THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
This Third Amendment to Amended and Restated
Loan and Security Agreement (this “Amendment”) is
entered into as of June 19, 2009, by and between COMERICA BANK
(“Bank”) and LYRIS, INC., LYRIS TECHNOLOGIES INC., and
COMMODORE RESOURCES (NEVADA), INC. (each a “Borrower”
and collectively, “Borrowers”).
RECITALS
Borrowers and Bank are parties to that certain
Amended and Restated Loan and Security Agreement dated as of March
6, 2008, as amended from time to time including by that certain
First Amendment to Amended and Restated Loan and Security Agreement
dated as of July 30, 2008 and that certain Second Amendment to
Amended and Restated Loan and Security Agreement dated as of
December 31, 2008 (the “Agreement”). The parties desire
to amend the Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, the parties agree as
follows:
1. The
following defined terms in Section 1.1 of the Agreement are amended
and restated in their entirety as follows:
“Revolving Maturity
Date” means January 31, 2011.
“Term Loan Maturity
Date” means January 31, 2011.
2. Section
2.3(a) of the Agreement is hereby amended and restated in its
entirety to read as follows:
“(a) Interest Rates for
Credit Extensions . Except as set forth in Section 2.3(b), the
Credit Extensions shall bear interest, on the outstanding daily
balance thereof, as set forth in the Prime Referenced Rate Addendum
to Amended and Restated Loan & Security Agreement attached as
Exhibit D .”
3. Section
2.5(d) of the Agreement is hereby amended and restated in its
entirety to read as follows:
“(d) Facility Fee . On
June 30, 2009, a facility fee in the amount of Forty Five Thousand
Dollars ($45,000).”
4. Exhibit
D to the Agreement is hereby replaced with Exhibit D attached
hereto.
5. No
course of dealing on the part of Bank or its officers, nor any
failure or delay in the exercise of any right by Bank, shall
operate as a waiver thereof, and any single or partial exercise of
any such right shall not preclude any later exercise of any such
right. Bank’s failure at any time to require strict
performance by a Borrower of any provision shall not affect any
right of Bank thereafter to demand strict compliance and
performance. Any suspension or waiver of a right must be in writing
signed by an officer of Bank.
6. Unless
otherwise defined, all initially capitalized terms in this
Amendment shall be as defined in the Agreement. The Agreement, as
amended hereby, shall be and remain in full force and effect in
accordance with its respective terms and hereby is ratified and
confirmed in all respects. Except as expressly set forth herein,
the execution, delivery, and performance of this Amendment shall
not operate as a waiver of, or as an amendment of, any right,
power, or remedy of Bank under the Agreement, as in effect prior to
the date hereof.
7. Each
Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of
the date of this Amendment, and that except as waived hereby, no
Event of Default has occurred and is continuing.
8. As a
condition to the effectiveness of this Amendment, Bank shall have
received, in form and substance satisfactory to Bank, the
following:
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(a) this Amendment, duly executed by each
Borrower;
(b) all reasonable Bank Expenses incurred through
the date of this Amendment, which may be debited from any of
Borrowers’ accounts; and
(c) such other documents, and completion of such
other matters, as Bank may reasonably deem necessary or
appropriate.
9. This
Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one instrument.
2
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.
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LYRIS,
INC.
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By:
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/s/ Luis
Rivera
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Title:
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Chief Executive
Officer
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LYRIS
TECHNOLOGIES INC.
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By:
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/s/ Luis
Rivera
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Title:
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Chief Executive
Officer
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COMMODORE
RESOURCES (NEVADA), INC.
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By:
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/s/ Luis
Rivera
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Title:
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Asst.
Secretary
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COMERICA
BANK
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By:
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/s/ Kim
Crosslin
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Title:
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Vice
President
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[Signature Page to Third Amendment to Amended
and Restated Loan & Security Agreement]
3
EXHIBIT D
Prime Referenced Rate Addendum To Amended and
Restated Loan and Security Agreement
This Prime Referenced Rate Addendum to Loan and
Security Agreement (this “Addendum”) is entered into as
of June 19, 2009, by and between Comerica Bank (“Bank”)
and LYRIS, INC., LYRIS TECHNOLOGIES INC., and COMMODORE RESOURCES
(NEVADA), INC. (each a “Borrower” and collectively,
“Borrowers”). This Addendum supplements the terms of
the Amended and Restated Loan and Security Agreement dated as of
March 6, 2008, as amended from time to time including by that
certain First Amendment to Amended and Restated Loan and Security
Agreement dated as of July 30, 2008, that certain Second Amendment
to Amended and Restated Loan and Security Agreement dated as of
December 31, 2008 and that certain Third Amendment to Amended and
Restated Loan and Security Agreement dated as of June 19, 2009 (as
the same may be amended, modified, supplemented, extended or
restated from time to time, collectively, the
“Agreement”).
1. Definitions . As used in this Addendum, the following terms
shall have the following meanings. Initially capitalized terms used
and not defined in this Addendum shall have the meanings ascribed
thereto in the Agreement.
a. “Applicable Margin” means a rate per
annum based upon Borrowers’ most recently reported Total
Leverage Ratio in accordance with Section 6.7(c) of the Agreement
as follows:
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Total Leverage Ratio
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Applicable Margin
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Less than or equal to 1.00 to 1.00
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1.75%
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Greater than 1.00 to 1.00
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2.00%
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b. “Business Day” means any day, other
than a Saturday, Sunday or any other day designated as a holiday
under Federal or applicable State statute or regulation, on which
Bank is open for all or substantially all of its domestic and
international business (including dealings in foreign exchange) in
San Jose, California, and, in respect of notices and determinations
relating the Daily Adjusting LIBOR Rate, also a day on which
dealings in dollar deposits are also carried on in the London
interbank market and on which banks are open for business in
London, England.
c. “Daily Adjusting LIBOR Rate” means,
for any day, a per annum interest rate which is equal to the
quotient of the following:
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(1)
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for any day,
the per annum rate of interest determined on the basis of the rate
for deposits in United States Dollars for a period equal to one (1)
month appearing on Page BBAM of the Bloomberg Financial Markets
Information Service as of 8:00 a.m. (California time) (or as soon
thereafter as practical) on such day, or if such day is not a
Business Day, on the immediately preceding Business Day. In the
event that such rate does not appear on Page BBAM of the Bloomberg
Financial Ma
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