Exhibit 10.21


 


NON-RECOURSE RECEIVABLES PURCHASE
AGREEMENT


 


This NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT (the
“Agreement”), dated as of October 28, 2004, is between SILICON VALLEY BANK (“Buyer”) having a
place of business at 3003 Tasman Drive, Santa Clara, California 95054 and FINISAR CORPORATION (“Seller”), a Delaware
corporation, with its chief executive office at 1308 Moffett Park Drive,
Sunnyvale, California.


 


1              DEFINITIONS.


 


When
used herein, the following terms have the following meanings.


 


1.1          “Account Debtor” has
the meaning set forth in the California Uniform Commercial Code and shall
include any person liable on any Purchased Receivable, including without
limitation, any guarantor of the Purchased Receivable and any issuer of a
letter of credit or banker’s acceptance.


 


1.2          “Adjustments” means
all discounts, allowances, returns, disputes, counterclaims, offsets, defenses,
rights of recoupment, rights of return, warranty claims, or short payments,
asserted by or on behalf of any Account Debtor with respect to any Purchased
Receivable.


 


1.3          “Administrative Fee” means
for any Purchase the percentage of the Total Purchased Receivables Amount set
forth in the Schedule for such Purchase.


 


1.4          “Business Day” means
any day other than a Saturday, Sunday, or other day on which banks in
California are required or authorized by law to close.


 


1.5          “Discount Rate” means
for any Purchase the “Discount Rate” set forth in the Schedule for such
Purchase.


 


1.6          “Due Date” means for
any Purchase the “Due Date” set forth in the Schedule for such Purchase.


 


1.7          “Event of Default” has
the meaning set forth in Section 10 hereof.


 


1.8          “Insolvency
Event” means, with respect to any Account Debtor, (a) the
commencement, by the filing of a petition for relief, of a case, action or
proceeding with respect to such Account Debtor before any court or other
governmental authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, (b) such
Account Debtor is generally not paying its debts when due, or (c) the
making or commencement of any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other similar arrangement
in respect of the creditors generally or any substantial portion of the
creditors of such Account Debtor.


 


1.9          “Interest Reserve” means
for any Purchase, an upfront reserve collected by Buyer from Seller, equal to
the aggregate amount of the Discount Rate as accrued during the Interest
Reserve Period.


 


1.10        “Interest Reserve Period” means
a 90 day period after the Due Date.


 


1.11        “Invoice Amount” means
for any Purchase, the “Invoice Amount” set forth in the Schedule for such
Purchase.


 


1.12        “Open Amount” means the portion of
any Purchased Receivable which has been pre-paid to the Seller.


 


1.13        “Payment in Full” means for any
Purchase that Buyer has received payments on account of the Purchased
Receivables under such Purchase equal to the Total Purchased Receivables Amount
for such Purchase.


 

















 


1.14        “Prime Rate” means per
the annum rate of interest from time to time announced and made effective by
Buyer as its Prime Rate (which rate may or may not be the lowest rate available
from Buyer at any given time).


 


1.15        “Purchase” means the
purchase by Buyer from Seller of one or more Purchased Receivables on a
Purchase Date as listed in the Schedule applicable to such Purchase.


 


1.16        “Purchase Date” means
for any Purchase the date set forth as the “Purchase Date” in the Schedule for
such Purchase.


 


1.17        “Purchase Price” means
for any Purchase the “Purchase Price” set forth on the Schedule for such
Purchase.


 


1.18        “Purchased Receivables” means
for any Purchase all those Receivables arising out of the invoices and other
agreements identified on the Schedule for such Purchase.


 


1.19        “Purchased Receivable
Amount” means for any Purchased Receivable, the “Invoice Amount” set forth
with respect to such Purchased Receivable on the applicable Schedule minus the
Open Amount.


 


1.20        “Receivables”
means accounts, receivables, chattel paper, instruments, contract rights,
documents, general intangibles, letters of credit, drafts, bankers acceptances,
and other rights to payment, and all proceeds thereof.


 


1.21        “Related Property” has
the meaning as set forth in Section 9 hereof.


 


1.22        “Repurchase Amount” has
the meaning set forth in Section 4.2 hereof.


 


1.23        “Schedule” means for
each Purchase a schedule executed by the parties in the form of Exhibit A
hereto identifying the Purchased Receivables subject to such Purchase and
setting forth financial and other details relating to such Purchase, all as
contemplated by Exhibit A.


 


1.24        “Settlement Date” has
the meaning set forth in Section 3.2 hereof.


 


1.25        “Total Purchased Receivables Amount” means
for any Purchase the total of the Purchased Receivable Amounts for all
Purchased Receivables subject to such Purchase as set forth on the applicable
Schedule.


 


1.26        “UCC”
means the Uniform Commercial Code of California as amended from time to time.


 


2              PURCHASE AND SALE
OF RECEIVABLES.


 


2.1          Sale and Purchase.  Subject to the terms and
conditions of this Agreement, with respect to each Purchase, effective on each
applicable Purchase Date, Seller agrees to sell to Buyer and Buyer agrees to
buy from Seller all right, title, and interest (but none of the obligations
with respect to) of the Seller to the payment of all sums owing or to be owing
from the Account Debtors under each Purchased Receivable to the extent of the
Purchased Receivable Amount for such Purchased Receivable.


 


Each purchase and sale hereunder shall be in the sole
discretion of Buyer and Seller.  In any
event, Buyer will not (i) purchase any Receivables in excess of an
aggregate outstanding amount exceeding Twenty Million Dollars ($20,000,000.00),
or (ii) purchase any Receivables under this Agreement after October       ,
2005.  The purchase of each Purchased
Receivable may be evidenced by an assignment or bill of sale in a form
acceptable to Buyer.


 


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2.2          Purchase Price and Related Matters.  With respect to each Purchase:


 


(a)           Payment of Purchase Price.  On the Purchase Date, Purchase
Price, less the Administrative Fee and reasonable legal fees owing hereunder,
shall be paid by Buyer to Seller.


