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EXHIBIT 10.77
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (the
"First Amendment") is by and among FLEET NATIONAL BANK, a national
banking association having an office located at 370 Main Street.
Worcester, Massachusetts 01608, (the "Lender"), SPECTRAN CORPORATION, a
Delaware corporation with a principal place of business at 50 Hall
Road, Sturbridge, Massachusetts ("SpecTran"), SPECTRAN SPECIALTY OPTICS
COMPANY, a Delaware corporation with a principal place of business at
150 Fisher Drive, Avon, Connecticut ("Optics"), APPLIED PHOTONIC
DEVICES. INC., a Delaware corporation with a principal place of
business at 50 Tiffany Street, Brooklyn, Connecticut
("Photonic-Delaware") and SPECTRAN COMMUNICATION FIBER TECHNOLOGIES,
INC., a Delaware corporation with a principal place of business at 50
Hall Road, Sturbridge, Massachusetts ("Communication"). Each of
SpecTran, Optics, Photonic-Delaware and Communication are sometimes
referred to as a "Borrower" and collectively the "Borrowers".
WHEREAS, the Lender, SpecTran, Optics, Communication and
Applied Photonic Devices, Inc., a Connecticut corporation with a
principal place of business 50 Tiffany Street, Brooklyn, Connecticut
("Photonic") are parties to that certain Loan and Security Agreement
dated April 25, 1996 (the "Agreement"); and
WHEREAS, Photonic has been merged into Photonic-Delaware; and
WHEREAS, Photonic-Delaware should be a party to the Agreement;
and
WHEREAS, the Lender and the Borrowers desire to amend the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Lender and the
Borrowers hereby amend the Agreement as set forth hereinafter:
A. AMENDMENTS TO AGREEMENT
1. The Agreement is amended in its entirety by replacing
Photonic with Photonic-Delaware as a party thereto. All
representations, warranties, covenants and agreements of Photonic
contained in the Agreement are, by operation of law and hereby,
assumed by Photonic-Delaware. References to the Borrowers in the
Agreement shall mean and include any one or more of SpecTran, Optics,
Photonic-Delaware and Communication. All Obligations including all
obligations to pay all amounts owed to the Lender pursuant to any and
all documents evidencing the Loans, including without limitation the
Agreement and the Notes are the joint and several obligations of each
of SpecTran, Optics, Photonic-Delaware and Communication. In
accordance with Article 4 of the Agreement, Photonic-Delaware, as
security for the prompt satisfaction of all of the Obligations, hereby
assigns to the Lender, all of its right, title and interest in and to,
and grants the Lender a lien upon and a continuing security interest
in, all of its assets, including without limitation, the Collateral
wherever located, whether now owned or hereafter acquired, together
with all replacements therefor and proceeds thereof (including, but
without limitation, insurance proceeds) and products thereof all as
more fully set forth in Article 4 of the Agreement.
2. Restate the initial paragraph of the Agreement as follows:
THIS LOAN AND SECURITY AGREEMENT is dated as of April 25, 1996
and is among SPECTRAN CORPORATION ("SpecTran"), SPECTRAN
SPECIALTY OPTICS
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EXHIBIT 10.77
COMPANY ("Optics"), APPLIED PHOTONIC DEVICES, INC.
("Photonic-Delaware"), SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC. ("Communication") and FLEET NATIONAL BANK
(the "Lender"). Each of SpecTran, Optics, Photonic-Delaware
and Communication are sometimes referred to as a "Borrower"
and collectively the "Borrowers".
3. Restate the paragraph under the heading "BACKGROUND" on
Page 1 of the Agreement as follows:
BACKGROUND. The Borrowers have requested the Lender to lend up
to the sum of (i) $14,500,000.00 on a revolving loan basis,
(ii) $4,000,000.00 on a term loan basis, and (iii)
$3,500,000.00 on a mortgage loan basis (collectively the
"Loans") and the Lender is willing to do so upon the terms and
conditions hereinafter set forth.
