Exhibit 10.1


 


THIRD
AMENDMENT TO AMENDED AND RESTATED


FINANCING
AND SECURITY AGREEMENT


 


THIRD AMENDMENT TO


AMENDED AND RESTATED FINANCING AND
SECURITY AGREEMENT


 


This THIRD AMENDMENT TO AMENDED AND
RESTATED FINANCING AND SECURITY AGREEMENT  (this “Amendment”)
is made as of December 14, 2009, by and among (a) OPTELECOM-NKF,
INC., a corporation organized under the laws of the State of Delaware (the “U.S.
Borrower”); (b) OPTELECOM-NKF HOLDING, B.V., a private company with
limited liability organized and existing under the laws of The Netherlands (the
“Dutch Borrower”)(the U.S. Borrower and the Dutch Borrower each being sometimes
called a “Borrower” and both of them being collectively called the “Borrowers”);
(c) OPTELECOM-NKF,  B.V., a private
company with limited liability organized and existing under the laws of The
Netherlands (“NKF”); (d) OPTELECOM-NKF S.L., a private company with
limited liability organized and existing under the laws of Spain (the “Spanish
Subsidiary”); and (e) OPTELECOM UK LIMITED, a company organized and
existing under the laws of England and Wales and  OPTELECOM-NKF LIMITED, a company organized
and existing under the laws of England and Wales (each a “U.K. Subsidiary” and
collectively, the “U.K. Subsidiaries”)(the U.S. Borrower, the Dutch Borrower,
the U.K. Subsidiaries, the Spanish Subsidiary being each sometimes call an “Obligor”
and all of them collectively, the “Obligors”); and MANUFACTURERS AND TRADERS
TRUST COMPANY, a New York State Banking corporation (the “Lender”); Witnesseth:


 


On
June 25, 2008, the Obligors and the Lender executed and delivered a
certain Amended and Restated Financing and Security Agreement (the “Original
Financing Agreement”).  The Original
Financing Agreement was amended pursuant to a First Amendment to Amended and
Restated Financing and Security Agreement dated March 31, 2009 (the “First
Amendment”), by and among the Obligors and the Lender.  The Original Financing Agreement was amended
pursuant to a Second Amendment to Amended and Restated Financing and Security
Agreement dated July 1, 2009 (the “Second Amendment”), by and among the
Obligors and the Lender.  The Original
Financing Agreement as amended pursuant to the First Amendment and the Second
Amendment is hereinafter called the “Financing Agreement.”  The Obligors and the Lender have agreed to
amend certain provisions of the Financing Agreement subject to and in
accordance with this Amendment.


 


NOW THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the Lender and the Obligors agree as follows:


 


1.                                      Recitals.  The Lender and the Obligors acknowledge that the above
recitals to this Amendment are true and correct, and agree that the same are incorporated
by reference into the


 


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body of this
Amendment.  Unless otherwise specifically
defined herein, all terms defined by the provisions of the Financing Agreement
shall have the same meanings ascribed to such terms by the provisions of the
Financing Agreement when used herein.


 


2.                                      Amendments to Financing
Agreement.


 


2.1.                            The Financing
Agreement is hereby amended by deleting the term “Dutch Revolving Credit
Committed Amount” appearing in Section 1.1 of the Financing Agreement in
its entirety and by substituting the following in lieu thereof:


 


“Dutch
Revolving Credit Committed Amount” is at any one time the Euro Currency
Equivalent of Five Hundred Thousand Dollars ($500,000).


 


2.2.                            The Financing
Agreement is hereby amended by deleting the term “Dutch Revolving Credit
Expiration Date” appearing in Section 1.1 of the Financing Agreement in
its entirety and by substituting the following in lieu thereof:


 


““Dutch
Revolving Credit Expiration Date” means February 28, 2010.”


 


2.3.                            The Financing
Agreement is hereby amended by deleting the term “U.S. Revolving Credit
Committed Amount” appearing in Section 1.1 of the Financing Agreement in
its entirety and by substituting the following in lieu thereof:


 


“U.S.
Revolving Credit Committed Amount” means Five Hundred Thousand Dollars
($500,000).


 


2.4.  The
Financing Agreement is hereby amended by deleting the term “U.S. Revolving
Credit Expiration Date” appearing in Section 1.1 of the Financing
Agreement in its entirety and by substituting the following in lieu thereof:


 


““U.S. Revolving
Credit Expiration Date” means February 28, 2010.”


