Exhibit 10.41
FIRST AMENDMENT TO LOAN AND SECURITY
AGREEMENT
THIS FIRST AMENDMENT (this
“Amendment”) to that certain Loan and Security
Agreement dated April 7, 2008, 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 (collectively,
“Existing Borrowers”), each with its principal place of
business at 20550 Nordhoff Street, Chatsworth, CA 91311 (FAX
818-349-9258) (as the same may from time to time be further
amended, modified, supplemented or restated, the “Loan
Agreement”), is entered into this
day of July, 2008, by and between Bank, Existing Borrowers 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) (“New
Borrower” and together with Existing Borrowers, each a
“Borrower” and collectively
“Borrowers”).
RECITALS
A. Bank has extended credit to
Existing Borrowers for the purposes permitted in the Loan
Agreement.
B. Existing Borrowers have requested
that Bank amend the Loan Agreement to (i) add New Borrower as
a “Borrower” therunder and (ii) make certain other
revisions to the Loan Agreement as more fully set forth
herein.
C. 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. New Borrower. New Borrower is
hereby added as a “Borrower” under the Loan Documents.
All references in the Loan Documents to “Borrowers”
shall include New Borrower.
2. Definitions. Capitalized terms
used but not defined in this Amendment shall have the meanings
given to them in the Loan Agreement.
3. Amendments to Loan
Agreement.
3.1 Section 11. (CHOICE OF LAW,
VENUE, JURY TRIAL WAIVER AND JUDICIAL REFERENCE). The first
paragraph of Section 11 of the Loan Agreement is hereby
amended and restated as follows:
“California law the Loan
Documents without regard to principles of conflicts of law except
the laws of Macao govern any enforcement against the assets of
Fiberxon Macao. Borrowers and Bank each submit to the exclusive
jurisdiction of the State and Federal courts in Santa Clara County,
California or, if applicable, the courts of Macao; provided,
however, that nothing in this Agreement shall be deemed to operate
to preclude Bank from bringing suit or taking other legal action in
any other jurisdiction to realize on the Collateral or any other
security for the Obligations, or to enforce a judgment or other
court order in favor of Bank. Each Borrower expressly submits and
consents in advance to such jurisdiction in any action or suit
commenced in any such court, and each Borrower hereby waives any
objection that it may have based upon lack of personal
jurisdiction, improper venue, or forum non conveniens and hereby
consents to the granting of such legal or equitable relief as is
deemed appropriate by such court. Each Borrower hereby waives
personal service of the summons, complaints, and other process
issued in such action or suit and agrees that service of such
summons, complaints, and other process may be made by registered or
certified mail addressed to such Borrower at the address set forth
in Section 10 of this Agreement and that service so made shall
be deemed completed upon the earlier to occur of such
Borrower’s actual receipt thereof or three (3) days
after deposit in the U.S. mails, proper postage
prepaid.”
3.2 Section 13 (Definitions).
The following terms and their respective definitions are amended or
added to Section 13.1 of the Loan Agreement as
follows:
“Fiberxon Macao” means
Borrower FIBERXON (MACAO COMMER