 


(b)           Payment of the Interest Reserve.  On the Purchase Date, Seller shall
pay to Buyer the Interest Reserve.  If
Payment in Full is made on or before the Due Date, Buyer will refund to Seller
the Interest Reserve.  If Payment in Full
is made after the Due Date but prior to the end of the Interest Reserve Period
then Buyer will rebate the additional interest expense on a per diem basis to
Seller.  If Payment in Full does not
occur prior to the end of the Interest Reserve Period, Buyer shall retain the
Interest Reserve as an additional fee hereunder.


 


2.3          Facility Fee.  A fully earned, non-refundable facility
fee of Fifteen Thousand Dollars ($15,000.00) is due to Buyer from Seller upon
execution of this Agreement.


 


2.4          Nature of
Transaction.  It is the intent of the
parties hereto that each purchase and sale of Receivables hereunder is and
shall be a true sale of such Receivables for all purposes and not a loan
arrangement.  Each such sale shall be,
subject to the terms hereof, absolute and irrevocable, providing Buyer with the
full risks and benefits of ownership of the Purchased Receivables (such that
the Purchased Receivables would not be property of the Seller’s estate in the
event of the Seller’s bankruptcy).  The
parties agree that appropriate UCC financing statements have been or shall
promptly be filed to reflect that Seller is the seller and Buyer is the
purchaser of Receivables hereunder.


 


3              COLLECTIONS,
CHARGES AND REMITTANCES.


 


3.1          Application of Payments.  All payments in respect of any
Purchased Receivable, whether received from an Account Debtor or any other
source and whether received by Seller or Buyer, shall be the property of Buyer
and Seller shall have no ownership interest therein.


 


3.2          Collection by
Seller.  In order to facilitate the
collection of the Purchased Receivables in the ordinary course of business,
Seller agrees to act as Buyer’s agent for collection of the Purchased
Receivables.  Accordingly, Buyer hereby
appoints the Seller its attorney-in-fact to ask for, demand, take, collect, sue
for and receive all payments made in respect of the Purchased Receivables and
to enforce all rights and remedies thereunder and designates Seller as Buyer’s
assignee for collection; provided that such appointment of Seller as
such attorney-in-fact or assignee for collection may be revoked by Buyer at any
time.  Seller, as such attorney-in-fact,
shall use due diligence and commercially reasonable lawful efforts in
accordance with its usual policies and practices to collect all amounts owed by
the Account Debtors on each Purchased Receivable when the same become due.  In the enforcement or the collection of
Purchased Receivables, Seller shall commence any legal proceedings only in its
own name as an assignee for collection or on behalf of Buyer or, with Buyer’s
prior written consent, in Buyer’s name.  Seller shall have no obligation to commence
any such legal proceedings unless Buyer has agreed to share the legal fees and
other expenses to be incurred in such proceedings on a basis which is
acceptable to Seller.  In no event shall
Seller take any action which would make Buyer a party to any litigation or
arbitration proceeding without Buyer’s prior written consent.  Until Buyer has received Payment in Full as
to any Purchase, Seller shall (i) hold in trust for Buyer and turn over to
Buyer forthwith upon receipt all payments made to Seller by Account Debtors
with respect to the Purchased Receivables subject to such Purchase and (ii) turn
over to Buyer forthwith on receipt all instruments, chattel paper and other
proceeds of the Purchased Receivables; provided that unless an Event of
Default has occurred and is continuing, Seller shall remit amounts received by
Seller and due to Buyer on a weekly basis on Friday of each week (each a “Settlement
Date”), commencing on the first Friday after the Purchase Date.  On each Settlement Date, Seller shall deliver
to Buyer a report, in form and substance acceptable to Buyer, of the account
activity (including dates and amounts of payments) and changes in account
status for each Purchased Receivable.


 


3.3          No Obligation to Take Action.  Buyer shall have no obligation to
perform any of Seller’s obligations under any Purchased Receivables or to take
any action or commence any proceedings to realize upon any Purchased
Receivables (including without limitation any defaulted Purchased Receivables),
or to enforce any of its rights or remedies with respect thereto.


 


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4              NON-RECOURSE;
REPURCHASE OBLIGATIONS.


 


4.1          Non-Recourse.  Except as otherwise set forth in this
Agreement, Buyer’s acquisition of Purchased Receivables from Seller hereunder
shall be without recourse against Seller.


 


4.2          Seller’s Agreement to Repurchase.  Seller agrees to pay to Buyer on
demand, the full face amount, or any unpaid portion, of any Purchased
Receivable: (A) with respect to such Purchase Receivable there has been
any breach of warranty or representation set forth in Section 6.1
hereof (except for breaches of warranty or representations which are permitted
to be, and have been, cured pursuant to Section 7 and/or 10 hereof)
or any breach of any covenant contained in this Agreement with respect to such
Purchased Receivable; or (B) with respect to such Purchased Receivable the
Account Debtor asserts any discount, allowance, return, dispute, counterclaim,
offset, defense, right of recoupment, right of return, warranty claim, or short
payment (except for such matters as are permitted to be, and have been, cured
pursuant to Section 7 and/or 10 hereof); together with, in the case
of (A) or (B), all reasonable attorneys’ and professional fees and
expenses and all court costs incurred by Buyer in collecting such Purchased
Receivable and/or enforcing its rights under, or collecting amounts owed by
Seller in connection with this Agreement (collectively, the “Repurchase Amount”).  Upon such payment, the respective Purchased
Receivables shall be deemed property of and owned solely by the Seller (and
shall not be deemed to be a Purchased Receivable hereunder).


 


4.3          Seller’s Payment of the Amounts Due Buyer. 
All amounts due from Seller to Buyer shall be paid by Seller
to Buyer in immediately available funds by federal wire pursuant to
instructions provided from time to time by Buyer.


