Exhibit 10.2
EIGHTH AMENDMENT
TO
AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY
AGREEMENT
This Eighth Amendment to Amended and
Restated Revolving Credit and Security Agreement (the
“Amendment”) is entered into as of April 12, 2005, by
and between COMERICA BANK (“Bank”) and AVANEX
CORPORATION (“Borrower”).
RECITALS
Borrower and Bank are parties to
that certain Amended and Restated Revolving Credit and Security
Agreement dated as of July 10, 2000 (as amended from time to time,
including without limitation that certain First Amendment to
Amended and Restated Revolving Credit and Security Agreement dated
as of August 24, 2000, that certain Second Amendment to Amended and
Restated Revolving Credit and Security Agreement dated as of
January 2, 2001, that certain Third Amendment to Amended and
Restated Revolving Credit and Security Agreement dated as of July
19, 2001, that certain Fourth Amendment to Amended and Restated
Revolving Credit and Security Agreement dated as of September 26,
2002, that certain Fifth Amendment to Amended and Restated
Revolving Credit and Security Agreement dated as of June 18, 2003,
that certain Sixth Amendment to Amended and Restated Revolving
Credit and Security Agreement dated as of December 31, 2003, and
that certain Seventh Amendment to Amended and Restated Revolving
Credit and Security Agreement dated as of February 28, 2005,
together with any related agreements, the “Agreement”).
Hereinafter, all indebtedness owing by Borrower to Bank shall be
referred to as the “Indebtedness.” The parties desire
to amend the Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
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I.
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Incorporation by Reference
. The Recitals and the documents referred to
therein are incorporated herein by this reference. Except as
otherwise noted, the terms not defined herein shall have the
meaning set forth in the Agreement.
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II.
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Amendment
to the Agreement . Subject to the satisfaction of the conditions
precedent as set forth in Article IV hereof, the Agreement is
hereby amended as set forth below.
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A.
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The last
sentence of Section 2.2.2 of the Agreement is hereby amended and
restated to read as follows:
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“Except in Bank’s
discretion, the amount of all Letter of Credit Obligations shall
not at any time exceed Six Million Dollars
($6,000,000).”
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B.
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A new Section
2.19 is hereby added to the Agreement to read as
follows:
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“2.19 Collateralization of
Obligations Extending Beyond Maturity. If Borrower has not
secured to Bank’s satisfaction its obligations with respect
to any Letters of Credit or Foreign Exchange Contracts by the
Termination Date, then, effective as of such date, the balance in
any deposit accounts held by Bank and the certificates of deposit
or time deposit accounts issued by Bank in Borrower’s name
(and any interest paid thereon or proceeds thereof, including any
amounts payable upon the maturity or liquidation of such
certificates or accounts), shall
automatically secure such obligations to the extent of the then
continuing or outstanding and undrawn Letters of Credit or Foreign
Exchange Contracts. Borrower authorizes Bank to hold such balances
in pledge and to decline to honor any drafts thereon or any
requests by Borrower or any other Person to pay or otherwise
transfer any part of such balances for so long as the Letters of
Credit or Foreign Exchange Contracts are outstanding or
continue.”
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C.
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Section 8.5 of
the Agreement is hereby amended and restated in its entirety to
read as follows:
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“8.5 Minimum Cash
Balance . Borrower shall maintain a minimum balance of
Unrestricted Cash (as defined herein) of Thirty Million Dollars
($30,000,000
