Exhibit 10.1


 


SECOND
AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”)
is entered into this 27th day of March, 2009 by and between Silicon
Valley Bank (“Bank”) and SOURCE PHOTONICS, INC., a Delaware corporation,
FIBERXON, INC., a Delaware corporation and LUMINENTOIC, INC., a Delaware
corporation each with its principal place of business at 20550 Nordhoff Street,
Chatsworth, CA 91311 (FAX 818-349-9258) and FIBERXON (MACAO COMMERCIAL
OFFSHORE) LIMITED, an entity organized under the laws of Macao, registered with
the Commercial and Movable Assets Registry of Macau under No. 24468 (SO)
(each a “Borrower” and collectively “Borrowers”).


 


RECITALS


 


A.                                   Bank and Borrowers have entered
into that certain Loan and Security Agreement dated as of April 7, 2008,
as amended by that certain First Amendment to Loan and Security Agreement by
and between Bank and Borrowers dated as of July 24, 2008 (as the same may
from time to time be further amended, modified, supplemented or restated, the “Loan
Agreement”).


 


B.                                     Bank has extended credit to
Borrowers for the purposes permitted in the Loan Agreement.


 


C.                                     Borrowers have requested that
Bank amend the Loan Agreement to (i) extend the maturity date and (ii) make
certain other revisions to the Loan Agreement as more fully set forth herein.


 


D.                                    Bank has agreed to so amend
certain provisions of the Loan Agreement, but only to the extent, in accordance
with the terms, subject to the conditions and in reliance upon the representations
and warranties set forth below.


 


AGREEMENT


 


NOW,
THEREFORE, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:


 


1.                                      Definitions. 
Capitalized terms used but not defined in this Amendment shall have the
meanings given to them in the Loan Agreement.


 


2.                                      Amendments
to Loan Agreement.


 


2.1                               Section 2.1 (Financing of Accounts.).  Section 2.1.1(b) is
amended in its entirety and replaced with the following:


 


“(b)                           Maximum Advances. 
The aggregate face amount of all Financed Receivables outstanding at any
time may not exceed the Facility Amount. 
The aggregate net amount of Advances made with respect to Financed
Receivables of Fiberxon Macao may not exceed (i) Seven Million Five
Hundred


 

















 


Thousand Dollars ($7,500,000) at all times prior to June 30,
2009 and (ii) Five Million Dollars ($5,000,000) at all times thereafter.”


 


2.2                               Section 6.2 (Financial Statements,
Reports, Certificates.).  Section 6.2(a)(ii) is amended in
its entirety and replaced with the following:


 


“(ii) as soon as
available, but no later than (a) forty five (45) days after the last day
of each calendar quarter and (b) thirty (30) days after the last day of
each month, a company prepared consolidated and consolidating financial
statements prepared in accordance with GAAP (including P&L, balance sheet
and statement of cash flow) covering each Borrower and each of its Subsidiary’s
operations during the period certified by a Responsible Officer and in a form
acceptable to Bank;”


 


2.3                               Section 13 (Definitions). 
The following term and its definition is in  Section 13.1 of
the Loan Agreement is amended in its entirety and replaced with the following:


 


“Maturity
Date” is  April 5, 2010.


 


3.                                      Limitation
of Amendments.


 


3.1                               The amendments set forth in Section 3, above, are effective for the purposes set
forth herein and shall be limited precisely as written and shall not be deemed
to (a) be a consent to any amendment, waiver or modification of any other
term or condition of any Loan Document, or (b) otherwise prejudice any
right or remedy which Bank may now have or may have in the future under or in
connection with any Loan Document.


 


3.2                               This Amendment shall be construed in
connection with and as part of the Loan Documents and all terms, conditions,
representations, warranties, covenants and agreements set forth in the Loan
Documents, except as herein amended, are hereby ratified and confirmed and
shall remain in full force and effect.


 


4.                                      Representations and Warranties. 
To induce Bank to enter into this Amendment, each Borrower hereby
represents and warrants to Bank as follows:


 


4.1                               Immediately after giving effect to this
Amendment (a) the representations and warranties contained in the Loan
Documents are true, accurate and complete in all material respects as of the
date hereof (except to the extent such representations and warranties relate to
an earlier date, in which case they are true and correct as of such date), and (b) no
Event of Default has occurred and is continuing;


 


4.2                               Borrower has the power and authority to
execute and deliver this Amendment and to perform its obligations under the
Loan Agreement, as amended by this Amendment;


 


4.3                               The organizational documents of Borrower
delivered to Bank on the Effective Date (or on the date of the First Amendment
to Loan and Security Agreement with respect to Fiberxon Macao) remain true,
accurate and complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect;


 


4.4                               The execution and delivery by Borrower of
this Amendment and the performance by Borrower of its obligations under the
Loan Agreement, as amended by this Amendment, have been duly authorized;


 


4.5                               The execution and delivery by Borrower of
this Amendment and the performance by Borrower of its obligations under the
Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any
law or regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or
decree of any court or other


 


2

















 


governmental or public
body or authority, or subdivision thereof, binding on Borrower, or (d) the
organizational documents of Borrower;


 


4.6                               The execution and delivery by Borrower of
this Amendment and the performance by Borrower of its obligations under the
Loan Agreement, as amended by this Amendment, do not require any order,
consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by any governmental or public body
or authority, or subdivision thereof, binding on either Borrower, except as
already has been obtained or made; and


 


4.7                               This Amendment has been duly executed and
delivered by Borrower and is the binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium or other similar laws of general application and equitable
principles relating to or affecting creditors’ rights.


 


5.                                      Counterparts. 
This Amendment may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.


 


6.                                      Effectiveness. 
This Amendment shall be deemed effective upon (a) the due execution
and delivery to Bank of this Amendment by each party hereto, and (b) Borrowers’
payment of an extension fee in an amount equal to Fifty Thousand Dollars
($50,000).


 


[Signature page follows.]


 


3

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first written above.


 




	
  SOURCE PHOTONICS, INC.

  
	
   

  	
   

  
	
  By

  	
   

  	
  /s/ Brett Chloupek

  	
   

  
	
  Name:

  	
  Brett Chloupek

  
	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  FIBERXON, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
  /s/ Brett Chloupek

  	
   

  
	
  Name:

  	
  Brett Chloupek

  
	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  LUMINENTOIC, INC.

  
	
   

  	
   

  
	
  By

  	
   

  	
  /s/ Brett Chloupek

  	
   

  
	
  Name:

  	
  Brett Chloupek

  
	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  FIBERXON (MACAO COMMERCIAL OFFSHORE) LIMITED

  
	
   

  	
   

  
	
  By

  	
   

  	
  /s/ Anita Quan

  	
   

  
	
  Name:

  	
  Anita Quan

  
	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANK:

  	
   

  
	
   

  	
   

  
	
  SILICON VALLEY BANK

  
	
   

  
	
  By

  	
   

  	
  /s/ Ben Fargo

  	
   

  
	
  Name:

  	
  Ben Fargo

  
	
  Title:

  	
  Relationship Manager