 


5              POWER OF ATTORNEY.


 


Seller does hereby irrevocably appoint Buyer and its
successors and assigns as Seller’s true and lawful attorney-in-fact, and hereby
authorizes Buyer: (a) to sell, assign, transfer, pledge, compromise, or
discharge the whole or any part of the Purchased Receivables; (b) to
demand, collect, receive, sue, and give releases to any Account Debtor for the
monies due or which may become due upon or with respect to the Purchased
Receivables and to compromise, prosecute, or defend any action, claim, case or
proceeding relating to the Purchased Receivables, including the filing of a
claim or the voting of such claims in any bankruptcy case, all in Buyer’s name
or Seller’s name, as Buyer may choose; (c) to prepare, file and sign
Seller’s name on any notice, claim, assignment, demand, draft, or notice of or
satisfaction of lien or mechanics’ lien or similar document with respect to
Purchased Receivables; (d) to notify all Account Debtors with respect to
the Purchased Receivables to pay Buyer directly; (e) to receive, open, and
dispose of all mail addressed to Seller for the purpose of collecting the
Purchased Receivables; (f) to endorse Seller’s name on any checks or other
forms of payment on the Purchased Receivables; (g) to execute on behalf of
Seller any and all instruments, documents, financing statements and the like to
perfect Buyer’s interests in the Purchased Receivables; and (h) to do all
acts and things necessary or expedient, in furtherance of any such purposes.


 


6              REPRESENTATIONS, WARRANTIES AND COVENANTS.


 


6.1          Receivables’ Warranties, Representations and Covenants.  To induce Buyer to purchase the Purchased
Receivables and to render its services to Seller, and with full knowledge that
the truth and accuracy of the following are being relied upon by the Buyer in
determining whether to accept receivables as Purchased Receivables, Seller
represents, warrants, covenants and agrees, with respect to each Purchased
Receivable, that, as of the date of the applicable Purchase pertaining to such
Purchased Receivable:


 


(a)           Seller is
the absolute owner of each of the Purchased Receivables and has full legal
right to sell, transfer and assign such receivables;


 


(b)           The
correct amount of each Purchased Receivable is as set forth on the applicable
Schedule and is not in dispute;


 


(c)           The
payment of each Purchased Receivable is not contingent upon the fulfillment of
any obligation or contract, and any and all obligations required of the Seller
have been fulfilled as of the applicable Purchase Date;


 


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(d)           Such
Purchased Receivable is based on an actual sale and delivery of goods and/or
services actually rendered, is due no later than the applicable Due Date and is
owing to Seller, is not past due or in default, has not been previously sold,
assigned, transferred, or pledged, and is free of any and all liens, security
interests and encumbrances other than liens, security interests or encumbrances
in favor of Buyer or any other division or affiliate of Silicon Valley Bank;


 


(e)           There are
no defenses, offsets, or counterclaims against such Purchased Receivable, and
no agreement has been made under which the Account Debtor may claim any
deduction or discount, except as otherwise stated on the applicable Schedule;


 


(f)            Seller
and, to Seller’s knowledge, each Account Debtor set forth on the applicable
Schedule with respect to such Purchased Receivable, is not insolvent as that
term is defined in the United States Bankruptcy Code and the California Uniform
Commercial Code, and no such Account Debtor, to the knowledge of Seller, has
filed or had filed against it a voluntary or involuntary petition for relief
under the United States Bankruptcy Code; and


 


(g)           No
Account Debtor set forth on the applicable Schedule with respect to such
Purchased Receivable has objected to the payment for, or the quality or the quantity
of the subject matter of, the Purchased Receivable, each such Account Debtor is
liable for the amount set forth on such Schedule.


 


6.2          Additional Warranties, Representations and
Covenants.  In addition to the
foregoing warranties, representations and covenants, to induce Buyer to buy the
Purchased Receivables, Seller hereby represents, warrants, covenants and agrees
that:


 


(a)           Seller
will not assign, transfer, sell, or grant, or permit any lien or security
interest in any interest the Seller may have in any Purchased Receivables to or
in favor of any other party, without Buyer’s prior written consent.


 


(b)           The
Seller’s name, form of organization, chief executive office, and the place
where the records concerning all Purchased Receivables are kept is set forth at
the beginning of this Agreement or, if located at any additional location, as
set forth on a schedule attached to this Agreement, and Seller will give Buyer
at least 10 days prior written notice if such name, organization, chief
executive office or records concerning Purchased Receivables is changed or
added and shall execute any documents necessary to perfect Buyer’s interest in
the Purchased Receivables.


 


(c)           Seller
shall (i) pay all of its normal gross payroll for employees, and all
federal and state taxes, as and when due, including without limitation all
payroll and withholding taxes and state sales taxes; (ii) deliver at any
time and from time to time at Buyer’s reasonable request, evidence satisfactory
to Buyer that all such amounts have been paid to the proper taxing authorities.


 


(d)           Seller
has not filed a voluntary petition for relief under the United States
Bankruptcy Code or had filed against it an involuntary petition for relief and
is not contemplating or anticipating any such filing.


 


(e)           If
Payment in Full of any Purchased Receivable has not occurred by the applicable
Due Date, then Seller shall within 10 days of such date provide a written
report to Buyer setting forth the reasons for such delay in payment.


 


(f)            So long
as any Purchased Receivable is outstanding, Seller shall deliver to Buyer:  i) weekly, each Friday, a settlement report
as detailed in Section 3.2 hereof and (ii) within five (5) days
of filing, copies of all statements, reports and notices made available to
Seller’s security holders and all reports on Form 10-K, 10-Q and 8-K filed
with the Securities and Exchange Commission.


 


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7              ADJUSTMENTS.


