Exhibit 10.1
SECOND AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT to Loan
and Security Agreement (this “Amendment”) is entered
into this 27 th
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 pe
