SECOND LOAN MODIFICATION
AGREEMENT
This Second Loan
Modification Agreement (this “Loan Modification
Agreement”) is entered into as of Feb 6, 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, and as
amended by a certain First Loan Modification Agreement dated as of
October 30, 2008 (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 .
A. Modifications
to Loan Agreement.
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The
Loan Agreement shall be amended by deleting the following text,
appearing in Section 6.2(a) thereof:
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“(ii) as
soon as available, but no later than ninety (90) days after
the last day of Borrower’s fiscal year (or, by April 30,
2008 with respect to Borrower’s fiscal year ended
April 30, 2007), audited consolidated financial statements
prepared under GAAP on form 10-K, consistently applied, together
with an unqualified opinion on the financial statements from an
independent certified public accounting firm acceptable to Bank in
its reasonable discretion;”
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and
inserting in lieu thereof the following:
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“(ii) as
soon as available, but no later than the earlier to occur of
(A) five (5) days after filing its Form 10-K with the
Securities and Exchange Commission, and (B) ninety
(90) days after the last day of Borrower’s fiscal year,
audited consolidated financial statements prepared under GAAP on
Form 10-K, consistently applied, together with an unqualified
opinion on the financial statements from an independent certified
public accounting firm acceptable to Bank in its reasonable
discretion;”
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The
Compliance Certificate appearing as Exhibit B to
the Loan Agreement is hereby replaced with the Compliance
Certificate attached hereto as Schedule 1
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B.
Waivers. Bank hereby waives Borrower’s existing
default under the Loan Agreement by virtue of Borrower’s
failure to comply with the financial covenant set forth in Section
6.7(a) of the Loan Agreement (relative to the requirement that
Borrower maintain a certain Adjusted Quick Ratio) as of the months
ended
November 30, 2008 and December 31,
2008. Bank’s waiver of Borrower’s compliance with such
covenant shall apply only to the foregoing specific
periods.
4.
FEES. Borrower shall pay to Bank a modification fee equal to
Seven Thousand Five Hundred Dollars ($7,500.00), which fee shall be
due on the date hereof and shall be deemed fully earned as of the
date hereof. Borrower shall also reimburse Bank for all legal fees
and expenses incurred in connection with this Loan Modification
Agreement.
5.
RATIFICATION OF PERFECTION CERTIFICATES.
(a) Finisar
hereby ratifies, confirms and reaffirms, all and singular, the
terms and disclosures contained in a certain Perfection Certificate
dated as of March 14, 2008 between Finisar and Bank, and
acknowledges, confirms and agrees that the disclosures and
information Finisar provided to Bank in the Perfection Certificate
have not changed, as of the date hereof.
(b) Optium
hereby ratifies, confirms and reaffirms, all and singular, the
terms and disclosures contained in a certain Perfection Certificate
dated as of October 30, 2008 between Optium and Bank, and
acknowledges, confirms and agrees that the disclosures and
information Optium provided to Bank in the Perfection Certificate
have not changed, as of the date hereof.
6.
CONSISTENT CHANGES. The Existing Loan Documents are hereby
amended wherever necessary to reflect the changes described
above.
7.
RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies,
confirms, and reaffirms all terms and conditions of all security or
other collateral granted to the Bank, and confirms that the
indebtedness secured thereby includes, without limitation, the
Obligations.
8. NO
DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees
that Borrower has no offsets, defenses, claims, or counterclaims
against Bank with respect to the Obligations, or otherwise, and
that if Borrower now has, or ever did have, any offse
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