterclaims or claims by any Account Party, pending or, to the knowledge of
Seller, threatened against Seller relating to the Accounts or the acquisition,
collection or administration of the Accounts; Seller has not received any
notice of, and there is no valid basis for, any claim or assertion of liability
against Seller relating to the Accounts or the acquisition, collection or
administration thereof; Seller has not been party to any proceeding, and, to
the knowledge of Seller, there has not been any investigation by or before any
regulatory authority in connection with the business practices of Seller with
respect to the Accounts (or any accounts similar to the Accounts), or the
acquisition, collection or administration thereof;


 


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(M)                            All
Equipment has been delivered to, and unconditionally and irrevocably accepted
under and for purposes of the applicable Account Document, by the Account
Party;


 


(N)                               To
the best of Seller’s knowledge, all Equipment complies with any applicable
federal, state, local or other law, rule or regulation and all Equipment is in good
and working condition;


 


(O)                               Seller
has valid title to the Purchased Assets and, with respect to the Equipment, has
either valid title to or a perfected first priority security interest in the
Equipment, free and clear of any Lien (except for equipment which is the only
collateral for Accounts and which has an initial cost of equal to or less than
$5,000);


 


(P)                                 No
part of any property in which a security interest has been created to secure
any obligation under the Account Documents has been released from such security
interest except for releases in cases of repairs and replacements;


 


(Q)                               Except
as set forth in Schedule 2(a)(ii)(Q), as of the Purchase Date,
Seller is not holding any Credit Enhancement that constitutes a security
deposit or prepaid amount relating to any obligation under the Account
Documents;


 


(R)                                The
Equipment is properly insured as required by the Account Documents, and Seller
has not been informed of nor received any notice of any pending claims by or
through any Account Party against the manufacturer or supplier of any of the
Equipment based on express or implied warranties, product liability or
otherwise; Schedule 2(a)(ii)(R) sets forth with respect to each
Account all payments that are required to be paid to Seller as compensation in
lieu of insurance required to be maintained pursuant to the Account Documents;


 


(S)                                 To
Seller’s knowledge, each Account Party is in full compliance with the Account
Documents;


 


(T)                                Each
Account Document constituting a promissory note, certificated security (as
defined in the UCC), bond, warrant or chattel paper (as defined in the UCC)
obtained as collateral, is the original and only original of such document and
is in the possession of Seller;


 


(U)                               All
outstanding Taxes levied or assessed against each respective Account or the
related Equipment have been fully paid by Seller or by the Account Party, as
the case may be;


 


(V)                                Seller
has filed UCC financing statements in respect of each Account (except for
Accounts where the collateral is equipment only and the cost of such equipment
is equal to or less than $5,000), naming the applicable  borrower or lessee as debtor and specifying
the Equipment as collateral or subject to a lease; and Seller has filed UCC
financing statements in respect of the


 


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Purchased
Assets and the Equipment granting Purchaser a perfected first priority security
interest in the Purchased Assets and in all of its right, title and interest in
the Equipment; and


 


(W)                           There
are no civil, criminal or administrative actions, suits, claims, hearings,
injunctive proceedings, investigations or proceedings (including, but not
limited to, any counterclaims) pending or threatened against Seller or any
Affiliate of Seller with respect to any Account or Account Document, and Seller
has not received any notice in respect thereof.


 


(iii)                               Brokers.  No person acting on behalf of Seller or
under the authority of Seller, is or will be entitled to any brokers’ or
finders’ fee or any other commission or similar fee, directly or indirectly,
from any of the parties hereto in connection with any of the transactions
contemplated hereby.


 


(b)                                 Representations and Warranties of
Purchaser.


 


Purchaser hereby represents and warrants to Seller as
of the date hereof as follows:


 


(i)                                     Organization,
Power and Qualification.


