Exhibit 10.1
SEVENTH AMENDMENT
TO
AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY
AGREEMENT
This Seventh Amendment to Amended and Restated
Revolving Credit and Security Agreement (the
“Amendment”) is entered into as of February 28, 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,
and that certain Sixth Amendment to Amended and Restated Revolving
Credit and Security Agreement dated as of December 31, 2003,
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 following
definitions in Section 1.1 of the Agreement are hereby
alphabetically added or amended and restated in their entirety to
read as follows:
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“Committed Line” means
Ten Million Dollars ($10,000,000).
“Foreign Exchange
Sublimit” means a sublimit for foreign exchange contracts
under the Committed Line not to exceed $2,500,000.
“Termination Date” means
January 1, 2006.
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B.
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Section 2.1 of
the Agreement is hereby amended and restated in its entirety to
read as follows:
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“2.1 Revolving Credit .
Subject to and upon the terms and conditions of this Agreement,
Borrower may request Advances (pursuant to Section 2.1 hereof)
under a revolving line of credit (the “Revolving Line”)
from time to time in an aggregate outstanding amount not to exceed
the Committed Line minus (i) the aggregate face amount of
all outstanding Letters of Credit (including drawn but unreimbursed
Letters of Credit) and (ii) the Foreign Exchange Sublimit. Subject
to the terms and conditions of this Agreement, amounts borrowed
pursuant to this Section
2.1 may be repaid and reborrowed at
any time prior to the Termination Date, at which time all Advances
under this Agreement shall be immediately due and
payable.”
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C.
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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 Three Million Dollars
($3,000,000).”
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D.
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The term loan
facility previously set forth in Sections 2.11 through 2.17 of the
Agreement are hereby re-numbered to be Sections 2.12 through 2.18
of the Agreement.
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E.
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Section 2.11 of
the Agreement is hereby deleted in its entirety and replaced as
follows:
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“2.11 Foreign Exchange
Sublimit . Subject to and upon the terms and conditions of this
Agreement and any other agreement that Borrower may enter into with
the Bank in connection with foreign exchange transactions
(“FX Contracts”), Borrower may request Bank to enter
into FX Contracts with Borrower due not later than the Termination
Date. Borrower shall pay any standard issuance and other fees that
Bank notifies Borrower will be charged for issuing and processing
FX Contracts for Borrower. The FX Amount shall at all times be
equal to or less than Two Million Five Hundred Thousand Dollars
($2,500,000). The “FX Amount” shall equal the amount
determined by multiplying (i) the aggregate amount, in United
States Dollars, of FX Contracts between Borrower and Bank remaining
outstanding as of any date of determination by (ii) the applicable
Foreign Exchange Reserve Percentage as of such date. The
“Foreign Exchange Reserve Percentage” shall be a
percentage as determined by Bank, in its sole discretion from time
to time. The initial Foreign Exchange Reserve Percentage shall be
ten percent (10%).”
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F.
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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 Fifty Million Dollars
($50,000,000) at all times (the “Minimum Cash
Balance”), and Twelve Million Dollars ($12,000,000) (the
“Restricted Amount”) of the Minimum Cash Balance shall
be maintained in Borrower’s account #48-01-100-0810172 with
Munder Capital, also known as the Comerica Bank (Institutional
Trust Department) (the “Restricted Account”), which
Restricted Account is subject to a Securities Account Control
Agreement dated June 18, 2003 (as amended from time to time, the
“Control Agreement”). Amounts maintained by the
Borrower in its account #48-01-100-0660490 with Munder Capital
shall not be subject to the Control Agreement Bank shall promptly
provide Borrower with a copy of all notices delivered by Bank to
Munder Capital with respect to the Control Agreement provided that
any failure to provide such notice shall not constitute a failure
by Bank to comply with the terms of this Agreement or the Loan
Documents. In the event that the Revolving Credit terminates
pursuant to Section 2.8 of the Agreement and Borrower has paid all
principal, all accrued interest, all Bank Expenses and all
Obligations owing by Borrower to Bank under the Loan Documents
(except for Letter of Credit Obligations of Borrower to Bank with
respect to Letters of Credit for which Borrower has provided cash
security to Bank in an amount equal to any undrawn amounts under
such issued and outstanding Letters of Credit including applicable
fees and costs), and Bank has no further obligation to make any
credit extensions to Borrower (except pursuant to issued and
outstanding Letters of Credit), and Borrower provides Bank with
cash security maintained with Bank to secure all obligations under
any issued and outstanding Letters of Credit (as required pursuant
to Section 2.2.5 of the Agreement) issued under the Agreement or
the Loan Documents in an amount equal to any undrawn amounts under
such issued and outstanding Letters of Credit including applicable
fees and costs, then the Restricted Amount shall no longer be
subject to the Control Agreement and Bank and Bank’s
Affiliates shall no longer have a security interest in the
Restricted Account “Unrestricted Cash” as used herein
means domestic cash and cash