 


In the event any Adjustment or dispute is asserted by
any Account Debtor, Seller shall promptly advise Buyer and Seller shall,
subject to the Buyer’s approval, resolve such disputes and advise Buyer of any
Adjustments and promptly remit to Buyer the difference between the Invoice
Amount on the Purchase Date and the Invoice Amount after such Adjustment.  Unless Buyer has otherwise elected to
exercise its rights under Section 4.2 hereof, Buyer shall remain the
absolute owner of any Purchased Receivable which is subject to Adjustment, and,
until the amount of such adjustment (as set forth above) is paid by Seller to
Buyer, any rejected, returned, or recovered personal property, with the right
to take possession thereof at any time, and if such possession is not taken by
Buyer, Seller agrees to resell it for Buyer’s account at Seller’s expense with
the proceeds made payable to Buyer. 
While Seller retains possession of said returned goods and such goods
are the property of Buyer, Seller shall segregate said goods and mark them “property
of Silicon Valley Bank.”


 


8              INDEMNIFICATION.


 


(a)            Seller
hereby agrees that in the event any Account Debtor is released from all or any
part of its payment obligations with respect to any Purchased Receivable by
reason of: (1) any act or omission of Seller not permitted by this
Agreement and not consented to in writing by Buyer; or (2) the operation
of any of the provisions of the documentation pertaining to such Purchased
Receivables, which result in the termination of the Account Debtor’s obligation
to pay all of any part of the Purchased Receivables, then, upon the happening
of any such event, Seller shall thereafter pay to Buyer on the date when the
Account Debtor would otherwise have paid the Purchased Receivable to Buyer an
amount equal to the lesser of (a) the amount of the Purchased Receivable
not payable by the Account Debtor as a result of such event and (b) the
unpaid portion of the Purchased Receivable Amount for such Purchased
Receivable.


 


(b)            Seller
hereby agrees to pay, and to indemnify and hold harmless Buyer from and
against, any taxes which may at any time be asserted in respect of this
transaction or the subject matter thereof (including, without limitation, any
sales, occupational, excise, gross receipts, general corporation, personal
property, privilege or license taxes, but not including taxes imposed upon the
Buyer with respect to its income arising out of this transaction) and costs,
expenses and reasonable counsel fees in defending against the same, whether
arising by reason of the acts to be performed by Seller hereunder or imposed against
Buyer, Seller, the property involved or otherwise; provided that with
respect to any of the foregoing for which Seller shall be liable, Seller shall
receive reasonably prompt notice from Buyer of this assertion of any such taxes
on Buyer of which Buyer has notice.


 


9              ADDITIONAL RIGHTS.


 


To
secure the prompt payment and performance to Buyer of all of the Purchased
Receivables and the obligations of Seller hereunder, Seller hereby grants to
Buyer a continuing lien upon and security interest in all of Seller’s now
existing or hereafter arising rights and interest in the following, whether now
owned or existing or hereafter created, acquired, or arising, and wherever
located (the “Related Property”): (A) Seller’s rights to any returned or
rejected goods in respect of the Purchased Receivables, with respect to which
Buyer has all the rights of any unpaid seller, including the rights of
replevin, claim and delivery, reclamation, and stoppage in transit; (B) All
books and records pertaining to the Purchased Receivables or the foregoing
goods; and (C) All proceeds of the foregoing, whether due to voluntary or
involuntary disposition, including insurance proceeds.  Seller is not authorized to sell, assign,
transfer or otherwise convey any interest in any Related Property without Buyer’s
prior written consent.  Seller agrees to
sign UCC financing statements, in a form acceptable to Buyer, and any other
instruments and documents requested by Buyer to evidence, perfect, or protect
the interests of Buyer in the Purchased Receivables and the Related
Property.  Seller agrees to deliver to
Buyer the originals of all instruments, chattel paper and documents evidencing
or related to Purchased Receivables and Related Property.


 


10           DEFAULT.


 


The occurrence of any one or more of the following
shall constitute an Event of Default hereunder:


 


(a)           Seller
fails to pay any amount owed to Buyer as and when due;


 


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(b)           There
shall be commenced by or against Seller any voluntary or involuntary case under
the United States Bankruptcy Code, or any assignment for the benefit of
creditors, or appointment of a receiver or custodian for any of its assets;


 


(c)           Seller
shall become insolvent in that its debts are greater than the fair value of its
assets, or Seller is generally not paying its debts as they become due or is
left with unreasonably small capital;


 


(d)           Any
involuntary lien, garnishment, attachment or the like is issued against or
attaches to the Purchased Receivables or any Related Property;


 


(e)           Seller
shall breach any covenant, agreement, warranty, or representation set forth
herein, and the same is not cured (whether pursuant to the provisions of Section 6
hereof, if applicable, or otherwise) to Buyer’s satisfaction within 10 days after
Buyer has given Seller oral or written notice thereof; provided, that if such
breach is incapable of being cured it shall constitute an immediate default
hereunder;


 


(f)            Seller
is not in compliance with, or otherwise is in default under, any term of any
document, instrument or agreement evidencing a debt, obligation or liability of
any kind or character of Seller, now or hereafter existing, in favor of Buyer
or any division or affiliate of Silicon Valley Bank, regardless of whether such
debt, obligation or liability is direct or indirect, primary or secondary,
joint, several or joint and several, or fixed or contingent, together with any
and all renewals and extensions of such debts, obligations and liabilities, or
any part thereof; or


 


(g)           An event
of default shall occur under any guaranty executed by any guarantor of the
obligations of Seller to Buyer under this Agreement, or any material provision
of any such guaranty shall for any reason cease to be valid or enforceable or
any such guaranty shall be repudiated or terminated, including by operation of
law.


 


11           REMEDIES UPON DEFAULT.


 


Upon the occurrence of an Event of Default, Buyer has
and may exercise all the rights and remedies under this Agreement and under
applicable law, including the rights and remedies of a secured party under the
California Uniform Commercial Code, all the power of attorney rights described
in Section 5 with respect to all Purchased Receivables and Related
Property, and the right to collect, dispose of, sell, lease, use, and realize
upon all Purchased Receivables and all Related Property.


 


12           ACCRUAL OF INTEREST.


 


If any amount owed by Seller to Buyer hereunder is not
paid when due, such amount shall bear interest from such date until paid at a
per annum rate equal to the Prime Rate plus 5.0%.


