THIRD LOAN MODIFICATION
AGREEMENT
This Third Loan
Modification Agreement (this “Loan Modification
Agreement”) is entered into as of June 10, 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, and as further amended by a certain Second
Loan Modification Agreement dated as of February 6, 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 .
A. Modifications
to Loan Agreement.
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1
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The
Loan Agreement shall be amended by deleting the following text,
appearing in Section 2.1.1 (a) thereof:
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“Subject
to the terms and conditions of this Agreement and to deduction of
Reserves, Bank shall make Advances not exceeding the Availability
Amount.”
and inserting
in lieu thereof the following:
“Subject
to the terms and conditions of this Agreement and, during an Asset
Based Period, to deduction of Reserves, Bank shall make Advances
not exceeding the Availability Amount.”
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2
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The
Loan Agreement shall be amended by deleting the following text,
appearing in Section 2.1.2(a) thereof:
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“As part
of the Revolving Line, Bank shall issue or have issued Letters of
Credit for Borrower’s account.”
and inserting
in lieu thereof the following:
“As part
of the Revolving Line and, during an Asset Based Period, subject to
deduction of Reserves, Bank shall issue or have issued Letters of
Credit for Borrower’s account.”
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3
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The
Loan Agreement shall be amended by deleting the following text,
appearing in Section 2.1.3 thereof:
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“As part
of the Revolving Line, Borrower may enter into foreign exchange
contracts with Bank under which Borrower commits to purchase from
or sell to Bank a specific amount of Foreign Currency (each, a
“ FX Forward Contract ”) on a specified date
(the “ Settlement Date ”).”
and inserting
in lieu thereof the following;
“As part
of the Revolving Line and, during an Asset Based Period, subject to
deduction of Reserves, Borrower may enter into foreign exchange
contracts with Bank under which Borrower commits to purchase from
or sell to Bank a specific amount of Foreign Currency (each, a
“ FX Forward Contract ”) on a specified date
(the “ Settlement Date ”).”
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4
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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 . If, at any time, the Credit Extensions under
Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.4 exceed the Revolving
Line, Borrower shall immediately pay to Bank in cash such
excess.”
and inserting
in lieu thereof the following:
“ 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 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 balance sheet) 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 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 amount of
Credit Extensions 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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5
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The
Loan Agreement shall be amended by inserting the following new
text, appearing at the end of Section 2.4 thereof:
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“ (h)
Float Charge. In connection with the computation of interest
hereunder, during an Asset Based Period, Bank shall be entitled to
charge Borrower a “float” charge in an amount equal to
three (3) Business Days interest, at the interest rate
applicable to the Credit Extensions, on all payments
received
by Bank in the
form of a check in respect of payments made by an Account Debtor.
The float charge for each month shall be payable on the first day
of the month.”
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6
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The
Loan Agreement shall be amended by deleting the following text,
appearing in Section 3.2 thereof:
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“
(a) timely receipt of a Notice of Borrowing;”
and inserting
in lieu thereof the following:
“
(a) timely receipt of a Notice of Borrowing and, during an
Asset Based Period, an executed Transaction
Report;”
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7
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The
Loan Agreement shall be amended by inserting the following new
Section 5.12, appearing immediately after Section 5.11
thereof:
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“ 5.12 Accounts Receivable. For any
Eligible Account and Eligible Foreign Account in any Borrowing Base
Certificate, all statements made and all unpaid balances appearing
in all invoices, instruments and other documents evidencing such
Eligible Accounts and Eligible Foreign Accounts are and shall be
true and correct and all such invoices, instruments and other
documents, and all of Borrower’s Books are genuine and in all
respects what they purport to be. Whether or not an Event of
Default has occurred and is continuing, Bank may notify any Account
Debtor owing Borrower money of Bank’s security interest in
such funds and verify the amount of such Eligible Account and
Eligible Foreign Account. All sales and other transactions
underlying or giving rise to each Eligible Account and Eligible
Foreign Account shall comply in all material respects with all
applicable laws and governmental rules and regulations. Borrower
has no knowledge of any actual or imminent Insolvency Proceeding of
any Account Debtor whose accounts are Eligible Accounts or Eligible
Foreign Accounts in any Borrowing Base Certificate. To the best of
Borrower’s knowledge, all signatures and endorsements on all
documents, instruments, and agreements relating to all Eligible
Accounts and Eligible Foreign Accounts are genuine, and all such
documents, instruments and agreements are legally enforceable in
accordance with their terms.”
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8
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The
Loan Agreement shall be amended by inserting the following new
text, appearing at the end of Section 6.2 thereof:
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“
(c) Within thirty (30) days after the last day of each
month, deliver to Bank with the monthly financial statements,
(i) a duly completed Borrowing Base Certificate signed by a
Responsible Officer, and (ii) aged listings of accounts
receivable and accounts payable (by invoice date).
(d) During an
Asset Based Period, unless a Streamline Period is then in effect,
deliver to Bank, weekly, and upon each request for a Credit
Extension, a Transaction Report.
(e) Allow Bank to
audit Borrower’s Collateral at Borrower’s expense. Such
audits shall be conducted no more often than one (1) time per
calendar year (or, during an Asset Based Period, two (2) times
per calendar year) unless an Event of Default has occurred and is
continuing. Borrower acknowledges that the first such audit will
occur within sixty (60) days of the 2009 Effective
Date.”