 


(A)                              Purchaser
is a corporation duly organized, validly existing and in good standing under
the laws of the state of its incorporation and is duly qualified and in good
standing to do business in each jurisdiction in which the character of its
properties or the nature of its activities requires such qualification;


 


(B)                                Purchaser
has full corporate power and authority to enter into the Operative Documents
and to take any action and execute any documents required by the terms thereof;


 


(C)                                The
Operative Documents have been duly authorized by all necessary corporate
proceedings, have been duly and validly executed and delivered by Purchaser,
and, assuming due authorization, execution and delivery by Seller, are legal,
valid and binding obligations of Purchaser, enforceable in accordance with the
terms thereof;


 


(D)                               No
consent, approval, authorization, order, registration or qualification of, or
with, any court of law or regulatory authority or other governmental body
having jurisdiction over Purchaser, the absence of which would adversely affect
the legal and valid execution, delivery and performance by Purchaser of the
Operative Documents or the purchase contemplated hereunder, is required;


 


(E)                                 None
of the execution and delivery of the Operative Documents, the consummation of
the transactions contemplated thereby or the fulfillment of or compliance with
the terms and conditions thereof conflict with or result in a breach of or a
default under any of the terms, conditions or provisions of any legal
restriction (including, without limitation, any judgment, order, injunction,
decree


 


9

















 


or ruling or
any court or governmental authority, or any federal, state, local or other law,
statute, rule or regulation) or any covenant or agreement or instrument to
which Purchaser is a party, or by which Purchaser or any of Purchaser’s
property is bound, nor does such execution, delivery, consummation or
compliance violate or result in the violation of the Certificate of
Incorporation or By-Laws of Purchaser;


 


(ii)                                  Brokers.  No person acting on behalf of the Purchaser
or under the authority of Purchaser is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee, directly or indirectly,
from any of the parties hereto in connection with any of the transactions
contemplated hereby.


 


(iii)                               Purchaser’s
Business.


 


(A)                              Purchaser
is entering into this Agreement in the ordinary course of its business;


 


(B)                                Purchaser
has obtained and is in good standing under all licenses, consents and approvals
of any and all Governmental Entities as necessary in order to undertake the
transactions contemplated by this Agreement; and


 


(C)                                Purchaser
is acquiring the Purchased Assets for its own account for investment and not
with a view or intent to resell or distribute the Purchased Assets.  Purchaser understands that, accordingly, the
Purchased Assets and the transaction contemplated hereby are not registered
under the Securities Act of 1933, as amended, or state securities or “blue sky”
laws, and that the Purchased Assets are being sold to it in a transaction that
is exempt from securities registration requirements under such laws.  If in the future Purchaser decides to
dispose of the Purchased Assets, it agrees that it will do so only in a
transaction exempt from the Securities Act of 1933, as amended, and exempt
under state securities or “blue sky” laws.


 


3.                                      CERTAIN
AGREEMENTS OF THE PARTIES


 


(a)                                  Agreement to Purchase and Sell. In reliance upon the representations
and warranties set forth above and subject to the fulfillment of all the terms
and conditions of this Agreement, Seller hereby agrees to sell, assign,
transfer and set over to Purchaser, and Purchaser hereby agrees to purchase,
and without recourse to Seller, except as expressly provided herein, the
Purchased Assets.  Said sale and
assignment of the Purchased Assets shall be effective as of the date hereof,
subject to satisfaction of the conditions specified in Section 4(a)
and Section 4(b) hereof.  On
the Purchase Date, Seller shall execute and deliver the Assignment in the form
of Exhibit B hereto and in accordance with Section 4(a)
hereof.  THIS AGREEMENT IS INTENDED TO
REFLECT A SALE OF 100% OF SELLER’S RIGHT, TITLE AND INTEREST IN AND TO THE
PURCHASED ASSETS AND SHALL IN NO WAY BE CONSTRUED AS AN EXTENSION OF CREDIT BY
PURCHASER TO SELLER.  In order to secure
the obligations of each Account Party under the Account Documents and to secure
Seller’s obligations under the Operative Documents, Seller hereby grants to
Purchaser a first


 


10

















 


priority perfected security interest in all of Seller’s right, title
and interest in the Equipment to which it has title and hereby assigns to
Purchaser all of its right, title and interest in any security interest that it
has with respect to the Equipment.


 


(b)                                 Purchase Price.


 


(i)                                     The
aggregate purchase price is $28,081,576 (the “Preliminary Purchase Price”),
subject to adjustment pursuant to Section 3(c) herein (as so
adjusted, the “Purchase Price”). 
Purchaser shall pay the Closing Payment Amount by wire transfer of
immediately available funds, to Seller’s account in accordance with Schedule 3(b)(i).


