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).