 


13           FEES, COSTS AND EXPENSES.


 


The Seller will pay to Buyer immediately upon demand
all reasonable fees, costs and expenses (including reasonable fees of attorneys
and professionals and their costs and expenses) that Buyer incurs with any of the
following: (a) preparing, negotiating, and administering, and enforcing
this Agreement or any other agreement executed by Buyer and Seller in
connection herewith, including any amendments, waivers or consents in
connection with any of the foregoing, (b) enforcing Buyer’s rights under,
or collecting amounts owed by Seller to Buyer in connection with this
Agreement, including, without limitation, to enforce (i) Seller’s
agreement to repurchase as set forth in Section 4.2, (ii) Seller’s
payment of any amounts owing by Seller pursuant to Section 7 hereof, or (iii) Seller’s
payment of any amounts owing by Seller pursuant to Section 8 hereof, (c) enforcing
any other rights against Seller or any guarantor, (d) protecting or
enforcing its title to the Purchased Receivables or its security interest in
the Related Property, and (e) the representation of Buyer in connection
with any bankruptcy case or insolvency proceeding involving Seller or any
guarantor.  Seller shall indemnify and
hold Buyer harmless from and against any and all claims, actions, damages,
costs, expenses, and liabilities of any nature whatsoever arising in connection
with any of the foregoing, except to the extent arising as a result of Buyer’s
own gross negligence or willful misconduct.


 


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14           SEVERABILITY, WAIVER, AND CHOICE OF LAW.


 


In
the event that any provision of this Agreement is deemed invalid by reason of
law, this Agreement will be construed as not containing such provision and the
remainder of the Agreement shall remain in full force and effect.  If Buyer waives a default it may enforce a
later default.  Any consent or waiver
under, or amendment of, this Agreement must be in writing.  Nothing contained herein, or any action taken
or not taken by Buyer at any time, shall be construed at any time to be
indicative of any obligation or willingness on the part of Buyer to amend this
Agreement or to grant to Seller any waivers or consents.  This Agreement has been transmitted by Seller
to Buyer at Buyer’s office in the State of California and has been executed and
accepted by Buyer in the State of California. 
This Agreement shall be governed by and interpreted in accordance with
the internal laws of the State of California.


 


15           NOTICES.


 


All notices shall be given to Buyer and Seller at the
addresses or faxes set forth on the first page of this Agreement and shall
be deemed to have been delivered and received: (a) if mailed, three
calendar days after deposited in the United States mail, first class, postage
pre-paid, (b) one calendar day after deposit with an overnight mail or
messenger service; or (c) on the same date of confirmed transmission if
sent by hand delivery, telecopy, telefax or telex.


 


16           JURY TRIAL.


 


SELLER
AND BUYER EACH HEREBY (a) WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL ON
ANY CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY
RELATED AGREEMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY; (b) RECOGNIZE
AND AGREE THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO
ENTER INTO THIS AGREEMENT; AND (c) REPRESENT AND WARRANT THAT IT HAS
REVIEWED THIS WAIVER, HAS DETERMINED FOR ITSELF THE NECESSITY TO REVIEW THE
SAME WITH ITS LEGAL COUNSEL, AND KNOWINGLY AND VOLUNTARILY WAIVES ALL RIGHTS TO
A JURY TRIAL.


 


17           TITLES AND SECTION HEADINGS.


 


The titles and section headings used herein are for
convenience only and shall not be used in interpreting this Agreement.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement under
seal as of the date first written above.


 


SELLER:


 


	
  FINISAR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
    /s/ S. K.
  Workman

  	
   

  
	
  Title

  	
    CFO

  	
   

  
	
   

  	
   

  	
   

  
	
  BUYER:

  	
   

  
	
   

  	
   

  
	
  SILICON VALLEY BANK

  	
   

  
	
   

  	
   

  
	
  By

  	
    /s/ Amanda
  Peters

  	
   

  
	
  Title

  	
    V.P.

  	
   

  
							



 


9

















 


EXHIBIT A


SCHEDULE


 


10

















 


SCHEDULE DATED                                      


TO


NON-RECOURSE RECEIVABLES PURCHASE
AGREEMENT


 


DATED AS OF OCTOBER       ,
2004


 


	
  Seller:

  	
   

  	
  Finisar Corporation

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  Silicon Valley Bank

  
	
   

  	
   

  	
   

  
	
  Purchase
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Due
  Date:

  	
   

  	
             days
  from Purchase Date (not less than thirty (30) days)

  
	
   

  	
   

  	
   

  
	
  Total
  Purchased Receivables:

  	
   

  	
  $                  (List
  of Receivables total)

  
	
   

  	
   

  	
   

  
	
  Discount
  Rate:

  	
   

  	
                 % (Prime Rate + 0.50%)

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price:

  	
   

  	
  $                        (is                             %
  of the Total Purchased Receivables which is the 

  
	
  straight discount of
  the Total Purchased Receivables discounted from the Due Date to the Purchase
  Date at the Discount Rate).

  
	
   

  	
   

  	
   

  
	
  Administrative
  Fee:

  	
   

  	
               (0.25%
  multiplied by the Total Purchased Receivables.)

  
	
   

  	
   

  	
   

  
	
  Interest
  Reserve:

  	
   

  	
  $                  

  



 


Seller warrants
and represents that (a) its warranties and representations in the
Agreement are true and correct as of the date of this Schedule and (b) no
Event of Default has occurred under the Agreement.


 


SELLER:  FINISAR CORPORATION


 


	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BUYER: SILICON VALLEY
  BANK

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


11

















 


FIRST AMENDMENT TO NON-RECOURSE
RECEIVABLES PURCHASE AGREEMENT


 


This
First Amendment to Non-Recourse Receivables Purchase Agreement (this “First
Amendment”) is entered into as of Oct. 20, 2005, by and between SILICON VALLEY BANK, a California-chartered bank, 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, 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.