 


(ii)                                  The
sale and assignment made in Section 3(a) shall not diminish, alter or
affect in any way any Account Party’s obligations under any Account or the
related Account Documents, which are and shall be in full force and effect.


 


(c)                                  Post-Closing Procedures.


 


(i)                                     During
the period of sixty (60) days following the date hereof, Purchaser shall be
entitled to perform all procedures and take any other steps that it deems
appropriate to confirm that the information set forth on Exhibit A is
true, complete and correct and conforms with the terms and conditions of the
Account  Documents.  Within such 60-day period, Purchaser may, by
delivery of a writing to Seller, propose changes to the information set forth
in Exhibit A (“Proposed Changes”) and suggested adjustments to
the Purchase Price using a discount rate of 8.28% per annum applied to
scheduled future Payments as of the date hereof (“Proposed Adjustments”),
each calculated as the increase or decrease in the Payment balance resulting
from the Proposed Change, such change to be calculated in accordance with
generally accepted accounting principles in the United States.


 


(ii)                                  If
Seller shall fail to respond to any of Purchaser’s Proposed Changes or Proposed
Adjustments within thirty (30) days after receipt by Seller thereof, Seller
shall be deemed to have accepted such Proposed Change or Proposed Adjustment.


 


(iii)                               In
the event of any dispute between Seller and Purchaser regarding any Proposed
Change or Proposed Adjustment that cannot be resolved within thirty (30) days
after receipt thereof by Seller, each of Seller and Purchaser shall have the
right, upon delivery of written notice to the other party, to require that such
dispute be resolved by a public accounting firm with nationally recognized
auditing expertise, which shall be jointly selected by Purchaser and Seller
and, if Seller and Purchaser cannot so agree, shall be selected by lot from two
or more public accounting firms with nationally recognized auditing expertise,
each of whom shall not have been selected by Seller or General Electric Company
to audit its consolidated financial statements for the then-current fiscal year
or any of the three immediately preceding fiscal years (the “Selected
Accounting Firm”).  The Selected
Accounting Firm shall resolve only issues upon which Purchaser and Seller have
been unable to agree.  Seller and
Purchaser shall use commercially reasonable efforts to enable the decision of
the Selected Accounting Firm to be rendered


 


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within thirty
(30) days after the appointment of the Selected Accounting Firm and the
decision of the Selected Accounting Firm shall be binding on Seller and
Purchaser.


 


(iv)                              Each
of Seller and Purchaser shall pay its own fees and expenses in connection with
the tasks outlined in this Section 3(c).  All fees and expenses of the Selected Accounting Firm shall be
borne pro  rata by Seller and Purchaser in proportion to the
allocation of the disputed amount between Seller and Purchaser by the Selected
Accounting Firm, such that the prevailing party pays a lesser portion, or none,
of such fees and expenses.


 


4.                                      CONDITIONS TO
PURCHASE


 


(a)                                  Purchaser’s Conditions Precedent to
Purchase.  The obligation
of Purchaser to purchase the Purchased Assets is subject to the fulfillment (or
waiver by Purchaser) of each of the following conditions precedent:


 


(i)                                     Purchaser
shall receive the Assignment executed by Seller; and


 


(ii)                                  Seller
shall not be in default in the performance of any obligation under the
Operative Documents in any material respect, and all representations and
warranties of Seller contained in the Operative Documents shall be true and
correct in all material respects;


 


(iii)                               Seller
and Purchaser shall have entered into the Lock Box Documents in form and
substance satisfactory to Purchaser.


 


(iv)                              Foothill
Capital Corporation shall have delivered a Release Letter with respect to the
Purchased Assets and the Equipment in form and substance satisfactory to
Purchaser.


 


(v)                                 Seller
shall cause to be delivered to Purchaser, in form and substance satisfactory to
Purchaser, such opinions of counsel as Purchaser may reasonably request
regarding certain issues related to the transactions contemplated herein,
including, without limitation, (1) the status of Seller, (2) the perfection of
a security interest in the Purchased Assets and Equipment in favor of
Purchaser, (3) the enforceability of the Assignment in favor of Purchaser and
(4) that the sale of the Purchased Assets to Purchaser constitutes a “true
sale.”


