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Exhibit 10.5
AMENDMENT NO. 1
to
AMENDED AND RESTATED PURCHASE AND CONTRIBUTION AGREEMENT
dated as of June 16, 2000
THIS AMENDMENT NO. 1 ("AMENDMENT"), to the AMENDED AND RESTATED PURCHASE
AND CONTRIBUTION AGREEMENT, dated as of March 31, 2000 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"PCA"), between HPSC Bravo Funding Corp., a Delaware corporation ("HPSC BRAVO"),
as the Buyer thereunder and HPSC, Inc., a Delaware corporation ("HPSC INC."), as
the Seller thereunder, is entered into by each of the foregoing as of June 16,
2000. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Definitions List referenced in the
PCA.
PRELIMINARY STATEMENTS
HPSC Bravo and HPSC Inc. wish to amend the PCA in certain respects and as a
result have agreed to amend the PCA on the terms and 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, HPSC Bravo and HPSC Inc. agree as follows:
SECTION 4.01(R)(VIII) of the PCA is hereby amended to delete therefrom the
amount "$30,000" and to substitute therefor the amount "$50,000".
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of HPSC Bravo and HPSC Inc.
represents and warrants as follows:
(a) This Amendment and the PCA as previously executed and as amended
hereby, constitute legal, valid and binding obligations of each of HPSC Bravo
and HPSC Inc. and are enforceable against each of HPSC Bravo and HPSC Inc. in
accordance with their terms.
(b) Upon the effectiveness of this Amendment, each of HPSC Bravo and HPSC
Inc. hereby reaffirms that the representations and warranties contained in
ARTICLE IV of the PCA are true and correct.
(c) Upon the effectiveness of this Amendment, each of HPSC Bravo and HPSC
Inc. hereby reaffirms all covenants made in the PCA 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) No Wind-Down Event or Unmatured Wind-Down Event, Event of Termination,
or Unmatured Event of Termination has occurred or is continuing.
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SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective as
of the date hereof so long as each of HPSC Bravo and HPSC Inc. receives an
executed copy of this Amendment.
SECTION 4. REFERENCE TO AND EFFECT ON THE PCA. Except as specifically set
forth above, the PCA, 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 HPSC Bravo or HPSC Inc., nor constitute a waiver of any
provisions of the PCA, or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
SECTION 5. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute part of this
Amendment for any other purpose.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws (including Section 5-1401 of the General Obligations
Law but otherwise without respect to conflict of law principles) of the State of
New York.
SECTION 7. 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.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
HPSC BRAVO FUNDING CORP., as
Buyer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Treasurer
HPSC, INC., as Seller
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: VP & CFO
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