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EXHIBIT 10.10(l)
AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT
This Amendment Number Two to Loan and Security Agreement
("Amendment") is entered into as of March 19, 1999, by and between FOOTHILL
CAPITAL CORPORATION, a California corporation ("Foothill"), and INTERNATIONAL
REMOTE IMAGING SYSTEMS, INC., a Delaware corporation ("IRIS"), PERCEPTIVE
SCIENTIFIC INSTRUMENTS, LLC, a Delaware limited liability company ("PSI"), and
STATSPIN, INC., a Massachusetts corporation ("Statspin") ( collectively
"Borrowers"), in light of the following:
FACT ONE: Borrowers and Foothill have previously entered into
that certain Loan and Security Agreement, dated as of May 5, 1998 (as amended,
the "Agreement").
FACT TWO: Borrowers and Foothill desire to further amend the
Agreement as provided for and on the conditions herein.
NOW, THEREFORE, Borrowers and Foothill hereby amend and
supplement the Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this
Amendment shall have the meanings given to them in the Agreement unless
specifically defined herein.
2. AMENDMENTS.
(a) Sections 7.20(b) and 7.20(c) of the Agreement are
hereby amended by deleting the same in their entirety and replacing them with
the following:
"(b) EBITDA. EBITDA, measured on a trailing four quarter basis, of not
less than the amount set forth in the table below as at the fiscal quarter-end
indicated:
Fiscal Quarter Ending Minimum EBITDA
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March 31, 1999, June 30, 1999 and
September 30, 1999 $3,000,000
December 31, 1999 and March 31, 2000 4,000,000
June 30, 2000 and September 30, 2000 4,500,000
December 31, 2000 and each fiscal $4,500,000
quarter ending thereafter
"(c) Minimum Gross Margin. A gross margin of at least 44% of Supply and
Service Revenue."
(b) Section 6.8 the Agreement is hereby amended by
deleting the same in its entirety and replacing it with the following:
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"6.8 MAINTENANCE OF EQUIPMENT. Maintain its Equipment in good operating
condition and repair (ordinary wear and tear excepted), and make all
necessary replacements thereto so that the value and operating
efficiency thereof shall at all times be maintained and preserved. Other
than those items of Equipment that constitute fixtures on the Closing
Date, such Borrower shall not permit any item of its Equipment to become
a fixture to real estate or an accession to other property, and such
Equipment shall at all times remain personal property, provided,
however, that Borrower may spend up to $40,000 per fiscal year in
leasehold improvements to premises used to conduct its business."
3. REPRESENTATIONS AND WARRANTIES. Borrowers hereby affirm to
Foothill that all of Borrowers' representations and warranties set forth in the
Agreement are true, complete and accurate in all respects as of the date hereof,
except as set forth in Schedule 3.1 to Amendment Number One to the Agreement.
4. NO DEFAULTS. Except as provided in Section 5 herein, Borrowers
hereby affirm to Foothill that no Event of Default has occurred and is
continuing as of the date hereof.
5. WAIVER OF DEFAULT. Borrowers were in default of Section
7.20(b), EBITDA Financial Covenant, for the fiscal quarter ended December 31,
1998 (the "EBITDA Default"), of Section 6.8, Maintenance of Equipment covenant
for the quarter ended December 31, 1998 (the "Maintenance of Equipment Default")
and of Section 6.4, Tax Returns (the "Tax Return Default"). Foothill hereby
waives the EBITDA Default and the Maintenance of Equipment Default solely for
such quarter and the Tax Return Default solely for the 1997 Federal Tax Return.
6. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the following:
(a) Payment by Borrowers to Foothill of an amendment fee
in the aggregate amount of $6,000, such fee to be charged to Borrowers' loan
account pursuant to Section 2.5(d) of the Agreement; and
(b) Receipt by Foothill of an executed copy of this
Amendment.
7. COSTS AND EXPENSES. Borrowers shall pay to Foothill all of
Foothill's out-of-pocket costs and expenses (including, without limitation, the
fees and expenses of its counsel, which counsel may include any local counsel
deemed necessary, search fees, filing and recording fees, documentation fees,
appraisal fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related
documents.
8. LIMITED EFFECT. In the event of a conflict between the terms
and provisions of this Amendment and the terms and provisions of the Agreement,
the terms and provisions of this Amendment shall govern. In all other respects,
the Agreement, as amended and supplemented hereby, shall remain in full force
and effect.
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9. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original.
All such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first set forth above.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ STEPHEN SCHWARTZ
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Title: Assistant Vice President
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INTERNATIONAL REMOTE IMAGING SYSTEMS,
INC., a Delaware corporation
By: /s/ F. H. DEINDOERFER
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Title: Chairman and President
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STATSPIN, INC.,
a Massachusetts corporation
By: /s/ MARTIN S. McDERMOT
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Title Vice President and Chief Financial Officer
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PERCEPTIVE SCIENTIFIC INSTRUMENTS, LLC,
a Delaware limited liability company
By: Statspin, Inc., a Massachusetts corporation,
Its sole Member
By: /s/ MARTIN S. McDERMOT
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Title: Vice President and Chief Financial
Officer
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