Exhibit 10.2


 


Execution Copy


 


AMENDMENT NO. 2 TO SECOND AMENDED
AND RESTATED

PURCHASE AND CONTRIBUTION AGREEMENT


 


Dated as of
October 17, 2003


 


THIS AMENDMENT NO. 2 dated as of October 17, 2003
(“Amendment”) to the SECOND AMENDED AND RESTATED PURCHASE AND CONTRIBUTION
AGREEMENT, dated as of June 19, 2003 (as amended, restated, supplemented
or otherwise modified from time to time, the “Sale Agreement”) is
entered into by and between HPSC BRAVO FUNDING, LLC, a Delaware limited
liability company (the “Buyer”) and HPSC, INC., a Delaware corporation
(the “Seller”).  Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions List referenced in the Sale
Agreement.


 


PRELIMINARY STATEMENTS


 


WHEREAS, pursuant to Section 4.01(r)(i) of the
Sale Agreement, the Seller has represented and warranted, with respect to each
Purchased Receivable, that at least one Scheduled Contract Payment had been
made by the related Obligor prior to the related Purchase Date in accordance
with clause (xxvi) of the definition of “Eligible Receivable” (as such clause
was in effect prior to the effectiveness of this Amendment); and


 


WHEREAS, it has come to the attention of the parties
hereto that, with respect to certain Purchased Receivables, no Scheduled
Contract Payments had been made by the Obligors prior to the related Purchase
Dates; and


 


WHEREAS, as a result of the foregoing, and also the
resulting inaccuracy of the calculations of the Discounted Eligible Receivables
Balance as set forth in certain Settlement Reports delivered by the Seller
pursuant to Section 2.05(b) of the Sale Agreement, Events of Termination
have occurred pursuant to Section 7.01(c) of the Sale Agreement
(collectively, the “Eligibility Default”); and


 


WHEREAS, as described in Amendment No. 2 to the
Receivables Purchase Agreement, dated as of the date hereof, a Wind-Down Event
has occurred pursuant to Section 7.01(h) of the Receivables Purchase
Agreement; and


 


WHEREAS, as a result of the occurrence of the
above-described Wind-Down Event, and pursuant to Section 7.01(l) of the
Sale Agreement, an Event of Termination has occurred (the “Cross Default”);
and


 


WHEREAS, the Seller has requested that the Buyer
waive, and the Buyer has agreed to waive, subject to the conditions set forth
herein, the Eligibility Default and the Cross Default pursuant to
Section 9.01 of the Sale Agreement; and


 

















 


WHEREAS, the Buyer and the Seller have agreed to amend
the Sale Agreement on the terms and subject to the conditions hereinafter set
forth;


 


NOW, THEREFORE, in consideration of the premises set
forth above, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Buyer and the Seller agree as
follows:


 


SECTION 1.                  Waiver.
 Effective as of the date first above
written, subject to the satisfaction of the conditions precedent set forth in Section 4
below, the Buyer hereby waives each of the Eligibility Default and the Cross
Default.


 


SECTION 2.                  Amendment
to the Sale Agreement.  Effective as
of the date first above written, subject to the satisfaction of the conditions
precedent set forth in Section 4 below, the Sale Agreement is
hereby amended as follows:


 


(a)                    Section 5.04(a)
of the Sale Agreement is amended by adding at the end thereof the following
clause (vi):


 


(vi)                the Seller will
not suffer or permit the sum of (A) an amount equal to (1) the lesser of (x)
the “Maximum Revolver Amount” minus the “Letter of Credit Usage” and (y) the
“Borrowing Base” minus the “Letter of Credit Usage”, minus (2) the outstanding
principal balance of all “Advances” under the FootHill Credit Agreement (as
such terms in quotations are defined in the FootHill Credit Agreement as in
effect on the date hereof), plus (B) the Seller’s unrestricted cash on hand, to
be less than $5,000,000 at any time.


