Exhibit 10.11





Exhibit 10.11




AMENDED AND RESTATED




CREDIT AGREEMENT




by and among




OCLARO, INC.




as Parent,




OCLARO TECHNOLOGY LIMITED




as Borrower,




THE LENDERS THAT ARE SIGNATORIES HERETO




as the Lenders,




and




WELLS FARGO CAPITAL FINANCE, INC.




as the Agent




Dated as of July 26, 2011




Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.


 


 









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	1. DEFINITIONS AND CONSTRUCTION
	 	 	1	 
	1.1 Definitions
	 	 	1	 
	1.2 Accounting Terms
	 	 	1	 
	1.3 Code
	 	 	1	 
	1.4 Construction
	 	 	2	 
	1.5 Schedules and Exhibits
	 	 	2	 
	2. LOANS AND TERMS OF PAYMENT
	 	 	2	 
	2.1 Revolver Advances
	 	 	2	 
	2.2 Reserved
	 	 	3	 
	2.3 Borrowing Procedures and Settlements
	 	 	3	 
	2.4 Payments; Prepayments
	 	 	8	 
	2.5 Overadvances
	 	 	10	 
	2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations
	 	 	10	 
	2.7 Crediting Payments
	 	 	12	 
	2.8 Designated Account
	 	 	12	 
	2.9 Maintenance of Loan Account; Statements of Obligations
	 	 	12	 
	2.10 Fees
	 	 	12	 
	2.11 Letters of Credit
	 	 	13	 
	2.12 LIBOR Option
	 	 	16	 
	2.13 Capital Requirements
	 	 	18	 
	3. CONDITIONS; TERM OF AGREEMENT
	 	 	19	 
	3.1 Conditions Precedent to the Initial Extension of Credit
	 	 	19	 
	3.2 Conditions Precedent to all Extensions of Credit
	 	 	19	 
	3.3 Maturity
	 	 	19	 
	3.4 Effect of Maturity
	 	 	19	 
	3.5 Early Termination by Borrower
	 	 	20	 
	3.6 Conditions Subsequent
	 	 	20	 
	4. REPRESENTATIONS AND WARRANTIES
	 	 	20	 
	4.1 Due Organization and Qualification; Subsidiaries
	 	 	20	 
	4.2 Due Authorization; No Conflict
	 	 	21	 
	4.3 Governmental Consents
	 	 	21	 
	4.4 Binding Obligations; Perfected Liens
	 	 	21	 
	4.5 Title to Assets; No Encumbrances
	 	 	22	 
	4.6 Jurisdiction of Organization; Location of Chief Executive Office;
Organizational Identification Number; Commercial Tort Claims
	 	 	22	 





 


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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	4.7 Litigation
	 	 	22	 
	4.8 Compliance with Laws
	 	 	22	 
	4.9 No Material Adverse Change
	 	 	23	 
	4.10 Fraudulent Transfer
	 	 	23	 
	4.11 Employee Benefits
	 	 	23	 
	4.12 Environmental Condition
	 	 	23	 
	4.13 Intellectual Property
	 	 	23	 
	4.14 Leases
	 	 	23	 
	4.15 Deposit Accounts and Securities Accounts
	 	 	24	 
	4.16 Complete Disclosure
	 	 	24	 
	4.17 Material Contracts
	 	 	24	 
	4.18 Patriot Act
	 	 	24	 
	4.19 Indebtedness
	 	 	24	 
	4.20 Payment of Taxes
	 	 	25	 
	4.21 Margin Stock
	 	 	25	 
	4.22 Governmental Regulation
	 	 	25	 
	4.23 OFAC
	 	 	25	 
	4.24 Employee and Labor Matters
	 	 	25	 
	4.25 Parent as a Holding Company
	 	 	25	 
	4.26 Eligible Accounts
	 	 	26	 
	4.27 Inventory
	 	 	26	 
	4.28 Equipment
	 	 	26	 
	4.29 Locations of Inventory and Equipment
	 	 	26	 
	4.30 Inventory Records
	 	 	26	 
	4.31 Inactive Obligors
	 	 	26	 
	4.32 Inactive Subsidiaries
	 	 	26	 
	5. AFFIRMATIVE COVENANTS
	 	 	27	 
	5.1 Financial Statements, Reports, Certificates
	 	 	27	 
	5.2 Collateral Reporting
	 	 	27	 
	5.3 Existence
	 	 	27	 
	5.4 Maintenance of Properties
	 	 	27	 
	5.5 Taxes
	 	 	27	 
	5.6 Insurance
	 	 	28	 
	5.7 Inspection
	 	 	28	 





 


-ii-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	5.8 Compliance with Laws
	 	 	28	 
	5.9 Environmental
	 	 	29	 
	5.10 Disclosure Updates
	 	 	29	 
	5.11 Formation of Subsidiaries
	 	 	29	 
	5.12 Further Assurances
	 	 	30	 
	5.13 Lender Meetings
	 	 	30	 
	5.14 Material Contracts
	 	 	30	 
	5.15 Location of Inventory and Equipment
	 	 	31	 
	5.16 Assignable Material Contracts
	 	 	31	 
	6. NEGATIVE COVENANTS
	 	 	31	 
	6.1 Indebtedness
	 	 	31	 
	6.2 Liens
	 	 	31	 
	6.3 Restrictions on Fundamental Changes
	 	 	31	 
	6.4 Disposal of Assets
	 	 	32	 
	6.5 Change Name
	 	 	32	 
	6.6 Nature of Business
	 	 	32	 
	6.7 Prepayments and Amendments
	 	 	32	 
	6.8 Change of Control
	 	 	33	 
	6.9 Restricted Junior Payments
	 	 	33	 
	6.10 Accounting Methods
	 	 	33	 
	6.11 Investments; Controlled Investments
	 	 	33	 
	6.12 Transactions with Affiliates
	 	 	34	 
	6.13 Use of Proceeds
	 	 	34	 
	6.14 Limitation on Issuance of Stock
	 	 	34	 
	6.15 Parent as Holding Company
	 	 	34	 
	6.16 Consignments
	 	 	34	 
	6.17 Inventory and Equipment with Bailees
	 	 	34	 
	7. FINANCIAL COVENANTS
	 	 	34	 
	7.1 Fixed Charge Coverage Ratio
	 	 	34	 
	8. EVENTS OF DEFAULT
	 	 	35	 
	9. RIGHTS AND REMEDIES
	 	 	37	 
	9.1 Rights and Remedies
	 	 	37	 
	9.2 Remedies Cumulative
	 	 	37	 





 


-iii-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	10. WAIVERS; INDEMNIFICATION
	 	 	37	 
	10.1 Demand; Protest; etc
	 	 	37	 
	10.2 The Lender Group’s Liability for Collateral
	 	 	37	 
	10.3 Indemnification
	 	 	38	 
	11. NOTICES
	 	 	39	 
	12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
	 	 	40	 
	13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS
	 	 	41	 
	13.1 Assignments and Participations
	 	 	41	 
	13.2 Successors
	 	 	43	 
	14. AMENDMENTS; WAIVERS
	 	 	43	 
	14.1 Amendments and Waivers
	 	 	43	 
	14.2 Replacement of Certain Lenders
	 	 	44	 
	14.3 No Waivers; Cumulative Remedies
	 	 	45	 
	15. AGENT; THE LENDER GROUP
	 	 	45	 
	15.1 Appointment and Authorization of Agent
	 	 	45	 
	15.2 Delegation of Duties
	 	 	46	 
	15.3 Liability of Agent
	 	 	46	 
	15.4 Reliance by Agent
	 	 	46	 
	15.5 Notice of Default or Event of Default
	 	 	47	 
	15.6 Credit Decision
	 	 	47	 
	15.7 Costs and Expenses; Indemnification
	 	 	48	 
	15.8 Agent in Individual Capacity
	 	 	48	 
	15.9 Successor Agent
	 	 	48	 
	15.10 Lender in Individual Capacity
	 	 	49	 
	15.11 Collateral Matters
	 	 	49	 
	15.12 Restrictions on Actions by Lenders; Sharing of Payments
	 	 	50	 
	15.13 Agency for Perfection
	 	 	53	 
	15.14 Payments by Agent to the Lenders
	 	 	53	 
	15.15 Concerning the Collateral and Related Loan Documents
	 	 	53	 
	15.16 Audits and Examination Reports; Confidentiality; Disclaimers by
Lenders; Other Reports and Information
	 	 	53	 
	15.17 Several Obligations; No Liability
	 	 	53	 
	16. WITHHOLDING TAXES
	 	 	55	 
	17. GENERAL PROVISIONS
	 	 	58	 
	17.1 Effectiveness
	 	 	58	 
	17.2 Section Headings
	 	 	58	 





 


-iv-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	17.3 Interpretation
	 	 	58	 
	17.4 Severability of Provisions
	 	 	58	 
	17.5 Bank Product Providers
	 	 	58	 
	17.6 Debtor-Creditor Relationship
	 	 	59	 
	17.7 Counterparts; Electronic Execution
	 	 	59	 
	17.8 Revival and Reinstatement of Obligations
	 	 	59	 
	17.9 Confidentiality
	 	 	59	 
	17.10 Lender Group Expenses
	 	 	60	 
	17.11 Survival
	 	 	60	 
	17.12 Patriot Act
	 	 	60	 
	17.13 Integration
	 	 	60	 
	17.14 Judgment Currency
	 	 	61	 
	17.15 Amendment and Restatement of Original Credit Agreement
	 	 	61	 






 


-v-









 







CREDIT AGREEMENT




THIS CREDIT AGREEMENT (this “Agreement”), is entered into as of July 26, 2011, by and
among the lenders identified on the signature pages hereof (each of such lenders, together with
their respective successors and permitted assigns, are referred to hereinafter as a
“Lender”, as that term is hereinafter further defined), WELLS FARGO CAPITAL FINANCE, INC.,
a California corporation, as administrative agent for the Lenders (in such capacity, together with
its successors and assigns in such capacity, “Agent”), OCLARO, INC., a Delaware corporation
(“Parent”), and OCLARO TECHNOLOGY LIMITED, a company incorporated under the laws of England
and Wales (“Borrower”).



WHEREAS, Agent and the Lenders, on the one hand, and Parent, Borrower and other Subsidiaries
of Parent as borrowers, on the other hand, are parties to that certain Credit Agreement, dated as
of August 2, 2006 (as amended, supplemented, or otherwise modified from time to time prior to the
Closing Date, the “Original Credit Agreement”);



WHEREAS, Parent and Borrower have requested that the Original Credit Agreement be amended and
restated to, among other things, extend the maturity of the obligations thereunder and remove
certain parties as borrowers thereunder.



WHEREAS, subject to the foregoing, Agent and the Lenders are willing to so amend and restate
the Original Credit Agreement in accordance with the terms and conditions hereof; it being
understood that no repayment of the outstanding amounts payable under the Original Credit Agreement
as of the Closing Date is being effected hereby but is merely an amendment and restatement in
accordance with the terms hereof.




The parties agree as follows:




1. DEFINITIONS AND CONSTRUCTION.



1.1 Definitions. Capitalized terms used in this Agreement shall have the meanings
specified therefor on Schedule 1.1.



1.2 Accounting Terms. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP; provided, however, that if Borrower notifies
Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any
Accounting Change occurring after the Closing Date or in the application thereof on the operation
of such provision (or if Agent notifies Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before or
after such Accounting Change or in the application thereof, then Agent and Borrower agree that they
will negotiate in good faith amendments to the provisions of this Agreement that are directly
affected by such Accounting Change with the intent of having the respective positions of the
Lenders and Borrower after such Accounting Change conform as nearly as possible to their respective
positions as of the date of this Agreement and, until any such amendments have been agreed upon and
agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no
such Accounting Change had occurred. When used herein, the term “financial statements” shall
include the notes and schedules thereto. Whenever the term “Borrower” or the term “Parent” is used
in respect of a financial covenant or a related definition, it shall be understood to mean Borrower
and its Subsidiaries or Parent and its Subsidiaries, as applicable, on a consolidated basis, unless
the context clearly requires otherwise.



1.3 Code. Any terms used in this Agreement that are defined in the Code shall be
construed and defined as set forth in the Code unless otherwise defined herein; provided,
however, that to the extent that the Code is used to define any term herein and such term
is defined differently in different Articles of the Code, the definition of such term contained in
Article 9 of the Code shall govern.





Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.



 


 









 





1.4 Construction. Unless the context of this Agreement or any other Loan Document
clearly requires otherwise, references to the plural include the singular, references to the
singular include the plural, the terms “includes” and “including” are not limiting, and the term
“or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement
or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be,
as a whole and not to any particular provision of this Agreement or such other Loan Document, as
the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this
Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan
Document to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,
and supplements set forth herein). The words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and properties.
Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in
full of the Obligations shall mean the repayment in full in cash or immediately available funds
(or, (a) in the case of contingent reimbursement obligations with respect to Letters of Credit,
providing Letter of Credit Collateralization, and (b) in the case of obligations with respect to
Bank Products (other than Hedge Obligations), providing Bank Product Collateralization) of all of
the Obligations (including the payment of any Lender Group Expenses that have accrued irrespective
of whether demand has been made therefor and the payment of any termination amount then applicable
(or which would or could become applicable as a result of the repayment of the other Obligations)
under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent
indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that,
at such time, are allowed by the applicable Bank Product Provider to remain outstanding without
being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such
time, are allowed by the applicable Hedge Provider to remain outstanding without being required to
be repaid. Any reference herein to any Person shall be construed to include such Person’s
successors and assigns. Any requirement of a writing contained herein or in any other Loan
Document shall be satisfied by the transmission of a Record.



1.5 Schedules and Exhibits. All of the schedules and exhibits attached to this
Agreement shall be deemed incorporated herein by reference.




2. LOANS AND TERMS OF PAYMENT.




2.1 Revolver Advances.



(a) Subject to the terms and conditions of this Agreement, and during the term of this
Agreement, each Lender with a Revolver Commitment agrees (severally, not jointly or jointly and
severally) to make revolving loans (“Advances”) to Borrower in an amount at any one time
outstanding not to exceed the lesser of:




(i) such Lender’s Revolver Commitment, or




(ii) such Lender’s Pro Rata Share of an amount equal to the lesser of:



(A) the Maximum Revolver Amount less the sum of (1) the Letter of Credit Usage at such time,
plus (2) the principal amount of Swing Loans outstanding at such time, and



(B) the Borrowing Base at such time less the sum of (1) the Letter of Credit Usage at such
time, plus (2) the principal amount of Swing Loans outstanding at such time.


Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


2









 





(b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the
terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.
The outstanding principal amount of the Advances, together with interest accrued and unpaid
thereon, shall be due and payable on the Maturity Date or, if earlier, on the date on which they
are declared due and payable pursuant to the terms of this Agreement.



(c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the
right (but not the obligation) to establish, increase, reduce, eliminate, or otherwise adjust
reserves from time to time against the Borrowing Base or the Maximum Revolver Amount in such
amounts, and with respect to such matters, as Agent in its Permitted Discretion shall deem
necessary or appropriate, including (i) reserves in an amount equal to the Bank Product Reserve
Amount, and (ii) reserves with respect to (A) sums that Parent or its Subsidiaries are required to
pay under this Agreement or any other Loan Document (such as taxes, assessments, insurance
premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and
has failed to pay when due, and (B) amounts owing by Parent or its Subsidiaries to any Person to
the extent secured by a Lien on, or trust over, or preferential claim by operation of law over, or
claim of retention of title to, any of the Collateral (other than a Permitted Lien which is a
permitted purchase money Lien or the interest of a lessor under a Capital Lease), which Lien or
trust, in the Permitted Discretion of Agent likely would have a priority superior to Agent’s Liens
(such as Liens, preferred claims, claims of retention of title, or trusts in favor of employees,
creditors, landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or
Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable
law) in and to such item of the Collateral.




2.2 Reserved.




2.3 Borrowing Procedures and Settlements.



(a) Procedure for Borrowing. Each Borrowing shall be made by a written request by an
Authorized Person delivered to Agent. Unless Swing Lender is not obligated to make a Swing Loan
pursuant to Section 2.3(b) below, such notice must be received by Agent no later than 10:00
a.m. (California time) on the Business Day that is the requested Funding Date specifying (i) the
amount of such Borrowing, and (ii) the requested Funding Date, which shall be a Business Day;
provided, however, that if Swing Lender is not obligated to make a Swing Loan as to
a requested Borrowing, such notice must be received by Agent no later than 10:00 a.m. (California
time) on the Business Day prior to the date that is the requested Funding Date. At Agent’s
election, in lieu of delivering the above-described written request, any Authorized Person may give
Agent telephonic notice of such request by the required time. In such circumstances, Borrower
agrees that any such telephonic notice will be confirmed in writing within 24 hours of the giving
of such telephonic notice, but the failure to provide such written confirmation shall not affect
the validity of the request.



(b) Making of Swing Loans. In the case of a request for an Advance and so long as either (i)
the aggregate amount of Swing Loans made since the last Settlement Date, minus the amount of
Collections or payments applied to Swing Loans since the last Settlement Date, plus the amount of
the requested Advance does not exceed $4,500,000, or (ii) Swing Lender, in its sole discretion,
shall agree to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make
an Advance in the amount of such requested Borrowing (any such Advance made solely by Swing Lender
pursuant to this Section 2.3(b) being referred to as a “Swing Loan” and such
Advances being referred to as “Swing Loans”) available to Borrower on the Funding Date
applicable thereto by transferring immediately available funds to the Designated Account. Anything
contained herein to the contrary notwithstanding, the Swing Lender may, but shall not be obligated
to, make Swing Loans at any time that one or more of the Lenders is a Defaulting Lender. Each
Swing Loan shall be deemed to be an Advance hereunder and shall be subject to all the terms and
conditions (including Section 3) applicable to other Advances, except that all payments on any
Swing Loan shall be payable to Swing Lender solely for its own account. Subject to the provisions
of Section 2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


3









 






Swing
Loan if Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set forth in
Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing,
or (ii) the requested Borrowing would exceed the Availability on such Funding Date. Swing Lender
shall not otherwise be required to determine whether the applicable conditions precedent set forth
in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any
Swing Loan. The Swing Loans shall be secured by Agent’s Liens, constitute Advances and Obligations
hereunder, and bear interest at the rate applicable from time to time to Advances that are Base
Rate Loans. Notwithstanding anything in this Section 2.3(b) to the contrary, at any time
that there is only one Lender, the Swing Lender shall not be obligated to make a Swing Loan and
requested Borrowings shall be made pursuant to Section 2.3(c).




(c) Making of Loans.



(i) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly after
receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the
Lenders, not later than 1:00 p.m. (California time) on the Business Day immediately preceding the
Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of
the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the
requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not
later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’s
receipt of the proceeds of such Advances, Agent shall make the proceeds thereof available to
Borrower on the applicable Funding Date by transferring immediately available funds equal to such
proceeds received by Agent to the Designated Account; provided, however, that,
subject to the provisions of Section 2.3(d)(ii), Agent shall not request any Lender to make
any Advance if it has knowledge that, and no Lender shall have the obligation to make any Advance,
if (1) one or more of the applicable conditions precedent set forth in Section 3 will not
be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has
been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.



(ii) Unless Agent receives notice from a Lender prior to 9:00 a.m. (California time) on the
date of a Borrowing, that such Lender will not make available as and when required hereunder to
Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Borrowing,
Agent may assume that each Lender has made or will make such amount available to Agent in
immediately available funds on the Funding Date and Agent may (but shall not be so required), in
reliance upon such assumption, make available to Borrower on such date a corresponding amount. If
any Lender shall not have made its full amount available to Agent in immediately available funds
and if Agent in such circumstances has made available to Borrower such amount, that Lender shall on
the Business Day following such Funding Date make such amount available to Agent, together with
interest at the Defaulting Lender Rate for each day during such period. A notice submitted by
Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be
conclusive, absent manifest error. If such amount is so made available, such payment to Agent
shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to Agent on the Business Day following the Funding Date,
Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay
such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since
the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Advances composing such Borrowing.




(d) Protective Advances and Optional Overadvances.



