SIXTH AMENDMENT TO NON-RECOURSE
RECEIVABLES PURCHASE AGREEMENT
This Sixth
Amendment to Non-Recourse Receivables Purchase Agreement (this
“Amendment”) is entered into as of October 28,
2008, and is effective as of October 25, 2008, by and between
SILICON VALLEY BANK , a California corporation, with its
principal place of business at 3003 Tasman Drive, Santa Clara,
California 95054 (“Buyer”) and FINISAR
CORPORATION , a Delaware corporation with its chief executive
office located at 1399 Moffett Park Drive, Sunnyvale, California
94089 (“Seller”).
1.
DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS . Among
other indebtedness and obligations which may be owing by Seller to
Buyer, Seller is indebted to Buyer pursuant to a receivables
purchase arrangement dated as of October 28, 2004, evidenced
by, among other documents, a certain Non-Recourse Receivables
Purchase Agreement dated as of October 28, 2004, between
Seller and Buyer, as amended by a certain First Amendment to
Non-Recourse Receivables Purchase Agreement dated as of
October 20, 2005, between Seller and Buyer, as further amended
by a certain Second Amendment to Non-Recourse Receivables Purchase
Agreement dated as of October 26, 2006, between Seller and
Buyer, as further amended by a certain Third Amendment to
Non-Recourse Receivables Purchase Agreement dated as of
December 21, 2006, between Seller and Buyer, as further
amended by a certain Fourth Amendment to Non-Recourse Receivables
Purchase Agreement dated as of November 1, 2007, between
Seller and Buyer, and as further amended by a certain Fifth
Amendment to Non-Recourse Receivables Purchase Agreement dated as
of March 14, 2008, between Seller and Buyer (as amended, the
“Purchase Agreement”). Capitalized terms used but not
otherwise defined herein shall have the same meaning as in the
Purchase Agreement.
2.
DESCRIPTION OF CHANGE IN TERMS .
A.
Modifications to Purchase Agreement.
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1.
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Seller hereby agrees to deliver to
Buyer, within thirty (30) days of the date of this Amendment, a
joinder agreement and all other documentation requested by Buyer in
order to make Optium Corporation, a Delaware corporation that is a
wholly-owned subsidiary of Seller, a “Seller” under the
Purchase Agreement. The failure of Borrower to comply with this
provision shall result in an immediate Event of Default under the
Purchase Agreement, for which there shall be no grace or cure
period.
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2.
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The
Purchase Agreement shall be amended by inserting the following new
definitions, appearing alphabetically in Section 1 thereto
(and
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