 


(b)                                 Seller’s Conditions Precedent to
Purchase.  The obligation
of Seller to sell to Purchaser the Purchased Assets and to grant a security
interest in its right, title and interest in the Equipment is subject to the
fulfillment (or waiver by Seller) of each of the following conditions
precedent:


 


(i)                                     Purchaser
shall deliver to Seller the Closing Payment Amount in accordance with Section 3(b)(i)
hereof; and


 


(ii)                                  Purchaser
shall not be in default in the performance of any obligation under the
Operative Documents in any material respect, and all representations and


 


12

















 


warranties of Purchaser contained in the
Operative Documents shall be true and correct in all material respects.


 


5.                                      PROTECTION OF
PURCHASER


 


(a)                                  Turnover of Documents to Purchaser.  If requested by Purchaser, Seller, at its
own cost and expense, will promptly deliver to Purchaser originals of any or
all Account Documents to the extent relating to the Purchased Assets.  Notwithstanding the foregoing, upon
expiration or termination by Purchaser of the Services Agreement, Seller shall,
at its own cost and expense, promptly deliver to Purchaser: (i) originals of
any or all Account Documents and (ii) such other memorialized data, documents
and records related to the documents referenced in clause (i) above (including
without limitation true copies of any computer tapes and data in computer
memories) as Purchaser may reasonably deem necessary or desirable.  In addition, in the event that Purchaser
assumes servicing responsibilities for any Account pursuant to Section 2
of Exhibit A to the Services Agreement, Seller shall deliver the documents
described in clauses (i) through (ii) above that relate to such Account.  After any delivery under this Section 5(a),
Seller will not keep or retain any executed counterpart or other copy of any
such documents referenced in clause (i) above, or related material, without
clearly marking the same to indicate conspicuously that the same is not the
original and that transfer thereof does not transfer any rights against any
Account Party or any other Person.


 


(b)                                 Protection of Ownership Interest of
Purchaser.


 


(i)                                     Seller
will from time to time do and perform any and all acts and execute any and all
documents (including, without limitation, the execution, amendment or supplementation
of any financing statements or continuation statements relating to the
Purchased Assets and Equipment, the Accounts and/or the interests purchased
pursuant hereto) for filing under the provisions of the UCC or other applicable
statute of any applicable jurisdiction, the execution, amendment or
supplementation of any instrument of transfer as may be reasonably requested by
Purchaser in order to effect the purposes of this Agreement and the sale
contemplated hereunder and to perfect and protect the interest of Purchaser in
the Purchased Assets and Equipment against all Persons whomsoever.


 


(ii)                                  Purchaser
is hereby designated Seller’s attorney-in-fact to sign and file, on behalf of
Seller, financing and continuation statements and amendments thereto and any
other documentation pertaining to the Purchased Assets and Equipment and any
other interests purchased pursuant hereto.


 


(c)                                  Administration of Taxes.


 


(i)                                     Payment of
Taxes.  After the date
hereof, and so long as Seller is Initial Servicer under the Services Agreement,
Seller shall collect, pay and report all sales, use and property taxes as
levied by any taxing authority in any jurisdiction with respect to the
Equipment.


 


(ii)                                  Cooperation
with Respect to Tax Returns. 
Purchaser and Seller agree to furnish or cause to be furnished to each
other, and each at their own expense, as


 


13

















 


promptly as
practicable, such information and assistance as is reasonably necessary for the
filing of any Tax return, for the preparation for any audit, and for the
prosecution or defense of any claim, suit or proceeding relating to any
adjustment or proposed adjustment with respect to Taxes or any appraisal of the
Purchased Assets.  Seller shall retain
in its possession all Tax returns and tax records relating to the Payments and
the Purchased Assets that might be relevant to any taxable period ending on or
prior to the date hereof until the relevant statute of limitations has expired.
After such time, Seller may dispose of such materials, provided that prior to
such disposition Seller shall give Purchaser a reasonable opportunity to take
possession of such materials.


 


(iii)                               Transfer
Taxes.  Seller shall be
liable for and shall pay (and shall indemnify and hold harmless Purchaser
against) all sales, use, stamp, documentary, filing, recording, transfer or
similar fees or taxes or governmental charges (including, without limitation,
UCC filing fees, title recording or filing fees and other amounts payable in
respect of transfer filings) as levied by any Governmental Entity in connection
with the transactions contemplated by the Operative Documents (other than taxes
measured by or with respect to income imposed on Purchaser or its Affiliates).