(i) Any contrary provision of this Agreement or any other Loan Document notwithstanding, Agent
hereby is authorized by Borrower and the Lenders, from time to time in Agent’s sole discretion, (A)
after the occurrence and during the continuance of a Default or an Event of Default, or (B) at any
time that any of the other applicable conditions precedent set forth in Section 3 are not
satisfied, to make Advances to, or for the benefit of, Borrower on behalf of the Lenders that
Agent, in its Permitted Discretion deems necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the
Obligations (other than the Bank Product
Obligations) (any of the Advances described in this Section 2.3(d)(i) shall be
referred to as “Protective Advances”).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


4









 





(ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, the
Lenders hereby authorize Agent or Swing Lender, as applicable, and either Agent or Swing Lender, as
applicable, may, but is not obligated to, knowingly and intentionally, continue to make Advances
(including Swing Loans) to Borrower notwithstanding that an Overadvance exists or would be created
thereby, so long as (A) after giving effect to such Advances, the outstanding Revolver Usage does
not exceed the Borrowing Base by more than $4,500,000, and (B) after giving effect to such
Advances, the outstanding Revolver Usage (except for and excluding amounts charged to the Loan
Account for interest, fees, or Lender Group Expenses) does not exceed the Maximum Revolver Amount.
In the event Agent obtains actual knowledge that the Revolver Usage exceeds the amounts permitted
by the immediately foregoing provisions, regardless of the amount of, or reason for, such excess,
Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional)
intentional Overadvances (except for and excluding amounts charged to the Loan Account for
interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in
imminent harm to the Collateral or its value, in which case Agent may make such Overadvances and
provide notice as promptly as practicable thereafter), and the Lenders with Revolver Commitments
thereupon shall, together with Agent, jointly determine the terms of arrangements that shall be
implemented with Borrower intended to reduce, within a reasonable time, the outstanding principal
amount of the Advances to Borrower to an amount permitted by the preceding sentence. In such
circumstances, if any Lender with a Revolver Commitment objects to the proposed terms of reduction
or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented
according to the determination of the Required Lenders. The foregoing provisions are meant for the
benefit of the Lenders and Agent and are not meant for the benefit of Borrower, which shall
continue to be bound by the provisions of Section 2.5. Each Lender with a Revolver
Commitment shall be obligated to settle with Agent as provided in Section 2.3(e) for the
amount of such Lender’s Pro Rata Share of any unintentional Overadvances by Agent reported to such
Lender, any intentional Overadvances made as permitted under this Section 2.3(d)(ii), and
any Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group
Expenses.



(iii) Each Protective Advance and each Overadvance shall be deemed to be an Advance hereunder,
except that no Protective Advance or Overadvance shall be eligible to be a LIBOR Rate Loan and,
prior to Settlement therefor, all payments on the Protective Advances shall be payable to Agent
solely for its own account. The Protective Advances and Overadvances shall be repayable on demand,
secured by Agent’s Liens, constitute Obligations hereunder, and bear interest at the rate
applicable from time to time to Advances that are Base Rate Loans. The ability of Agent to make
Protective Advances is separate and distinct from its ability to make Overadvances and its ability
to make Overadvances is separate and distinct from its ability to make Protective Advances. For
the avoidance of doubt, the limitations on Agent’s ability to make Protective Advances do not apply
to Overadvances and the limitations on Agent’s ability to make Overadvances do not apply to
Protective Advances. The provisions of this Section 2.3(d) are for the exclusive benefit
of Agent, Swing Lender, and the Lenders and are not intended to benefit Borrower in any way.




Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


5









 





(e) Settlement. It is agreed that each Lender’s funded portion of the Advances is intended by
the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances. Such
agreement notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shall
not be for the benefit of Borrower) that in order to facilitate the administration of this
Agreement and the other Loan Documents, settlement among the Lenders as to the Advances, the Swing
Loans, and the Protective Advances shall take place on a periodic basis in accordance with the
following provisions:



(i) Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis,
or on a more frequent basis if so determined by Agent (1) on behalf of Swing Lender, with respect
to the outstanding Swing Loans, (2) for itself, with respect to the outstanding Protective Advances
or Overadvances, and (3) with respect to Borrower’s or its Subsidiaries’ Collections or payments
received, as to each by notifying the Lenders by telecopy, telephone, or other similar form of
transmission, of such requested
Settlement, no later than 2:00 p.m. (California time) on the Business Day immediately prior to
the date of such requested Settlement (the date of such requested Settlement being the
“Settlement Date”). Such notice of a Settlement Date shall include a summary statement of
the amount of outstanding Advances, Swing Loans, Overadvances, and Protective Advances for the
period since the prior Settlement Date. Subject to the terms and conditions contained herein
(including Section 2.3(g)): (y) if the amount of the Advances (including Swing Loans,
Overadvances, and Protective Advances) made by a Lender that is not a Defaulting Lender exceeds
such Lender’s Pro Rata Share of the Advances (including Swing Loans, Overadvances, and Protective
Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. (California time)
on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender
(as such Lender may designate), an amount such that each such Lender shall, upon receipt of such
amount, have as of the Settlement Date, its Pro Rata Share of the Advances (including Swing Loans,
Overadvances, and Protective Advances), and (z) if the amount of the Advances (including Swing
Loans, Overadvances, and Protective Advances) made by a Lender is less than such Lender’s Pro Rata
Share of the Advances (including Swing Loans, Overadvances, and Protective Advances) as of a
Settlement Date, such Lender shall no later than 12:00 p.m. (California time) on the Settlement
Date transfer in immediately available funds to Agent’s Account, an amount such that each such
Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of
the Advances (including Swing Loans, Overadvances, and Protective Advances). Such amounts made
available to Agent under clause (z) of the immediately preceding sentence shall be applied against
the amounts of the applicable Swing Loans, Overadvances, or Protective Advances and, together with
the portion of such Swing Loans, Overadvances, or Protective Advances representing Swing Lender’s
Pro Rata Share thereof, shall constitute Advances of such Lenders. If any such amount is not made
available to Agent by any Lender on the Settlement Date applicable thereto to the extent required
by the terms hereof, Agent shall be entitled to recover for its account such amount on demand from
such Lender together with interest thereon at the Defaulting Lender Rate.



(ii) In determining whether a Lender’s balance of the Advances, Swing Loans, Overadvances, and
Protective Advances is less than, equal to, or greater than such Lender’s Pro Rata Share of the
Advances, Swing Loans, Overadvances, and Protective Advances as of a Settlement Date, Agent shall,
as part of the relevant Settlement, apply to such balance the portion of payments actually received
in good funds by Agent with respect to principal, interest, fees payable by Borrower and allocable
to the Lenders hereunder, and proceeds of Collateral.



(iii) Between Settlement Dates, Agent, to the extent Protective Advances, Overadvances, or
Swing Loans are outstanding, may pay over to Agent or Swing Lender, as applicable, any Collections
or payments received by Agent, that in accordance with the terms of this Agreement would be applied
to the reduction of the Advances, for application to the Protective Advances, Overadvances, or
Swing Loans. Between Settlement Dates, Agent, to the extent no Protective Advances, Overadvances,
or Swing Loans are outstanding, may pay over to Swing Lender any Collections or payments received
by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of
the Advances, for application to Swing Lender’s Pro Rata Share of the Advances. If, as of any
Settlement Date, Collections or payments of Parent or its Subsidiaries received since the then
immediately preceding Settlement Date have been applied to Swing Lender’s Pro Rata Share of the
Advances other than to Swing Loans, as provided for in the previous sentence, Swing Lender shall
pay to Agent for the accounts of the Lenders, and Agent shall pay to the Lenders (other than a
Defaulting Lender if Agent has implemented the provisions of Section 2.3(g)), to be applied
to the outstanding Advances of such Lenders, an amount such that each such Lender shall, upon
receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Advances.
During the period between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with
respect to Protective Advances and Overadvances, and each Lender with respect to the Advances other
than Swing Loans, Overadvances, and Protective Advances, shall be entitled to interest at the
applicable rate or rates payable under this Agreement on the daily amount of funds employed by
Swing Lender, Agent, or the Lenders, as applicable.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(iv) Anything in this Section 2.3(e) to the contrary notwithstanding, in the event
that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlement
amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the
provisions set forth in Section 2.3(g).



(f) Notation. Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing
the principal amount of the Advances owing to each Lender, including the Swing Loans owing to Swing
Lender, and Protective Advances and Overadvances owing to Agent, and the interests therein of each
Lender, from time to time and such register shall, absent manifest error, conclusively be presumed
to be correct and accurate.



(g) Defaulting Lenders. Agent shall not be obligated to transfer to a Defaulting Lender any
payments made by Borrower to Agent for the Defaulting Lender’s benefit or any Collections or
proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in
the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A)
first, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender and that
were required to be, but were not, paid by the Defaulting Lender, (B) second, to the Issuing
Lender, to the extent of the portion of a Letter of Credit Disbursement that was required to be,
but was not, paid by the Defaulting Lender, (C) third, to each non-Defaulting Lender ratably in
accordance with their Revolver Commitments (but, in each case, only to the extent that such
Defaulting Lender’s portion of an Advance (or other funding obligation) was funded by such other
non-Defaulting Lender), (D) to a suspense account maintained by Agent, the proceeds of which shall
be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower
as if such Defaulting Lender had made its portion of Advances (or other funding obligations)
hereunder, and (E) from and after the date on which all other Obligations have been paid in full,
to such Defaulting Lender in accordance with tier (L) of Section 2.4(b)(ii). Subject to
the foregoing, Agent may hold and, in its discretion, re-lend to Borrower for the account of such
Defaulting Lender the amount of all such payments received and retained by Agent for the account of
such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to
the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for
the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender
shall be deemed not to be a “Lender” and such Lender’s Revolver Commitment shall be deemed to be
zero. The provisions of this Section 2.3(g) shall remain effective with respect to such
Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders,
Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this
Section 2.3(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender
makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts
owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and,
if requested by Agent, provides adequate assurance of its ability to perform its future obligations
hereunder. The operation of this Section 2.3(g) shall not be construed to increase or
otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by
such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve
or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing
Lender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to
fund amounts that it was obligated to fund hereunder shall constitute a material breach by such
Defaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written notice
to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting
Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the
arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be
replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance
in favor of the substitute Lender (and agrees that it shall be deemed to have executed and
delivered such document if it fails to do so) subject only to being paid its share of the
outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees,
and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro
Rata Share of its participation in the Letters of Credit); provided, however, that
any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to
constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such
Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct
conflict
between the priority provisions of this Section 2.3(g) and any other provision
contained in this Agreement or any other Loan Document, it is the intention of the parties hereto
that such provisions be read together and construed, to the fullest extent possible, to be in
concert with each other. In the event of any actual, irreconcilable conflict that cannot be
resolved as aforesaid, the terms and provisions of this Section 2.3(g) shall control and
govern.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(h) Independent Obligations. All Advances (other than Swing Loans, Overadvances, and
Protective Advances) shall be made by the Lenders contemporaneously and in accordance with their
Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make any Advance (or other extension of credit)
hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result of
any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any
Lender to perform its obligations hereunder shall excuse any other Lender from its obligations
hereunder.




2.4 Payments; Reductions of Commitments; Prepayments.




(a) Payments by Borrower.



(i) Except as otherwise expressly provided herein, all payments by Borrower shall be made to
Agent’s Account for the account of the Lender Group and shall be made in immediately available
funds, no later than 11:00 a.m. (California time) on the date specified herein. Any payment
received by Agent later than 11:00 a.m. (California time) shall be deemed to have been received on
the following Business Day and any applicable interest or fee shall continue to accrue until such
following Business Day.



(ii) Unless Agent receives notice from Borrower prior to the date on which any payment is due
to the Lenders that Borrower will not make such payment in full as and when required, Agent may
assume that Borrower has made (or will make) such payment in full to Agent on such date in
immediately available funds and Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent Borrower does not make such payment in full to Agent on the date when
due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender,
together with interest thereon at the Defaulting Lender Rate for each day from the date such amount
is distributed to such Lender until the date repaid.




(b) Apportionment and Application.



(i) So long as no Application Event has occurred and is continuing and except as otherwise
provided herein with respect to Defaulting Lenders, all principal and interest payments received by
Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of
the Obligations to which such payments relate held by each Lender) and all payments of fees and
expenses received by Agent (other than fees or expenses that are for Agent’s separate account or
for the separate account of the Issuing Lender) shall be apportioned ratably among the Lenders
having a Pro Rata Share of the type of Revolver Commitment or Obligation to which a particular fee
or expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent and
all (subject to Section 2.4(b)(iv) and Section 2.4(b)(ii)) such payments, and all
proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has
occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to
Borrower (to be wired to the Designated Account) or such other Person entitled thereto under
applicable law.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(ii) At any time that an Application Event has occurred and is continuing and except as
otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent and
all proceeds of Collateral received by Agent shall be applied as follows:



(A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)
or indemnities then due to Agent under the Loan Documents, until paid in full,



(B) second, to pay any fees or premiums then due to Agent under the Loan Documents
until paid in full,



(C) third, to pay interest due in respect of all Protective Advances until paid in
full,




(D) fourth, to pay the principal of all Protective Advances until paid in full,



(E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid
in full,



(F) sixth, ratably, to pay any fees or premiums then due to any of the Lenders under
the Loan Documents until paid in full,




(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,




(H) eighth, to pay the principal of all Swing Loans until paid in full,



(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than
Protective Advances) until paid in full,



(J) tenth, ratably (i) to pay the principal of all Advances until paid in full, (ii)
to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of
each of the Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender,
a share of each Letter of Credit Disbursement), as cash collateral in an amount up to 105% of
Dollar denominated Letters of Credit and 115% of foreign currency denominated Letters of Credit
comprising the Letter of Credit Usage (to the extent permitted by applicable law, such cash
collateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and when
such disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral held by
Agent in respect of such Letter of Credit shall, to the extent permitted by applicable law, be
reapplied pursuant to this Section 2.4(b)(ii), beginning with tier (A) hereof), and (iii)
ratably, to the Bank Product Providers based upon amounts then certified by the applicable Bank
Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to
such Bank Product Providers on account of Bank Product Obligations,



(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting
Lenders,




(L) twelfth, ratably to pay any Obligations owed to Defaulting Lenders; and



(M) thirteenth, to Borrower (to be wired to the Designated Account) or such other
Person entitled thereto under applicable law.



(iii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire
instructions received from each Lender in writing, such funds as it may be entitled to receive,
subject to a Settlement delay as provided in Section 2.3(e).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(iv) In each instance, so long as no Application Event has occurred and is continuing,
Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by
Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under
any provision of this Agreement or any other Loan Document.



(v) For purposes of Section 2.4(b)(ii), “paid in full” of a type of Obligation means
payment in cash or immediately available funds of all amounts owing on account of such type of
Obligation, including interest accrued after the commencement of any Insolvency Proceeding, default
interest, interest on interest, and expense reimbursements, irrespective of whether any of the
foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.



(vi) In the event of a direct conflict between the priority provisions of this Section
2.4 and any other provision contained in this Agreement or any other Loan Document, it is the
intention of the parties hereto that such provisions be read together and construed, to the fullest
extent possible, to be in concert with each other. In the event of any actual, irreconcilable
conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of
Section 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g)
shall control and govern, and if otherwise, then the terms and provisions of this Section
2.4 shall control and govern.



(c) Reduction of Revolver Commitments. The Revolver Commitments shall terminate on the
Maturity Date. Borrower may reduce the Revolver Commitments to an amount (which may be zero) not
less than the sum of (A) the Revolver Usage as of such date, plus (B) the principal amount of all
Advances not yet made as to which a request has been given by Borrower under Section
2.3(a), plus (C) the amount of all Letters of Credit not yet issued as to which a request has
been given by Borrower pursuant to Section 2.11(a). Each such reduction shall be in an
amount which is not less than [***] (unless the Revolver Commitments are being reduced to zero and
the amount of the Revolver Commitments in effect immediately prior to such reduction are less than
[***]), shall be made by providing not less than 5 Business Days prior written notice to Agent, and
shall be irrevocable. Once reduced, the Revolver Commitments may not be increased. Each such
reduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lender
proportionately in accordance with its ratable share thereof.



(d) Optional Prepayments. Borrower may prepay the principal of any Advance at any time in
whole or in part.



2.5 Overadvances. If, at any time or for any reason, the amount of Obligations owed
by Borrower to the Lender Group pursuant to Section 2.1 or Section 2.11 is greater
than any of the limitations set forth in Section 2.1 or Section 2.11, as applicable
(an “Overadvance”), Borrower shall immediately (or, with respect to any intentional
Overadvances made by Agent pursuant to Section 2.3(d)(ii), on such other terms as shall be
imposed by Agent and Lenders) pay to Agent, in cash, the amount of such excess, which amount shall
be used by Agent to reduce the Obligations in accordance with the priorities set forth in
Section 2.4(b).




2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.



(a) Interest Rates. Except as provided in Section 2.6(c), all Obligations (except for
undrawn Letters of Credit) that have been charged to the Loan Account pursuant to the terms hereof
shall bear interest on the Daily Balance thereof as follows:



(i) if the relevant Obligation is a LIBOR Rate Loan, at a per annum rate equal to the LIBOR
Rate plus the LIBOR Rate Margin, and



(ii) otherwise, at a per annum rate equal to the Base Rate plus the Base Rate Margin.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) Letter of Credit Fee. Borrower shall pay Agent (for the ratable benefit of the Lenders
with a Revolver Commitment), a Letter of Credit fee (in addition to the charges, commissions, fees,
and costs set forth in Section 2.11(f)) which shall accrue at a rate equal to the LIBOR
Rate Margin per annum times the Daily Balance of the undrawn amount of all outstanding Letters of
Credit.



(c) Default Rate. Upon the occurrence and during the continuation of an Event of Default and
at the election of the Required Lenders,



(i) all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan
Account pursuant to the terms hereof shall bear interest on the Daily Balance thereof at a per
annum rate equal to 2 percentage points above the per annum rate otherwise applicable thereunder,
and



(ii) the Letter of Credit fee provided for in Section 2.6(b) shall be increased to 2
percentage points above the per annum rate otherwise applicable hereunder.



(d) Payment. Except to the extent provided to the contrary in Section 2.10 or
Section 2.12(a), all interest, all Letter of Credit fees, all other fees payable hereunder
or under any of the other Loan Documents, all costs and expenses payable hereunder or under any of
the other Loan Documents, and all Lender Group Expenses shall be due and payable, in arrears, on
the first day of each month at any time that Obligations or Revolver Commitments are outstanding.
Borrower hereby authorizes Agent, from time to time without prior notice to Borrower, to charge all
interest, Letter of Credit fees, and all other fees payable hereunder or under any of the other
Loan Documents (in each case, as and when due and payable), all costs and expenses payable
hereunder or under any of the other Loan Documents (in each case, as and when accrued or incurred),
and all Lender Group Expenses (as and when accrued or incurred), all charges, commissions, fees,
and costs provided for in Section 2.11(f) (as and when accrued or incurred), all fees and
costs provided for in Section 2.10 (as and when accrued or incurred), and all other payment
obligations as and when due and payable under any Loan Document or any Bank Product Agreement
(including any amounts due and payable to the Bank Product Providers in respect of Bank Products)
to the Loan Account, which amounts thereafter shall constitute Advances hereunder and, initially,
shall accrue interest at the rate then applicable to Advances that are Base Rate Loans. Any
interest, fees, costs, expenses, Lender Group Expenses, or other amounts payable hereunder or under
any other Loan Document or under any Bank Product Agreement that are charged to the Loan Account
shall thereupon constitute Advances hereunder and shall initially accrue interest at the rate then
applicable to Advances that are Base Rate Loans (unless and until converted into LIBOR Rate Loans
in accordance with the terms of this Agreement).



(e) Computation. All interest and fees chargeable under the Loan Documents shall be computed
on the basis of a 360 day year, in each case, for the actual number of days elapsed in the period
during which the interest or fees accrue. In the event the Base Rate is changed from time to time
hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately
shall be increased or decreased by an amount equal to such change in the Base Rate.



