Exhibit 10.119
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").
6. Preliminary Statement
(a) The Obligors entered into a certain Patent Collateral Assignment
(the "Existing"), 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 Patent Collateral Assignment, as amended by this Amendment, is referred
to herein as the "Amended Patent Collateral Assignment."
(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.
7. Defined Terms
The terms used herein have the meanings specified in the Existing
Patent Collateral Assignment unless otherwise defined herein.
8. Amendments to Terms of Existing Patent Collateral Assignment
The Existing Patent Collateral Assignment 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) Schedule A thereto is amended and restated in its entirety as set
forth on Schedule A hereto.
SPECTRAN CORPORATION FIRST AMENDMENT TO PATENT COLLATERAL ASSIGNMENT
16. 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 Patent Collateral Assignment
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.
9. Scope and Effect of Amendment
Except as expressly provided herein, no terms or provisions of the
Existing Patent Collateral Assignment are modified or changed by this Amendment,
and the terms and provisions of the Existing Patent Collateral Assignment
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
Patent Collateral Assignment shall mean and be a reference to the Patent
Collateral Assignment as amended hereby.
10. 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 PATENT COLLATERAL ASSIGNMENT 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]
Schedule A-1
SPECTRAN CORPORATION FIRST AMENDMENT TO PATENT COLLATERAL ASSIGNMENT
Schedule A
To be provided.
Exhibit 1-1
SPECTRAN CORPORATION FIRST AMENDMENT TO PATENT COLLATERAL ASSIGNMENT