4. Restate Section 1.05(a) of the Agreement as follows:
(a) $14,500,000.00; or
5. Restate Section 2.01 the Agreement as follows:
2.01 General Terms.
Subject to the terms hereof, the Lender will lend the
Borrowers the principal sum of (i) $14,500,000.00 on a
revolving loan basis, (ii) $4,000,000.00 on a term loan basis,
and (iii) $3,500,000.00 on a mortgage loan basis.
6. Restate Section 2.05 of the Agreement as follows:
2.05 Term Note.
Subject to the terms hereof, the Lender agrees to lend to
the Borrowers on a term loan basis the amount of
$4,000,000.00, the payment terms to be in accordance with the
provisions of the Term Note. Advances under the Term Note will
only be made in accordance with and subject to the conditions
contained in EXHIBIT 2.05 attached hereto. The outstanding
principal balance of the Term Note is to be paid in equal
quarterly installments of $200,000.00. The Term Note is to be
due and payable in any event on April1, 2001. In addition, the
Borrowers will be required to prepay the Term Note to the
extent of the Borrowers' "Excess Cash Flow" as defined in the
Term Note. The outstanding principal balance of the Term Note
shall at no time exceed eighty and nine-tenths percent (80.9%)
of the orderly liquidation value of the Borrowers' Equipment,
and if, at any time, an excess for any reason shall exist, the
full amount of such excess, together with accrued and unpaid
interest thereon, shall be immediately due and payable in
full.
7. Amend Section 2.06 of the Agreement by deleting from the
second line "$5,000.000.00" and inserting "$3,500,000.00".
8. Amend Exhibit 2.05 of the Agreement by deleting from the
eleventh line "seventy-five percent (75%) of the auction value" and
inserting "eighty and nine-tenths percent (80.9%) of the orderly
liquidation value".
9. Amend Exhibit 2.06 of the Agreement be deleting from the
sixteenth line "seventy- five percent (75%)" and inserting "eighty
percent (80%)".
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EXHIBIT 10.77
10. Amend Exhibit 5.01 (a) to the Agreement by deleting
paragraph 2 and inserting the following:
2. The following companies are qualified to do business in
the following states:
Name State
---- -----
SpecTran Delaware, Massachusetts
Optics Delaware, Connecticut
Photonic-Delaware Delaware, Connecticut
Communication Delaware, Massachusetts
B. MISCELLANEOUS
1. All capitalized terms used herein and not defined herein
shall have the meanings ascribed in the Agreement.
2. The Borrowers hereby represent and warrant to the Lender
that no default or Event of Default exists under the Agreement and they
have performed all of their obligations to be performed to date under
the Agreement.
3. This First Amendment shall not extinguish, terminate or
impair any of the obligations of the Borrowers under the Agreement or
any of the financing instruments. In addition, this First Amendment
shall not release or impair the priority of any security interests or
liens held by the Lender on any assets of the Borrowers.
4. Except as herein expressly amended, the Agreement and the
financing instruments shall remain unchanged and are in full force and
effect, and the Borrowers, by executing this First Amendment, hereby
ratify and reaffirm each covenant, representation, warranty and
agreement contained in the Agreement and the financing instruments.
WITNESS the execution hereof as an instrument under seal as of
this 4th day of September, 1996.
SPECTRAN CORPORATION
By: /s/ Bruce A. Cannon
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Its Duly Authorized Officer
SPECTRAN SPECIALTY OPTICS COMPANY
By: /s/ Bruce A. Cannon
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Its Duly Authorized Officer
APPLIED PHOTONIC DEVICES, INC.
By: /s/ Bruce A. Cannon
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Its Duly Authorized Officer
SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC.
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EXHIBIT 10.77
By: /s/ Bruce A. Cannon
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Its Duly Authorized Officer
FLEET NATIONAL BANK
By: /s/ John F. Lynch, VP
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Its Duly Authorized Officer
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