Exhibit 10.121
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT (this "Agreement"), is made as of September
30, 1998, between SPECTRAN SPECIALITY OPTICS COMPANY, a Delaware corporation,
having a place of business and a mailing address at 150 Fisher Drive, Avon,
Connecticut 06001 ("Mortgagor") and STATE STREET BANK AND TRUST COMPANY
(successor to Fleet National Bank, as Trustee), a Massachusetts trust company
having a place of business and a mailing address at 2 International Place
Boston, Massachusetts 02110, not individually but solely as security trustee
under that certain Trust Indenture, dated as of December 1, 1996, among the
Mortgagor, Fleet National Bank and the other parties signatory thereto, as
amended by that certain First Amendment dated as of September 30, 1998, among
Mortgagor, State Street Bank and Trust Company (in its capacity as successor
trustee to Fleet National Bank, as Trustee and together with any successor or
co-security trustee that becomes such in accordance with the provisions of the
Trust Indenture, the "Trustee") and the other parties signatory thereto (said
Trust Indenture, as so amended and as may hereafter be amended, restated or
otherwise modified from time to time, the "Trust Indenture").
R E C I T A L S
WHEREAS, Mortgagor is party to that certain Loan Agreement dated as of
December 1, 1996 (as amended to but excluding the date hereof, the "Existing
Loan Agreement"), among Mortgagor, SpecTran Corporation (the "Parent"), a
Delaware corporation, SpecTran Communication Fiber Technologies, a Delaware
corporation, and Applied Photonic Devices, Inc, a Delaware corporation
(collectively, the "Borrowers"), and Fleet National Bank (the "Lender"), a
national banking association, pursuant to which Lender has extended credit to
Borrowers pursuant to a revolving line of credit facility (the "Facility"), as
evidenced by a certain Revolving Note dated as of December 1, 1996, in the face
amount of $20,000,000 (as amended to but excluding the date hereof, the
"Existing Revolving Note");
WHEREAS, Borrowers and Lender have agreed to enter into that certain
First Amendment to Loan Agreement dated as of September 30, 1998, a copy of
which is attached hereto as Schedule 1-a and made a part hereof (the "Loan
Agreement Amendment"; the Existing Loan Agreement as amended by the Loan
Agreement Amendment and as further amended from time to time, the "Amended Loan
Agreement"), and that certain First Amendment to Revolving Note dated as of
September 30, 1998, a copy of which is attached hereto as Schedule 2-a and made
a part hereof (the "Revolving Note Amendment"; the Existing Revolving Note as
amended by the Revolving Note Amendment and as further amended from time to
time, the "Amended Revolving Note"), pursuant to which, among other things,
Borrowers and Lender have agreed to extend the maturity of the Existing
Revolving Note from December 31, 1999, to April 1, 2000, and to make certain
other amendments to the Existing Loan Agreement and the Existing Revolving Note,
as more particularly set forth in the Loan Agreement Amendment and the Revolving
Note Amendment, respectively;
WHEREAS, the Parent issued certain 9.24% Series A Senior Secured Notes
due December 26, 2003, in the aggregate principal amount of $16,000,000, and
certain 9.39% Series B Senior Secured Notes due December 26, 2004, in the
aggregate principal amount of $8,000,000 (collectively, the "Existing Term
Notes") pursuant to those certain Note Purchase Agreements each dated as of
December 1, 1996 (as amended to but excluding the date hereof, collectively, the
"Existing Note Agreement"), which Existing Term Notes were guarantied by
Mortgagor pursuant to a certain Guaranty Agreement dated as of December 1, 1996
(as amended from time to time, the "Guaranty Agreement");
WHEREAS, all capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to such terms in the Trust Indenture;
WHEREAS, as required by the Existing Loan Agreement and the Existing
Note Agreement, Mortgagor's obligations from time to time evidenced by or
arising in connection with the Existing Revolving Note, the Guaranty Agreement,