 


(iv)                              Income Tax.  Notwithstanding anything set forth in the
Operative Documents, Seller shall not be responsible to Purchaser, and
Purchaser shall not be responsible to Seller, for any federal, state or local
taxes based upon or measured by net income or gains from the sale, transfer and
assignment of the Purchased Assets from Seller to Purchaser.


 


(d)                                 Lockbox Account Documents.  If the Services Agreement is terminated for
any reason, Seller covenants and agrees that it shall take all necessary action
to cause the Purchaser to be released and relieved from any obligations under
the Lockbox Account Documents arising after the date that the Services
Agreement is terminated.


 


6.                                      REPURCHASE AND
INDEMNITY


 


(a)                                  Mandatory Repurchase.


 


(i)                                     In
the event of a Loss related to a Purchased Asset, arising from or directly
related to a breach by Seller of any of its representations or warranties set
forth in the Operative Documents, Seller will, within ten (10) Business Days
after receipt of notice of such Loss (such notice to contain in reasonable detail
a description of such Loss and the relationship to such underlying breach),
without first requiring Purchaser to proceed against any Account Party or any
other Person for any security, repurchase the Purchased Asset directly affected
thereby and pay Purchaser in cash an amount equal to the net present value of
all unpaid remaining scheduled Payments with respect to such Purchased Asset
discounted at a per annum rate of 8.28%. 
Upon receipt of such payment by Seller, Purchaser shall reassign the
Purchased Asset, without recourse against or warranty by Purchaser, and shall
promptly deliver a release regarding such Purchased Asset to Seller.


 


(ii)                                  If
any Equipment is not insured as contemplated by the Account Documents and
Seller is collecting additional amounts from an Account Party instead of


 


14

















 


requiring the
Account Party to effect such insurance, upon any casualty loss with respect to
such Equipment, Seller will repurchase the Purchased Asset directly affected
thereby and pay Purchaser in cash an amount equal to the net present value of
all unpaid remaining scheduled Payments with respect to such Purchased Asset
discounted at a per annum rate of 8.28%. 
Upon receipt of such payment by Seller, Purchaser shall reassign the
Purchased Asset, without recourse against or warranty by Purchaser, and shall
promptly deliver a release regarding such Purchased Asset to Seller.


 


(b)                                 Indemnification.  Seller shall indemnify and save harmless
Purchaser, its successors and assigns from and against any and all suits,
claims, counterclaims, Losses or liabilities of any kind that Purchaser shall
suffer as a result of: (i) any negligence of Seller, or of any agent or
employee of Seller; (ii) any breach by Seller of any warranty, representation,
covenant or agreement contained in an Operative Documents (including, without
limitation, the covenant in Section 5(d)), or in any Account
Document not fully covered under Section 6(a)(i) above; (iii) any
Loss, liability, demand or cause of action and any expense incidental to the
defense thereof by Purchaser from the use, possession, operation or
installation of any Equipment; (iv) any Loss, liability, demand or cause of
action and any expense incidental to the defense thereof arising out of the
Lockbox Account Documents or arising out of any payments by Account Parties as
compensation in lieu of insurance required to be maintained pursuant to the
Account Documents; and (v) any Taxes (including, without limitation, any sales
tax, use tax, excise tax, personal property tax, assessments and ad valorem
tax) and any governmental charges, fees, fines or penalties whatsoever, levied
against any Payment for any periods prior to the date hereof and not paid by
the respective Account Party or Seller and including any Taxes arising on the
purchase and sale contemplated hereunder; provided, however, that, except for
any indemnity sought pursuant to clause (ii) above as to which this proviso
shall not apply, notwithstanding any term or provision hereof to the contrary,
Seller shall be under no obligation to indemnify or save harmless Purchaser,
its successors or assigns, from or against any suits, claims, counterclaims,
Losses or liabilities of any kind that Purchaser shall suffer (w) with respect
to servicing of the Purchased Assets, with respect to any period after Seller
is no longer Initial Servicer under the Services Agreement, (x) solely to the
extent arising from or directly related to any such indemnified Person’s
negligence or willful misconduct, (y) solely to the extent the same constitutes
directly or indirectly recourse for uncollectible or uncollected Payments, or
(z) to the extent resulting from any Event of Bankruptcy of any Account Party,
or the unexcused failure of any Account Party to perform in accordance with the
terms of the applicable Account Documents.