 


1.             The
Purchase Agreement shall be amended by deleting the following text appearing in
Section 2.1 thereof:


 


“Each
purchase and sale hereunder shall be in the sole discretion of Buyer and
Seller.  In any event, Buyer will not (i) purchase
any Receivables in excess of an aggregate outstanding amount exceeding Twenty
Million Dollars ($20,000,000.00), or (ii) purchase any Receivables under
this Agreement after October 27, 2005.”


 


and
inserting in lieu thereof the following:


 


“Each
purchase and sale hereunder shall be in the sole discretion of Buyer and
Seller.  In any event, Buyer will not (i) purchase
any Receivables in excess of an aggregate outstanding amount exceeding Twenty
Million Dollars ($20,000,000.00), or (ii) purchase any Receivables under
this Agreement after October 26, 2006.”


 


3.             FEES.  Seller shall pay to Buyer a facility fee
equal to $15,000.00, which fee shall be due on the date hereof and shall be
deemed fully earned as of the date hereof. 
Seller shall also reimburse Buyer for all legal fees and expenses
incurred in connection with this amendment to the Purchase Agreement.


 


4.             RATIFICATION OF
PERFECTION CERTIFICATES.  Seller
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in that certain Perfection Certificate dated as of October 28,
2004 and acknowledges, confirms and agrees the disclosures and information
provided to Buyer in the Perfection Certificate have not changed, as of the
date hereof.


 


5.             CONTINUING
VALIDITY.  Except as expressly
modified pursuant to this First Amendment, the terms of the Purchase Agreement
remain unchanged and in full force and effect. 
Buyer’s agreement to modifications to the Purchase Agreement pursuant to
this First Amendment in no way shall obligate Buyer to make any future
modifications to the Purchase Agreement. 
It is the intention of Buyer and Seller to retain as liable parties all
makers of the Purchase Agreement, unless the party is expressly released by
Buyer in writing.  No maker will be
released by virtue of this First Amendment.


 


12

















 


6.             COUNTERSIGNATURE.  This First Amendment shall become effective
only when it shall have been executed by Seller and Buyer.


 


This First Amendment is executed as a sealed
instrument under the laws of the State of California as of the date first
written above.


 


	
  SELLER:

  	
  BUYER:

  
	
   

  	
   

  
	
  FINISAR CORPORATION

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  
	
  By:

  	
    /s/
  S. K. Workman

  	
   

  	
  By:

  	
    /s/ Amanda
  Peters

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
    S. K.
  Workman

  	
   

  	
  Name:

  	
    Amanda
  Peters

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
    CFO

  	
   

  	
  Title:

  	
    Vice
  President

  



 














 


SECOND
AMENDMENT TO NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT


 


This Second
Amendment to Non-Recourse Receivables Purchase Agreement (this “First Amendment”)
is entered into as of Oct. 26, 2006, and is effective as of October 26,
2006, by and between SILICON VALLEY BANK, a
California-chartered bank, 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 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.


 


1.                                   The
Purchase Agreement shall be amended by deleting the following text appearing in
Section 2.1 thereof:


 


“Each purchase and sale hereunder shall be in the sole
discretion of Buyer and Seller.  In any
event, Buyer will not (i) purchase any Receivables in excess of an
aggregate outstanding amount exceeding Twenty Million Dollars ($20,000,000.00),
or (ii) purchase any Receivables under this Agreement after October 26,
2006.”


 


and inserting in lieu thereof the following:


 


“Each purchase and sale hereunder shall be in the sole
discretion of Buyer and Seller.  In any
event, Buyer will not (i) purchase any Receivables in excess of an
aggregate outstanding amount exceeding Twenty Million Dollars ($20,000,000.00),
or (ii) purchase any Receivables under this Agreement after December 25,
2006.”


 


3.             FEES.  Seller shall pay to Buyer a modification fee
equal to $2,500.00, which fee shall be due on the dale hereof and shall be
deemed fully earned as of the date hereof. 
Seller shall also reimburse Buyer for all legal fees and expenses
incurred in connection with this amendment to the Purchase Agreement.


 


4.             RATIFICATION OF
PERFECTION CERTIFICATES.  Seller
hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures
contained in that certain Perfection Certificate dated as of October 20,
2005, and acknowledges, confirms and agrees the disclosures and information
provided to Buyer in the Perfection Certificate have not changed, as of the
date hereof.


 


5.             NO DEFENSES OF
SELLER.  Seller hereby acknowledges
and agrees that Seller has no offsets, defenses, claims, or counterclaims
against Buyer, and that if Seller now has, or ever did have, any offsets,
defenses, claims, or counterclaims against Buyer, whether known or unknown, at
law or in equity, all of them are hereby expressly WAIVED and Seller hereby
RELEASES Buyer from any liability thereunder.


 


6.             CONTINUING
VALIDITY.  Except as expressly
modified pursuant to this First Amendment, the terms of the Purchase Agreement
remain unchanged and in full force and effect. 
Buyer’s agreement to modifications to the Purchase Agreement pursuant to
this First Amendment in no way shall obligate Buyer to make any future


 

















 


modifications to
the Purchase Agreement.  It is the
intention of Buyer and Seller to retain as liable parties all makers of the
Purchase Agreement, unless the party is expressly released by Buyer in
writing.  No maker will be released by

virtue of this First Amendment.


 


7.             COUNTERSIGNATURE.  This Second Amendment shall become effective
only when it shall have been executed by Seller and Buyer.


 


[The
remainder of this page is intentionally left blank]


 

















 


This Second Amendment is
executed as a sealed instrument under the laws of the State of California as of
the date first written above.