(f) Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or
rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the
highest rate permissible under any law that a court of competent jurisdiction shall, in a final
determination, deem applicable. Borrower and the Lender Group, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated
within it; provided, however, that, anything contained herein to the contrary
notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum
allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrower is and
shall be liable only for the payment of such maximum amount as is allowed by law, and payment
received from Borrower in excess of such legal maximum, whenever received, shall be applied to
reduce the principal balance of the Obligations to the extent of such excess.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


11









 





2.7 Crediting Payments. The receipt of any payment item by Agent shall not be
considered a payment on account unless such payment item is a wire transfer of immediately
available federal funds made to Agent’s Account or unless and until such payment item is honored
when presented for payment. Should any payment item not be honored when presented for payment,
then Borrower shall be deemed not to have made such payment and interest shall be calculated
accordingly. Anything to the contrary contained herein notwithstanding, any payment item shall be
deemed received by Agent only if it is received into Agent’s Account on a Business Day on or before
11:00 a.m. (California time). If any payment item is received into Agent’s Account on a
non-Business Day or after 11:00 a.m. (California time) on a Business Day, it shall be deemed to
have been received by Agent as of the opening of business on the immediately following Business
Day.



2.8 Designated Account. Agent is authorized to make the Advances and Issuing Lender
is authorized to issue the Letters of Credit, under this Agreement based upon telephonic or other
instructions received from anyone purporting to be an Authorized Person or, without instructions,
if pursuant to Section 2.6(d). Borrower agrees to establish and maintain the Designated
Account with the Designated Account Bank for the purpose of receiving the proceeds of the Advances
requested by Borrower and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent
and Borrower, any Advance or Swing Loan requested by Borrower and made by Agent or the Lenders
hereunder shall be made to the Designated Account.



2.9 Maintenance of Loan Account; Statements of Obligations. Agent shall maintain an
account on its books in the name of Borrower (the “Loan Account”) on which Borrower will be
charged with all Advances (including Protective Advances and Swing Loans) made by Agent, Swing
Lender, or the Lenders to Borrower or for Borrower’s account, the Letters of Credit issued or
arranged by Issuing Lender for Borrower’s account, and with all other payment Obligations hereunder
or under the other Loan Documents, including, accrued interest, fees and expenses, and Lender Group
Expenses. In accordance with Section 2.7, the Loan Account will be credited with all
payments received by Agent from Borrower or for Borrower’s account. Agent shall render monthly
statements regarding the Loan Account to Borrower, including principal, interest, fees, and
including an itemization of all charges and expenses constituting Lender Group Expenses owing, and
such statements, absent manifest error, shall be conclusively presumed to be correct and accurate
and constitute an account stated between Borrower and the Lender Group unless, within 30 days after
receipt thereof by Borrower, Borrower shall deliver to Agent written objection thereto describing
the error or errors contained in any such statements.




2.10 Fees. Borrower shall pay to Agent,



(a) for the account of Agent, as and when due and payable under the terms of the Fee Letter,
the fees set forth in the Fee Letter.



(b) for the ratable account of those Lenders with Revolver Commitments, on the first day of
each month from and after the Closing Date up to the first day of the month prior to the Payoff
Date and on the Payoff Date, an unused line fee in an amount equal to (i) 0.50% per annum times the
result of (A) the aggregate amount of the Revolver Commitments, less (B) the average Daily Balance
of the Revolver Usage during the immediately preceding month (or portion thereof) if the result of
clauses (A) and (B) above is greater than or equal to $22,500,000, and (ii) 0.375% per annum times
the result of (A) the aggregate amount of the Revolver Commitments, less (B) the average Daily
Balance of the Revolver Usage during the immediately preceding month (or portion thereof) if the
result of clauses (A) and (B) above is less than $22,500,000.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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2.11 Letters of Credit.



(a) Subject to the terms and conditions of this Agreement, upon the request of Borrower made
in accordance herewith, the Issuing Lender agrees to issue, or to cause an Underlying Issuer
(including, as Issuing Lender’s agent) to issue, a requested Letter of Credit. If Issuing Lender,
at its option,
elects to cause an Underlying Issuer to issue a requested Letter of Credit, then Issuing
Lender agrees that it will enter into arrangements relative to the reimbursement of such Underlying
Issuer (which may include, among other means, by becoming an applicant with respect to such Letter
of Credit or entering into undertakings which provide for reimbursements of such Underlying Issuer
with respect to such Letter of Credit; each such obligation or undertaking, irrespective of whether
in writing, a “Reimbursement Undertaking”) with respect to Letters of Credit issued by such
Underlying Issuer. By submitting a request to Issuing Lender for the issuance of a Letter of
Credit, Borrower shall be deemed to have requested that Issuing Lender issue or that an Underlying
Issuer issue the requested Letter of Credit and to have requested Issuing Lender to issue a
Reimbursement Undertaking with respect to such requested Letter of Credit if it is to be issued by
an Underlying Issuer (it being expressly acknowledged and agreed by Borrower that Borrower is and
shall be deemed to be an applicant (within the meaning of Section 5-102(a)(2) of the Code) with
respect to each Underlying Letter of Credit). Each request for the issuance of a Letter of Credit,
or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be made in
writing by an Authorized Person and delivered to the Issuing Lender via hand delivery,
telefacsimile, or other electronic method of transmission reasonably in advance of the requested
date of issuance, amendment, renewal, or extension. Each such request shall be in form and
substance reasonably satisfactory to the Issuing Lender and shall specify (i) the amount of such
Letter of Credit, (ii) the date of issuance, amendment, renewal, or extension of such Letter of
Credit, (iii) the proposed expiration date of such Letter of Credit, (iv) the name and address of
the beneficiary of the Letter of Credit, and (v) such other information (including, the conditions
of drawing, and, in the case of an amendment, renewal, or extension, identification of the Letter
of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew,
or extend such Letter of Credit. Anything contained herein to the contrary notwithstanding, the
Issuing Lender may, but shall not be obligated to, issue or cause the issuance of a Letter of
Credit or to issue a Reimbursement Undertaking in respect of an Underlying Letter of Credit, in
either case, that supports the obligations of Parent or its Subsidiaries (1) in respect of (A) a
lease of real property, or (B) an employment contract, or (2) at any time that one or more of the
Lenders is a Defaulting Lender. The Issuing Lender shall have no obligation to issue a Letter of
Credit or a Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case,
if any of the following would result after giving effect to the requested issuance:



(i) the Letter of Credit Usage would exceed the Borrowing Base less the outstanding amount of
Advances (inclusive of Swing Loans), or




(ii) the Letter of Credit Usage would exceed $10,000,000, or



(iii) the Letter of Credit Usage would exceed the Maximum Revolver Amount less the outstanding
amount of Advances (including Swing Loans).



Borrower and the Lender Group hereby acknowledge and agree that all Existing Letters of Credit
shall constitute Letters of Credit under this Agreement on and after the Closing Date with the same
effect as if such Existing Letters of Credit were issued by Issuing Lender or an Underlying Issuer
at the request of Borrower on the Closing Date. Each Letter of Credit shall be in form and
substance reasonably acceptable to the Issuing Lender, including the requirement that the amounts
payable thereunder must be payable in Dollars. If Issuing Lender makes a payment under a Letter of
Credit or an Underlying Issuer makes a payment under an Underlying Letter of Credit, Borrower shall
pay to Agent an amount equal to the applicable Letter of Credit Disbursement on the date such
Letter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letter
of Credit Disbursement immediately and automatically shall be deemed to be an Advance hereunder
and, initially, shall bear interest at the rate then applicable to Advances that are Base Rate
Loans. If a Letter of Credit Disbursement is deemed to be an Advance hereunder (notwithstanding any
failure to satisfy any condition precedent set forth in Section 3), Borrower’s obligation
to pay the amount of such Letter of Credit Disbursement to Issuing Lender shall be automatically
converted into an obligation to pay the resulting Advance. Promptly following receipt by Agent of
any payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to the
Issuing Lender or, to the
extent that Lenders have made payments pursuant to Section 2.11(b) to reimburse the
Issuing Lender, then to such Lenders and the Issuing Lender as their interests may appear.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to
Section 2.11(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share
of any Advance deemed made pursuant to Section 2.11(a) on the same terms and conditions as
if Borrower had requested the amount thereof as an Advance and Agent shall promptly pay to Issuing
Lender the amounts so received by it from the Lenders. By the issuance of a Letter of Credit or a
Reimbursement Undertaking (or an amendment, renewal, or extension of a Letter of Credit or a
Reimbursement Undertaking) and without any further action on the part of the Issuing Lender or the
Lenders with Revolver Commitments, the Issuing Lender shall be deemed to have granted to each
Lender with a Revolver Commitment, and each Lender with a Revolver Commitment shall be deemed to
have purchased, a participation in each Letter of Credit issued by Issuing Lender and each
Reimbursement Undertaking, in an amount equal to its Pro Rata Share of such Letter of Credit or
Reimbursement Undertaking, and each such Lender agrees to pay to Agent, for the account of the
Issuing Lender, such Lender’s Pro Rata Share of any Letter of Credit Disbursement made by Issuing
Lender or an Underlying Issuer under the applicable Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s Pro
Rata Share of each Letter of Credit Disbursement made by Issuing Lender or an Underlying Issuer and
not reimbursed by Borrower on the date due as provided in Section 2.11(a), or of any
reimbursement payment required to be refunded (or that Agent or Issuing Lender elects, based upon
the advice of counsel, to refund) to Borrower for any reason. Each Lender with a Revolver
Commitment acknowledges and agrees that its obligation to deliver to Agent, for the account of the
Issuing Lender, an amount equal to its respective Pro Rata Share of each Letter of Credit
Disbursement pursuant to this Section 2.11(b) shall be absolute and unconditional and such
remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or
Default or the failure to satisfy any condition set forth in Section 3. If any such Lender
fails to make available to Agent the amount of such Lender’s Pro Rata Share of a Letter of Credit
Disbursement as provided in this Section, such Lender shall be deemed to be a Defaulting Lender and
Agent (for the account of the Issuing Lender) shall be entitled to recover such amount on demand
from such Lender together with interest thereon at the Defaulting Lender Rate until paid in full.



(c) Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group and each
Underlying Issuer harmless from any damage, loss, cost, expense, or liability (other than Taxes,
which shall be governed by Section 16), and reasonable attorneys fees incurred by Issuing
Lender, any other member of the Lender Group, or any Underlying Issuer arising out of or in
connection with any Reimbursement Undertaking or any Letter of Credit; provided,
however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost,
expense, or liability that a court of competent jurisdiction finally determines to have resulted
from the gross negligence or willful misconduct of the Issuing Lender, any other member of the
Lender Group, or any Underlying Issuer. Borrower agrees to be bound by the Underlying Issuer’s
regulations and interpretations of any Letter of Credit or by Issuing Lender’s interpretations of
any Reimbursement Undertaking even though this interpretation may be different from Borrower’s own,
and Borrower understands and agrees that none of the Issuing Lender, any other member of the Lender
Group, or any Underlying Issuer shall be liable for any error, negligence, or mistake, whether of
omission or commission, in following Borrower’s instructions or those contained in the Letter of
Credit or any modifications, amendments, or supplements thereto. Borrower understands that the
Reimbursement Undertakings may require Issuing Lender to indemnify the Underlying Issuer for
certain costs or liabilities arising out of claims by Borrower against such Underlying Issuer.
Borrower hereby agrees to indemnify, save, defend, and hold Issuing Lender and the other members of
the Lender Group harmless with respect to any loss, cost, expense (including reasonable attorneys
fees), or liability (other than Taxes, which shall be governed by Section 16) incurred by
them as a result of the Issuing Lender’s indemnification of an Underlying Issuer; provided,
however, that Borrower shall not be obligated hereunder to indemnify for any such loss,
cost, expense, or liability to the extent that it is caused by the gross negligence or willful
misconduct of the Issuing Lender or any other member of the Lender Group. Borrower hereby
acknowledges and agrees that none of the
Issuing Lender, any other member of the Lender Group, or any Underlying Issuer shall be
responsible for delays, errors, or omissions resulting from the malfunction of equipment in
connection with any Letter of Credit.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(d) The obligation of Borrower to reimburse the Issuing Lender for each drawing under each
Letter of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:



(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
another Loan Document,



(ii) the existence of any claim, counterclaim, setoff, defense or other right that Parent or
any of its Subsidiaries may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such transferee maybe acting),
the Issuing Lender or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction,



(iii) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect, or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit,



(iv) any payment by the Issuing Lender under such Letter of Credit against presentation of a
draft or certificate that does not substantially or strictly comply with the terms of such Letter
of Credit (including, without limitation, any requirement that presentation be made at a particular
place or by a particular time of day), or any payment made by the Issuing Lender under such Letter
of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit,



(v) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or discharge of, Borrower or any of its Subsidiaries, or




(vi) the fact that any Event of Default shall have occurred and be continuing.



(e) Borrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing
Lender all instruments, documents, and other writings and property received by such Underlying
Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing
Lender’s instructions with respect to all matters arising in connection with such Underlying Letter
of Credit and the related application.



(f) Borrower acknowledges and agrees that any and all issuance charges, usage charges,
commissions, fees, and costs incurred by the Issuing Lender relating to Underlying Letters of
Credit shall be Lender Group Expenses for purposes of this Agreement and shall be reimbursable
immediately by Borrower to Agent for the account of the Issuing Lender; it being acknowledged and
agreed by Borrower that, as of the Closing Date, the usage charge imposed by the Underlying Issuer
is .825% per annum times the undrawn amount of each Underlying Letter of Credit, that such usage
charge may be changed from time to time, and that the Underlying Issuer also imposes a schedule of
charges for amendments, extensions, drawings, and renewals.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(g) If by reason of (i) any change after the Closing Date in any applicable law, treaty, rule,
or regulation or any change in the interpretation or application thereof by any Governmental
Authority, or (ii) compliance by the Issuing Lender, any other member of the Lender Group, or
Underlying Issuer with any direction, request, or requirement (irrespective of whether having the
force of law) of any Governmental Authority or monetary authority including, Regulation D of the
Federal Reserve Board as from time to time in effect (and any successor thereto):



(i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect
of any Letter of Credit issued or caused to be issued hereunder or hereby, or



(ii) there shall be imposed on the Issuing Lender, any other member of the Lender Group, or
Underlying Issuer any other condition regarding any Letter of Credit or Reimbursement Undertaking,



and the result of the foregoing is to increase, directly or indirectly, the cost to the Issuing
Lender, any other member of the Lender Group, or an Underlying Issuer of issuing, making,
participating in, or maintaining any Reimbursement Undertaking or Letter of Credit or to reduce the
amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a
reasonable period after the additional cost is incurred or the amount received is reduced, notify
Borrower, and Borrower shall pay within 30 days after demand therefor, such amounts as Agent may
specify to be necessary to compensate the Issuing Lender, any other member of the Lender Group, or
an Underlying Issuer for such additional cost or reduced receipt, together with interest on such
amount from the date of such demand until payment in full thereof at the rate then applicable to
Base Rate Loans hereunder; provided, however, that Borrower shall not be required
to provide any compensation pursuant to this Section 2.11(g) for any such amounts incurred
more than 180 days prior to the date on which the demand for payment of such amounts is first made
to Borrower; provided further, however, that if an event or circumstance
giving rise to such amounts is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof. The determination by Agent of any
amount due pursuant to this Section 2.11(g), as set forth in a certificate setting forth
the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable
error, be final and conclusive and binding on all of the parties hereto.




2.12 LIBOR Option.



(a) Interest and Interest Payment Dates. In lieu of having interest charged at the rate based
upon the Base Rate, Borrower shall have the option, subject to Section 2.12(b) below (the
“LIBOR Option”) to have interest on all or a portion of the Advances be charged (whether at
the time when made (unless otherwise provided herein), upon conversion from a Base Rate Loan to a
LIBOR Rate Loan, or upon continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of
interest based upon the LIBOR Rate. Interest on LIBOR Rate Loans shall be payable on the earliest
of (i) the last day of the Interest Period applicable thereto; (ii) the date on which all or any
portion of the Obligations are accelerated pursuant to the terms hereof, or (iii) the date on which
this Agreement is terminated pursuant to the terms hereof. On the last day of each applicable
Interest Period, unless Borrower properly has exercised the LIBOR Option with respect thereto, the
interest rate applicable to such LIBOR Rate Loan automatically shall convert to the rate of
interest then applicable to Base Rate Loans of the same type hereunder. At any time that an Event
of Default has occurred and is continuing, at the written election of the Required Lenders,
Borrower no longer shall have the option to request that Advances bear interest at a rate based
upon the LIBOR Rate.




(b) LIBOR Election.



(i) Borrower may, at any time and from time to time, so long as no Event of Default has
occurred and is continuing, elect to exercise the LIBOR Option by notifying Agent prior to 11:00
a.m. (California time) at least 3 Business Days prior to the commencement of the proposed Interest
Period (the “LIBOR Deadline”). Notice of Borrower’s election of the LIBOR Option for a
permitted portion
of the Advances and an Interest Period pursuant to this Section shall be made by delivery to
Agent of a LIBOR Notice received by Agent before the LIBOR Deadline, or by telephonic notice
received by Agent before the LIBOR Deadline (to be confirmed by delivery to Agent of a LIBOR Notice
received by Agent prior to 5:00 p.m. (California time) on the same day). Promptly upon its receipt
of each such LIBOR Notice, Agent shall provide a copy thereof to each of the affected Lenders.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(ii) Each LIBOR Notice shall be irrevocable and binding on Borrower. In connection with each
LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against
any loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the payment
of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loan
other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow,
convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered
pursuant hereto (such losses, costs, or expenses, “Funding Losses”). A certificate of
Agent or a Lender delivered to Borrower setting forth in reasonable detail any amount or amounts
that Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be
conclusive absent manifest error. Borrower shall pay such amount to Agent or the Lender, as
applicable, within 30 days of the date of its receipt of such certificate.



(iii) Borrower shall have not more than 5 LIBOR Rate Loans in effect at any given time.
Borrower only may exercise the LIBOR Option for proposed LIBOR Rate Loans of at least
$1,000,000.



(c) Conversion. Borrower may convert LIBOR Rate Loans to Base Rate Loans at any time;
provided, however, that in the event that LIBOR Rate Loans are converted or prepaid
on any date that is not the last day of the Interest Period applicable thereto, including as a
result of any automatic prepayment through the required application by Agent of proceeds of
Borrower’s and its Subsidiaries’ Collections in accordance with Section 2.4(b) or for any
other reason, including early termination of the term of this Agreement or acceleration of all or
any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, and
hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in
accordance with Section 2.12 (b)(ii).




(d) Special Provisions Applicable to LIBOR Rate.



(i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis
to take into account any additional or increased costs to such Lender of maintaining or obtaining
any eurodollar deposits or increased costs, in each case, due to changes in applicable law (other
than changes in laws relative to Taxes, which shall be governed by Section 16) occurring subsequent
to the commencement of the then applicable Interest Period, including changes in tax laws (except
(a) changes of general applicability in corporate income tax laws and (b) changes in the rate of
tax on the overall income of the Lender) and changes in the reserve requirements imposed by the
Board of Governors of the Federal Reserve System (or any successor), which additional or increased
costs would increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate.
In any such event, the affected Lender shall give Borrower and Agent notice of such a determination
and adjustment and Agent promptly shall transmit the notice to each other Lender and, upon its
receipt of the notice from the affected Lender, Borrower may, by notice to such affected Lender
(y) require such Lender to furnish to Borrower a statement setting forth the basis for adjusting
such LIBOR Rate and the method for determining the amount of such adjustment, or (z) repay the
LIBOR Rate Loans with respect to which such adjustment is made (together with any amounts due under
Section 2.12(b)(ii)).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


17









 





(ii) In the event that any change in market conditions or any law, regulation, treaty, or
directive, or any change therein or in the interpretation or application thereof, shall at any time
after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for
such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to
determine or
charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed
circumstances to Agent and Borrower and Agent promptly shall transmit the notice to each other
Lender and (y) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the date
specified in such Lender’s notice shall be deemed to be the last day of the Interest Period of such
LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender thereafter shall accrue
interest at the rate then applicable to Base Rate Loans, and (z) Borrower shall not be entitled to
elect the LIBOR Option until such Lender determines that it would no longer be unlawful or
impractical to do so.



