**Exhibit10.80**

 

**AMENDMENTNUMBER TWO TO FIFTH AMENDED AND RESTATED LOANAND SECURITY AGREEMENT**

** **

**THISAMENDMENT NUMBER TWO TO FIFTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT**(this “Amendment”), dated as of January 31, 2003, is entered into by and amongHPSC, INC., a Delaware corporation (“Borrower”), each of the lenders that is asignatory to this Amendment (together with its successors and permittedassigns, individually, “Lender” and, collectively, “Lenders”), and FOOTHILLCAPITAL CORPORATION, a California corporation, as the arranger andadministrative agent for the Lenders (in such capacity, together with itssuccessors, if any, in such capacity, “Agent”; and together with each of theLenders, individually and collectively, the “Lender Group”), in light of thefollowing:

 

WITNESSETH

 

WHEREAS, Borrower and the Lender Group are parties tothat certain Loan and Security Agreement, dated as of August 5, 2002, asamended by Amendment Number One to Fifth Amended and Restated Loan and SecurityAgreement dated as of November 8, 2002 (as amended, restated, supplemented, ormodified from time to time, the “Loan Agreement”);

 

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

 

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

 

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

 

1.             DEFINITIONS.  Capitalized terms used herein and nototherwise defined herein shall have the meanings ascribed to them in the LoanAgreement, as amended hereby.

 

2.             AMENDMENTS TOLOAN AGREEMENT.

 

(a)           Section1.1  of the Loan Agreement is herebyamended by inserting the following new definitions in proper alphabeticalorder:

 

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

 

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

 

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

 

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

 

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

 

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

 

(b)           Section1.1  of the Loan Agreement is herebyamended by amending and restating the following definitions as follows:

 

“First Amendment” means that certain AmendmentNumber One to Fifth Amended and Restated Loan and Security Agreement dated asof November 8, 2002, by and between the Borrower and the Lender Group.

 

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

 

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

 

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

 

(c)           Section2.11 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 thisAgreement is terminated thereafter) and shall” appearing in the first sentencetherein, and replacing it with the phrase “(except in the case of the feesdescribed in clauses (d), (e), (f), and (g) of this Section 2.11, whichfees shall be divided among the Lenders as set forth therein)”, (ii) bydeleting the word “and” at the

 

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

 

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

 

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

 

(g)           BanknorthExtension Fee.  An extension fee in theamount of $15,000 (the “Banknorth Extension Fee”), which extension feeshall be fully earned on the Second Amendment Effective Date, and shall becharged to Borrower’s Loan Account on such date, and shall be for the solebenefit of Banknorth, N.A.”

 

(d)           ScheduleC-1 of the Loan Agreement is hereby amended and restated in its entirety asfollows:

 

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 |   |

 

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3.             CONDITIONSPRECEDENT TO THIS AMENDMENT. The satisfaction of each of the followingshall constitute conditions precedent to the effectiveness of this Amendmentand each and every provision hereof:

 

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

 

(b)           Agentshall have received the reaffirmation and consent of ACFC attached hereto as ExhibitA (the “Consent”), duly executed and delivered by an authorized official ofACFC:

 

(c)           NoDefault or Event of Default shall have occurred and be continuing on the datehereof or as of the date of the effectiveness of this Amendment; and

 

(d)           Noinjunction, writ, restraining order, or other order of any nature prohibiting,directly or indirectly, the consummation of the transactions contemplatedherein shall have been issued and remain in force by any Governmental Authorityagainst Borrower, the Guarantors, or the Lender Group.

 

4.             REPRESENTATIVESAND WARRANTIES. Borrower hereby represents and warrants to the Lender Groupas follows:

 

(a)           theexecution, delivery, and performance of this Amendment and of the LoanAgreement, as amended by this Amendment, are within Borrower’s corporatepowers, have been duly authorized by all necessary corporate action, and arenot in contravention of any law, rule, or regulation, or any order, judgment,decree, writ, injunction, or award of any arbitrator, court, or governmentalauthority, or of the terms of its charter or bylaws, or of any contract orundertaking to which it is a party or by which any of its properties may bebound or affected,

 

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

 

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

 

(d)           theexecution, delivery, and performance of the Consent is within ACFC’s corporatepower, has been duly authorized by all necessary corporate action, and is notin contravention of any law, rule or regulation, or any order, judgment,decree, writ, injunction, or award of any arbitrator, court or governmentalauthority, or of the terms of its charter or

 

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

 