 


(c)                                  Survival.  The rights and obligations of Seller under
this Article 6 shall survive the execution of this Agreement,
consummation of the purchase and sale contemplated hereunder, any Payment or
any repurchase by Seller of any Purchased Asset.


 


7.                                      MISCELLANEOUS


 


(a)                                  Recording and Other Fees.  Seller agrees to pay all recording fees,
assessments or other statutory fees necessary to perfect Purchaser’s interests
in the Purchased Assets and Equipment purchased hereunder or in consummating
the transactions contemplated hereby.


 


15

















 


(b)                                 Successors and Assigns.  Seller may not assign all or any of its
rights or delegate all or any of its duties hereunder.  Purchaser may assign its rights under the
Operative Documents to a Permitted Assignee without affecting Seller’s duties
and obligations under the Operative Documents, including, without limitation,
any indemnification and recourse obligations of Seller under the Operative
Documents.


 


(c)                                  Payments; Calculations.


 


(i)                                     Each
payment to be made hereunder by Seller shall be made on the required payment
date in lawful money of the United States and in immediately available or same
day funds.


 


(ii)                                  Any
calculation of interest made under this Agreement shall be determined on the
basis of a year of 360 days, actual days elapsed.


 


(iii)                               If
Seller fails to pay any amount that may become due to Purchaser hereunder on
its due date, then (x) interest shall accrue thereon from the due date until
paid in full at a rate equal to 18% per annum, and (y) Seller shall reimburse
Purchaser upon demand for any and all collection costs (including, without
limitation, reasonable attorneys’ fees) incurred by Purchaser.


 


(d)                                 Waivers.  No failure or delay on the part of Seller or
Purchaser in exercising any power, right or remedy under this Agreement or, in
the case of Purchaser, any assignment shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy.


 


(e)                                  Notices; Publicity.


 


(i)                                     All
communications and notices pursuant hereto, to any party shall be in writing
and addressed or delivered to it at its address shown in the opening portion of
this Agreement, or at such other address as may be designated by it by notice
to the other party and shall be effective when received.


 


(ii)                                  There
shall be no press release or public announcement with respect to this Agreement
or the transactions contemplated hereby without both Seller’s and Purchaser’s
prior written consent.


 


(f)                                    Deliveries
to Purchaser.  All terms
and amounts to be delivered, remitted or otherwise furnished by Seller to
Purchaser pursuant hereto or in connection herewith shall, except as otherwise
provided for herein, be delivered, remitted or furnished to Purchaser at its
office at 20225 Watertower Blvd., Suite 300, Brookfield, Wisconsin  53045, or at such other place as may be
designated in writing by Purchaser.


 


(g)                                 Merger and Integration; Amendments,
Etc.  This Agreement, the
Services Agreement and the other agreements and instruments delivered hereunder
set forth the entire understanding of the parties relating to the subject
matter hereof, and all other and/or prior understandings, written or oral, are
hereby superseded.  This Agreement and
the Other Operative


 


16

















 


Documents may not be modified, amended, waived, terminated or supplemented
except in accordance with its express terms and in writing executed by Seller
and Purchaser.


 


(h)                                 Headings and Cross-References.  The various headings in this Agreement are
included for convenience only and shall not affect the meaning or interpretation
of any provision of this Agreement. 
References to any Section are to such Section of this
Agreement.


 


(i)                                     Governing
Law.  This Agreement
shall be governed by the internal substantive laws of the State of New York
(excluding its choice of law provisions).


 


(j)                                     Counterparts.  This Agreement may be signed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original and all of which shall be taken together as one and the
same agreement.


 


(k)                                  Severability.  If any provision hereby is void or
unenforceable in any jurisdiction, such voidness or unenforceability shall not
affect the validity or enforceability of (i) such provision in any other
jurisdiction or (ii) any other provision herein in such or any other
jurisdiction.


 


(l)                                     Survival
of Duties, Warranties and Representations.  Each party hereto covenants that its
respective duties, warranties and representations set forth in this Agreement,
and in any document delivered or to be delivered in connection herewith, shall
survive the execution of this Agreement and the closing of the transactions
contemplated hereunder.