(e) No Requirement of Matched Funding. Anything to the contrary contained herein
notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually
to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest
accrues at the LIBOR Rate.




2.13 Capital Requirements.



(a) If, after the date hereof, any Lender determines that (i) the adoption of or change in any
law, rule, regulation or guideline regarding capital or reserve requirements for banks or bank
holding companies, or any change in the interpretation, implementation, or application thereof by
any Governmental Authority charged with the administration thereof, or (ii) compliance by such
Lender or its parent bank holding company with any guideline, request or directive of any such
entity regarding capital adequacy (whether or not having the force of law), has the effect of
reducing the return on such Lender’s or such holding company’s capital as a consequence of such
Lender’s Revolver Commitments hereunder to a level below that which such Lender or such holding
company could have achieved but for such adoption, change, or compliance (taking into consideration
such Lender’s or such holding company’s then existing policies with respect to capital adequacy and
assuming the full utilization of such entity’s capital) by any amount deemed by such Lender to be
material, then such Lender may notify Borrower and Agent thereof. Following receipt of such
notice, Borrower agrees to pay such Lender on demand the amount of such reduction of return of
capital as and when such reduction is determined, payable within 30 days after presentation by such
Lender of a statement in the amount and setting forth in reasonable detail such Lender’s
calculation thereof and the assumptions upon which such calculation was based (which statement
shall be deemed true and correct absent manifest error); provided, however, that Borrower shall not
be required to compensate any Lender pursuant to this Section 2.13(a) for such reduction of
rate of return on capital incurred more than 90 days prior to the date that such Lender delivers
such statement. In determining such amount, such Lender may use any reasonable averaging and
attribution methods. Failure or delay on the part of any Lender to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that Borrower shall not be required to compensate a Lender pursuant to this
Section for any reductions in return incurred more than 180 days prior to the date that such Lender
notifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and of
such Lender’s intention to claim compensation therefor; provided further that if
such claim arises by reason of the adoption of or change in any law, rule, regulation or guideline
that is retroactive, then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.



(b) If any Lender requests additional or increased costs referred to in Section
2.12(d)(i) or amounts under Section 2.13(a) or sends a notice under Section
2.12(d)(ii) relative to changed circumstances (any such Lender, an “Affected Lender”),
then such Affected Lender shall use reasonable efforts to promptly designate a different one of its
lending offices or to assign its rights and obligations hereunder to another of its offices or
branches, if (i) in the reasonable judgment of such Affected Lender, such designation or assignment
would eliminate or reduce amounts payable pursuant to Section 2.12(d)(i) or Section
2.13(a), as applicable, or would eliminate the illegality or impracticality of funding or
maintaining LIBOR Rate Loans and (ii) in the reasonable judgment of such Affected Lender, such
designation or assignment would not subject it to any material unreimbursed cost or expense and
would not otherwise be materially disadvantageous to it. Borrower agrees to pay all reasonable
out-of-pocket costs and expenses incurred by



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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such Affected Lender in connection with any such
designation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate a different one of its lending
offices or assign its rights to another of its offices or branches so as to eliminate Borrower’s
obligation to pay any future amounts to such Affected Lender pursuant to Section 2.12(d)(i)
or Section 2.13(a), as applicable, or to enable Borrower to obtain LIBOR Rate Loans, then
Borrower (without prejudice to any amounts then due to such Affected Lender under Section
2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to the effective date
of any such assignment the Affected Lender withdraws its request for such additional amounts under
Section 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is no
longer unlawful or impractical to fund or maintain LIBOR Rate Loans, seek a substitute Lender
reasonably acceptable to Agent to purchase the Obligations owed to such Affected Lender and such
Affected Lender’s Revolver Commitments hereunder (a “Replacement Lender”), and if such
Replacement Lender agrees to such purchase, such Affected Lender shall assign to the Replacement
Lender its Obligations and Revolver Commitments, pursuant to an Assignment and Acceptance
Agreement, and upon such purchase by the Replacement Lender, such Replacement Lender shall be
deemed to be a “Lender” for purposes of this Agreement and such Affected Lender shall cease to be a
“Lender” for purposes of this Agreement.




3. CONDITIONS; TERM OF AGREEMENT.



3.1 Conditions Precedent to the Initial Extension of Credit. The obligation of each
Lender to make its initial extension of credit provided for hereunder is subject to the
fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set
forth on Schedule 3.1 (the making of such initial extension of credit by a Lender being
conclusively deemed to be its satisfaction or waiver of the conditions precedent ).



3.2 Conditions Precedent to all Extensions of Credit. The obligation of the Lender
Group (or any member thereof) to make any Advances hereunder (or to extend any other credit
hereunder) at any time shall be subject to the following conditions precedent:



(a) the representations and warranties of Parent or its Subsidiaries contained in this
Agreement or in the other Loan Documents shall be true and correct in all material respects (except
that such materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof) on and as of the date of such
extension of credit, as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date); and



(b) no Default or Event of Default shall have occurred and be continuing on the date of such
extension of credit, nor shall either result from the making thereof.



3.3 Maturity. This Agreement shall continue in full force and effect for a term
ending on August 1, 2014 (the “Maturity Date”). The foregoing notwithstanding, the Lender
Group, upon the election of the Required Lenders, shall have the right to terminate its obligations
under this Agreement immediately and without notice upon the occurrence and during the continuation
of an Event of Default.



3.4 Effect of Maturity. On the Maturity Date, all commitments of the Lender Group to
provide additional credit hereunder shall automatically be terminated and all of the Obligations
immediately shall become due and payable without notice or demand and Borrower shall be required to
repay all of the Obligations in full. No termination of the obligations of the Lender Group (other
than payment in full of the Obligations and termination of the Revolver Commitments) shall relieve
or discharge any Loan Party of its duties, obligations, or covenants hereunder or under any other
Loan Document and Agent’s Liens in the Collateral shall continue to secure the Obligations and
shall remain in effect until all Obligations have been paid in full and the Revolver Commitments
have been terminated. When all of the Obligations have been paid in full and the Lender Group’s
obligations to provide additional credit under the Loan Documents have been terminated irrevocably,
Agent will, at Borrower’s sole expense, execute and deliver any termination statements, lien
releases, discharges of security interests, and other similar discharge or release documents
(and, if applicable, in recordable form) as are reasonably necessary to release, as of record,
Agent’s Liens and all notices of security interests and liens previously filed by Agent.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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3.5 Early Termination by Borrower. Borrower has the option, at any time upon 10
Business Days (or a shorter time if agreed by Agent) prior written notice to Agent, to terminate
this Agreement and terminate the Revolver Commitments hereunder by repaying to Agent all of the
Obligations in full.



3.6 Conditions Subsequent. The obligation of the Lender Group (or any member thereof)
to continue to make Advances (or otherwise extend credit hereunder) is subject to the fulfillment,
on or before the date applicable thereto, of the conditions subsequent set forth on Schedule 3.6
(the failure by Borrower to so perform or cause to be performed such conditions subsequent as and
when required by the terms thereof, shall constitute an Event of Default).




4. REPRESENTATIONS AND WARRANTIES.



In order to induce the Lender Group to enter into this Agreement, each of Parent and Borrower,
jointly and severally, makes the following representations and warranties to the Lender Group which
shall be true, correct, and complete, in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof), as of the Closing Date, and shall be true,
correct, and complete, in all material respects (except that such materiality qualifier shall not
be applicable to any representations and warranties that already are qualified or modified by
materiality in the text thereof), as of the date of the making of each Advance (or other extension
of credit) made thereafter, as though made on and as of the date of such Advance (or other
extension of credit) (except to the extent that such representations and warranties relate solely
to an earlier date) and such representations and warranties shall survive the execution and
delivery of this Agreement:




4.1 Due Organization and Qualification; Subsidiaries.



(a) Parent and each of its Subsidiaries (i) is duly organized or incorporated and existing and
in good standing under the laws of the jurisdiction of its organization or incorporation, (ii) is
qualified to do business in any state where the failure to be so qualified could reasonably be
expected to result in a Material Adverse Change, and (iii) has all requisite power and authority to
own and operate its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party and to carry out the
transactions contemplated thereby.



(b) Set forth on Schedule 4.1(b) is a complete and accurate description, as of the
Closing Date, of the authorized capital Stock of Parent, by class, and of the number of shares of
each such class that are issued and outstanding. Other than as described on Schedule
4.1(b), as of the Closing Date, there are no subscriptions, options, warrants, or calls
relating to any shares of Parent’s capital Stock, including any right of conversion or exchange
under any outstanding security or other instrument, except for options, warrants, and restricted
stock granted to employees, management, and directors in the ordinary course of Parent’s business
as in effect on the Closing Date so long as the granting of such options, warrants or restricted
stock (x) does not result in a Change of Control and (y) is not otherwise prohibited hereunder.
Parent is not subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital Stock or any security convertible into or exchangeable
for any of its capital Stock, except for certain cash payments with respect to the warrants issued
on March 22, 2007, to the investors who purchased the Stock issued by Parent on or about the same
date (the “2007 Warrants”), in connection with a Major Transaction (as such term is defined
in the 2007 Warrants). The foregoing sentence is not intended as the Lender Group’s consent to any
cash payments with respect to the 2007 Warrants.



(c) Set forth on Schedule 4.1(c) (as such Schedule may be updated from time to time to
reflect changes resulting from transactions permitted under this Agreement), is a complete and
accurate list of the Parent’s direct and indirect Subsidiaries, showing: (i) the number of shares
of each class of common
and preferred Stock authorized for each of such Subsidiaries, and (ii) the number and the
percentage of the outstanding shares of each such class owned directly or indirectly by Parent.
All of the outstanding capital Stock of each such Subsidiary has been validly issued and is fully
paid and non-assessable.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(d) Except as set forth on Schedule 4.1(c), there are no subscriptions, options,
warrants, or calls relating to any shares of Parent’s Subsidiaries’ capital Stock, including any
right of conversion or exchange under any outstanding security or other instrument. Except as set
forth in Section 6.9(a), neither Parent nor any of its Subsidiaries is subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of
Parent’s Subsidiaries’ capital Stock or any security convertible into or exchangeable for any such
capital Stock.




4.2 Due Authorization; No Conflict.



(a) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party have been duly authorized by all necessary action on the part
of such Loan Party.



(b) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which each, individually or collectively, is a party do not and will not (i)
violate any material provision of any foreign or domestic federal, state, or local law or
regulation applicable to any Loan Party or its Subsidiaries, the Governing Documents of any Loan
Party or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental
Authority binding on any Loan Party or its Subsidiaries, (ii) conflict with, result in a breach of,
or constitute (with due notice or lapse of time or both) a default under any Material Contract of
any Loan Party or its Subsidiaries except to the extent that any such conflict, breach or default
could not individually or in the aggregate reasonably be expected to have a Material Adverse
Change, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever
upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any approval of any
Loan Party’s interestholders or any approval or consent of any Person under any Material Contract
of any Loan Party, other than consents or approvals that have been obtained and that are still in
force and effect and except, in the case of Material Contracts, for consents or approvals, the
failure to obtain which could not individually or in the aggregate reasonably be expected to cause
a Material Adverse Change.



4.3 Governmental Consents. The execution, delivery, and performance by each Loan
Party of the Loan Documents to which such Loan Party is a party and the consummation of the
transactions contemplated by the Loan Documents do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by, any Governmental Authority,
other than registrations, consents, approvals, notices, or other actions that have been obtained
and that are still in force and effect and except for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Agent for filing or recordation, as of the Closing
Date.




4.4 Binding Obligations; Perfected Liens.



(a) Each Loan Document has been duly executed and delivered by each Loan Party that is a party
thereto and is the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws
relating to or limiting creditors’ rights generally.



(b) Agent’s Liens are validly created, perfected (other than (i) in respect of motor vehicles
that are subject to a certificate of title and as to which Agent has not caused its Lien to be
noted on the applicable certificate of title and (ii) any Deposit Accounts and Securities Accounts
not subject to a Control Agreement as permitted by Section 6.11, and subject only to the
filing of financing statements and
other foreign perfection filings, in each case, in the appropriate filing offices), and first
priority Liens, subject only to Permitted Liens.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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4.5 Title to Assets; No Encumbrances. Each of Parent and its Subsidiaries has (a)
good, sufficient and legal title to (in the case of fee interests or freehold interest, as
applicable, in Real Property), (b) valid leasehold interests in (in the case of leasehold interests
in real or personal property), and (c) good and marketable title to (in the case of all other
personal property), all of their respective assets reflected in their most recent financial
statements delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements to the extent permitted hereby. All of such assets are
free and clear of Liens except for Permitted Liens.



4.6 Jurisdiction of Organization; Location of Chief Executive Office; Organizational
Identification Number; Commercial Tort Claims.



(a) The name of (within the meaning of Section 9-503 of the Code) and jurisdiction of
organization of Parent and each of its Subsidiaries is set forth on Schedule 4.6(a) (as
such Schedule may be updated from time to time to reflect changes resulting from transactions
permitted under this Agreement).



(b) The chief executive office of Parent and each of its Subsidiaries is located at the
address indicated on Schedule 4.6(b) (as such Schedule may be updated from time to time to
reflect changes resulting from transactions permitted under this Agreement).



(c) Parent’s and each of its Subsidiaries’ tax identification numbers and organizational
identification numbers, if any, are identified on Schedule 4.6(c) (as such Schedule may be
updated from time to time to reflect changes resulting from transactions permitted under this
Agreement).



(d) As of the Closing Date, neither Parent nor any of its Subsidiaries holds any commercial
tort claims having a value in excess of $100,000, except as set forth on Schedule 4.6(d).




4.7 Litigation.



(a) Except as disclosed on Schedule 4.7(a), there are no actions, suits, or
proceedings pending or, to the knowledge of Parent, after due inquiry, threatened in writing
against Parent or any of its Subsidiaries that either individually or in the aggregate could
reasonably be expected to result in a Material Adverse Change.



(b) Schedule 4.7(b) sets forth a complete and accurate description, with respect to
each of the actions, suits, or proceedings that, as of the Closing Date, is pending or, to the
knowledge of Parent, after due inquiry, threatened against Parent or any of its Subsidiaries, that
individually if determined adversely to Parent or any of its Subsidiaries could reasonably be
expected to result in a liability in excess of $1,000,000, of (i) the parties to such actions,
suits, or proceedings, (ii) the nature of the dispute that is the subject of such actions, suits,
or proceedings, (iii) the status, as of the Closing Date, with respect to such actions, suits, or
proceedings, and (iv) whether any liability of Parent’s and its Subsidiaries in connection with
such actions, suits, or proceedings is covered by insurance.



4.8 Compliance with Laws. Neither Parent nor any of its Subsidiaries (a) is in
violation of any applicable laws, rules, regulations, executive orders, or codes (including
Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Change, or (b) is subject to or in default with respect to any final
judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Change.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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4.9 No Material Adverse Change. All financial statements relating to Parent and its
Subsidiaries that have been delivered by Parent to Agent in connection with the execution hereof at
any time after the Closing Date have been prepared in accordance with GAAP (except, in the case of
unaudited financial statements, for the lack of footnotes and being subject to year-end audit
adjustments) and present fairly in all material respects, Parent’s and its Subsidiaries’
consolidated financial condition as of the date thereof and results of operations for the period
then ended. Since April 2, 2011, except for a goodwill impairment charge recorded by parent in
June 2011 which has been disclosed by Parent to Agent prior to the Closing Date, no event,
circumstance, or change has occurred that has or could reasonably be expected to result in a
Material Adverse Change with respect to the Parent and its Subsidiaries.




4.10 Fraudulent Transfer.




(a) Each Loan Party is Solvent.



(b) No transfer of property is being made by any Loan Party and no obligation is being
incurred by any Loan Party in connection with the transactions contemplated by this Agreement or
the other Loan Documents with the intent to hinder, delay, or defraud either present or future
creditors of such Loan Party.



4.11 Employee Benefits. Except as set forth on Schedule 4.11, neither Parent
nor any of its Subsidiaries, nor any of their ERISA Affiliates maintains or contributes to any
Benefit Plan.



4.12 Environmental Condition. Except as set forth on Schedule 4.12, (a) to
Parent’s knowledge, after due inquiry, neither Parent nor any of its Subsidiaries’ properties or
assets has ever been used by Parent, its Subsidiaries, or by previous owners or operators in the
disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous Materials,
where such disposal, production, storage, handling, treatment, release or transport was in
violation, in any material respect, of any applicable Environmental Law and expected to involve
liabilities in an aggregate amount in excess of $1,000,000, (b) to Parent’s knowledge, neither
Parent nor any of its Subsidiaries’ properties or assets has ever been designated or identified in
any manner pursuant to any environmental protection statute as a Hazardous Materials disposal site
which designation or identification could be expected to result in liabilities in an aggregate
amount in excess of $1,000,000, (c) neither Parent nor any of its Subsidiaries has received notice
that a Lien arising under any Environmental Law involving an aggregate amount in excess of
$1,000,000 has attached to any revenues or to any Real Property owned or operated by Parent or its
Subsidiaries, and (d) neither Parent nor any of its Subsidiaries nor any of their respective
facilities or operations is subject to any outstanding written order, consent decree, or settlement
agreement with any Person relating to any Environmental Law or Environmental Liability that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Change.



4.13 Intellectual Property. To the knowledge of Parent and Borrower, each of Parent
and its Subsidiaries own, or hold licenses in, all trademarks, trade names, copyrights, patents,
and licenses that are necessary to the conduct of its business as currently conducted, and attached
hereto as Schedule 4.13 (as updated from time to time) is a true, correct, and complete
listing of all material trademarks, trade names, copyrights, patents, and licenses as to which
Parent or one of its Subsidiaries is the owner or is an exclusive licensee; provided,
however, that Borrower may amend Schedule 4.13 to add additional material
intellectual property so long as such amendment occurs by written notice to Agent at the time that
Parent provides its Compliance Certificate pursuant to Section 5.1.



4.14 Leases. Each of Parent and its Subsidiaries enjoy peaceful and undisturbed
possession under all leases material to their business and to which they are parties or under which
they are operating, and, subject to Permitted Protests, all of such material leases are valid and
subsisting and no material default by the Parent or its Subsidiaries exists under any of them.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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4.15 Deposit Accounts and Securities Accounts. Set forth on Schedule 4.15 (as
updated pursuant to the provisions of the Security Agreement from time to time) is a listing of all
of Parent’s and its Subsidiaries’ Deposit Accounts and Securities Accounts, including, with respect
to each bank or securities intermediary (a) the name and address of such Person, and (b) the
account numbers of the Deposit Accounts or Securities Accounts maintained with such Person.



4.16 Complete Disclosure. All factual information taken as a whole (other than
forward-looking information and projections and information of a general economic nature and
general information about Parent’s industry) furnished by or on behalf of Parent or its
Subsidiaries in writing to Agent or any Lender (including all information contained in the
Schedules hereto or in the other Loan Documents) for purposes of or in connection with this
Agreement or the other Loan Documents, and all other such factual information taken as a whole
(other than forward-looking information and projections and information of a general economic
nature and general information about Parent’s industry) hereafter furnished by or on behalf of
Parent or its Subsidiaries in writing to Agent or any Lender will be, true and accurate, in all
material respects, on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances under which such
information was provided. The Projections delivered to Agent on June 30, 2011 represent, and as of
the date on which any other Projections are delivered to Agent, such additional Projections
represent, Parent’s good faith estimate, on the date such Projections are delivered, of the Parent
and its Subsidiaries’ future performance for the periods covered thereby based upon assumptions
believed by Parent to be reasonable at the time of the delivery thereof to Agent (it being
understood that such Projections are subject to uncertainties and contingencies, many of which are
beyond the control of Parent and its Subsidiaries, that no assurances can be given that such
Projections will be realized, and that actual results may differ in a material manner from such
Projections).