 


	
  BORROWER:

  	
   

  	
  BANK:

  
	
   

  	
   

  	
   

  	
   

  
	
  FINISAR CORPORATION

  	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ S. K. Workman

  	
   

  	
  By:

  	
  /s/ Nick Tsiagkas

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  S. K. Workman

  	
   

  	
  Name:

  	
  Nick Tsiagkas

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
  Title:

  	
  Relationship Manager

  
						



 

















 


THIRD
AMENDMENT TO NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT


 


This Third
Amendment to Non-Recourse Receivables Purchase Agreement (this “Amendment”) is
entered into as of December 21, 2006, and is effective as of December 25,
2006, by and between SILICON VALLEY BANK, a California-chartered bank, 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, and 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 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.


 


1.                                       The
Purchase Agreement shall be amended by deleting the following text appearing in
Section 2.1 thereof:


 


“Each purchase and sale
hereunder shall be in the sole discretion of Buyer and Seller.  In any event, Buyer will not (i) purchase
any Receivables in excess of an aggregate outstanding amount exceeding Twenty
Million Dollars ($20,000,000.00), or (ii) purchase any Receivables under
this Agreement after December 25, 2006.”


 


and inserting in lieu
thereof the following:


 


“Each purchase and sale
hereunder shall be in the sole discretion of Buyer and Seller.  In any event, Buyer will not (i) purchase
any Receivables in excess of an aggregate outstanding amount exceeding Twenty
Million Dollars ($20,000,000.00), or (ii) purchase any Receivables under
this Agreement after October 26, 2007.”


 


2.                                       The
Schedule appearing as Exhibit A to the Loan Agreement is hereby
replaced with the Schedule attached as Exhibit A hereto.


 


3.             10-Q FILINGS.  Notwithstanding the terms of the Purchase
Agreement to the contrary, Seller must deliver to Buyer its 10-Q filings with
respect to its fiscal quarters ending October 31, 2006 and January 31,
2007 on or before April 30, 2007.


 


4.             FEES.  Seller shall pay to Buyer a modification fee
equal to $12,500.00, which fee shall be due on the date hereof and shall be
deemed fully earned as of the date hereof. 
Seller shall also reimburse Buyer for all legal fees and expenses
incurred in connection with this amendment to the Purchase Agreement.


 


5.             RATIFICATION OF
PERFECTION CERTIFICATE.  Seller
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in that certain Perfection Certificate dated as of October 20,
2005, and acknowledges, confirms and agrees the disclosures and information
provided to Buyer in the Perfection Certificate have not changed, as of the
date hereof.


 

















 


6.             NO DEFENSES OF
SELLER.  Seller hereby acknowledges
and agrees that Seller has no offsets, defenses, claims, or counterclaims
against Buyer, and that if Seller now has, or ever did have, any offsets,
defenses, claims, or counterclaims against Buyer, whether known or unknown, at
law or in equity, all of them are hereby expressly WAIVED and Seller hereby
RELEASES Buyer from any liability thereunder.


 


7.             CONTINUING
VALIDITY.  Except as expressly
modified pursuant to this Amendment, the terms of the Purchase Agreement remain
unchanged and in full force and effect. 
Buyer’s agreement to modifications to the Purchase Agreement pursuant to
this Amendment in no way shall obligate Buyer to make any future modifications
to the Purchase Agreement.  It is the
intention of Buyer and Seller to retain as liable parties all makers of the
Purchase Agreement, unless the party is expressly released by Buyer in
writing.  No maker will be released by
virtue of this Amendment.


 


8.             COUNTERSIGNATURE.  This Amendment shall become effective only
when it shall have been executed by Seller and Buyer.


 


[The
remainder of this page is intentionally left blank]


 

















 


This Amendment is
executed as a sealed instrument under the laws of the State of California as of
the date first written above.


 


	
  SELLER:

  	
   

  	
  BUYER:

  
	
   

  	
   

  	
   

  
	
  FINISAR CORPORATION

  	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J.E. Drury

  	
   

  	
  By:

  	
  /s/ Nick Tsiagkas

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  John Drury

  	
   

  	
  Name:

  	
  Nick Tsiagkas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President and
  Corporate

  	
   

  	
  Title:

  	
  Relationship Manager

  
	
   

  	
  Controller and Acting
  CFO

  	
   

  	
   

  



 

















 


FOURTH
AMENDMENT TO NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT


 


This Fourth Amendment to Non-Recourse Receivables
Purchase Agreement (this “Amendment”) is entered into as of Nov. 1, 2007,
and is effective as of October 26, 2007, 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, and 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 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.


 


1.                                 The
Purchase Agreement shall be amended by deleting the following text appearing in
Section 2.1 thereof:


 


“In any event, Buyer will
not (i) purchase any Receivables in excess of an aggregate outstanding
amount exceeding Twenty Million Dollars ($20,000,000.00), or (ii) purchase
any Receivables under this Agreement after October 26, 2007.”


 


and inserting in lieu
thereof the following:


 


“in any event, Buyer will
not (i) purchase any Receivables in excess of an aggregate outstanding
amount exceeding Twenty Million Dollars ($20,000,000.00), or (ii) purchase
any Receivables under this Agreement after October 25, 2008.”


 


3.             10-Q FILINGS.  Notwithstanding the terms of the Purchase
Agreement to the contrary, Buyer and Seller hereby agree that Seller must
deliver to Buyer its 10-Q filings with respect to its fiscal quarters
ended/ending October 31, 2006, January 31, 2007, July 31, 2007, October 31,
2007 and January 31, 2008 on or before April 30, 2008.


 


4.             10-K FILINGS.  Notwithstanding the terms of the Purchase
Agreement to the contrary, Buyer and Seller hereby agree that Seller must
deliver to Buyer its 10-K filing with respect to its fiscal year ended April 30,
2007 on or before April 30, 2008.


 


5.             FEES.  Seller shall pay to Buyer a modification fee
equal to $15,000.00, which fee shall be due on the date hereof and shall be
deemed fully earned as of the date hereof. 
Seller shall also reimburse Buyer for all legal fees and expenses
incurred in connection with this amendment to the Purchase Agreement.


 


6.             RATIFICATION OF
PERFECTION CERTIFICATE.  Seller
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in that certain Perfection Certificate dated as of October 20,
2005,


 

















 


and acknowledges,
confirms and agrees the disclosures and information provided to Buyer in the
Perfection Certificate have not changed, as of the date hereof.