 


(m)                               Jury Trial Waivers.  SELLER AND PURCHASER EACH HEREBY
UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THE OPERATIVE DOCUMENTS
AND THE TRANSACTIONS CONTEMPLATED THEREBY, ANY OF THE RELATED DOCUMENTS, ANY
DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER THEREOF,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN SELLER AND
PURCHASER.  The scope of this waiver is
intended to be all encompassing of any and all disputes that may be filed in
any court (including, without limitation, contract claims, tort claims, breach
of duty claims, and all other common law statutory claims) . THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THE OPERATIVE DOCUMENTS OR ANY RELATED
DOCUMENTS.  In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.


 


(n)                                 Security Interest.  The parties hereto intend that the
transactions contemplated herein shall constitute a purchase and sale of the
Purchased Assets.  If, notwithstanding
the foregoing, a court of competent jurisdiction were to hold that the purchase
of the Purchased Assets hereunder does not constitute a valid sale or transfer
of the Purchased Assets as set forth above, but instead constitutes a loan in
the amount of the Purchase Price or otherwise, then this Agreement shall be
deemed a present grant of a security interest (within the meaning of the UCC)
in favor of Purchaser and all of Seller’s right, title and interest in and to
the Purchased 


 


17

















 


Assets and the Equipment to secure such loan in the initial amount of
the Purchase Price.  Seller hereby
grants a first priority security interest to Purchaser in all of the Seller’s
right, title and interest in and to the Purchased Assets and the Equipment, and
this Agreement shall constitute a security agreement within the meaning of the
UCC.


 


(o)                                 Confidentiality.


 


(i)                                     Purchaser
agrees that, except as required by judicial order or governmental laws or
regulations, Purchaser shall use the Confidential Information solely for the
purpose of administering and enforcing the transactions contemplated in the
Operative Documents and any document or instrument related thereto.  Purchaser agrees to hold the Confidential
Information in confidence by security measures, devices and procedures equal to
those used by it in securing its own confidential documents.  Purchaser further agrees that the
Confidential Information shall be disclosed by it only to those of its
Affiliates, and those directors, officers, employees and representatives,
including attorneys, accountants and auditors, of Purchaser who need to know
such Confidential Information for the purpose of administering and enforcing
the transactions contemplated in the Operative Documents and any document or
instrument related thereto.


 


(ii)                                  Seller
agrees that it will not, and will instruct its representatives not to, disclose
to any other Person any deal structuring or pricing information or strategies
provided to it by Purchaser.


 


(p)                                 Regulation.  Seller and Purchaser acknowledge and agree
that the sale and purchase of the Purchased Assets contemplated by this
Agreement and the transactions contemplated 
herein do not constitute a transaction for which a filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 is necessary or required.


 


(q)                                 Attorneys’ Fees.  Seller shall be responsible for the payment
of its own and for the payment of Purchaser’s attorneys’ fees, expenses and any
other pre-Purchase Date and post-Purchase Date costs incurred in connection
with the negotiation, closing and consummation of the transactions contemplated
by the Operative Documents and any other documents executed in connection
therewith.  Purchaser’s attorneys’ fees,
expenses and other pre-Purchase Date and post-Purchase Date costs are estimated
to be $100,000 and such amount shall be withheld from the Preliminary Purchase
Price on the Purchase Date.  If such
fees, expenses and costs of Purchaser are less than the amount withheld,
Purchaser shall promptly refund to Seller any amounts remaining from the
withheld funds.  If such fees, expenses
and costs of Purchaser are more than the amount withheld, Seller shall promptly
pay to Purchaser the excess over the amount withheld.


 


(r)                                    Tax
Treatment.  Purchaser and
Seller agree that they will treat the transactions contemplated by this
Agreement as a sale for accounting and for Federal income tax purposes.


 


[Remainder of page
intentionally left blank.]


 


18

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers thereunder duly
authorized as of the day and year first above written.


 


	
  HPSC, INC.

  	
  GENERAL ELECTRIC
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Rene
  Lefebvre

  	
   

  	
  By:

  	
  /s/ Gordon
  Olivant

  	
   

  
	
  Title: CFO

  	
  Title: Managing
  Director

  
						



 


 


Signature Page to the Purchase Agreement