 


2.5.  The Financing
Agreement is hereby amended by deleting Section 6.1.14 sub-section (d) in
its entirety and by substituting the following in lieu thereof:


 


“(d) 
Minimum Funds Flow. The U.S. Borrower will maintain: (i) for the
fiscal quarter ending June 30, 2009, the sum of its EBITDA plus Non Cash
Stock Option/Restricted Stock Expense of not less than $100,000, (ii) for
the fiscal quarter ending September 30, 2009, the sum of its EBITDA plus
Non Cash Stock Option/Restricted Stock Expense of not less than $1,200,000, and
(iii) for the fiscal quarter ending December 31, 2009, the sum of its
EBITDA plus Non Cash Stock Option/Restricted Stock Expense of not less than
$250,000.”


 


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2.6.  The Financing
Agreement is hereby amended by deleting the date “December 31, 2009, set
forth in Section 6.1.28 (which was changed from September 8, 2009, in
the Second Amendment) in its entirety and by substituting the following in lieu
thereof:


 


“February 28, 2010”


 


3.                                      Confirmation of Security
Interest.  The Obligors hereby confirm that pursuant to
the provisions of the Financing Agreement, the Obligors has granted to the
Lender a security interest and continuing lien, in and to the Collateral.


 


4.                                      Representations and
Warranties.  The Obligors represent and warrant to the
Lender that each and all of the representations and warranties of the Obligors
in the Financing Agreement and the other Financing Documents are true and
correct on the date hereof as if the same were made on the date hereof.  The Obligors further represents and warrants
to the Lender that as of the date hereof, the Collateral is free and clear of all
assignments, security interests, liens and other encumbrances of any kind and
nature whatsoever except for those permitted under the provisions of the
Financing Agreement.


 


5.                                      Fee.  The Obligors shall pay to the Lender an amendment and
wavier fee in the amount of $15,000 simultaneously with the execution and
delivery of this Amendment.


 


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6.                                      Amendment Only. 
This Amendment is only an agreement amending certain provisions of the Financing Agreement.  All of the provisions of the Financing
Agreement are incorporated herein by reference and shall continue in full force
and effect as amended by this Amendment. 
The Borrower hereby ratifies and confirms all of its obligations,
liabilities and indebtedness under the provisions of the Financing Agreement as
amended by this Amendment.  The Lender
and the Borrower agree it is their intention that nothing herein shall be
construed to extinguish, release or discharge or constitute, create or effect a
novation of, or an agreement to extinguish, any of the obligations,
indebtedness and liabilities of the Borrower or any other party under the
provisions of the Financing Agreement or under any of the other Financing
Documents, or any assignment or pledge to the Lender of, or any security
interest or lien granted to the Lender in or on, any collateral and security
for such obligations, indebtedness and liabilities.


 


7.                                      Applicable Law,
Etc.  This Amendment shall be governed by the laws of the
State of Maryland and shall be binding upon and inure to the benefit of the
Lender and the Borrower and their respective successors and assigns.


 


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Signature Page for
Third Amendment to Amended and Restated


Financing
and Security Agreement


 


WITNESS WHEREOF, each of the parties hereto have
executed and delivered this Agreement under their respective seals as of the
day and year first written above.


 


	
  WITNESS OR ATTEST:

  	
   

  	
  OPTELECOM-NKF, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
                                  ,

  
	
  (Name)

  	
   

  	
   

  	
  (Name)                      (Title)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS OR ATTEST:

  	
   

  	
  OPTELECOM-NKF HOLDING, B.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
                                  ,

  
	
  (Name)

  	
   

  	
   

  	
  (Name)                      (Title)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS OR ATTEST:

  	
   

  	
  OPTELECOM-NKF, B.V.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
                                  ,

  
	
  (Name)

  	
   

  	
   

  	
  (Name)                      (Title)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS OR ATTEST:

  	
   

  	
  OPTELECOM-NKF S.L.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
                                  ,

  
	
  (Name)

  	
   

  	
   

  	
  (Name)                      (Title)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS OR ATTEST:

  	
   

  	
  OPTELECOM UK LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
                                  ,

  
	
  (Name)

  	
   

  	
   

  	
  (Name)                      (Title)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS OR ATTEST:

  	
   

  	
  OPTELECOM-NKF LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
                                  ,

  	
   

  	
   

  
	
  (Name)

  	
   

  	
   

  	
  (Name)                      (Title)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS OR ATTEST:

  	
   

  	
  MANUFACTURERS AND TRADERS TRUST
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
   

  	
   

  	
  J. Eric Goodwin, Vice President

  	
   

  	
   

  
	
  (Name)

  	
   

  	
   

  	
   

  	
   

  	
   

  
							



 


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