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9
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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 . An Adjusted Quick Ratio of at least (i) 0.90
to 1.0 through and including the month ending June 30, 2008,
(ii) 1.0 to 1.0 as of the month ending July 31, 2008 through
and including the month ending September 30, 2008,
(iii) 1.10 to 1.00 as of October 31, 2008 through and
including the month ending June 30, 2009, and (iv) 1.25
to 1.00 as of the month ending July 31, 2009 and
thereafter.
(b) EBITDA
. As of the last day of each of Borrower’s fiscal quarters,
commencing with the fiscal quarter ended October 31, 2007,
Borrower shall have EBITDA for the six-month period ending on the
last day of such quarter of at least (i) Five Million Dollars
($5,000,000.00) for the quarters ended October 31, 2007,
January 31, 2008, April 30, 2008 and July 31, 2008,
(ii) Twenty Million Dollars ($20,000,000.00) for the quarters
ending October 31, 2008, January 31, 2009 and
April 30, 2009, and (iii) Twenty-Five Million Dollars
($25,000,000.00) for the quarter ending on July 31, 2009 and
as of the last day of each quarter thereafter.”
and inserting
in lieu thereof the following:
“ 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 the month ending April 30, 2009,
(B) 1.15 to 1.00 as of the months ending July 31, 2009
and October 31, 2009, and (C) 1.25 to 1.00 as of the
month ending January 31, 2010 and for the last month in each
of Borrower’s quarters thereafter (it being understood that
the last month in each of Borrower’s quarters is January,
April, July and October).
(ii)
Intraquarterly Adjusted Quick Ratio . An Adjusted Quick
Ratio of at least (A) 0.95 to 1.00 as of the months ending
May 31, 2009 and June 30, 2009, and (B) 1.00 to 1.00
as of the month ending August 31, 2009 and for each of the
first two months in each of Borrower’s quarters thereafter
(it being understood that the first two months in each of
Borrower’s quarters is 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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10
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The
Loan Agreement shall be amended by inserting the following new
Section 6.12, appearing immediately after Section 6.11
thereof:
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“ 6.12 Accounts Receivable.
(a) Schedules
and Documents Relating to Accounts. During an Asset Based
Period, unless a Streamline Period is then in effect, Borrower
shall deliver to Bank transaction reports and schedules of
collections, as provided in Section 6.2, on Bank’s
standard forms; provided, however, that Borrower’s failure to
execute and deliver the same shall not affect or limit Bank’s
Lien and other rights in all of Borrower’s Accounts, nor
shall Bank’s failure to advance or lend against a specific
Account affect or limit Bank’s Lien and other rights therein.
If reasonably requested by Bank during an Asset Based Period,
unless a Streamline Period is then in effect, Borrower shall
furnish Bank with copies (or, at Bank’s reasonable request,
originals) of all contracts, orders, invoices, and other similar
documents, and all shipping instructions, delivery receipts, bills
of lading, and other evidence of delivery, for any goods the sale
or disposition of which gave rise to such Accounts. In addition,
during an Asset Based Period, unless a Streamline Period is then in
effect, Borrower shall deliver to Bank, on its reasonable request,
the originals of all instruments, chattel paper, security
agreements, guarantees and other documents and property evidencing
or securing any Accounts, in the same form as received, with all
necessary endorsements, and copies of all credit memos.
(b)
Disputes. During an Asset Based Period, unless a Streamline
Period is then in effect, Borrower shall promptly notify Bank of
all disputes or claims relating to Accounts. Borrower may forgive
(completely or partially), compromise, or settle any Account for
less than payment in full, or agree to do any of the foregoing so
long as (i) Borrower does so in good faith, in a commercially
reasonable manner, in the ordinary course of business, in
arm’s-length transactions, and reports the same to Bank in
the regular reports provided to Bank; (ii) no Default or Event
of Default has occurred and is continuing; and (iii) after
taking into account all such discounts, settlements and
forgiveness, the total outstanding Credit Extensions will not
exceed the lesser of the Revolving Line or the Borrowing
Base.
(c) Collection
of Accounts . During an Asset Based Period, unless a Streamline
Period is then in effect, all payments on, and proceeds of,
Accounts shall be deposited directly by the applicable Account
Debtor into a lockbox account maintained by Borrower with Bank, and
Borrower shall affirmatively direct each Account Debtor to make all
payments to such lockbox. Whether or not an Event of Default has
occurred and is continuing, Borrower shall hold all payments on,
and proceeds of, Accounts in trust for Bank, and Borrower shall
promptly deliver all such payments and proceeds to Bank in their
original form, duly endorsed, to be applied to the Obligations
pursuant to the terms of Section 9.5 hereof.
(d) Returns
. Provided no Event of Default has occurred and is continuing,
during an Asset Based Period, unless a Streamline Period is then in
effect, if any Account Debtor returns any Inventory to Borrower,
Borrower shall promptly (i) determine the reason for such
return, (ii) issue a credit memorandum to the Account Debtor
in the appropriate amount to the extent consistent with
Borrower’s customary practices or as otherwise appropriate in
Borrower’s reasonable business judgment, and
(iii) provide a copy of such credit memorandum to Bank, upon
request from Bank. In the event any attempted return occurs after
the occurrence and during the continuance of any Event of Default,
Borrower shall hold the returned Inventory in trust for Bank, and
immediately notify Bank of the return of the Inventory.
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