FOURTH LOAN MODIFICATION
AGREEMENT
This Fourth Loan
Modification Agreement (this “Loan Modification
Agreement”) is entered into as of July 15, 2009, by and
among (a) SILICON VALLEY BANK, a California corporation,
with its principal place of business at 3003 Tasman Drive, Santa
Clara, California 95054 (“Bank”) and (b) FINISAR
CORPORATION, a Delaware corporation, with its chief executive
office located at 1399 Moffett Park Drive, Sunnyvale, California
94089 (“Finisar”) and OPTIUM CORPORATION, a
Delaware corporation, with its principal place of business at 500
Horizon Drive, Suite 505, Chalfont, Pennsylvania 18914
(“Optium”) (hereinafter, Finisar and Optium are jointly
and severally, individually and collectively, referred to as
“Borrower”).
1.
DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS . Among
other indebtedness and obligations which may be owing by Borrower
to Bank, Borrower is indebted to Bank pursuant to a loan
arrangement dated as of March 14, 2008, evidenced by, among
other documents, a certain Loan and Security Agreement dated as of
March 14, 2008, among Borrower and Bank, as affected by a
certain Joinder Agreement dated as of October 30, 2008, as
amended by a certain First Loan Modification Agreement dated as of
October 30, 2008, as further amended by a certain Second Loan
Modification Agreement dated as of February 6, 2009, and as
further amended by a certain Third Loan Modification Agreement
dated as of June 10, 2009 (as amended and affected, the
“Loan Agreement”). Capitalized terms used but not
otherwise defined herein shall have the same meaning as in the Loan
Agreement.
2.
DESCRIPTION OF COLLATERAL . Repayment of the Obligations is
secured by the Collateral as described in the Loan Agreement
(together with any other collateral security granted to Bank, the
“Security Documents”). Hereinafter, the Security
Documents, together with all other documents evidencing or securing
the Obligations shall be referred to as the “Existing Loan
Documents”.
3.
DESCRIPTION OF CHANGE IN TERMS .
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A.
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Modifications to Loan
Agreement.
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1
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The
effectiveness of this Loan Modification Agreement is expressly
conditioned upon Borrower’s receipt of net cash proceeds of
at least Forty Million Two Hundred Fifty Thousand Dollars
($40,250,000.00) in connection with the sale of Borrower’s
“Network Tools” division.
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2
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The
Loan Agreement shall be amended by deleting the following,
appearing as Section 2.2 thereof:
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“ 2.2
Overadvances; Further Limitation.
(a) If, at any
time, the sum of (i) the outstanding principal amount of any
Advances (including any amounts used for Cash Management Services),
plus (ii) the face amount of any outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit and any Letter
of Credit Reserve), plus (iii) the FX Reserve, exceeds the
lesser of either the Revolving Line or the Borrowing Base, Borrower
shall immediately pay to Bank in cash such excess.
(b) In order to
have Credit Extensions made pursuant to Sections 2.1.1, 2.1.2,
2.1.3 and 2.1.4 outstanding that exceed Twenty-Five Million Dollars
($25,000,000.00) in the aggregate, Borrower shall provide evidence
to Bank, upon Bank’s request, that it has unrestricted cash
(as set forth on its most recent balance sheet delivered pursuant
to Section 6.2) in an amount equal to at least the sum of
(i) Fifty Million Dollars ($50,000,000.00) plus (ii) the
aggregate amount of Credit Extensions made pursuant to
Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.4 outstanding at such
time. Borrower shall be required to comply with this provision at
all times that the aggregate amount of Credit Extensions
outstanding
exceeds
Twenty-Five Million Dollars ($25,000,000.00). With respect to each
request of a Credit Extension that, when made, would result in the
aggregate principal amount of Credit Extensions made pursuant to
Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.4 outstanding exceeding
Twenty-Five Million Dollars ($25,000,000.00), Borrower shall
deliver to Bank evidence of Borrower’s compliance with this
provision (after giving effect to such Credit Extension) as a
condition precedent to such Credit Extension. If at any time the
aggregate amount of Credit Extensions outstanding exceeds the
amount permitted by this Section 2.2(b), then Borrower shall
immediately pay to Bank in cash such excess.”
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and
inserting in lieu thereof the following:
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“ 2.2
Overadvances. If, at any time, the sum of (i) the
outstanding principal amount of any Advances (including any amounts
used for Cash Management Services), plus (ii) the face amount
of any outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit and any Letter of Credit Reserve),
plus (iii) the FX Reserve, exceeds the lesser of either the
Revolving Line or the Borrowing Base, Borrower shall immediately
pay to Bank in cash such excess.”
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3
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The
Loan Agreement shall be amended by deleting the following appearing
as Section 6.7 thereof:
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“ 6.7
Financial Covenants
Borrower shall
maintain at all times, to be tested as of the last day of each
month, unless otherwise noted:
(a) Adjusted
Quick Ratio .
(i) Quarterly
Adjusted Quick Ratio . An Adjusted Quick Ratio of at least
(A) 1.10 to 1.00 as of April 30, 2009, (B) 1.15 to 1.00
as of July 31, 2009 and October 31, 2009, and
(C) 1.25 to 1.00 as of January 31, 2010 and as of the
last day of each of Borrower’s fiscal quarters thereafter (it
being understood that the last day of each of Borrower’s
fiscal quarters occurs in January, April, July and
October).
(ii)
Intraquarterly Adjusted Quick Ratio . An Adjusted Quick
Ratio of at least (A) 0.95 to 1.00 as May 31, 2009 and
June 30, 2009, and (B) 1.00 to 1.00 as of August 31, 2009
and as of the last day of each of the first two months in each of
Borrower’s fiscal quarters thereafter (it being understood
that the first two months in each of Borrower’s fiscal
quarters are February, March, May, June, August September, November
and December).
(b) EBITDA
. As of the last day of each of Borrower’s fiscal quarters,
Borrower shall have EBITDA for the six-month period ending on the
last day of such quarter of at least (i) Fifteen Million
Dollars ($15,000,000.00) for the quarter ending April 30,
2009, (ii) Seven Million Five Hundred Thousand Dollars
($7,500,000.00) for the quarter ending July 31, 2009,
(iii) Fifteen Million Dollars ($15,000,000.00) for the quarter
ending October 31, 2009, and (iv)
Twenty Million
Dollars ($20,000,000.00) for the quarter ending on January 31,
2010 and as of the last day of each quarter
thereafter.”
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and
inserting in lieu thereof the following:
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“ 6.7
Financial Covenants
Borrower shall
maintain at all times, to be tested as of the last day of each
month, unless otherwise noted:
(a) Adjusted
Quick Ratio .
(i) Quarterly
Adjusted Quick Ratio . An Adjusted Quick Ratio of at least
(A) 1.10 to 1.00 as of April 30, 2009, (B) 1.15 to
1.00 as of July 31, 2009, October 31, 2009,
January 31, 2010 and April 30, 2010, and (C) 1.25 to
1.00 as of July 31, 2010 and as of the last day of each of
Borrower’s fiscal quarters thereafter (it being understood
that the last day of each of Borrower’s fiscal quarters
occurs in January, April, July and October).
(ii)
Intraquarterly Adjusted Quick Ratio . An Adjusted Quick
Ratio of at least (A) 0.95 to 1.00 as May 31, 2009,
June 30, 2009, August 31, 2009, and September 30,
2009, and (B) 1.00 to 1.00 as of November 30, 2009 and as
of
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