Exhibit 10.1
FOURTH AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT to Loan and Security Agreement (this "Amendment") is
entered into effective as of this 5th day of April, 2010 by and between Silicon
Valley Bank ("Bank") and SOURCE PHOTONICS, INC., a Delaware corporation, SOURCE
PHOTONICS SANTA CLARA, INC. (f/k/a FIBERXON, INC.), a Delaware corporation and
SOURCE PHOTONICS USA, INC. (f/k/a LUMINENTOIC, INC.), a Delaware corporation
each with its principal place of business at 20550 Nordhoff Street, Chatsworth,
CA 91311 (FAX 818-349-9258) and SOURCE PHOTONICS MACAO COMMERCIAL OFFSHORE
LIMITED (f/k/a 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, THAT CERTAIN SECOND AMENDMENT TO LOAN
AND SECURITY AGREEMENT BY AND BETWEEN BANK AND BORROWERS DATED AS OF MARCH 27,
2009 AND THAT CERTAIN THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT DATED AS OF
OCTOBER 1, 2009 (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 EXTEND THE MATURITY DATE AND MAKE CERTAIN OTHER REVISIONS
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 2.2.2 (Facility Fee).
Section 2.2.2
is amended in its entirety and replaced with the following
"2.2.2
Facility Fees, Unused Fee.
Borrowers shall pay to Bank
(a)
Facility Fees. A fully earned,
non-refundable facility fee of Thirty Thousand Dollars ($30,000) upon execution
of that certain Fourth Amendment to Loan and Security Agreement by and between
Borrowers and Bank effective as of April 5, 2010 and April 5, 2011; and
(b)
Unused Fee.
A fee, payable quarterly, in
arrears, on a calendar year basis, in an amount equal to one quarter of one
percent (0.25%) per annum of the average unused portion of the Facility Amount,
as determined by Bank."
2.2
Section 2.2.4 (Administrative Fee).
Section 2.2.4 is amended in its entirety and replaced with the following
"2.2.4
Administrative Fee.
If at the end