 


7.            NO DEFENSES OF
SELLER.  Seller hereby acknowledges and
agrees that Seller has no offsets, defenses, claims, or counterclaims against
Buyer, and that if Seller now has, or ever did have, any offsets, defenses,
claims, or counterclaims against Buyer, whether known or unknown, at law or in
equity, all of them are hereby expressly WAIVED and Seller hereby RELEASES
Buyer from any liability thereunder.


 


8.            CONTINUING VALIDITY.  Except as expressly modified pursuant to this
Amendment, the terms of the Purchase Agreement remain unchanged and in full
force and effect.  Buyer’s agreement to
modifications to the Purchase Agreement pursuant to this Amendment in no way
shall obligate Buyer to make any future modifications to the Purchase
Agreement.  It is the intention of Buyer
and Seller to retain as liable parties all makers of the Purchase Agreement,
unless the party is expressly released by Buyer in writing.  No maker will be released by virtue of this
Amendment.


 


9.            COUNTERSIGNATURE.  This Amendment shall became effective only
when it shall have been executed by Seller and Buyer.


 


[The
remainder of this page is intentionally left blank]


 

















 


This
Amendment is executed as a sealed instrument under the laws of the State of
California as of the date first written above.


 


	
  SELLER:

  	
   

  	
  BUYER:

  
	
   

  	
   

  	
   

  	
   

  
	
  FINISAR CORPORATION

  	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ S. K. Workman

  	
   

  	
  By:

  	
  /s/ Nick Tsiagkas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  S. K. Workman

  	
   

  	
  Name:

  	
  Nick Tsiagkas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
  Title:

  	
  Relationship Manager

  
						



 

















 


FIFTH
AMENDMENT TO NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT


 


This Fifth
Amendment to Non-Recourse Receivables Purchase Agreement (this “Amendment”) is
entered into as of March 14, 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, and as further amended by a certain Fourth Amendment
to Non-Recourse Receivables Purchase Agreement dated as of November 1,
2007, 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.


 


1.                                     The
Purchase Agreement shall be amended by inserting the following new definition,
appearing alphabetically in Section 1 thereto (and thereby amending the
existing numbering in Section 1):


 


“              “Revolving Line Agreement” is  that certain Loan and Security Agreement
dated as of March 14, 2008 between Seller and Buyer, as may be amended
from time to time.”


 


2.                                     The
Purchase Agreement shall be amended by deleting the following text appearing in
Section 2.1 thereof:


 


“In any event, Buyer will
not (i) purchase any Receivables in excess of an aggregate outstanding
amount exceeding Twenty Million Dollars ($20,000,000.00), or (ii) purchase
any Receivables under this Agreement after October 25, 2008.”


 


and inserting in lieu
thereof the following:


 


“In any event, Buyer will
not (i) purchase any Receivables in excess of an aggregate outstanding
amount exceeding Ten Million Dollars ($10,000,000.00), or (ii) purchase
any Receivables under this Agreement after October 25, 2008.”


 


3.                                     The
Purchase Agreement shall be amended by deleting the following text appearing in
Section 10 thereof:


 


“              (g)          An event of default shall occur under any
guaranty executed by any guarantor of the obligations of Seller to Buyer under
this Agreement, or any material provision of any such guaranty shall for any
reason cease to be valid or enforceable or any such guaranty shall be
repudiated or terminated, including by operation of law.”


 

















 


and inserting in lieu
thereof the following:


 


“              (g)           An Event of Default (as defined in the
Revolving Line Agreement) under the Revolving Line Agreement; or


 


(h)           An event of default
shall occur under any guaranty executed by any guarantor of the obligations of
Seller to Buyer under this Agreement, or any material provision of any such
guaranty shall for any reason cease to be valid or enforceable or any such
guaranty shall be repudiated or terminated, including by operation of law.”


 


3.             FEES.  Seller shall reimburse Buyer for all legal
fees and expenses incurred in connection with this amendment to the Purchase
Agreement.


 


4.             RATIFICATION OF
PERFECTION CERTIFICATE.  Seller
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in that certain Perfection Certificate dated as of October 20,
2005, and acknowledges, confirms and agrees the disclosures and information
provided to Buyer in the Perfection Certificate have not changed, as of the
date hereof.


 


5.             NO DEFENSES OF
SELLER.  Seller hereby acknowledges
and agrees that Seller has no offsets, defenses, claims, or counterclaims
against Buyer, and that if Seller now has, or ever did have, any offsets,
defenses, claims, or counterclaims against Buyer, whether known or unknown, at
law or in equity, all of them are hereby expressly WAIVED and Seller hereby
RELEASES Buyer from any liability thereunder.


 


6.             CONTINUING
VALIDITY.  Except as expressly
modified pursuant to this Amendment, the terms of the Purchase Agreement remain
unchanged and in full force and effect. 
Buyer’s agreement to modifications to the Purchase Agreement pursuant to
this Amendment in no way shall obligate Buyer to make any future modifications
to the Purchase Agreement.  It is the
intention of Buyer and Seller to retain as liable parties all makers of the
Purchase Agreement, unless the party is expressly released by Buyer in
writing.  No maker will be released by
virtue of this Amendment.


 


7.             COUNTERSIGNATURE.  This Amendment shall become effective only
when it shall have been executed by Seller and Buyer.


 


[The
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This Amendment is
executed as a sealed instrument under the laws of the State of California as of
the date first written above.


 


	
  SELLER:

  	
   

  	
  BUYER:

  
	
   

  	
   

  	
   

  
	
  FINISAR CORPORATION

  	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ S. K. Workman

  	
   

  	
  By:

  	
  /s/ Nick Tsiagkas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  S. K. Workman

  	
   

  	
  Name:

  	
  Nick Tsiagkas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CFO

  	
   

  	
  Title:

  	
  Relationship Manager