(e)           theConsent constitutes ACFC’s legal, valid, and binding obligations, enforceableagainst Guarantor in accordance with its terms, and

 

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

 

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

 

6.             ENTIREAMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and provisionshereof, constitute the entire agreement among the parties pertaining to thesubject matter hereof and supersedes any and all prior or contemporaneousamendments relating to the subject matter hereof.  Except for the amendments to the Loan Agreement expressly setforth in Section 2 hereof, the Loan Agreement and other Loan Documentsshall remain unchanged and in full force and effect.  The execution, delivery, and performance of this Amendment shallnot operate as a waiver of or, except as expressly set forth herein, as anamendment of, any right, power, or remedy of the Lender Group as in effectprior to the date hereof.  Theamendments and other agreements set forth herein are limited to thespecifies  hereof, shall not apply withrespect to my facts or occurrences other than those on which the same arebased, shall not excuse future non-compliance with the Loan Agreement, andshall not operate as a consent to any further or other matter, under the LoanDocuments.  To the extent any terms orprovisions of this Amendment conflict with those of the Loan Agreement or otherLoan 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 ofcounterparts, all of which taken together shall constitute one and the sameinstrument and any of the parties hereto may execute this Amendment by signingany such counterpart.  Delivery of anexecuted counterpart of this Amendment by telefacsimile shall be equally aseffective as delivery of an original executed counterpart of this Amendment.Any party delivering an executed counterpart of this Amendment by telefacsimilealso shall deliver an original executed counterpart of this Amendment, but thefailure to deliver an original executed counterpart shall not affect thevalidity, enforceability, and binding effect of this Amendment.

 

8.             MISCELLANEOUS.

 

(a)           Uponthe effectiveness of this Amendment, each reference in the Loan Agreement to“this Agreement”, “hereunder”, “herein”, “hereof” or words of like importreferring to the Loan Agreement shall mean and refer to the Loan Agreement asamended by this Amendment.

 

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

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties have caused thisAmendment 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 |   |
|        |                                                    |  |  |  |

 

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Exhibit A

 

REAFFIRMATION AND CONSENT

 

All capitalized terms used herein but not otherwisedefined herein shall have the meanings ascribed to them in that certain FifthAmended and Restated Loan and Security Agreement by and among HPSC, INC., a Delawarecorporation (“Borrower”), each of the lenders that is from time to time a partythereto (together with their respective successors and permitted assigns,individually, “Lender” and, collectively, “Lenders”), and FOOTHILL CAPITALCORPORATION, a California corporation, as the arranger and administrative agentfor the Lenders (in such capacity, together with its successors, if any, insuch capacity, “Agent”; and together with each of the Lenders, individually andcollectively the “Lender Group”), dated as of August 5, 2002 (as amended,restated, supplemented or otherwise modified, the “Loan Agreement”), or inAmendment Number Two to Fifth Amended and Restated Loan and Security Agreement,dated as of January 31, 2003 (the “Amendment”), among Borrower and the LenderGroup. The undersigned each hereby (a) represent and warrant to the LenderGroup that the execution, delivery, and performance of this Reaffirmation andConsent are within its powers, have been duly authorized by all necessaryaction, and are not in contravention of any law, rule, or regulation, or anyorder, judgment, decree, writ, injunction, or award of any arbitrator, court,or governmental authority, or of the terms of its charter or bylaws, or of anycontract or undertaking to which it is a party or by which any of itsproperties may be bound or affected; (b) consents to the amendment of the LoanAgreement by the Amendment; (c) acknowledges and reaffirms its obligationsowing 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 shallremain in full force and effect. Although the undersigned has been informed ofthe matters set forth herein and has acknowledged and agreed to same, itunderstands that the Lender Group has no obligations to inform it of suchmatters in the future or to seek its acknowledgment or agreement to futureamendments, and nothing herein shall create such a duty. Delivery of anexecuted counterpart of this Reaffirmation and Consent by telefacsimile shallbe equally as effective as delivery of an original executed counterpart of thisReaffirmation and Consent. Any party delivering an executed counterpart of thisReaffirmation and Consent by telefacsimile also shall deliver an originalexecuted counterpart of this Reaffirmation and Consent but the failure todeliver an original executed counterpart shall not affect the validity,enforceability, and binding effect of this Reaffirmation and Consent. ThisReaffirmation and Consent shall be governed by the laws of the State ofCalifornia.

 

[signature page follows]

 

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IN WITNESS WHEREOF, the undersigned have each causedthis 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 |   |
|        |                                           |  |  |  |

 

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