**Exhibit 10.78**

 

**AMENDMENT NUMBER ONE TO FIFTH AMENDED ANDRESTATED LOANAND SECURITY AGREEMENT**

 

**THIS AMENDMENT NUMBER ONE TO FIFTH AMENDEDAND 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 **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:

 

**W I T N E S S E T H**

 

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

 

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

 

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

 

NOW,THEREFORE, for good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, the parties agree to amend the Loan Agreement asfollows:

 

**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 TO LOAN AGREEMENT.**

 

(a)           Section 1.1 of the LoanAgreement is hereby amended by inserting the following new definitions inproper alphabetical order:

 

“FirstAmendment” means that certain Amendment Number One to Loan and SecurityAgreement dated as of November 8, 2002, by and between the Borrower and theLender Group.

 

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

 

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

 

 

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(b)           Section 1.1 of the LoanAgreement is hereby amended by amending and restating the following definitionsas follows:

 

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

 

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

 

“(d)         **FirstAmendment Fee.** An amendmentfee in the amount of $30,000 (the “First Amendment Fee”), whichamendment 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 bedivided equally between Citizens Bank of Massachusetts and Banknorth, N.A..”

 

(d)           Schedule C-1 of the LoanAgreement 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 THISAMENDMENT.** The satisfaction of each of the following shall constitute conditionsprecedent to the effectiveness of this Amendment and each and every provisionhereof:

 

(a)           The representations and warranties inthe Loan Agreement and the other Loan Documents shall be true and correct inall respects on and as of the date hereof, as though made on such date (exceptto the extent that such representations and warranties relate solely to anearlier date);

 

(b)           Agent shall have received thereaffirmation 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 shallhave occurred and be continuing on the date hereof or as of the date of theeffectiveness of this Amendment; and

 

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

 

**4.             REPRESENTATIVES AND WARRANTIES.** Borrowerhereby represents and warrants to the Lender Group as follows:

 

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

 

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

 

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

 

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

 

(d)           the execution, delivery, andperformance of the Consent is within ACFC’s corporate power, has been dulyauthorized by all necessary corporate action, and is not in contravention ofany law, rule or regulation, or any order, judgment, decree, writ, injunction,or award of any arbitrator, court or governmental authority, or of the terms ofits charter or bylaws, or of any contract or undertaking to which it is a partyor 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 accordancewith its terms, and

 

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

 

**5.             CONSTRUCTION. **THIS AMENDMENTSHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OFCALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OFCALIFORNIA.

 

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

 

**7.             COUNTERPARTS; TELEFACSIMILEEXECUTION.** This Amendment may be executed in any number of counterparts, all ofwhom taken together shall constitute one and the same instrument and any of theparties hereto may execute this Amendment by signing any such counterpart.  Delivery of an executed counterpart of thisAmendment by

 

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telefacsimile shall be equallyas effective as delivery of an original executed counterpart of thisAmendment.  Any party delivering anexecuted counterpart of this Amendment by telefacsimile also shall deliver an originalexecuted counterpart of this Amendment, but the failure to deliver an originalexecuted counterpart shall not affect the validity, enforceability, and bindingeffect of this Amendment.

 

**8.            MISCELLANEOUS.**

 

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

 

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

 
| [Signature page follows.] |
|---------------------------|

 

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IN WITNESSWHEREOF, the parties have caused this Amendment to be executed and delivered asof 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**

 

Allcapitalized terms used herein but not otherwise defined herein shall have themeanings ascribed to them in that certain Fifth Amended and Restated Loan andSecurity Agreement by and among **HPSC, INC.,**a Delaware corporation (“Borrower”), each of the lenders that is from time totime a party thereto (together with their respective successors and permittedassigns, individually, “Lender” and, collectively, “Lenders”), and **FOOTHILL CAPITAL CORPORATION,**a Californiacorporation, as the arranger and administrative agent for the Lenders (in suchcapacity, together with its successors, if any, in such capacity, “Agent”; andtogether with each of the Lenders, individually and collectively the “LenderGroup”), dated as of August 5, 2002 (as amended, restated, supplemented orotherwise modified, the “Loan Agreement”), or in Amendment Number One to FifthAmended and Restated Loan and Security Agreement, dated as of November 8, 2002(the “Amendment”), among Borrower and the Lender Group. The undersigned eachhereby (a) represent and warrant to the Lender Group that the execution,delivery, and performance of this Reaffirmation and Consent are within itspowers, have been duly authorized by all necessary action, and are not incontravention 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 towhich 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 anyLoan Documents to which it is a party; and (d) agrees that each of the LoanDocuments 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 andhas acknowledged and agreed to same, it understands that the Lender Group hasno obligations to inform it of such matters in the future or to seek itsacknowledgement or agreement to future amendments, and nothing herein shallcreate 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 partydelivering an executed counterpart of this Reaffirmation and Consent bytelefacsimile also shall deliver an original executed counterpart of thisReaffirmation and Consent but the failure to deliver an original executedcounterpart of this Reaffirmation and Consent but the failure to deliver anoriginal executed counterpart of this Reaffirmation and Consent but the failureto deliver 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 WITNESSWHEREOF, the undersigned have each caused this Reaffirmation and Consent to beexecuted 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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