Exhibit 10.78


 


AMENDMENT NUMBER ONE TO FIFTH AMENDED AND
RESTATED LOAN

AND SECURITY AGREEMENT


 


THIS AMENDMENT NUMBER ONE TO FIFTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (this
“Amendment”), dated as of November 8, 2002, is entered into by and among HPSC, INC., a Delaware corporation
(“Borrower”), each of the lenders that is a signatory to this Amendment
(together with its successors and permitted assigns, individually, “Lender”
and, collectively, “Lenders”), and FOOTHILL
CAPITAL CORPORATION, a California corporation, as the arranger and
administrative agent for the Lenders (in such capacity, together with its
successors, if any, in such capacity, “Agent”; and together with each of the
Lenders, individually and collectively, the “Lender Group”), in light of the
following:


 


W I T N E S S E T H


 


WHEREAS,
Borrower and the Lender Group are parties to that certain Loan and Security
Agreement, dated as of August 5, 2002 (as amended, restated, supplemented, or
modified from time to time, the “Loan Agreement”);


 


WHEREAS,
Borrower has requested that the Lender Group consent to the amendment of the
Loan Agreement as set forth herein; and


 


WHEREAS,
subject to the satisfaction of the conditions set forth herein, the Lender
Group is willing to so consent to the amendment of the Loan Agreement.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to amend the Loan Agreement as
follows:


 


1.             DEFINITIONS.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement, as amended hereby.


 


2.             AMENDMENTS TO LOAN AGREEMENT.


 


(a)           Section 1.1 of the Loan
Agreement is hereby amended by inserting the following new definitions in
proper alphabetical order:


 


“First
Amendment” means that certain Amendment Number One to Loan and Security
Agreement dated as of November 8, 2002, by and between the Borrower and the
Lender Group.


 


“First
Amendment Effective Date” means the date, if ever, that all of the
conditions set forth in Section 3 of the Third Amendment shall be
satisfied (or waived by Agent in its sole discretion).


 


“First
Amendment Fee” has the meaning set forth in Section 2.11(d).


 


 


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(b)           Section 1.1 of the Loan
Agreement is hereby amended by amending and restating the following definitions
as follows:


 


“Maximum
Revolver Amount” means (a) from the First Amendment Effective Date until
January 24, 2003, $60,000,000, and (b) on and after the January 24, 2003,
$50,000,000.


 


(c)           Section 2.11 of the Loan
Agreement is hereby amended (i) by inserting the phrase “(except in the case of
the fee described in clause (d) of this Section 2.11, which fee shall be
divided among the Lenders as set forth in such clause (d) hereof)” immediately
following the words “(irrespective of whether this Agreement is terminated
thereafter) and shall” appearing in the first sentence therein, (ii) by
deleting the word “and” at the end of clause (b) thereof, (iii) by deleting the
period at the end of clause (c) thereof and replacing it with “, and”, and (iv)
by adding the following new clause (d):


 


“(d)         First
Amendment Fee.  An amendment
fee in the amount of $30,000 (the “First Amendment Fee”), which
amendment fee shall be fully earned on the First Amendment Effective Date,
shall be charged to Borrower’s Loan Account on January 3, 2003, and shall be
divided equally between Citizens Bank of Massachusetts and Banknorth, N.A..”


 


(d)           Schedule C-1 of the Loan
Agreement is hereby amended and restated in its entirety as follows:


 


Schedule C-1


Commitments


 


	
  Lender

  	
   

  	
  Revolver Commitment

  	
   

  	
  Total Commitment

  	
   

  
	
  Foothill Capital Corporation (from the
  First Amendment Effective Date until January 24, 2003)

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Foothill Capital Corporation (on and after
  January 24, 2003)

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Banknorth, N.A. (from the First Amendment
  Effective Date until January 24, 2003)

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Banknorth, N.A. (on and after January 24,
  2003)

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Citizens Bank of Massachusetts (from the
  First Amendment Effective Date until January 24, 2003)

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Citizens Bank of Massachusetts (on and
  after January 24, 2003)

