Exhibit
10.80


 


AMENDMENT
NUMBER TWO TO FIFTH AMENDED AND RESTATED LOAN

AND SECURITY AGREEMENT


 


THIS
AMENDMENT NUMBER TWO TO FIFTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this “Amendment”), dated as of January 31, 2003, 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 by Amendment Number One to Fifth Amended and Restated Loan and Security
Agreement dated as of November 8, 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:


 


“Banknorth Extension Fee” has the meaning set
forth in Section 2.11(g).


 


“Citizens Extension Fee” has the meaning set
forth in Section 2.11(f).


 


“Permitted Investment Amount” means, (a) before
July 31, 2003, $750,000 or, upon prior written notice to Borrower thereof, such
lesser amount as Agent shall determine in its Permitted Discretion, and (b) on
and after July 31, 2003, $0.


 


1

















 


“Second Amendment” means that certain Amendment
Number Two to Fifth Amended and Restated Loan and Security Agreement dated as
of January 31, 2003, by and between the Borrower and the Lender Group.


 


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


 


“Second Amendment Fee” has the meaning set
forth in Section 2.11(e).


 


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


 


“First Amendment” means that certain Amendment
Number One to Fifth Amended and Restated 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 First Amendment shall be satisfied (or waived by Agent in its sole
discretion).


 


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


 


“Permitted Investments” means (a) Investments
in Cash Equivalents; provided, that no such Investments may be made with
a holder of the Existing Indebtedness without Agent’s prior written consent,
(b) Investments in negotiable instruments for collection, (c) advances made in
connection with purchases of goods or services in the ordinary course of
business, (d) Investments by Borrower in ACFC, provided that the aggregate
amount of such Investments by Borrower in ACFC shall not at any one time exceed
the difference between (i) the sum of (A) the aggregate amount of such Investments
existing as of the Closing Date and (B) the then extant Permitted Investment
Amount, and (ii) the aggregate amount of all payments by ACFC to Borrower on
account of the Investments described in clause (d)(i) of this definition, and
(e) equity Investments in New Securitization Subsidiaries in connection with
the formation thereof in an aggregate amount not to exceed $100,000.


 


(c)           Section
2.11 of the Loan Agreement is hereby amended (i) by deleting 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, and replacing it with the phrase “(except in the case of the fees
described in clauses (d), (e), (f), and (g) of this Section 2.11, which
fees shall be divided among the Lenders as set forth therein)”, (ii) by
deleting the word “and” at the


 


2

















 


end of clause (c) thereof, (iii) by deleting the period at the end of
clause (d) thereof and replacing it with a comma, and (iv) by adding the
following new clauses (e), (f) and (g):


 


“(e)         Second
Amendment Fee.  An amendment fee in the
amount of $15,000 (the “Second Amendment Fee”), which amendment fee
shall be fully earned on the Second Amendment Effective Date, and shall be
charged to Borrower’s Loan Account on such date, and shall be divided equally
among each of the Lenders.”


 


(f)            Citizens
Extension Fee.  An extension fee in the
amount of $15,000 (the “Citizens Extension Fee”), which extension fee
shall be fully earned on the Second Amendment Effective Date, and shall be
charged to Borrower’s Loan Account on such date, and shall be for the sole
benefit of Citizens Bank of Massachusetts, and


 


(g)           Banknorth
Extension Fee.  An extension fee in the
amount of $15,000 (the “Banknorth Extension Fee”), which extension fee
shall be fully earned on the Second Amendment Effective Date, and shall be
charged to Borrower’s Loan Account on such date, and shall be for the sole
benefit of 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

  	
   

  	
  [ILLEGIBLE]
  Commitment

  	
   

  	
  Total
  Commitment

  	
   

  
	
  Foothill Capital
  Corporation

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Banknorth, N.A.

  (from the Second Amendment

  Effective Date until April 24, 2003)

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Banknorth, N.A.

  (on and after April 24, 2003)

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citizens Bank of Massachusetts

  (from the Second Amendment

  Effective Date until April 24, 2003)

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citizens Bank of Massachusetts

  (on and after April 24, 2003)

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All Lenders

  (from the Second Amendment

  Effective Date until April 24, 2003)

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All Lenders

  (on and after April 24, 2003)

  	
   

  	
  $

  	
  50,000,000 

  	
   

  	
  $

  	
  50,000,000 

  	
   

  






 


3

















 


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 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


 


4

















 


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
specifies  hereof, shall not apply with
respect to my 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 which 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 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.


 


5

















 


(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.]


 


6

















 


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 Two to Fifth Amended and Restated Loan and Security Agreement,
dated as of January 31, 2003 (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 amendment of the Loan
Agreement 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 acknowledgment 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 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