 


(b)                   Section 7.01
of the Sale Agreement is amended by (i) adding “or” at the end of clause (n)
thereof and (ii) adding, after such clause (n), the following clause (o):


 


(o)                                 The
Seller shall fail, on or before January 1, 2004, to (i) complete an
issuance of securities representing an equity interest in the Seller, in
respect of which issuance the proceeds received by the Seller (net of
transaction expenses) are greater than or equal to $15,000,000 or (ii) obtain
debt financing (which may be a term loan or the issuance of term notes) in an
available principal amount of $15,000,000, under the terms of which (A) the
Seller’s repayment obligations are subordinate to the Seller’s repayment
obligations under the FootHill Credit Agreement and (B) the Seller is not
required to repay the principal amount of such debt prior to December 1,
2006.


 


SECTION 3.                  Representations
and Warranties.  The Seller
represents and warrants as follows:


 


(a)                    This
Amendment and the Sale Agreement as amended hereby constitute legal, valid and
binding obligations of the Seller and are enforceable against the Seller in
accordance with their terms.


 


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(b)                   Upon
the effectiveness of this Amendment, the Seller hereby reaffirms that the
representations and warranties contained in Article IV of the Sale
Agreement are true and correct.


 


(c)                    Upon
the effectiveness of this Amendment, the Seller hereby reaffirms all covenants
made in the Sale Agreement and the other Facility Documents to which it is a
party to the extent the same are not amended hereby and agrees that all such
covenants shall be deemed to have been remade as of the effective date of this
Amendment.


 


(d)                   Upon
the effectiveness of this Amendment, no Event of Termination or Unmatured Event
of Termination shall have occurred and shall be continuing.


 


SECTION 4.                  Conditions
Precedent.  This Amendment shall
become effective as of the date hereof on the date on which the Collateral
Agent shall have received (i) a copy of this Amendment, duly executed and
delivered by each of the Buyer and the Seller and (ii) a copy of Amendment No.
2 to the Receivables Purchase Agreement, dated as of the date hereof, duly
executed by each party thereto.


 


SECTION 5.                  Amendments
to Receivables Purchase Agreement. 
For the avoidance of doubt, the parties hereto acknowledge that the
“Definitions List” referred to in Section 1.01 of the Sale Agreement means
Appendix A to the Receivables Purchase Agreement as amended from time to time,
including by Amendment No. 1 to the Receivables Purchase Agreement, dated as of
August 11, 2003, and by Amendment No. 2 to the Receivables Purchase
Agreement, dated as of the date hereof.


 


SECTION 6.                  Reference
to the Effect on the Sale Agreement. 
(a)  Except as specifically set
forth above, the Sale Agreement, and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain in
full force and effect, and are hereby ratified and confirmed.  The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein and for the
limited purposes set forth herein, operate as a waiver of any right, power or
remedy of the Buyer, nor constitute a waiver of any provisions of the Sale
Agreement, or any other documents, instruments and agreements executed and/or
delivered in connection therewith.


 


(b)  Upon the
effectiveness of this Amendment, each reference in the Sale Agreement to “this
Sale Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall
mean and be a reference to the Sale Agreement as amended hereby, and each
reference to the Sale Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Sale Agreement shall mean and
be a reference to the Sale Agreement as amended hereby.


 


SECTION 7.                  Headings.  Section headings in the Amendment are
included herein for convenience of reference only and shall not constitute part
of this Amendment for any other purpose.


 


SECTION 8.                  Governing
Law.  This Amendment shall be
governed by and construed in accordance with the laws of the State of New York.


 


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SECTION 9.                  Counterparts.  This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.


 


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IN WITNESS WHEREOF, this Amendment has been duly
executed as of the day and year first above written.


 


	
   

  	
  HPSC, INC., as Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rene Lefebvre

  	
   

  
	
   

  	
  Name: Rene Lefebvre

  
	
   

  	
  Title:  CFO

  
	
   

  	
   

  
	
   

  	
  HPSC BRAVO FUNDING,
  LLC, as Buyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rene Lefebvre

  	
   

  
	
   

  	
  Name: Rene Lefebvre

  
	
   

  	
  Title:  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed and
  Acknowledged:

  MBIA Insurance Corporation,

  as Insurer and as Collateral Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Andrew
  Laterza

  	
   

  	
   

  
	
  Name: Andrew P.
  Laterza

  	
   

  
	
  Title: Vice
  President

  	
   

  
							



 


 


Signature Page to Amendment No.
2 to Purchase and Contribution Agreement