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  All Lenders (from the First Amendment
  Effective Date until January 24, 2003)

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
  All Lenders (on and after January 24, 2003)

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  50,000,000

  	
   

  



 


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3.             CONDITIONS PRECEDENT TO THIS
AMENDMENT. 
The satisfaction of each of the following shall constitute conditions
precedent to the effectiveness of this Amendment and each and every provision
hereof:


 


(a)           The representations and warranties in
the Loan Agreement and the other Loan Documents shall be true and correct in
all respects on and as of the date hereof, as though made on such date (except
to the extent that such representations and warranties relate solely to an
earlier date);


 


(b)           Agent shall have received the
reaffirmation and consent of ACFC attached hereto as Exhibit A (the
“Consent”), duly executed and delivered by an authorized official of ACFC;


 


(c)           No Default or Event of Default shall
have occurred and be continuing on the date hereof or as of the date of the
effectiveness of this Amendment; and


 


(d)           No injunction, writ, restraining
order, or other order of any nature prohibiting, directly or indirectly, the
consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against Borrower, the Guarantors,
or the Lender Group.


 


4.             REPRESENTATIVES AND WARRANTIES.
 Borrower
hereby represents and warrants to the Lender Group as follows:


 


(a)           the execution, delivery, and
performance of this Amendment and of the Loan Agreement, as amended by this
Amendment, are within Borrower’s corporate powers, have been duly authorized by
all necessary corporate action, and are not in contravention of any law, rule,
or regulation, or any order, judgment, decree, writ, injunction, or award of
any arbitrator, court, or governmental authority, or of the terms of its
charter or bylaws, or of any


 


3

















 


contract or undertaking to
which it is a party or by which any of its properties may be bound or affected,


 


(b)           this Amendment and the Loan
Agreement, as amended by this Amendment, constitute Borrower’s legal, valid,
and binding obligation, enforceable against Borrower in accordance with its
terms,


 


(c)           this Amendment has been duly executed
and delivered by Borrower,


 


(d)           the execution, delivery, and
performance of the Consent is within ACFC’s corporate power, has been duly
authorized by all necessary corporate action, and is not in contravention of
any law, rule or regulation, or any order, judgment, decree, writ, injunction,
or award of any arbitrator, court or governmental authority, or of the terms of
its charter or bylaws, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected,


 


(e)           the Consent constitutes ACFC’s legal,
valid, and binding obligations, enforceable against Guarantor in accordance
with its terms, and


 


(f)            the Consent has been duly executed
and delivered by ACFC.


 


5.             CONSTRUCTION.  THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF
CALIFORNIA.


 


6.             ENTIRE AMENDMENT; EFFECT OF
AMENDMENT.  This
Amendment, and terms and provisions hereof, constitute the entire agreement
among the parties pertaining to the subject matter hereof and supersedes any
and all prior or contemporaneous amendments relating to the subject matter
hereof.  Except for the amendments to
the Loan Agreement expressly set forth in Section 2 hereof, the Loan
Agreement and other Loan Documents shall remain unchanged and in full force and
effect.  The execution, delivery, and
performance of this Amendment shall not operate as a waiver of or, except as
expressly set forth herein, as an amendment of, any right, power, or remedy of
the Lender Group as in effect prior to the date hereof.  The amendments and other agreements set
forth herein are limited to the specifics hereof, shall not apply with respect
to any facts or occurrences other than those on which the same are based, shall
not excuse future non-compliance with the Loan Agreement, and shall not operate
as a consent to any further or other matter, under the Loan Documents.  To the extent any terms or provisions of
this Amendment conflict with those of the Loan Agreement or other Loan
Documents, the terms and provisions of this Amendment shall control.  This Amendment is a Loan Document.


 


7.             COUNTERPARTS; TELEFACSIMILE
EXECUTION. 
This Amendment may be executed in any number of counterparts, all of
whom taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Amendment by signing any such counterpart.  Delivery of an executed counterpart of this
Amendment by


 


4

















 


telefacsimile shall be equally
as effective as delivery of an original executed counterpart of this
Amendment.  Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an original
executed counterpart of this Amendment, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Amendment.