the Trust Indenture or the other Lending Documents are secured by that certain
Open-End Mortgage, Assignment of Rents and Security Agreement dated as of
December 1, 1996, and recorded in the Town Clerk of Avon, Connecticut Land
Records, in Book 327, at page 378 (the "Existing Mortgage" and as amended by
this Agreement, the "Amended Mortgage"), encumbering, among other things,
certain real property located in Avon, Connecticut, and more particularly
described in Exhibit A attached thereto; and
WHEREAS, as a condition of, and as an inducement to, Lender agreeing to
enter into the Loan Agreement Amendment and the Revolving Note Amendment,
Mortgagor has agreed to amend the Existing Mortgage to reflect the modifications
made to the Existing Loan Agreement by the Loan Agreement Amendment and those
made to the Existing Revolving Note by the Revolving Note Amendment, including
the extension of the maturity of the Revolving Note to April 1, 2000;
A G R E E M E N T S
NOW, THEREFORE, in consideration of the foregoing RECITALS and for
other good and valuable consideration received to the mutual satisfaction of the
parties hereto, the undersigned hereby agree as follows:
1. Modifications to the Existing Mortgage. The Existing Mortgage is hereby
modified as follows:
(a) The first paragraph following "W I T N E S S E T
H" is hereby amended and restated in its entirety as follows:
AWHEREAS, Grantor, SpecTran Corporation, a
Delaware corporation having an address at 50 Hall
Road, Sturbridge, Massachusetts 01566 (the "Parent"),
SpecTran Communication Fiber Technologies, Inc.
("SCFT"), a Delaware corporation having an address at
50 Hall Road, Sturbridge, Massachusetts 01566, and
Applied Photonic Devices, Inc. ("APD"), a Delaware
corporation having an address at 300 Lake Road,
Dayville, Connecticut 06241, and Fleet National Bank,
a national banking association ("Lender") have
entered into a certain Loan Agreement dated as of
December 1, 1996, a copy of which is attached hereto
as Schedule 1 and made a part hereof and the terms of
which are incorporated herein, as amended by a First
Amendment to Loan Agreement dated as of September 30,
1998, a copy of which is attached hereto as Schedule
1-a and made a part hereof and the terms of which are
incorporated herein (the Loan Agreement as presently
constituted and as amended by the First Amendment to
Loan Agreement and as the same may hereafter be
amended from time to time, the "Loan Agreement")
which Loan Agreement provides for the extension of
credit to Grantor, the Parent, SCFT and APD in the
nature of a revolving line of credit facility (the
"Facility") as evidenced by a certain Revolving Note
dated as of December 1, 1996, in face amount of
$20,000,000, a copy of which is attached hereto as
Schedule 2 and made a part hereof and the terms of
which are incorporated herein, as amended by a First
Amendment to Revolving Note dated as of September 30,
1998, a copy of which is attached hereto as Schedule
2-a and made a part hereof and the terms of which are
incorporated herein (the Revolving Note as presently
constituted and as amended by the First Amendment to
Revolving Note and as the same may hereafter be
amended, extended, renewed or consolidated from time
to time, together with any and all promissory notes
that may have been or may be exchanged or given in
substitution therefor from time to time, being
collectively referred to herein as the "Revolving
Credit Notes"), which Revolving Credit Notes bear
interest and are payable as set forth therein and in
the Loan Agreement, and mature on April 1, 2000, all
as more particularly provided therein and in the Loan
Agreement;
(b) The Loan Agreement Amendment, attached hereto as
Schedule 1-a is hereby attached to the Existing Mortgage as
Schedule 1-a and made a part thereof, and the terms thereof
are hereby incorporated in the Existing Mortgage.
(c) The Revolving Note Amendment attached hereto as
Schedule 2-a is hereby attached to the Existing Mortgage as
Schedule 2-a and made a part thereof, and the terms thereof
are hereby incorporated in the Existing Mortgage.