4.17 Material Contracts. Set forth on Schedule 4.17 (as such Schedule may be
updated from time to time in accordance herewith) is a reasonably detailed description of the
Material Contracts of Parent and its Subsidiaries as of the most recent date on which Parent
provided its Compliance Certificate pursuant to Section 5.1; provided,
however, that Borrower may amend Schedule 4.17 to add additional Material Contracts
so long as such amendment occurs by written notice to Agent on the date that Parent provides its
Compliance Certificate. Except for matters which, either individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Change, each Material Contract (other
than those that have expired at the end of their normal terms) (a) is in full force and effect and
is binding upon and enforceable against Parent or its Subsidiary and, to Parent and Borrower’s
knowledge, after due inquiry, each other Person that is a party thereto in accordance with its
terms, (b) has not been otherwise amended or modified (other than amendments or modifications
permitted by Section 6.7(b)), and (c) is not in default due to the action or inaction of
Parent or its Subsidiary.



4.18 Patriot Act. To the extent applicable, each Loan Party is in compliance, in all
material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001) (the “Patriot Act”). No part of the proceeds of the
loans made hereunder will be used by Parent or any of its Affiliates, directly or indirectly, for
any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.



4.19 Indebtedness. Set forth on Schedule 4.19 is a true and complete list of
all Indebtedness of Parent and each of its Subsidiaries outstanding immediately prior to the
Closing Date that is to remain outstanding immediately after giving effect to the closing hereunder
on the Closing Date and such Schedule accurately sets forth the aggregate principal amount of such
Indebtedness as of the Closing Date.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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4.20 Payment of Taxes. Except as otherwise permitted under Section 5.5, all
tax returns and reports of Parent and its Subsidiaries required to be filed by any of them have
been timely filed, and all taxes shown on such tax returns to be due and payable and all
assessments, fees and other governmental charges upon Parent and its Subsidiaries and upon their
respective assets, income, businesses and franchises that are due and payable have been paid when
due and payable. Parent and each of its Subsidiaries have made adequate provision in accordance
with GAAP for all taxes not yet due and payable. Neither Parent nor Borrower knows of any proposed
tax assessment against Parent or any of its Subsidiaries that is not being actively contested by
Parent or such Subsidiary diligently, in good faith, and by appropriate proceedings;
provided such reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.



4.21 Margin Stock. Neither Parent nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. No part of the proceeds of the loans made to Borrower
will be used to purchase or carry any such Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that violates the
provisions of Regulation T, U or X of the Board of Governors of the United States Federal Reserve.



4.22 Governmental Regulation. Neither Parent nor any of its Subsidiaries is subject
to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur Indebtedness or which
may otherwise render all or any portion of the Obligations unenforceable. Neither Parent nor any
of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered
investment company” or a “principal underwriter” of a “registered investment company” as such terms
are defined in the Investment Company Act of 1940.



4.23 OFAC. Neither Parent nor any of its Subsidiaries is in violation of any of the
country or list based economic and trade sanctions administered and enforced by OFAC. Neither
Parent nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has its
assets located in Sanctioned Entities, or (c) derives revenues from investments in, or transactions
with Sanctioned Persons or Sanctioned Entities. No proceeds of any loan made hereunder will be
used to fund any operations in, finance any investments or activities in, or make any payments to,
a Sanctioned Person or a Sanctioned Entity.



4.24 Employee and Labor Matters. There is (i) no unfair labor practice complaint
pending or, to the knowledge of Parent and Borrower, threatened against Parent or its Subsidiaries
before any Governmental Authority and no grievance or arbitration proceeding pending or threatened
against Parent or its Subsidiaries which arises out of or under any collective bargaining agreement
and that could reasonably be expected to result in a material liability, (ii) no strike, labor
dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against
Parent or its Subsidiaries that could reasonably be expected to result in a material liability, or
(iii) to the knowledge of Parent or Borrower, after due inquiry, no union representation question
existing with respect to the employees of Parent or its Subsidiaries and no union organizing
activity taking place with respect to any of the employees of Parent or its Subsidiaries. None of
Parent or its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and
Retraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hours
worked and payments made to employees of Parent or its Subsidiaries have not been in violation of
the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such
violations could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change. All material payments due from Parent or its Subsidiaries on account of
wages and employee health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of Parent, except where the failure to do so could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Change.



4.25 Reserved.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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4.26 Eligible Accounts. As to each Account that is identified by Borrower as an
Eligible Account in a Borrowing Base Certificate submitted to Agent, such Account is (a) a bona
fide existing payment obligation of the applicable Account Debtor created by the sale and delivery
of Inventory or the rendition of services to such Account Debtor in the ordinary course of
Borrower’s business, (b) at the time so identified, owed to Borrower without any known defenses,
disputes, offsets, counterclaims, or rights of return or cancellation, and (c) at the time so
identified, not excluded as ineligible by virtue of one or more of the excluding criteria (other
than Agent-discretionary criteria) set forth in the definition of Eligible Accounts.



4.27 Inventory. Inventory of Loan Parties is, in all material respects, of good and
merchantable quality, free from known defects.



4.28 Equipment. Each material item of Equipment of Loan Parties is used or held for
use in their business and is, in all material respects, in good working order, ordinary wear and
tear and damage by casualty excepted.



4.29 Locations of Inventory and Equipment. Except as disclosed on Schedule
4.29, the Inventory and Equipment (other than vehicles or Equipment out for repair and
Inventory on consignment subject to the limitations set forth in Section 6.16) of Loan
Parties with an aggregate fair market value in excess of $100,000 at any one location or $250,000
in the aggregate for all such locations are not stored with a bailee, warehouseman, or similar
party and are located only at, or in-transit between or to, the locations identified on
Schedule 4.29 (as such Schedule may be updated pursuant to Section 5.15).



4.30 Inventory Records. Each Loan Party keeps correct and accurate records itemizing
and describing the type, quality, and quantity of its and its Subsidiaries’ Inventory and the book
value thereof.



4.31 Inactive Subsidiaries. Each of the Inactive Subsidiaries is inactive and does
not conduct any business operations, except as may be related to the dissolution of such Inactive
Subsidiary or the consolidation or merger of such Inactive Subsidiary with one or more Loan Parties
as permitted under the terms of this Agreement.



4.32 Registration of UK establishment. No Loan Party is an “overseas company that is
registered” within the meaning of Part 3 of The Overseas Companies (Execution of Documents and
Registration of Charges) Regulations 2009 (England & Wales legislation).




4.33 Pensions. The Borrower is not, nor has it at any time been:



(a) an employer (for purposes of sections 38 to 51 of the Pensions Act 2004 (England & Wales
legislation)) of an occupational pension scheme which is not a money purchase scheme (both terms as
defined in the Pensions Schemes Act 1993 (England & Wales legislation)); and



(b) “connected” with or an “associate” (as those terms are used in sections 38 and 43 of the
Pensions Act 2004 (England & Wales legislation)) of such an employer.



4.34 No Filing or Stamp Taxes. Under the law of each Loan Party’s jurisdiction of
incorporation it is not necessary that any Loan Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp, registration or similar tax be
paid on or in relation to the Loan Documents or the transactions contemplated by the Loan
Documents, except:



(a) registration of particulars of the UK Collateral Documents at the Companies Registration
Office in England and Wales in accordance with Part 25 (Company Charges) of the Companies Act 2006
(England & Wales legislation) or any regulations relating to the registration of charges made
under, or applying the provisions of, the Companies Act 2006 (England & Wales legislation) and
payment of associated fees;

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) registration of particulars of the UK Collateral Documents (to the extent that they
include a lien over trade marks and/or patents) at the Trade Marks Registry at the Patent Office in
England and Wales and payment of associated fees;



(c) registration of the UK Collateral Documents (to the extent that include a lien over Real
Property) at the Land Registry or Land Charges Registry in England and Wales and payment of
associated fees;



which registrations, filings, taxes and fees (if not already made and paid at the date of this
Agreement) will be made and paid promptly after the date of the relevant Loan Document.




5. AFFIRMATIVE COVENANTS.



Each of Parent and Borrower covenants and agrees that, until termination of all of the
Revolver Commitments and payment in full of the Obligations, Parent shall and shall cause each of
their Subsidiaries to comply with each of the following:



5.1 Financial Statements, Reports, Certificates. Deliver to Agent, with copies to
each Lender, each of the financial statements, reports, and other items set forth on Schedule
5.1 no later than the times specified therein. In addition, Parent agrees that none of its
Subsidiaries will have a fiscal year different from that of Parent. In addition, Parent agrees to
maintain a system of accounting that enables Parent to produce financial statements in accordance
with GAAP.



5.2 Collateral Reporting. Provide Agent (and if so requested by Agent, with copies
for each Lender) with each of the reports set forth on Schedule 5.2 at the times specified
therein. In addition, Borrower agrees to use commercially reasonable efforts in cooperation with
Agent to facilitate and implement a system of electronic collateral reporting in order to provide
electronic reporting of each of the items set forth on such Schedule.



5.3 Existence. Except as otherwise permitted under Section 6.3 or Section
6.4 or in connection with a Permitted Restructuring Transaction, at all times maintain and
preserve in full force and effect its existence (including being in good standing in its
jurisdiction of organization) and all rights and franchises, licenses and permits material to its
business.



5.4 Maintenance of Properties. Maintain and preserve all of its assets that are
necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear, tear, and casualty excepted, and Permitted Dispositions excepted, and comply with
the material provisions of all material leases to which it is a party as lessee, so as to prevent
the loss or forfeiture thereof, unless such provisions are the subject of a Permitted Protest.



5.5 Taxes. Cause all assessments and taxes imposed, levied, or assessed against
Parent or its Subsidiaries, or any of their respective assets or in respect of any of its income,
businesses, or franchises to be paid in full, before delinquency or before the expiration of any
extension period, except to the extent that the validity of such assessment or tax shall be the
subject of a Permitted Protest and so long as, in the case of an assessment or tax that has or may
become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay
the sale of any portion of the Collateral to satisfy such assessment or tax.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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5.6 Insurance.



(a) At Borrower’s expense, maintain insurance respecting each of Parent’s and its
Subsidiaries’ assets wherever located, covering loss or damage by fire, theft, explosion, and all
other hazards and risks as ordinarily are insured against by other Persons engaged in the same or
similar businesses. Parent and its Subsidiaries also shall maintain (with respect to each of Parent
and its Subsidiaries) business
interruption, general liability, product liability insurance, director’s and officer’s
liability insurance, fiduciary liability insurance, and employment practices liability insurance,
as well as insurance against larceny, embezzlement, and criminal misappropriation. All such
policies of insurance shall be with responsible and reputable insurance companies acceptable to
Agent and in such amounts as is carried generally in accordance with sound business practice by
companies in similar businesses similarly situated and located and in any event in amount, adequacy
and scope reasonably satisfactory to Agent. All property insurance policies covering the Collateral
are to be made payable to Agent for the benefit of Agent and the Lenders, as their interests may
appear, in case of loss, pursuant to a standard loss payable endorsement with a standard non
contributory “lender” or “secured party” clause and are to contain such other provisions as Agent
may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments
to be made under such policies. All certificates of property and general liability insurance are
to be delivered to Agent, with the loss payable (but only in respect of Collateral) and additional
insured endorsements in favor of Agent and shall provide for not less than 30 days (10 days in the
case of non-payment) prior written notice to Agent of the exercise of any right of cancellation.
If Parent and its Subsidiaries fail to maintain such insurance, Agent may arrange for such
insurance, but at Borrower’s expense and without any responsibility on Agent’s part for obtaining
the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the
collection of claims. Borrower shall give Agent prompt notice of any loss exceeding $250,000
covered by its casualty or business interruption insurance. Upon the occurrence and during the
continuance of an Event of Default, Agent shall have the sole right to file claims under any
property and general liability insurance policies in respect of the Collateral, to receive, receipt
and give acquittance for any payments that may be payable thereunder, and to execute any and all
endorsements, receipts, releases, assignments, reassignments or other documents that may be
necessary to effect the collection, compromise or settlement of any claims under any such insurance
policies.



(b) Any monies received as payment for any loss under any insurance policy mentioned above
(other than liability insurance policies or casualty policies respecting assets that are not
Collateral) or as payment of any award or compensation for condemnation or taking by eminent domain
with respect to Collateral, shall be paid over to Agent to be applied at the option of the Required
Lenders either to the prepayment of the Obligations (provided that any such prepayment shall not
result in a permanent reduction of the Commitments) or to be disbursed to Borrower under staged
payment terms reasonably satisfactory to the Required Lenders for application to the cost of
repairs, replacements, or restorations; provided, however, that, with respect to any such monies in
an aggregate amount during any 12 consecutive month period not in excess of $1,000,000, so long as
(A) no Default or Event of Default shall have occurred and is continuing, (B) Borrower shall have
given Agent prior written notice of Parent’s or its respective Subsidiaries’ intention to apply
such monies to the cost of repair, replacement, or restoration of the property which is the subject
of the loss, destruction, or taking by condemnation, (C) the monies are held in Borrower’s Deposit
Account subject to a Control Agreement, and (D) Parent or its Subsidiaries complete such repairs,
replacements, or restorations within 180 days after the initial receipt of such monies, Parent or
such Subsidiaries shall have the option to apply such monies to the cost of repair, replacement, or
restoration of the property which is the subject of the loss, destruction, or taking by
condemnation unless and to the extent that such applicable period shall have expired or an Event of
Default shall have occurred without such repair, replacement, or restoration being made, in which
case, any amounts remaining in the cash collateral account shall be applied to the Obligations in
accordance with Section 2.4(b)(ii).



5.7 Inspection. Permit Agent and each of its duly authorized representatives or
agents to visit any of its properties and inspect any of its assets or books and records, to
conduct appraisals and valuations, to examine and make copies of its books and records, and to
discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers
and employees at such reasonable times and intervals as Agent may designate and, so long as no
Default or Event of Default exists, with reasonable prior notice to Borrower.



5.8 Compliance with Laws. Comply with the requirements of all applicable laws, rules,
regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and
orders the non-
compliance with which, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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5.9 Environmental.



(a) Keep any property either owned or operated by Parent or its Subsidiaries free of any
Environmental Liens involving an aggregate amount in excess of $1,000,000 or post bonds or other
financial assurances sufficient to satisfy the obligations or liability evidenced by such
Environmental Liens,



(b) Comply, in all material respects, with Environmental Laws and provide to Agent
documentation of such compliance which Agent reasonably requests, where the failure to comply could
be expected to involve potential liabilities in excess of $1,000,000 in the aggregate,



(c) Promptly notify Agent of any release of which Borrower has knowledge of a Hazardous
Material in any reportable quantity from or onto property owned or operated by Parent or its
Subsidiaries and take any Remedial Actions required to abate said release or otherwise to come into
compliance, in all material respects, with applicable Environmental Law, and



(d) Promptly, but in any event within 5 Business Days of its receipt thereof, provide Agent
with written notice of any of the following: (i) notice that an Environmental Lien involving an
aggregate amount in excess of $1,000,000 has been filed against any of the real or personal
property of Parent or its Subsidiaries, (ii) commencement of any Environmental Action or written
notice that an Environmental Action will be filed against Parent or its Subsidiaries which could
reasonably be expected to involve potential liabilities in excess of $1,000,000 in the aggregate,
and (iii) written notice of a material violation, citation, or other administrative order from a
Governmental Authority.



5.10 Disclosure Updates. Promptly and in no event later than 5 Business Days after
obtaining knowledge thereof, notify Agent if any written information, exhibit, or report furnished
to Agent or the Lenders contained, at the time it was furnished, any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made. The foregoing to the contrary
notwithstanding, any notification pursuant to the foregoing provision will not cure or remedy the
effect of the prior untrue statement of a material fact or omission of any material fact nor shall
any such notification have the effect of amending or modifying this Agreement or any of the
Schedules hereto.



5.11 Formation of Subsidiaries. At the time that any Loan Party forms any direct or
indirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such Loan
Party shall (a) within 30 days of such formation or acquisition (90 days with respect to such
formation or acquisition in connection with a Permitted Acquisition or in any event such later date
as permitted by Agent in its sole discretion) cause any such new Subsidiary to provide to Agent a
joinder to the Guaranty and the Security Agreement, together with such other security documents
(including mortgages with respect to any Real Property owned in fee of such new Subsidiary with a
fair market value of at least $500,000), (or its equivalent in any other currency), as well as
appropriate financing statements (and with respect to all property subject to a mortgage, fixture
filings), all in form and substance reasonably satisfactory to Agent (including being sufficient to
grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly
formed or acquired Subsidiary); provided that the Guaranty, the Security Agreement, and
such other security documents shall not be required to be provided to Agent with respect to any
Subsidiary of Parent if such Subsidiary is organized in any jurisdiction other than the United
States of America (or a state thereof) or the United Kingdom or perfecting the security interests
created thereby are unreasonably excessive (as determined by Agent in consultation with Borrower)
in relation to the benefits of Agent and the Lenders of the security or guarantee afforded thereby,
(b) within 30 days of such formation or acquisition (90 days with respect to such formation or
acquisition in connection with a Permitted Acquisition or in any event such later date as permitted
by Agent in its sole discretion)




Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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provide to Agent a pledge agreement (or an addendum to the
Security Agreement) and appropriate certificates and powers or financing statements, pledging all of
the direct or beneficial ownership interest in such new Subsidiary reasonably satisfactory to
Agent; provided that only 65% of the total outstanding voting Stock of any first tier
Subsidiary of Parent or other Loan Party that is a CFC (and none of the Stock of any Subsidiary of
such CFC) shall be required to be pledged if pledging a greater amount would result in adverse tax
consequences or the costs to the Loan Parties of providing such pledge or perfecting the security
interests created thereby are unreasonably excessive (as determined by Agent in consultation with
Borrower) in relation to the benefits of Agent and the Lenders of the security or guarantee
afforded thereby (which pledge, if reasonably requested by Agent, shall be governed by the laws of
the jurisdiction of such Subsidiary), and (c) within 30 days of such formation or acquisition (90
days with respect to such formation or acquisition in connection with a Permitted Acquisition or in
any event such later date as permitted by Agent in its sole discretion) provide to Agent all other
documentation, including one or more opinions of counsel reasonably satisfactory to Agent, which in
its opinion is appropriate with respect to the execution and delivery of the applicable
documentation referred to above (including policies of title insurance or other documentation with
respect to all Real Property owned in fee and subject to a mortgage and supplements to the
schedules to the Loan Documents supplementing the then existing schedules with information related
to the formed or acquired subsidiary). Any document, agreement, or instrument executed or issued
pursuant to this Section 5.11 shall be a Loan Document.



5.12 Further Assurances. At any time upon the reasonable request of Agent, execute or
deliver to Agent any and all financing statements, fixture filings, security agreements, pledges,
assignments, endorsements of certificates of title, mortgages, deeds of trust, opinions of counsel,
and all other documents (the “Additional Documents”) that Agent may reasonably request in
form and substance reasonably satisfactory to Agent, to create, perfect, and continue perfected or
to better perfect Agent’s Liens in all of the assets of the Loan Parties (whether now owned or
hereafter arising or acquired, tangible or intangible, real or personal), to create and perfect
Liens in favor of Agent in any Real Property acquired by the Loan Parties after the Closing Date
with a fair market value in excess of $500,000 (or its equivalent in any other currency), and in
order to fully consummate all of the transactions contemplated hereby and under the other Loan
Documents; provided that the foregoing shall not apply to any Subsidiary of Parent that is
a CFC if providing such documents would result in adverse tax consequences or the costs to the Loan
Parties of providing such documents are unreasonably excessive (as determined by Agent in
consultation with Borrower) in relation to the benefits of Agent and the Lenders of the benefits
afforded thereby. To the maximum extent permitted by applicable law, if Parent refuses or fails
to execute or deliver any reasonably requested Additional Documents within a reasonable period of
time following the request to do so, Parent hereby authorizes Agent to execute any such Additional
Documents in the applicable Loan Party’s or its Subsidiary’s name, as applicable, and authorizes
Agent to file such executed Additional Documents in any appropriate filing office. In furtherance
and not in limitation of the foregoing, each Loan Party shall take such actions as Agent may
reasonably request from time to time to ensure that the Obligations are guarantied by the
Guarantors and are secured by substantially all of the assets of the Loan Parties and all of the
outstanding capital Stock of Loan Parties’ Subsidiaries (subject to exceptions and limitations
contained in the Loan Documents with respect to CFCs).



