Exhibit 10.15
Second Amendment to Loan and Security Agreement
This Amendment to Loan and Security Agreement
("Amendment") dated as of February 19, 1999 by and among
Fleet Capital Corporation ("Lender"), a Rhode Island
corporation with an office at 000 Xxxxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxx 00000; and Rheometric Scientific,
Inc. ("Borrower"), a New Jersey corporation with its chief
executive office and principal place of business at Xxx
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
Background
A. On February 23, 1996, Lender entered into a Loan
and Security Agreement (as amended by a certain Amendment to
Loan and Security Agreement dated March 31, 1998, the "Loan
Agreement") with Borrower and, in connection therewith,
Borrower executed and delivered certain other documents and
instruments (together with the Loan Agreement, the "Loan
Documents").
B. On or about August 12, 1998, Lender notified
Borrower ("Termination Notice") that the Revolving Credit
Facility would terminate on the last day of the Original
Term (February 23, 1999).
C. The parties desire to further amend the Loan
Agreement in the manner hereinafter set forth.
D. Capitalized terms used herein which are not
defined herein shall have the meanings given thereto in the
Loan Agreement.
E. All amendments effected hereby are, unless
otherwise stated herein to the contrary, effective as of the
date hereof.
NOW THEREFORE, intending to be legally bound, the
parties agree as follows:
1. Extension of Revolving Credit Facility.
The Revolving Credit Facility shall be extended to
and terminate as of May 21, 1999 with no further extension
of any kind (under any automatic renewal feature or
otherwise) absent the further written approval of Lender
(subject to its sole and absolute discretion). Subject only
to the extension of the Original Term described in the
preceding sentence, nothing herein contained shall be deemed
to nullify or alter the Termination Notice or the effect
thereof.
2. Letter of Credit Extension.
The parties further agree that the expiry date of
the Letters of Credit shall be extended to May 21, 1999 and
accordingly the LC Guarantee issued by Lender on Borrower's
behalf to support the Letters of Credit shall continue in
effect for the purposes hereof. Borrower confirms that the
present face amount of the German Credit is
1
DM1,224,000, of the UK Credit is GBP620,000 and of the
Japanese Credit is JPY240,000,000.
3. Reduction of Facility Limit, Inventory Sublimit.
a. Facility Limit. As of the date hereof, the
Facility Limit (presently at $10,4000) shall be permanently
reduced to $10,000,000.
b. Inventory Sublimit. As of the opening of
business on Wednesday (or, if not a Business Day, on the
first Business Day thereafter) of each week, the sublimit on
inventory advances referred to in subsection (b)(ii)(A) of
the definition of "Borrowing Base" in the Loan Agreement
(which sublimit is presently at $4,900,000) will continue to
be permanently and automatically decreased by $25,000.
4. Conditions. As a condition to the effectiveness
of the paragraphs 1 and 2 hereof, Borrower will, prior to or
concurrently with the execution hereof, pay to Lender an
amendment fee in the amount of $25,000.
5. Reimbursement of Expenses. Borrower shall, upon
Lender's demand, reimburse Lender for all reasonable costs
and expenses (including, without limitation, reasonable
attorneys' fees) incurred by Lender in the negotiation and
preparation of this Amendment.
6. Reaffirmation. This Amendment is deemed
incorporated into the Loan Agreement. Borrower hereby
confirms that except to the extent set forth above, the Loan
Agreement and other Loan Documents will remain unchanged and
in full force and affect and Borrower hereby ratifies and
reaffirms all of its obligations thereunder and agrees that
all Collateral, liens, and security interests at any time
granted by Borrower to Lender shall continue unimpaired and
in full force and effect and shall continue to cover and
secure all Obligations. In consideration of Lender's
undertakings herein, Borrower hereby releases, remises and
forever discharges (and agrees never to assert, defend or
counterclaim against) Lender, its agents, representatives,
employees, successors and assigns, whether such persons are
known or unknown, from all actions, suits, claims,
covenants, judgments, liabilities, rights, setoffs, demands
and defenses of every kind and nature whether now known or
unknown or now or hereafter existing or arising, at law or
in equity, which Borrower no has, arising from or related to
any act or omission by Lender or any such agents,
representatives, employees, successors or assigns through
the date hereof in connection with the consideration,
negotiation, consummation, administration and/or enforcement
of the Loans and/or the Loan Documents, including this
Amendment.
7. New Representations and Covenants. The Borrower
hereby represents and warrants that (a) no Default or Event
of Default exists under the Loan Agreement, (b) this
Amendment has been duly authorized, executed and delivered
by and constitutes the legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms,
and (c) the Borrower has reviewed the areas within its
business and operations which could be adversely affected
by, and has developed or is developing a program to address
on a timely basis, the risk that certain computer
applications used by the Borrower and its Subsidiaries (or
any of its material suppliers, customers or vendors) may be
unable to effectively
2
interpret, process and manipulate data and recognize and
perform properly date-sensitive functions involving dates
prior to, on and after December 31, 1999 (the "Year 2000
Problem"). To the best of the Borrower's knowledge, the
Year 2000 problem will not cause any material adverse effect
with respect to Borrower's business, financial condition,
prospects, or ability to repay and perform its obligations
to Lender ("Material Adverse Effect"). Borrower covenants
and agrees that it shall take all action necessary to assure
that the computer-based systems utilized by Borrower and
each of its Subsidiaries will be able to effectively
interpret, process and manipulate data, including dates
before, on and after December 31, 1999. At Lender's
request, Borrower shall provide to Lender assurance
reasonably satisfactory to Lender that the computer-based
systems utilized by the Borrower and each of its
Subsidiaries, for which the inability to process and
manipulate data involving dates before, on and after
December 31, 1999 would have a Material Adverse Effect, are
able to recognize and perform without material error
functions involving dates before, on and after December 31,
1999.
8. Counterparts. This Amendment may be executed in
any number of counterparts, each of which so executed shall
be deemed to be an original, and such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their duly
authorized officers as of the day and year first above
written.
ATTEST: Rheometric Scientific, Inc.
By: /s/ Xxxxxx Xxxxxxx
Secretary Title: V.P. Finance
Fleet Capital Corporation
By:
Title:
3