 


8.            MISCELLANEOUS.


 


(a)           Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to “this Agreement”,
“hereunder”, “herein”, “hereof” or words of like import referring to the Loan
Agreement shall mean and refer to the Loan Agreement as amended by this
Amendment.


 


(b)           Upon the effectiveness of this
Amendment, each reference in the Loan Documents to the “Loan Agreement”,
“thereunder”, “therein”, “thereof” or words of like import referring to the
Loan Agreement shall mean and refer to the Loan Agreement as amended by this
Amendment.


 


	
  [Signature page follows.]

  



 


5

















 


IN WITNESS
WHEREOF, the parties have caused this Amendment to be executed and delivered as
of the date first written above.


 


	
   

  	
   

  	
   

  	
  HPSC, INC.

  	
   

  
	
   

  	
   

  	
   

  	
  a Delaware
  corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John W.
  Everets

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chairman

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  FOOTHILL CAPITAL CORPORATION,

  	
   

  
	
   

  	
   

  	
   

  	
  a California
  corporation, as Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Virginia
  H. Brown

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  BANKNORTH, N.A.,

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  a national
  association, as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Paul B.
  Forester

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CITIZENS BANK OF MASSACHUSETTS,

  	
   

  
	
   

  	
   

  	
   

  	
  a
  Massachusetts chartered bank, as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ D.
  Farwell

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  	
   

  
								



 


S-1

















 


Exhibit A


 


REAFFIRMATION AND CONSENT


 


All
capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in that certain Fifth Amended and Restated Loan and
Security Agreement by and among HPSC, INC.,
a Delaware corporation (“Borrower”), each of the lenders that is from time to
time a party thereto (together with their respective successors and permitted
assigns, individually, “Lender” and, collectively, “Lenders”), and FOOTHILL CAPITAL CORPORATION, a California
corporation, as the arranger and administrative agent for the Lenders (in such
capacity, together with its successors, if any, in such capacity, “Agent”; and
together with each of the Lenders, individually and collectively the “Lender
Group”), dated as of August 5, 2002 (as amended, restated, supplemented or
otherwise modified, the “Loan Agreement”), or in Amendment Number One to Fifth
Amended and Restated Loan and Security Agreement, dated as of November 8, 2002
(the “Amendment”), among Borrower and the Lender Group. The undersigned each
hereby (a) represent and warrant to the Lender Group that the execution,
delivery, and performance of this Reaffirmation and Consent are within its
powers, have been duly authorized by all necessary action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be bound or affected;
(b) consents to the transactions contemplated by the Amendment; (c)
acknowledges and reaffirms its obligations owing to the Lender Group under any
Loan Documents to which it is a party; and (d) agrees that each of the Loan
Documents to which it is a party is and shall remain in full force and effect.
Although the undersigned has been informed of the matters set forth herein and
has acknowledged and agreed to same, it understands that the Lender Group has
no obligations to inform it of such matters in the future or to seek its
acknowledgement or agreement to future amendments, and nothing herein shall
create such a duty.  Delivery of an
executed counterpart of this Reaffirmation and Consent by telefacsimile shall
be equally as effective as delivery of an original executed counterpart of this
Reaffirmation and Consent.  Any party
delivering an executed counterpart of this Reaffirmation and Consent by
telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart of this Reaffirmation and Consent but the failure to deliver an
original executed counterpart of this Reaffirmation and Consent but the failure
to deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Reaffirmation and Consent. This
Reaffirmation and Consent shall be governed by the laws of the State of
California.


 


	
  [signature page follows]

  



 

















 


IN WITNESS
WHEREOF, the undersigned have each caused this Reaffirmation and Consent to be
executed as of the date of the Amendment.


 


	
   

  	
   

  	
   

  	
  AMERICAN COMMERCIAL FINANCE

  CORPORATION,

  
	
   

  	
   

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John W. Everets

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John W.
  Everets

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chairman