5.13 Lender Meetings. Within 90 days after the close of each fiscal year of Parent,
at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold a meeting
(at a mutually agreeable location and time or, at the option of Agent, by conference call) with all
Lenders who choose to attend such meeting at which meeting shall be reviewed the financial results
of the previous fiscal year and the financial condition of Parent and its Subsidiaries and the
projections presented for the current fiscal year of Parent.



5.14 Material Contracts. Contemporaneously with the delivery of each Compliance
Certificate pursuant to Section 5.1, provide Agent with copies of (a) each Material
Contract entered into since the delivery of the previous Compliance Certificate, and (b) each
material amendment or modification of any Material Contract entered into since the delivery of the
previous Compliance Certificate.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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5.15 Location of Inventory and Equipment. Keep each Loan Party’s Inventory and
Equipment (other than vehicles or Equipment out for repair and Inventory on consignment subject to
the limitations set forth in Section 6.16) only at the locations identified on Schedule
4.29 and their chief executive offices only at the locations identified on Schedule
4.6(b); provided, however, that Borrower may amend Schedule 4.29 or Schedule
4.6(b) so long as such amendment occurs by written notice to Agent not less than 10 days prior
to the date on which such Inventory or Equipment is moved to such new location or such chief
executive office is relocated and so long as such new location is within the continental United
States, Canada or United Kingdom and so long as, at the time of such written notification, Borrower
provides Agent a Collateral Access Agreement with respect with respect to such locations at which
Inventory or Equipment with an aggregate fair market value in excess of $100,000 at any one
location or $250,000 for all such locations is located (it being understood that in the event a
Loan Party is unable to obtain any such Collateral Access Agreement, Agent may establish such
reserves against Availability as it deems necessary in its Permitted Discretion with respect to
such Inventory or Equipment), and (y) except as otherwise expressly permitted hereunder, at the
time any such Inventory or Equipment is moved or transferred, Agent’s Liens on such Inventory and
Equipment are not adversely affected.




5.16 Reserved.



5.17 Accounts Receivables. Each Loan Party shall collect and realise its Accounts and
other monies and receipts and, save to the extent that the Agent otherwise agrees in writing or as
set forth in Section 6.11, pay the proceeds of the Accounts into a Deposit Account which
is either subject to a Controlled Account Agreement or is subject to a fixed charge under a UK
Collateral Document.



5.18 Center of Main Interests. Each UK Loan party shall maintain its centre of main
interests in England and Wales for the purposes of the Council Regulation (EC) No.1346/2000 of 29
May 2000 on Insolvency Proceedings.



5.19 Pensions. Except in relation to the defined benefit scheme operated or
contributed by Oclaro (Switzerland) AG, the Parent and each of its Subsidiaries shall ensure that
it is not, nor has been at any time an employer (for the purposes of sections 38 to 51 of the
Pensions Act 2004 (England & Wales legislation)) of an occupational pension scheme which is not a
money purchase scheme (both terms as defined in the Pensions Schemes Act 1993 (England & Wales
legislation)) or “connected” with or an “associate” of (as those terms are defined in sections 38
or 43 of the Pension Act 2004 (England & Wales legislation)) such an employer.




6. NEGATIVE COVENANTS.



Each of Parent and Borrower, jointly and severally, covenants and agrees that, until
termination of all of the Revolver Commitments and payment in full of the Obligations, such Person
will not and will not permit any of its Subsidiaries to do any of the following:



6.1 Indebtedness. Create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any Indebtedness, except for
Permitted Indebtedness.



6.2 Liens. Create, incur, assume, or suffer to exist, directly or indirectly, any
Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired,
or any income or profits therefrom, except for Permitted Liens.




6.3 Restrictions on Fundamental Changes.



(a) Other than in order to consummate a Permitted Acquisition or Permitted Restructuring
Transaction, enter into any merger, consolidation, reorganization, or recapitalization, or
reclassify its Stock, except for (i) any merger between Loan Parties, provided that Borrower must
be the
surviving entity of any such merger to which it is a party, (ii) any merger between a Loan
Party and Subsidiaries of such Loan Party that are not Loan Parties so long as such Loan Party is
the surviving entity of any such merger, and (iii) any merger between Subsidiaries of Parent that
are not Loan Parties,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), except
for (i) the liquidation or dissolution of non-operating Subsidiaries of Parent with nominal assets
and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other than Parent or
Borrower) or any of its wholly-owned Subsidiaries so long as all of the assets (including any
interest in any Stock) of such liquidating or dissolving Loan Party or Subsidiary are transferred
to a Loan Party that is not liquidating or dissolving, (iii) the liquidation or dissolution of a
Subsidiary of Parent that is not a Loan Party (other than any such Subsidiary the Stock of which
(or any portion thereof) is subject to a Lien in favor of Agent) or the liquidation or dissolution
of an Inactive Subsidiary, so long as, in each case, all of the assets of such liquidating or
dissolving Subsidiary are transferred to a Subsidiary of Parent that is not liquidating or
dissolving, or



(c) Suspend or go out of a substantial portion of its or their business, except as permitted
pursuant to clauses (a) or (b) above or in connection with the transactions permitted pursuant to
Section 6.4.



6.4 Disposal of Assets. Other than Permitted Dispositions or transactions expressly
permitted by Sections 6.3 or 6.11, convey, sell, lease, license, assign, transfer,
or otherwise dispose of (or enter into an agreement to convey, sell, lease, license, assign,
transfer, or otherwise dispose of) any of Parent’s or its Subsidiaries’ assets.



6.5 Change Name. Change Parent’s or any of its Subsidiaries’ name, organizational
identification number, state of organization or organizational identity; provided, however, that
Parent or any of its Subsidiaries may change its name upon at least 15 days prior written notice to
Agent of such change.



6.6 Nature of Business. Make any change in the nature of its or their business as
described in Schedule 6.6 or acquire any properties or assets that are not reasonably
related to the conduct of such business activities; provided, however, that the foregoing shall not
prevent Parent and its Subsidiaries from engaging in any business that is reasonably related or
ancillary to its or their business.




6.7 Prepayments and Amendments.




(a) Except in connection with Refinancing Indebtedness permitted by Section 6.1,



(i) optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness of
Parent or its Subsidiaries, other than (A) the Obligations in accordance with this Agreement, and
(B) Permitted Intercompany Advances so long as such prepayment, redemption, defeasance or purchase
is permitted under the terms of the Intercompany Subordination Agreement, or



(ii) make any payment on account of Indebtedness that has been contractually subordinated in
right of payment to the Obligations if such payment is not permitted at such time under the
subordination terms and conditions, or



(iii) convert into Stock of Parent any Permitted Indebtedness of Parent which by its terms is
convertible into the Stock of Parent, or



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) Directly or indirectly, amend, modify, or change any of the terms or provisions of



(i) any agreement, instrument, document, indenture, or other writing evidencing or concerning
Permitted Indebtedness other than (A) the Obligations in accordance with this Agreement, (B)
Permitted Intercompany Advances, and (C) Indebtedness permitted under clauses (c), (h), (j) and (k)
of the definition of Permitted Indebtedness,



(ii) any Material Contract except to the extent that such amendment, modification, or change
could not, individually or in the aggregate, reasonably be expected to be materially adverse to the
interests of the Lenders, or



(iii) the Governing Documents of Parent or any of its Subsidiaries if the effect thereof,
either individually or in the aggregate, could reasonably be expected to be materially adverse to
the interests of the Lenders.



6.8 Change of Control. Cause, permit, or suffer, directly or indirectly, any Change
of Control.



6.9 Restricted Junior Payments. Make any Restricted Junior Payment; provided,
however, that, so long as it is permitted by law, and so long as no Default or Event of Default
shall have occurred and be continuing or would result therefrom,



(a) Parent may make distributions to former employees, officers, or directors of Parent (or
any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of
Parent held by such Persons, provided, however, that the aggregate amount of such redemptions made
by Parent during the term of this Agreement does not exceed $100,000 in the aggregate,



(b) Parent may make distributions to former employees, officers, or directors of Parent (or
any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of
Indebtedness of such Persons owing to Parent on account of repurchases of the Stock of Parent held
by such Persons; provided that such Indebtedness was incurred by such Persons solely to
acquire Stock of Parent, and



(c) a Loan Party may make cash distributions or declare and make dividend payments to another
Loan Party, and a Subsidiary of Parent which is not a Loan Party may make cash distributions or
declare and make dividend payments to any Subsidiary of Parent.



6.10 Accounting Methods. Modify or change its fiscal year or its method of accounting
(other than as may be required to conform to GAAP).




6.11 Investments; Controlled Investments.



(a) Except for Permitted Investments, directly or indirectly, make or acquire any Investment
or incur any liabilities (including contingent obligations) for or in connection with any
Investment.



(b) Other than (i) an aggregate amount of not more than $25,000 at any one time, in the case
of Loan Parties, (ii) amounts deposited into Deposit Accounts specially and exclusively used for
payroll, payroll taxes and other employee wage and benefit payments to or for Parent’s or its
Subsidiaries’ employees, (iii) in the case of Subsidiaries of Parent that are not Loan Parties and
the San Donato Accounts, an aggregate amount of not more than $15,000,000 at any one time (in each
case, calculated at current exchange rates), and (iv) the Excluded Accounts; make, acquire, or
permit to exist Permitted Investments consisting of cash, Cash Equivalents, or amounts credited to
Deposit Accounts or Securities Accounts unless Parent or its Subsidiary, as applicable, and the
applicable bank or securities intermediary have entered into Control Agreements with Agent
governing such Permitted Investments in order to perfect (and further establish) Agent’s Liens in
such Permitted Investments.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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6.12 Transactions with Affiliates. Directly or indirectly enter into or permit to
exist any transaction with any Affiliate of Parent or any of its Subsidiaries except for:



(a) Permitted Intercompany Transactions, Permitted Intercompany Advances, Permitted
Dispositions and Permitted Investments,



(b) so long as it has been approved by Parent’s or its applicable Subsidiary’s board of
directors (or comparable governing body) in accordance with applicable law, any indemnity provided
for the benefit of directors (or comparable managers) of Parent or its applicable Subsidiary,



(c) so long as it has been approved by Parent’s or its applicable Subsidiary’s board of
directors (or comparable governing body) in accordance with applicable law, the payment of
reasonable compensation, severance, or employee benefit arrangements to employees, officers, and
outside directors of Parent and its Subsidiaries in the ordinary course of business and consistent
with industry practice, and




(d) transactions permitted by Section 6.3 or Section 6.9.



6.13 Use of Proceeds. Use the proceeds of any loan made hereunder for any purpose
other than: (i) on the Closing Date, to pay transactional fees, costs, and expenses incurred in
connection with this Agreement, the other Loan Documents, and the transactions contemplated hereby
and thereby, and (ii) thereafter, consistent with the terms and conditions hereof, for their lawful
and permitted purposes (including that no part of the proceeds of the loans made to Borrower will
be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates the provisions of
Regulation T, U or X of the Board of Governors of the United States Federal Reserve).



6.14 Limitation on Issuance of Stock. Except for the issuance or sale of common stock
or Permitted Preferred Stock by Parent or issuance of Stock by a Subsidiary of Parent in connection
with the transfer of the ownership interest of one Subsidiary of Parent to Parent or another
Subsidiary of Parent so long as such transfer is a Permitted Disposition, issue or sell or enter
into any agreement or arrangement for the issuance and sale of any of its Stock.




6.15 Reserved



6.16 Consignments. Except as set forth on Schedule 4.29 and as permitted by
Section 5.15, with respect to Inventory having a value in excess of [***], consign any of
its or their Inventory or sell any of its or their Inventory on bill and hold, sale or return, sale
on approval, or other conditional terms of sale.



6.17 Inventory and Equipment with Bailees. Except as set forth on Schedule
4.29 and as permitted by Section 5.15, store the inventory or Equipment of Parent or
its Subsidiaries that are Loan Parties at any time now or hereafter with a bailee, warehouseman, or
similar party unless such bailee, warehouseman, or similar party has first provided Agent with a
Collateral Access Agreement.




7. FINANCIAL COVENANTS.



Each of Parent and Borrower covenants and agrees that, until termination of all of the
Revolver Commitments and payment in full of the Obligations, Parent will:



7.1 Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio, measured on
a fiscal quarter-end basis, not less than 1.10 to 1.00, for any measurement date occurring
immediately before the occurrence or at any time during the existence of a Triggering Period.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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8. EVENTS OF DEFAULT.



Any one or more of the following events shall constitute an event of default (each, an
“Event of Default”) under this Agreement:



8.1 If any Loan Party fails to pay when due and payable, or when declared due and payable, (a)
all or any portion of the Obligations consisting of interest, fees, or charges due the Lender
Group, reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof
constituting principal) constituting Obligations (including any portion thereof that accrues after
the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole
or in part as a claim in any such Insolvency Proceeding), and such failure continues for a period
of 3 Business Days, or (b) all or any portion of the principal of the Obligations;




8.2 If Parent or any of its Subsidiaries:



(a) fails to perform or observe any covenant or other agreement contained in any of (i)
Sections 3.6, 5.1, 5.2, 5.3 (solely if Loan Party is not in good standing in its jurisdiction of
organization or incorporation, as appropriate), 5.6, 5.7 (solely if Loan Party refuses to allow
Agent or its representatives or agents to visit Loan Party’s properties, inspect its assets or
books or records, examine and make copies of its books and records, or discuss Loan Party’s
affairs, finances, and accounts with officers and employees of that Loan Party), 5.10, 5.11, 5.13,
5.14, or 5.15 of this Agreement, (ii) Sections 6.1 through 6.16 of this
Agreement, (iii) Section 7 of this Agreement, or (iv) Section 6 of the Security Agreement;



(b) fails to perform or observe any covenant or other agreement contained in any of
Sections 5.3 (other than if a Loan Party is not in good standing in its jurisdiction of
organization), 5.4, 5.5, 5.8, and 5.12 of this Agreement and such failure continues
for a period of 10 days after the earlier of (i) the date on which such failure shall first become
known to any officer of Borrower or (ii) the date on which written notice thereof is given to
Borrower by Agent; or



(c) fails to perform or observe any covenant or other agreement contained in this Agreement,
or in any of the other Loan Documents, in each case, other than any such covenant or agreement that
is the subject of another provision of this Section 8 (in which event such other provision
of this Section 8 shall govern), and such failure continues for a period of 30 days after
the earlier of (i) the date on which such failure shall first become known to any officer of
Borrower or (ii) the date on which written notice thereof is given to Borrower by Agent;



8.3 If one or more judgments, orders, or awards for the payment of money involving an
aggregate amount of $2,000,000, (or its equivalent in any other currency) or more (except to the
extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to
which the insurer has not denied coverage) or any analogous process in any jurisdiction is entered
or filed against Parent or any of its Subsidiaries, or with respect to any of their respective
assets, and either (a) there is a period of 30 consecutive days at any time after the entry of any
such judgment, order, award or any analogous process in any jurisdiction during which (1) the same
is not discharged, satisfied, vacated, or bonded pending appeal, or (2) a stay of enforcement
thereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order,
or award;




8.4 If an Insolvency Proceeding is commenced by Parent or any of its Subsidiaries;



8.5 If an Insolvency Proceeding is commenced against Parent or of its Subsidiaries (other than
Borrower) and any of the following events occur: (a) Parent or such Subsidiary consents to the
institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency
Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not
dismissed within 60 calendar days of the date of the filing thereof with respect to a Parent or any
of its Subsidiaries that are organized under the
laws of the United States of America or any of its states and within 7 days for all other
Subsidiaries of Parent, (d) an interim trustee, liquidator, supervisor, receiver, administrator,
administrative receiver, compulsory manager or other similar officer is appointed to take
possession of all or any substantial portion of the properties or assets of, or to operate all or
any substantial portion of the business of, Parent or its Subsidiary, or (e) an order for relief
shall have been issued or entered therein;

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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8.6 If an Insolvency Proceeding is commenced against the Borrower, unless such Insolvency
Proceeding is frivolous or vexatious and is discharged, stayed or dismissed within 3 days of
commencement;



8.7 If any UK Loan Party is unable or admits inability to pay its debts as they fall due or is
deemed or declared to be unable to pay its debts under applicable law, suspends or threatens to
suspend making payments on any of its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its creditors with a view to rescheduling
any of its Indebtedness, or if the value of the assets of any UK Loan Party is less than its
liabilities (taking into account contingent and prospective liabilities) (this Section 8.7 shall be
governed by and construed in accordance with the laws of England and Wales);



8.8 If Parent, any Loan Party, Oclaro China or Oclaro Switzerland is enjoined, restrained, or
in any way prevented by court order from continuing to conduct all or any material part of the
business affairs of Parent and its Subsidiaries, taken as a whole;



8.9 If there is (a) a default in one or more agreements to which Parent or any of its
Subsidiaries is a party with one or more third Persons relative to Parent’s or any of its
Subsidiaries’ Indebtedness involving an aggregate amount of $2,000,000 (or its equivalent in any
other currency) or more, and such default (i) occurs at the final maturity of the obligations
thereunder, or (ii) results in a right by such third Person, irrespective of whether exercised, to
accelerate the maturity of Parent’s or its Subsidiary’s obligations thereunder, or (b) a default in
or an involuntary early termination of one or more Hedge Agreements to which Parent or any of its
Subsidiaries is a party;



8.10 If any warranty, representation, certificate, statement, or Record made herein or in any
other Loan Document or delivered in writing to Agent or any Lender in connection with this
Agreement or any other Loan Document proves to be untrue in any material respect (except that such
materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof) as of the date of issuance or making
or deemed making thereof;



8.11 If the obligation of any Guarantor under the Guaranty is limited or terminated by
operation of law or by such Guarantor (other than in accordance with the terms of this Agreement);



8.12 If the Security Agreement, UK Collateral Documents or any other Loan Document that
purports to create a Lien, shall, for any reason, fail or cease to create a valid and perfected
and, except to the extent of Permitted Liens, first priority Lien on the Collateral covered
thereby, except (a) as a result of a disposition of the applicable Collateral in a transaction
permitted under this Agreement, or (b) as the result of an action or failure to act on the part of
Agent; or



8.13 The validity or enforceability of any Loan Document shall at any time for any reason
(other than solely as the result of an action or failure to act on the part of Agent) be declared
to be null and void, or a proceeding shall be commenced by Parent or its Subsidiaries, or by any
Governmental Authority having jurisdiction over Parent or its Subsidiaries, seeking to establish
the invalidity or unenforceability thereof, or Parent or its Subsidiaries shall deny that Parent or
its Subsidiaries has any liability or obligation purported to be created under any Loan Document.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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9. RIGHTS AND REMEDIES.



9.1 Rights and Remedies. Upon the occurrence and during the continuation of an Event
of Default, Agent may, and, at the instruction of the Required Lenders, shall (in each case under
clauses (a) or (b) by written notice to Borrower), in addition to any other rights or remedies
provided for hereunder or under any other Loan Document or by applicable law, do any one or more of
the following:



(a) declare the Obligations (other than the Bank Product Obligations), whether evidenced by
this Agreement or by any of the other Loan Documents immediately due and payable, whereupon the
same shall become and be immediately due and payable and Borrower shall be obligated to repay all
of such Obligations in full, without presentment, demand, protest, or further notice or other
requirements of any kind, all of which are hereby expressly waived by Borrower;



(b) declare the Revolver Commitments terminated, whereupon the Revolver Commitments shall
immediately be terminated together with (i) any obligation of any Lender hereunder to make
Advances, (ii) the obligation of the Swing Lender to make Swing Loans, and (iii) the obligation of
the Issuing Lender to issue Letters of Credit; and



(c) exercise all other rights and remedies available to Agent or the Lenders under the Loan
Documents or applicable law.



The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default
described in Section 8.4 or Section 8.5, in addition to the remedies set forth
above, without any notice to Borrower or any other Person or any act by the Lender Group, the
Revolver Commitments shall automatically terminate and the Obligations (other than the Bank Product
Obligations), inclusive of all accrued and unpaid interest thereon and all fees and all other
amounts owing under this Agreement or under any of the other Loan Documents, shall automatically
and immediately become due and payable and Borrower shall be obligated to repay all of such
Obligations in full, without presentment, demand, protest, or notice of any kind, all of which are
expressly waived by Parent and Borrower.



