FIRST AMENDMENT TO AMENDED ANDRESTATED LOAN AND SECURITY AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This First Amendment to Amended and Restated Loan and Security Agreement (this Amendment) is entered into as of July 30, 2008, 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 (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. Section 6.7(b) of the Agreement is hereby amended and restated in its entirety to read as follows:
(b) EBITDA. Measured on a rolling three-month basis, EBITDA as follows (i) measured quarterly, not less than Eight Hundred Thousand Dollars ($800,000) for the quarterly measuring period ending March 31, 2008, (ii) measured quarterly, not less than Negative Four Hundred Thousand Ten Dollars (-$410,000) for the quarterly measuring period ending June 30, 2008, (iii) measured quarterly, not less than Two Hundred Fifty Thousand Dollars ($250,000) for the quarterly measuring period ending September 30, 2008, (iv) measured monthly, One Million Five Hundred Thousand Dollars ($1,500,000) for the monthly measuring periods ending December 30, 2008 through February 28, 2009, and (v) measured monthly, Two Million Dollars ($2,000,000) for each monthly measuring period thereafter.
2. Exhibit C to the Agreement is hereby replaced with Exhibit C attached hereto.
3. Bank hereby waives Borrowers violation of Section 6.7(b)(ii) of the Agreement as in effect prior to the date hereof.
4. 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. Banks 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.
5. 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.
6. 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.
7. As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by each Borrower;
(b) an amendment fee in the amount of Seven Thousand Five Hundred Dollars ($7,500), which may be debited from any of Borrowers accounts;
(c) all reasonable Bank Expenses incurred through the date of this Amendment, which may be debited from any of Borrowers accounts; and
(d) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.
8. 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.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.
LYRIS, INC. | |
By: | /s/ Luis Rivera |
Title: | Chief Executive Officer |
LYRIS TECHNOLOGIES INC. | |
By: | /s/ Luis Rivera |
Title: | Chief Executive Officer |
COMMODORE RESOURCES (NEVADA), INC. | |
By: | Richard A. McDonald |
Title: | President |
COMERICA BANK | |
By: | Philip Koblis |
Title: | First Vice President |
[Signature Page to First Amendment to Amended and Restated Loan & Security Agreement]
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: | COMERICA BANK |
FROM: | LYRIS INC., for itself and on behalf of all Borrowers |
The undersigned authorized officer of LYRIS, INC., for itself and on behalf of all Borrowers, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement between Borrowers and Bank (the "Agreement"), (i) Each Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below and (ii) all representations and warranties of each Borrower stated in the Agreement are true and correct as of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes.
Please indicate compliance status by circling Yes/No under "Complies" column.
Reporting Covenant | Required | Complies | |
Monthly financial statements | Monthly within 30 days | Yes | No |
10K | Within 90 days of fiscal year end | Yes | No |
10Q | Within 45 days of quarter end | Yes | No |
A/R & A/P Agings | Monthly within 30 days | Yes | No |
Compliance Cert. | Monthly within 30 days | Yes | No |
A/R Audit | Annual | Yes | No |
IP Report | Quarterly within 45 days | Yes | No |
Total amount of Borrowers' cash and investments | Amount: $________ | Yes | No |
Total amount of Borrowers' cash and investments maintained with | Amount: $________ | Yes | No |
Bank |
Financial Covenant | Required | Actual | Complies | |
Maximum Senior Debt to EBITDA* | ||||
Through 6/30/08 | 2.50:1.00 | ___ : 1.00 | Yes | No |
7/1/08 11/30/08 | 3.25:1.00 | |||
12/1/08 and thereafter | 2.00:1.00 | |||
Minimum EBITDA | ||||
Quarter ending 3/31/08 | $800,000 | $___________ | Yes | No |
Quarter ending 6/30/08 | -$410,000 | |||
Quarter ending 9/30/08 | $250,000 | |||
12/30/08 through 2/28/09 | $1,500,000 | |||
3/1/09 and thereafter | $2,000,000 | |||
Minimum Fixed Charge Coverage** | ||||
Through 8/31/08, 12/1/08 and thereafter | 1.25 : 1.00 | ___ : 1.00 | Yes | No |
9/1/08 11/3/08 | 1.15:1.00 | |||
Minimum Liquidity | ||||
Through 3/31/08 | $500,000 | $___________ | Yes | No |
4/1/08 through 6/30/08 | $250,000 | |||
Buckman Subordinated Debt converted to equity | 3/31/08 | _______________ | Yes | No |
* EBITDA shall be calculated (i) on a trailing twelve (12) month basis and shall exclude one (1) time impairment charges at all times until November 30, 2008 and (ii) on an annualized rolling three (3) month basis thereafter.
**EBITDA shall be calculated (i) on a trailing twelve (12) month basis and shall exclude one (1) time impairment charges at all times until November 30, 2008 and (ii) on an annualized rolling three (3) month basis thereafter. At all times prior to November 30, 2008, the current portion of all Indebtedness to Bank shall be excluded from the denominator of the Fixed Charge Coverage covenant.
Comments Regarding Exceptions: See Attached. | |
Sincerely, | |
SIGNATURE | |
TITLE | |
DATE |
BANK USE ONLY | ||||
Received by: | ||||
AUTHORIZED SIGNER | ||||
Date: | ||||
Verified: | ||||
AUTHORIZED SIGNER | ||||
Date: | ||||
Compliance | Status | Yes | No |