Attachment A-1
SPECTRAN CORPORATION FIRST AMENDMENT TO TRUST INDENTURE
Exhibit 10.118
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment") dated as of September 30, 1998, by
and among SPECTRAN CORPORATION (the "Company"), a Delaware corporation, SPECTRAN
COMMUNICATION FIBER TECHNOLOGIES, INC. ("SCFT"), a Delaware corporation,
SPECTRAN SPECIALTY OPTICS COMPANY ("SSOC"), a Delaware corporation, and APPLIED
PHOTONIC DEVICES, Inc. ("APD"), a Delaware corporation (SCFT, SSOC and APD,
together with their respective successors and assigns, referred to individually,
as a "Guarantor," and, collectively, as the "Guarantors;" the Company and the
Guarantors being referred to herein as the "Obligors"), Fleet National Bank, a
national banking association (the "Former Trustee") as security trustee under a
certain Trust Indenture (as amended and as may be further amended from time to
time, the "Trust Indenture"), dated as of December 1, 1996 among the Obligors,
the Former Trustee and the other parties thereto, and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company, as successor to the Former Trustee
and in its capacity as security trustee, together with its successors and
assigns and any co-trustees that becomes such in accordance with the provisions
of the Trust Indenture, the "Trustee").
1. Preliminary Statement
(a) The Obligors entered into a certain Trademark Security Agreement
(the "Existing Trademark Security Agreement"), dated as of December 1, 1996, in
favor of the Former Trustee to secure the obligations of the Obligors pursuant
to the Lending Documents. The Existing Trademark Security Agreement, as amended
by this Amendment, is referred to herein as the "Amended Trademark Security
Agreement."
(b) All acts and proceedings required by law and by the certificate or
articles of incorporation and bylaws of each of the Obligors necessary to
constitute this Amendment a valid and binding agreement for the uses and
purposes set forth herein, in accordance with its terms, have been done and
taken, and the execution and delivery hereof has been in all respects duly
authorized.
2. Defined Terms
The terms used herein have the meanings specified in the Existing
Trademark Security Agreement unless otherwise defined herein.
3. Amendments to Terms of Existing Trademark Security Agreement
The Existing Trademark Security Agreement is amended as follows:
(a) in connection with the resignation of Fleet National Bank, as
Trustee, as acknowledged by Fleet National Bank by its
execution and delivery of this Amendment, and the appointment
of State Street Bank and Trust Company as successor trustee as
acknowledged by State Street Bank and Trust Company and each
of the Obligors by their respective execution and delivery of
this Amendment, all references to Fleet National Bank in its
capacity as Trustee are hereby amended to be references to
State Street Bank and Trust Company as Trustee; and
(b) Exhibit 1 thereto is amended and restated in its entirety as
set forth on Exhibit 1 hereto.
SPECTRAN CORPORATION FIRST AMENDMENT TO TRADEMARK SECURITY AGREEMENT
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF OBLIGORS
Each of the representations, warranties and covenants made by the
Obligors in respect of the Trademarks set forth in the Existing Trademark
Security Agreement are incorporated herein by reference and are made as of the
date hereof and immediately after the effectiveness hereof and after giving
effect hereto, there exists no Default or Event of Default.
4. Scope and Effect of Amendment
Except as expressly provided herein, no terms or provisions of the
Existing Trademark Security Agreement are modified or changed by this Amendment,
and the terms and provisions of the Existing Trademark Security Agreement
continue in full force and effect.
Each of the Obligors hereby acknowledges, confirms, reaffirms and
ratifies all of its obligations and duties under the Lending Documents and all
agreements related thereto. This Amendment does not constitute an agreement or
obligation of any Beneficiary to give its consent to any future amendment of any
Lending Document or to any future transaction that would, absent consent of the
Beneficiaries, constitute a Default or Event of Default under any of the Lending
Documents. This Amendment may not be contradicted by evidence of any actual or
alleged prior, contemporaneous or subsequent understandings or agreements of the
parties, written or oral, express or implied, other than a writing which
expressly amends or supersedes this Amendment or the Lending Documents. Upon the
effectiveness of this Amendment, each reference in any Lending Document to any
Trademark Security Agreement shall mean and be a reference to the Trademark
Security Agreement as amended hereby.