9.2 Remedies Cumulative. The rights and remedies of the Lender Group under this
Agreement, the other Loan Documents, and all other agreements shall be cumulative. The Lender
Group shall have all other rights and remedies not inconsistent herewith as provided under the
Code, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemed
an election, and no waiver by the Lender Group of any Event of Default shall be deemed a continuing
waiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.




10. WAIVERS; INDEMNIFICATION.



10.1 Demand; Protest; etc. Borrower waives demand, protest, notice of protest, notice
of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and
guarantees at any time held by the Lender Group on which Borrower may in any way be liable.



10.2 The Lender Group’s Liability for Collateral. Borrower hereby agrees that: (a)
so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall not
in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) any
loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any
diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the
Collateral shall be borne by Borrower.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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10.3 Indemnification. Borrower shall pay, indemnify, defend, and hold the
Agent-Related Persons, the Lender-Related Persons, and each Participant (each, an “Indemnified
Person”) harmless
(to the fullest extent permitted by law) from and against any and all claims, demands, suits,
actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all
reasonable fees and disbursements of attorneys, experts, or consultants and all other costs and
expenses actually incurred in connection therewith or in connection with the enforcement of this
indemnification (as and when they are incurred and irrespective of whether suit is brought), at any
time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a
result of or related to the execution and delivery (provided that Borrower shall not be liable for
costs and expenses (including attorneys fees) of any Lender (other than WFCF) incurred in advising,
structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement,
performance, or administration (including any restructuring or workout with respect hereto) of this
Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or
the monitoring of Parent’s and its Subsidiaries’ compliance with the terms of the Loan Documents
(provided, however, that the indemnification in this clause (a) shall not extend to (i) disputes
solely between or among the Lenders, (ii) disputes solely between or among the Lenders and their
respective Affiliates; it being understood and agreed that the indemnification in this clause (a)
shall extend to Agent (but not the Lenders) relative to disputes between or among Agent on the one
hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any
Taxes or any costs attributable to Taxes, which shall be governed by Section 16), (b) with respect
to any investigation, litigation, or proceeding related to this Agreement, any other Loan Document,
or the use of the proceeds of the credit provided hereunder (irrespective of whether any
Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner
related thereto, and (c) in connection with or arising out of any presence or release of Hazardous
Materials at, on, under, to or from any assets or properties owned, leased or operated by Borrower
or any of its Subsidiaries or any Environmental Actions, Environmental Liabilities or Remedial
Actions related in any way to any such assets or properties of Borrower or any of its Subsidiaries
(each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the
contrary notwithstanding, Borrower shall have no obligation to any Indemnified Person under this
Section 10.3 with respect to any Indemnified Liability that a court of competent
jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of
such Indemnified Person or its officers, directors, employees, attorneys, or agents. This
provision shall survive the termination of this Agreement and the repayment of the Obligations. If
any Indemnified Person makes any payment to any other Indemnified Person with respect to an
Indemnified Liability as to which Borrower was required to indemnify the Indemnified Person
receiving such payment, the Indemnified Person making such payment is entitled to be indemnified
and reimbursed by Borrower with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL
APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART
ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY
OTHER PERSON.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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11. NOTICES.



Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement
or any other Loan Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail (postage prepaid, return receipt requested),
overnight courier, electronic mail (at such email addresses as a party may designate in accordance
herewith), or telefacsimile. In the case of notices or demands to Parent or Agent, as the case may
be, they shall be sent to the respective address set forth below:



	 	 	 
	If to Parent:
	 	OCLARO INC.

	 
	 	2560 Junction Avenue

	 
	 	San Jose, California  95134

	 
	 	Attn: Topher Croddy, Corporate Controller

	 
	 	Fax No.: __.__.____

	 
	 	e-mail: _____


	with copies to:
	 	WILMER CUTLER PICKERING HALE AND DORR LLP

	 
	 	60 State Street

	 
	 	Boston, Massachusetts 02109

	 
	 	Attn: Mitchel Appelbaum, Esq.

	 
	 	Fax No.: __.__.____

	 
	 	e-mail: _____


	If to Borrower:
	 	OCLARO TECHNOLOGY LIMITED

	 
	 	2560 Junction Avenue

	 
	 	San Jose, California  95134

	 
	 	Attn: Topher Croddy, Corporate Controller

	 
	 	Fax No.: __.__.____

	 
	 	e-mail: _____


	with copies to:
	 	WILMER HALE

	 
	 	60 State Street

	 
	 	Boston, Massachusetts 02109

	 
	 	Attn: Mitchel Appelbaum, Esq.

	 
	 	Fax No.: __.__.____

	 
	 	e-mail: _____


	If to Agent:
	 	WELLS FARGO CAPITAL FINANCE, INC.

	 
	 	2450 Colorado Avenue

	 
	 	Suite 3000 West

	 
	 	Santa Monica, California  90404

	 
	 	Attn:  Business Finance Division Manager

	 
	 	Fax No.:  __.__.____


	with copies to:
	 	BUCHALTER NEMER

	 
	 	1000 Wilshire Boulevard, Suite 1500

	 
	 	Los Angeles, CA  90017-2457

	 
	 	Attn:  Robert J. Davidson, Esq.

	 
	 	Fax No.:  __.__.____






Any party hereto may change the address at which they are to receive notices hereunder, by
notice in writing in the foregoing manner given to the other party. All notices or demands sent in
accordance with this Section 11, shall be deemed received on the earlier of the date of
actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a)
notices sent by overnight courier service shall be deemed to have been given when received, (b)
notices by facsimile shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient) and (c) notices by electronic mail shall be
deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as
by the function, as available, return email or other written acknowledgment).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.



(a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO
THE CONTRARY IN THIS AGREEMENT OR IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH PROVISION OF THIS
AGREEMENT OR SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF
AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.



(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO
BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF PARENT AND
BORROWER AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b).



(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF PARENT AND BORROWER AND EACH
MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. EACH OF PARENT AND BORROWER AND EACH MEMBER OF THE LENDER GROUP
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



(d) EACH OF PARENT AND BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES AND
THE STATE OF CALIFORNIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY
LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.




13.1 Assignments and Participations.



(a) With the prior written consent of Borrower, which consent of Borrower shall not be
unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default
has occurred and is continuing, or (2) in connection with an assignment to a Person that is a
Lender or an Affiliate (other than individuals) of a Lender; provided that Borrower shall be deemed
to have consented to a proposed assignment unless it objects thereto by written notice to Agent
within 5 Business Days after having received written notice thereof, and with the prior written
consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or
conditioned, and shall not be required in connection with an assignment to a Person that is a
Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to
one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an
“Assignee”; provided, however, that no Loan Party, or Affiliate of a Loan Party, shall be
permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments
and the other rights and obligations of such Lender hereunder and under the other Loan Documents,
in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not
apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any
Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund
of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders
is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions, addresses, and related
information with respect to the Assignee, have been given to Borrower and Agent by such Lender and
the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment
and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance
with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee
has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500.



(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower)
that it has received an executed Assignment and Acceptance and, if applicable, payment of the
required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the
Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released
from any future obligations under this Agreement (and in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender’s rights and obligations under this
Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto);
provided, however, that nothing contained herein shall release any assigning Lender from
obligations that survive the termination of this Agreement, including such assigning Lender’s
obligations under Section 15 and Section 17.9(a).



(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the Assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial condition of Borrower or
the performance or observance by Borrower of any of its obligations under this Agreement or any
other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a
copy of this Agreement, together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such
assigning Lender or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to
exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent,
by the terms hereof and thereof, together with such powers as are reasonably incidental thereto,
and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and
delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement
shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Revolver Commitments arising
therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver
Commitments of the assigning Lender pro tanto.



(e) Any Lender may at any time sell to one or more commercial banks, financial institutions,
or other Persons (a “Participant”) participating interests in all or any portion of its
Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the
“Originating Lender”) hereunder and under the other Loan Documents; provided, however, that
(i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other
Loan Documents and the Participant receiving the participating interest in the Obligations, the
Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall
not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s
obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain
solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders
shall continue to deal solely and directly with the Originating Lender in connection with the
Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv)
no Lender shall transfer or grant any participating interest under which the Participant has the
right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment to, or consent or waiver with respect to
this Agreement or of any other Loan Document would (A) extend the final maturity date of the
Obligations hereunder in which such Participant is participating, (B) reduce the interest rate
applicable to the Obligations hereunder in which such Participant is participating, (C) release all
or substantially all of the Collateral or guaranties (except to the extent expressly provided
herein or in any of the Loan Documents) supporting the Obligations hereunder in which such
Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or
fees payable to such Participant through such Lender (other than a waiver of default interest), or
(E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments
or premiums payable to such Participant through such Lender, and (v) all amounts payable by
Borrower hereunder shall be determined as if such Lender had not sold such participation, except
that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be
derivative through the Originating Lender with whom such Participant participates and no
Participant shall have any rights under this Agreement or the other Loan Documents or any direct
rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries,
the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to
participate directly in the making of decisions by the Lenders among themselves.



(f) In connection with any such assignment or participation or proposed assignment or
participation or any grant of a security interest in, or pledge of, its rights under and interest
in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have relating to Parent and its
Subsidiaries and their respective businesses.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a
security interest in, or pledge, all or any portion of its rights under and interest in this
Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law.



13.2 Successors. This Agreement shall bind and inure to the benefit of the respective
successors and assigns of each of the parties; provided, however, that Borrower may not assign this
Agreement or any rights or duties hereunder without the Lenders’ prior written consent and any
prohibited assignment shall be absolutely void ab initio. No consent to assignment by the Lenders
shall release Borrower from its Obligations. A Lender may assign this Agreement and the other Loan
Documents and its rights and duties hereunder and thereunder pursuant to Section 13.1 and,
except as expressly required pursuant to Section 13.1, no consent or approval by Borrower
is required in connection with any such assignment.




14. AMENDMENTS; WAIVERS.




14.1 Amendments and Waivers.



(a) No amendment, waiver or other modification of any provision of this Agreement or any other
Loan Document (other than Bank Product Agreements or the Fee Letter), and no consent with respect
to any departure by Parent or Borrower therefrom, shall be effective unless the same shall be in
writing and signed by the Required Lenders (or by Agent at the written request of the Required
Lenders) and the Loan Parties that are party thereto and then any such waiver or consent shall be
effective, but only in the specific instance and for the specific purpose for which given;
provided, however, that no such waiver, amendment, or consent shall, unless in writing and signed
by all of the Lenders directly affected thereby and all of the Loan Parties that are party thereto,
do any of the following:



(i) increase the amount of or extend the expiration date of any Revolver Commitment of any
Lender or amend, modify, or eliminate the last sentence of Section 2.4(b)(i),



(ii) postpone or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees, or other amounts due hereunder or under any other Loan
Document,



(iii) reduce the principal of, or the rate of interest on, any loan or other extension of
credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan
Document (except in connection with the waiver of applicability of Section 2.6(c) (which
waiver shall be effective with the written consent of the Required Lenders)),



(iv) amend, modify, or eliminate this Section or any provision of this Agreement providing for
consent or other action by all Lenders,




(v) amend, modify, or eliminate Section 15.11,



(vi) other than as permitted by Section 15.11, release Agent’s Lien in and to any of
the Collateral,




(vii) amend, modify, or eliminate the definition of “Required Lenders” or “Pro Rata Share”,



(viii) contractually subordinate any of Agent’s Liens,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(ix) other than in connection with a merger, liquidation, dissolution or sale of such Person
expressly permitted by the terms hereof or the other Loan Documents, release Borrower or any
Guarantor from any obligation for the payment of money or consent to the assignment or transfer by
Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan
Documents,




(x) amend, modify, or eliminate any of the provisions of Section 2.4(b)(i),



(xi) amend, modify, or eliminate any of the provisions of Section 13.1(a) to permit a
Loan Party, or an Affiliate of a Loan Party to be permitted to become an Assignee, or



(xii) amend, modify, or eliminate the definition of Borrowing Base or any of the defined terms
(including the definition of Eligible Accounts) that are used in such definition to the extent that
any such change results in more credit being made available to Borrower based upon the Borrowing
Base, but not otherwise, or the definitions of Maximum Revolver Amount,



(b) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive
(i) the definition of, or any of the terms or provisions of, the Fee Letter, without the written
consent of Agent and Borrower (and shall not require the written consent of any of the Lenders),
and (ii) any provision of Section 15 pertaining to Agent, or any other rights or duties of Agent
under this Agreement or the other Loan Documents, without the written consent of Agent, Borrower,
and the Required Lenders,



(c) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive
any provision of this Agreement or the other Loan Documents pertaining to Issuing Lender, or any
other rights or duties of Issuing Lender under this Agreement or the other Loan Documents, without
the written consent of Issuing Lender, Agent, Borrower, and the Required Lenders,



(d) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive
any provision of this Agreement or the other Loan Documents pertaining to Swing Lender, or any
other rights or duties of Swing Lender under this Agreement or the other Loan Documents, without
the written consent of Swing Lender, Agent, Borrower, and the Required Lenders,



(e) Anything in this Section 14.1 to the contrary notwithstanding, (i) any amendment,
modification, elimination, waiver, consent, termination, or release of, or with respect to, any
provision of this Agreement or any other Loan Document that relates only to the relationship of the
Lender Group among themselves, and that does not affect the rights or obligations of Parent or
Borrower, shall not require consent by or the agreement of any Loan Party, and (ii) any amendment,
waiver, modification, elimination, or consent of or with respect to any provision of this Agreement
or any other Loan Document may be entered into without the consent of, or over the objection of,
any Defaulting Lender.




14.2 Replacement of Certain Lenders.



(a) If (i) any action to be taken by the Lender Group or Agent hereunder requires the consent,
authorization, or agreement of all Lenders or all Lenders affected thereby and if such action has
received the consent, authorization, or agreement of the Required Lenders but not of all Lenders or
all Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section
16, then Borrower or Agent, upon at least 5 Business Days prior irrevocable notice, may
permanently replace any Lender that failed to give its consent, authorization, or agreement (a
“Holdout Lender”) or any Lender that made a claim for compensation (a “Tax Lender”)
with one or more Replacement Lenders, and the Holdout Lender or Tax Lender, as applicable, shall
have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender or Tax
Lender, as applicable, shall specify an effective date for such replacement, which date shall not
be later than 15 Business Days after the date such notice is given.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) Prior to the effective date of such replacement, the Holdout Lender or Tax Lender, as
applicable, and each Replacement Lender shall execute and deliver an Assignment and Acceptance,
subject only to the Holdout Lender or Tax Lender, as applicable, being repaid in full its share of
the outstanding Obligations (without any premium or penalty of any kind whatsoever, but including
(i) all interest, fees and other amounts that may be due in payable in respect thereof, and (ii) an
assumption of its Pro Rata Share of participations in the Letters of Credit). If the Holdout
Lender or Tax Lender, as applicable, shall refuse or fail to execute and deliver any such
Assignment and Acceptance prior to the effective date of such replacement, Agent may, but shall not
be required to, execute and deliver such Assignment and Acceptance in the name or and on behalf of
the Holdout Lender or Tax Lender, as applicable, and irrespective of whether Agent executes and
delivers such Assignment and Acceptance, the Holdout Lender or Tax Lender, as applicable, shall be
deemed to have executed and delivered such Assignment and Acceptance. The replacement of any
Holdout Lender or Tax Lender, as applicable, shall be made in accordance with the terms of
Section 13.1. Until such time as one or more Replacement Lenders shall have acquired all
of the Obligations, the Revolver Commitments, and the other rights and obligations of the Holdout
Lender or Tax Lender, as applicable, hereunder and under the other Loan Documents, the Holdout
Lender or Tax Lender, as applicable, shall remain obligated to make the Holdout Lender’s or Tax
Lender’s, as applicable, Pro Rata Share of Advances and to purchase a participation in each Letter
of Credit, in an amount equal to its Pro Rata Share of such Letters of Credit.



14.3 No Waivers; Cumulative Remedies. No failure by Agent or any Lender to exercise
any right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent or
any Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent or any
Lender will be effective unless it is in writing, and then only to the extent specifically stated.
No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’s
rights thereafter to require strict performance by Parent and Borrower of any provision of this
Agreement. Agent’s and each Lender’s rights under this Agreement and the other Loan Documents will
be cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.




15. AGENT; THE LENDER GROUP.



15.1 Appointment and Authorization of Agent. Each Lender hereby designates and
appoints WFCF as its agent under this Agreement and the other Loan Documents and each Lender hereby
irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of the
other Loan Documents on its behalf and to take such other action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to Agent by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Agent agrees to act as agent for
and on behalf of the Lenders (and the Bank Product Providers) on the conditions contained in this
Section 15. Any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document notwithstanding, Agent shall not have any duties or responsibilities, except
those expressly set forth herein or in the other Loan Documents, nor shall Agent have or be deemed
to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Agent. Without limiting the
generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan
Documents with reference to Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom, and is intended to create or reflect only a
representative relationship between independent contracting parties. Each Lender hereby further
authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be
deemed to authorize) Agent to act as the secured party under each of the Loan Documents that create
a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, Agent
shall have and may use its sole discretion with respect to exercising or refraining from exercising
any discretionary rights or taking or



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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refraining from taking any actions that Agent expressly is
entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, or
of any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agree
that Agent shall have the right to exercise the following powers as long as this Agreement remains
in effect: (a) maintain, in accordance with its customary business practices, ledgers and records
reflecting the status of the Obligations, the Collateral, the Collections of Parent and its
Subsidiaries, and related matters, (b) execute or file any and all financing or similar statements
or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and
other written agreements with respect to the Loan Documents, (c) make Advances, for itself or on
behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and
distribute the Collections of Parent and its Subsidiaries as provided in the Loan Documents, (e)
open and maintain such bank accounts and cash management arrangements as Agent deems necessary and
appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the
Collateral and the Collections of Parent and its Subsidiaries, (f) perform, exercise, and enforce
any and all other rights and remedies of the Lender Group with respect to Parent or its
Subsidiaries, the Obligations, the Collateral, the Collections of Parent and its Subsidiaries, or
otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such
Lender Group Expenses as Agent may deem necessary or appropriate for the performance and
fulfillment of its functions and powers pursuant to the Loan Documents.



15.2 Delegation of Duties. Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys in fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be
responsible for the negligence or misconduct of any agent or attorney in fact that it selects as
long as such selection was made without gross negligence or willful misconduct.



15.3 Liability of Agent. None of the Agent-Related Persons shall (a) be liable for
any action taken or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders (or
Bank Product Providers) for any recital, statement, representation or warranty made by Parent or
any of its Subsidiaries or Affiliates, or any officer or director thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by Agent under or in connection with, this Agreement or
any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document, or for any failure of Parent or its Subsidiaries or
any other party to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lenders (or Bank Product Providers) to
ascertain or to inquire as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or to inspect the books and records or
properties of Parent or its Subsidiaries.



15.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, telefacsimile or other electronic method of transmission, telex or telephone message,
statement or other document or conversation believed by it to be genuine and correct and to have
been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to Borrower or counsel to any Lender), independent accountants and other
experts selected by Agent. Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless Agent shall first receive such advice
or concurrence of the Lenders as it deems appropriate and until such instructions are received,
Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall
first be indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank
Product Providers) against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Required Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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15.5 Notice of Default or Event of Default. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for
the account of the Lenders and, except with respect to Events of Default of which Agent has actual
knowledge, unless Agent shall have received written notice from a Lender or Borrower referring to
this Agreement, describing such Default or Event of Default, and stating that such notice is a
“notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice or
of any Event of Default of which Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent of
such Event of Default. Each Lender shall be solely responsible for giving any notices to its
Participants, if any. Subject to Section 15.4, Agent shall take such action with respect
to such Default or Event of Default as may be requested by the Required Lenders in accordance with
Section 9; provided, however, that unless and until Agent has received any such request,
Agent may (but shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable.