2. Continued Force and Effect; References to Existing Mortgage.
(a) All of the terms and conditions of the Amended
Loan Agreement, the Amended Revolving Note, the Guaranty, the
Amended Mortgage and the other Lending Documents to which
Mortgagor is a party and the indebtedness evidenced thereby
and/or the collateral security provided thereby are hereby
ratified and confirmed in all respects and shall remain and in
full force and effect. Nothing contained in this Agreement
shall (i) be deemed to cancel, extinguish, release, discharge
or constitute payment or satisfaction of the Amended Note or
the Guaranty or the indebtedness evidenced thereby or to
otherwise affect the obligations represented thereby, all of
which obligations are hereby continued and remain in full
force and effect; (ii) constitute a new or additional
indebtedness or constitute a readvance of any loan; or (iii)
be deemed to impair in any manner the validity, enforceability
or priority of the Amended Mortgage or the lien thereof.
(b) From and after the date hereof, unless the
context shall clearly require otherwise, all references in any
of the Lending Documents to the Existing Mortgage or the
security provided thereby (regardless of the term or terms
used to make any such reference) shall be deemed and construed
to refer, respectively, to the Amended Mortgage and the
security provided thereby. The Lending Documents are hereby
modified to incorporate therein the aforesaid definitions,
interpretations and other terms and provisions.
(c) In the event of any conflict between the terms of
this Agreement and the terms of the Existing Mortgage, the
terms of this Agreement shall control.
3. No Defenses, Counterclaims or Rights of Offset. Mortgagor hereby
acknowledges, admits, and agrees that, as of the date hereof, there
exists no rights of offset, defense, counterclaim, claim, or objection
in favor of Mortgagor with respect to the Amended Loan Agreement, the
Amended Revolving Note, the Guaranty, the Amended Mortgage and the
other Lending Documents to which Mortgagor is a party, or
alternatively, that any and all such right of offset, defense,
counterclaim, claim, or objection which Mortgagor may have or claim, of
any nature whatsoever, whether known or unknown, is hereby expressly
and irrevocably waived and released.
4. Miscellaneous.
(a) The Recitals set forth at the beginning of this
Agreement are incorporated in and made a part of this
Agreement by this reference.
(b) This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed to be an
original, and all of which, taken together, shall be deemed to
be one and the same Agreement.
(3) This Agreement shall bind and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal
representatives, successors and assigns. This Agreement and the obligations
of such parties hereunder are and at all times shall be deemed to be for
the exclusive benefit of such parties and their respective successors and
assigns, and nothing set forth herein shall be deemed to be for the benefit
of any other person. Nothing set forth in this paragraph shall be deemed or
construed to create, recognize or allow any assignment or transfer rights
not otherwise provided for in the Lending Documents.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed to be effective as of the day and year first above written.
Signed and Acknowledged SPECTRAN SPECIALTY OPTICS COMPANY in the Presence of:
_______________________________ By________________________________
Name: Name:
Its:
- -------------------------------
Name:
STATE OF NEW YORK )
) ss.
COUNTY OF )
Personally Appeared ____________________________ of SPECTRAN SPECIALTY
OPTICS COMPANY, a Delaware corporation, as aforesaid, Signer of the foregoing
Instrument, and acknowledged the same to be his/her free act and deed as such
______________________ and the free act and deed of said corporation, before me.
------------------------------------
Notary Public
My Commission Expires:
[SEAL]
Signed and Acknowledged STATE STREET BANK AND TRUST in the Presence
of: COMPANY , as Trustee
_______________________________ By________________________________
Name: Name:
Its:
- -------------------------------
Name:
COMMONWEALTH OF MASSACHUSETTS )
)ss.
COUNTY OF )
Personally appeared _____________________________________ of State
Street Bank and Trust Company, a Massachusetts trust company, as Trustee, as
aforesaid, Signer of the foregoing instrument, and acknowledged the same to be
his/her free act and deed as such _________________________________ and free act
and deed of said trust company, before me.
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Notary Public
My Commission Expires:
Exhibit A-1
EXHIBIT A
[Legal Description]
Schedule 1-a-0
SCHEDULE 1-a
[Loan Agreement Amendment]
Schedule 2-a-1
SCHEDULE 2-a
[Revolving Note Amendment]