5. Miscellaneous
(a) Successors and Assigns
This Amendment shall bind and inure to the benefit of the respective
successors and assigns of the Obligors, the Trustee and the Beneficiaries.
(1) Expenses
The Company will pay, or cause to be paid, the reasonable out-of-pocket
costs and expenses of each Beneficiary and the Trustee in connection with
entering into this Amendment and the consummation of all transactions
contemplated hereby. The obligations of the Company under this Section 6(b)
shall survive payment of any Secured Obligations.
(2) Effectiveness
This Amendment may be executed in one or more counterparts and shall be
effective, as of the date hereof, when at least one counterpart shall have been
executed by each of the parties hereto.
[Remainder of page intentionally blank. Next page is signature page.]
SPECTRAN CORPORATION FIRST AMENDMENT TO TRADEMARK SECURITY AGREEMENT IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on
their behalf by a duly authorized officer or agent thereof, as the case may be,
as of the date first above written.
Signed, sealed and delivered SPECTRAN CORPORATION
in the presence of:
By: ------------------------
Name:
Title:
SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC.
By: ------------------------
Name:
Title:
SPECTRAN SPECIALTY OPTICS
COMPANY
By: ------------------------
Name:
Title:
APPLIED PHOTONIC DEVICES, INC.
By: -----------------------
Name:
Title:
FLEET NATIONAL BANK, as Former Trustee
By: -----------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Trustee
By: -------------------------
Name:
Title:
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the _________________________ of SPECTRAN CORPORATION, a Delaware
corporation, and acknowledged that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the _________________________ of SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC., a Delaware corporation, and acknowledged that such
corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the _________________________ of SPECTRAN SPECIALTY OPTICS
COMPANY, a Delaware corporation, and acknowledged that such corporation executed
the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the _________________________ of APPLIED PHOTONIC DEVICES, INC., a
Delaware corporation, and acknowledged that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the _________________________ of FLEET NATIONAL BANK, a national
banking association, and acknowledged that such national banking association
executed the same as security trustee thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the _________________________ of STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, and acknowledged that such Massachusetts
trust company executed the same as security trustee thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
Exhibit 1 - 2
SPECTRAN CORPORATION FIRST AMENDMENT TO TRADEMARK SECURITY AGREEMENT
EXHIBIT 1
TRADEMARK ASSIGNMENT
WHEREAS, [NAME OF OBLIGOR], a [________] corporation, (the "Obligor")
owns and has used in its business certain trademarks which are registered or for
which a registration has been applied for, as listed in Schedule A hereto; and
WHEREAS, an "Event of Default" has occurred under the terms of the
Trust Indenture, dated as of December 1, 1996, as amended, among the Obligor,
certain of its affiliates, and State Street Bank and Trust Company, in its
capacity as security trustee (the "Trustee") and the Trademark Security
Agreement, dated as of December 1, 1996, as amended, among the Obligor, certain
of its affiliates and the Trustee (collectively, the "Security Documents"); and
WHEREAS, the Trustee, pursuant to its rights as a secured party under
the Security Documents, and pursuant to and in exercise of its rights as a
secured party under the Massachusetts Uniform Commercial Code, has chosen to
exercise its rights upon default;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the Obligor does hereby absolutely sell, assign, transfer and convey
unto the Trustee all of the Obligor's right, title and interest in and to:
(i) the trademarks, together with the goodwill of the business
symbolized by the trademarks, the registrations and applications
thereof as set forth on Schedule A attached hereto;
(ii) all trade names, trade styles, service marks, prints and
labels on which said trademarks, trade names, trade styles and service
marks have appeared or appear, designs and general intangibles of like
nature; and
(iii) all proceeds of the foregoing (including, without
limitation, license royalties and proceeds of infringement suits).
IN WITNESS WHEREOF, [NAME OF OBLIGOR] has caused this Trademark
Assignment to be duly executed by its duly authorized officer as of ____________
___, 199__.
[NAME OF OBLIGOR]
By:____________________________
Name:
Title:
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and
for said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the ___________________________________ of
_________________________, a _______________ corporation, and acknowledged that
such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
Schedule A-1
SPECTRAN CORPORATION FIRST AMENDMENT TO TRADEMARK SECURITY AGREEMENT
Schedule A
TRADEMARKS AND TRADEMARK APPLICATIONS AND REGISTRATIONS