15.6 Credit Decision. Each Lender (and Bank Product Provider) acknowledges that none
of the Agent-Related Persons has made any representation or warranty to it, and that no act by
Agent hereinafter taken, including any review of the affairs of Parent and its Subsidiaries or
Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related
Person to any Lender (or Bank Product Provider). Each Lender represents (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that it
has, independently and without reliance upon any Agent-Related Person and based on such due
diligence, documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower or any other Person party to a Loan Document, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to Borrower. Each Lender also represents (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent)
that it will, independently and without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition and creditworthiness
of Borrower or any other Person party to a Loan Document. Except for notices, reports, and other
documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have
any duty or responsibility to provide any Lender (or Bank Product Provider) with any credit or
other information concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrower or any other Person party to a Loan Document that may
come into the possession of any of the Agent-Related Persons. Each Lender acknowledges (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge)
that Agent does not have any duty or responsibility, either initially or on a continuing basis
(except to the extent, if any, that is expressly specified herein) to provide such Lender (or Bank
Product Provider) with any credit or other information with respect to Borrower, its Affiliates or
any of their respective business, legal, financial or other affairs, and irrespective of whether
such information came into Agent’s or its Affiliates’ or representatives’ possession before or
after the date on which such Lender became a party to this Agreement (or such Bank Product Provider
entered into a Bank Product Agreement).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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15.7 Costs and Expenses; Indemnification. Agent may incur and pay Lender Group
Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and
fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including
court costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors,
consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees
and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral,
whether or not Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant to
this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient
amounts from the Collections of Parent and its Subsidiaries received by Agent to
reimburse Agent for such out-of-pocket costs and expenses prior to the distribution of any
amounts to Lenders (or Bank Product Providers). In the event Agent is not reimbursed for such
costs and expenses by Parent or its Subsidiaries, each Lender hereby agrees that it is and shall be
obligated to pay to Agent such Lender’s ratable thereof. Whether or not the transactions
contemplated hereby are consummated, each of the Lenders, on a ratable basis, shall indemnify and
defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrower and
without limiting the obligation of Borrower to do so) from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment to any Agent-Related
Person of any portion of such Indemnified Liabilities resulting solely from such Person’s gross
negligence or willful misconduct nor shall any Lender be liable for the obligations of any
Defaulting Lender in failing to make an Advance or other extension of credit hereunder. Without
limitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lender’s
ratable share of any costs or out of pocket expenses (including attorneys, accountants, advisors,
and consultants fees and expenses) incurred by Agent in connection with the preparation, execution,
delivery, administration, modification, amendment, or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or any other Loan Document to the extent that Agent is not reimbursed for such
expenses by or on behalf of Borrower. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of Agent.



15.8 Agent in Individual Capacity. WFCF and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, provide Bank Products to, acquire
equity interests in, and generally engage in any kind of banking, trust, financial advisory,
underwriting, or other business with Parent and its Subsidiaries and Affiliates and any other
Person party to any Loan Document as though WFCF were not Agent hereunder, and, in each case,
without notice to or consent of the other members of the Lender Group. The other members of the
Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to acknowledge) that, pursuant to such activities, WFCF or its Affiliates may
receive information regarding Parent or its Affiliates or any other Person party to any Loan
Documents that is subject to confidentiality obligations in favor of Parent or such other Person
and that prohibit the disclosure of such information to the Lenders (or Bank Product Providers),
and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a
waiver of such confidentiality obligations, which waiver Agent will use its reasonable best efforts
to obtain), Agent shall not be under any obligation to provide such information to them. The terms
“Lender” and “Lenders” include WFCF in its individual capacity.



15.9 Successor Agent. Agent may resign as Agent upon 30 days prior written notice to
the Lenders (unless such notice is waived by the Required Lenders) and Borrower (unless such notice
is waived by Borrower) and without any notice to the Bank Product Providers. If Agent resigns
under this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default
has occurred and is continuing) the consent of Borrower (such consent not to be unreasonably
withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product
Providers). If, at the time that Agent’s resignation is effective, it is acting as the Issuing
Lender or the Swing Lender, such resignation shall also operate to effectuate its resignation as
the Issuing Lender or the Swing Lender, as applicable, and it shall automatically be relieved of
any further obligation to issue Letters of Credit, to cause the Underlying Issuer to issue Letters
of Credit, or to make Swing Loans. If no successor Agent is appointed prior to the effective date
of the resignation of Agent, Agent may appoint, after consulting with the Lenders and Borrower, a
successor Agent. If Agent has materially breached or failed to perform any material provision of
this Agreement or of applicable law, the Required Lenders may agree in writing to remove and
replace Agent with a successor Agent from among the Lenders with (so long as no Event of Default
has occurred and is continuing) the consent of Borrower (such consent not to be unreasonably
withheld, delayed, or conditioned). In any such event, upon the acceptance of its appointment as
successor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties
of the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s
appointment, powers, and duties as Agent shall be terminated. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Section 15 shall inure to its
benefit
as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
If no successor Agent has accepted appointment as Agent by the date which is 30 days following a
retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of Agent hereunder until
such time, if any, as the Lenders appoint a successor Agent as provided for above.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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15.10 Lender in Individual Capacity. Any Lender and its respective Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from, provide Bank
Products to, acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting, or other business with Parent and its Subsidiaries and Affiliates
and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder
without notice to or consent of the other members of the Lender Group (or the Bank Product
Providers). The other members of the Lender Group acknowledge (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such
activities, such Lender and its respective Affiliates may receive information regarding Parent or
its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality
obligations in favor of Parent or such other Person and that prohibit the disclosure of such
information to the Lenders, and the Lenders acknowledge (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances
(and in the absence of a waiver of such confidentiality obligations, which waiver such Lender will
use its reasonable best efforts to obtain), such Lender shall not be under any obligation to
provide such information to them.




15.11 Collateral Matters.



(a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement,
each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any
Collateral (i) upon the termination of the Revolver Commitments and payment and satisfaction in
full by Borrower of all of the Obligations, (ii) constituting property being sold or disposed of if
a release is required or desirable in connection therewith and if Borrower certifies to Agent that
the sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively on
any such certificate, without further inquiry), (iii) constituting property in which Parent or its
Subsidiaries owned no interest at the time Agent’s Lien was granted nor at any time thereafter, or
(iv) constituting property leased to Parent or its Subsidiaries under a lease that has expired or
is terminated in a transaction permitted under this Agreement, or (v) constituting property of a
Subsidiary, the Stock of which is being sold in accordance with the terms of this Agreement. The
Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the
instruction of the Required Lenders, to (a) consent to, credit bid or purchase (either directly or
through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof
conducted under the provisions of the Bankruptcy Code, including under Section 363 of the
Bankruptcy Code, (b) credit bid or purchase (either directly or through one or more acquisition
vehicles) all or any portion of the Collateral at any sale or other disposition thereof conducted
under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c)
credit bid or purchase (either directly or through one or more acquisition vehicles) all or any
portion of the Collateral at any other sale or foreclosure conducted by Agent (whether by judicial
action or otherwise) in accordance with applicable law. In connection with any such credit bid or
purchase, the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to
be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or
unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not
unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of
the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Agent
to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any
interest in the asset or assets purchased by means of such credit bid) and the Lenders and the Bank
Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably
based upon the proportion of their Obligations credit bid in relation to the aggregate amount of
Obligations so credit bid) in the asset or assets so purchased (or in the Stock of the acquisition
vehicle or vehicles that are used to consummate such purchase). Except as provided



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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above, Agent
will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of all
or substantially all of the Collateral, all of the Lenders (without requiring the authorization of
the Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring the
authorization of the Bank Product Providers). Upon request by Agent or Borrower at any time, the
Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s
authority to release any such Liens on particular types or items of Collateral pursuant to this
Section 15.11; provided, however, that (1) Agent shall not be required to execute any
document necessary to evidence such release on terms that, in Agent’s opinion, would expose Agent
to liability or create any obligation or entail any consequence other than the release of such Lien
without recourse, representation, or warranty, and (2) such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of Borrower in respect of) all interests retained by Borrower,
including, the proceeds of any sale, all of which shall continue to constitute part of the
Collateral. The Lenders further hereby irrevocably authorize (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to authorize) Agent, at its option and in its
sole discretion, to subordinate any Lien granted to or held by Agent under any Loan Document to the
holder of any Permitted Lien on such property if such Permitted Lien secures Permitted Purchase
Money Indebtedness.



(b) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product
Providers) to assure that the Collateral exists or is owned by Parent or its Subsidiaries or is
cared for, protected, or insured or has been encumbered, or that Agent’s Liens have been properly
or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any
particular priority, or that any particular items of Collateral meet the eligibility criteria
applicable in respect thereof or whether to impose, maintain, reduce, or eliminate any particular
reserve hereunder or whether the amount of any such reserve is appropriate or not, or to exercise
at all or in any particular manner or under any duty of care, disclosure or fidelity, or to
continue exercising, any of the rights, authorities and powers granted or available to Agent
pursuant to any of the Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given
Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall
have no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of
the foregoing, except as otherwise provided herein.




15.12 Collateral Matters for UK Transaction Security.



(a) Each Secured Party appoints the Agent to hold the UK Transaction Security, and all rights,
powers, discretions and remedies vested in the Agent by the UK Collateral Documents or by law, on
trust for the Secured Parties, and the Agent accepts that appointment.



(b) The Agent, its subsidiaries and associated companies may each retain for its own account
and benefit any fee, remuneration and profits paid to it in connection with (i) its activities
under the Loan Documents; and (ii) its engagement in any kind of banking or other business with any
Loan Party.



(c) Nothing in this Agreement constitutes the Agent as a trustee or fiduciary of, nor shall
the Agent have any duty or responsibility to, any Loan Party.



(d) The Agent shall have no duties or obligations to any other Person except for those which
are expressly specified in the Loan Documents or mandatorily required by applicable law.



(e) Unless a contrary indication appears in a UK Collateral Document, the Agent (in its
capacity as security trustee) shall (subject to its legal obligations) act (or refrain from taking
action) in accordance with any instructions given to it by Required Lenders.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(f) In the absence of instructions from the Required Lenders (or, if appropriate, the Lenders)
the Agent shall act (or refrain from taking action) in such manner as it considers appropriate and
for the benefit of the Secured Parties.



(g) The Agent may: (i) assume that any instructions it receives from the Required Lenders are
in accordance with the Loan Documents and that those instructions have not been revoked, unless it
has received actual notice to the contrary and (ii) request instructions or clarification from the
Required Lenders about whether, and in what manner, it should exercise or refrain from exercising
any duty, right, power or discretion, and may refrain from acting until it receives such
instructions or clarification.



(h) The Agent may appoint one or more Delegates on such terms (which may include the power to
sub-delegate) and subject to such conditions as it thinks fit, to exercise and perform all or any
of the duties, rights, powers and discretions vested in it by any of the UK Collateral Documents
and shall not be obliged to supervise any Delegate or be responsible to any person for any loss
incurred by reason of any act, omission, misconduct or default on the part of any Delegate.



(i) The Agent may (whether for the purpose of complying with any law or regulation of any
overseas jurisdiction, or for any other reason) appoint (and subsequently remove) any person to act
jointly with the Agent either as a separate trustee or as a co-trustee on such terms and subject to
such conditions as the Agent thinks fit and with such of the duties, rights, powers and discretions
vested in the Agent by any UK Collateral Document as may be conferred by the instrument of
appointment of that person.



(j) The Agent shall notify the Secured Parties of the appointment of each Appointee (other
than a Delegate).



(k) The Agent may pay reasonable remuneration to any Delegate or Appointee, together with any
costs and expenses (including legal fees) reasonably incurred by the Delegate or Appointee in
connection with its appointment. All such remuneration, costs and expenses shall be treated, for
the purposes of this Agreement and any Fee Letter, as paid or incurred by the Agent.



(l) Each Delegate and each Appointee shall have every benefit, right, power and discretion and
the benefit of every exculpation (together “Rights”) of the Agent (in its capacity as security
trustee) under the UK Collateral Documents, and each reference to the Agent (where the context
requires that such reference is to the Agent in its capacity as security trustee) in the provisions
of the UK Collateral Documents which confer Rights shall be deemed to include a reference to each
Delegate and each Appointee.



(m) Each Secured Party confirms its approval of the UK Transaction Security and the UK
Collateral Documents and authorizes and instructs the Agent: (i) to execute and deliver the UK
Collateral Documents; (ii) to exercise the rights, powers and discretions given to the Agent (in
its capacity as security trustee) under or in connection with the UK Collateral Documents together
with any other incidental rights, powers and discretions; and (iii) to give any authorizations and
confirmations to be given by the Agent (in its capacity as security trustee) on behalf of the
Secured Parties under the UK Collateral Documents.



(n) The Agent may accept without inquiry the title (if any) which any Person may have to the
Charged Property.



(o) Each other Secured Party confirms that it does not wish to be registered as a joint
proprietor of any UK Transaction Security and accordingly authorizes: (a) the Agent to hold the UK
Transaction Security in its sole name (or in the name of any Delegate or Appointee) as trustee for
the Secured Parties; and (b) the Land Registry (or other relevant registry) to register the Agent
(or any Delegate or Appointee) as a sole proprietor of the UK Transaction Security.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(p) Except to the extent that a UK Collateral Document otherwise requires, any moneys which
the Agent receives under or pursuant to a UK Collateral Document may be: (a) invested in any
investments which the Agent selects and which are authorized by applicable law; or (b) placed on
deposit at any bank or institution (including the Agent) on terms that the Agent thinks fit, in
each case in the name or under the control of the Agent, and the Agent shall hold those moneys,
together with any accrued income (net of any applicable Taxes) to the order of the Lenders, and
shall pay them to the Lenders on demand.



(q) On a disposal of any of the Charged Property which is permitted under the Loan Documents,
the Agent shall (at the cost of the Loan Parties) execute any release of the UK Collateral
Documents or other claim over that Charged Property and issue any certificates of
non-crystallisation of floating charges that may be required or take any other action that the
Agent considers desirable.



(r) The Agent shall not be liable for: (i) any defect in or failure of the title (if any)
which any person may have to any assets over which security is intended to be created by any UK
Collateral Document; any loss resulting from the investment or deposit at any bank of moneys which
it invests or deposits in a manner permitted by the UK Collateral Documents; (ii) the exercise of,
or the failure to exercise, any right, power or discretion given to it by or in connection with any
Loan Document or any other agreement, arrangement or document entered into, or executed in
anticipation of, under or in connection with, any Loan Document; or any shortfall which arises on
enforcing the UK Collateral Document.



(s) The Agent shall not be obligated to (i) obtain any authorization or environmental permit
in respect of any of the Charged Property or any of the UK Collateral Documents; (ii) hold in its
own possession any UK Collateral Document, title deed or other document relating to the Charged
Property or the UK Collateral Documents; (iii) perfect, protect, register, make any filing or give
any notice in respect of the UK Collateral Documents (or the order of ranking of any UK Collateral
Document), unless that failure arises directly from its own gross negligence or wilful misconduct;
or (iv) require any further assurances in relation to any UK Collateral Document.



(t) In respect of the UK Collateral Documents, the Agent shall not be obligated to (i) insure,
or require any other person to insure, the Charged Property; or (ii) make any enquiry or conduct
any investigation into the legality, validity, effectiveness, adequacy or enforceability of any
insurance existing over the Charged Property.



(u) In respect of the UK Collateral Documents, the Agent shall not have any obligation or duty
to any person for any loss suffered as a result of: (i) the lack or inadequacy of any insurance; or
(ii) the failure of the Agent to notify the insurers of any material fact relating to the risk
assumed by them, or of any other information of any kind, unless Required Lenders have requested it
to do so in writing and the Agent has failed to do so within fourteen (14) days after receipt of
that request.




(v) Every appointment of a successor Agent under the UK Collateral Documents shall be by deed.



(w) Section 1 of the Trustee Act 2000 shall not apply to the duty of the Agent in relation to
the trusts constituted by this Agreement.



(x) In the case of any conflict between the provisions of this Agreement and those of the
Trustee Act 1925 or the Trustee Act 2000, the provisions of this Agreement shall prevail to the
extent allowed by law, and shall constitute a restriction or exclusion for the purposes of the
Trustee Act 2000.



(y) This Section 15.12 shall be governed by and construed in accordance with the laws of
England & Wales




Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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15.13 Restrictions on Actions by Lenders; Sharing of Payments.



(a) Each of the Lenders agrees that it shall not, without the express written consent of
Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request
of Agent, set off against the Obligations, any amounts owing by such Lender to Parent or its
Subsidiaries or any deposit accounts of Parent or its Subsidiaries now or hereafter maintained with
such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested
to do so in writing by Agent, take or cause to be taken any action, including, the commencement of
any legal or equitable proceedings to enforce any Loan Document against Borrower or any Guarantor
or to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.



(b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for
any such proceeds or payments received by such Lender from Agent pursuant to the terms of this
Agreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all such
distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, and
with such endorsements as may be required to negotiate the same to Agent, or in immediately
available funds, as applicable, for the account of all of the Lenders and for application to the
Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the Obligations owed to
the other Lenders so that such excess payment received shall be applied ratably as among the
Lenders in accordance with their Pro Rata Shares; provided, however, that to the
extent that such excess payment received by the purchasing party is thereafter recovered from it,
those purchases of participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to such purchasing party,
but without interest except to the extent that such purchasing party is required to pay interest in
connection with the recovery of the excess payment.



15.14 Agency for Perfection. Agent hereby appoints each other Lender (and each Bank
Product Provider) as its agent (and each Lender hereby accepts (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose
of perfecting Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as
applicable, of the Code can be perfected by possession or control. Should any Lender obtain
possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly
upon Agent’s request therefor shall deliver possession or control of such Collateral to Agent or in
accordance with Agent’s instructions.



15.15 Payments by Agent to the Lenders. All payments to be made by Agent to the
Lenders (or Bank Product Providers) shall be made by bank wire transfer of immediately available
funds pursuant to such wire transfer instructions as each party may designate for itself by written
notice to Agent. Concurrently with each such payment, Agent shall identify whether such payment
(or any portion thereof) represents principal, premium, fees, or interest of the Obligations.



15.16 Concerning the Collateral and Related Loan Documents. Each member of the Lender
Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Each
member of the Lender Group agrees (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to agree) that any action taken by Agent in accordance with the terms of
this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of
its powers set forth therein or herein, together with such other powers that are reasonably
incidental thereto, shall be binding upon all of the Lenders (and such Bank Product Provider).



15.17 Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; Other
Reports and Information. By becoming a party to this Agreement, each Lender:



(a) is deemed to have requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field audit or examination report respecting Parent or its Subsidiaries
(each, a “Report”) prepared by or at the request of Agent, and Agent shall so furnish each
Lender with such Reports,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) expressly agrees and acknowledges that Agent does not (i) make any representation or
warranty as to the accuracy of any Report, and (ii) shall not be liable for any information
contained in any Report,



(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that Agent or other party performing any audit or examination will inspect only
specific information regarding Parent and its Subsidiaries and will rely significantly upon
Parent’s and its Subsidiaries’ books and records, as well as on representations of Borrower’s
personnel,



(d) agrees to keep all Reports and other material, non-public information regarding Parent and
its Subsidiaries and their operations, assets, and existing and contemplated business plans in a
confidential manner in accordance with Section 17.9, and



(e) without limiting the generality of any other indemnification provision contained in this
Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any
action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender
may reach or draw from any Report in connection with any loans or other credit accommodations that
the indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii)
to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a
Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and
other amounts (including, attorneys fees and costs) incurred by Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties who might obtain all or
part of any Report through the indemnifying Lender.



In addition to the foregoing: (x) any Lender may from time to time request of Agent in writing
that Agent provide to such Lender a copy of any report or document provided by Parent or its
Subsidiaries to Agent that has not been contemporaneously provided by Parent or such Subsidiary to
such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such
Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to
request additional reports or information from Parent or its Subsidiaries, any Lender may, from
time to time, reasonably request Agent to exercise such right as specified in such Lender’s notice
to Agent, whereupon Agent promptly shall request of Borrower the additional reports or information
reasonably specified by such Lender, and, upon receipt thereof from Parent or such Subsidiary,
Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to
Borrower a statement regarding the Loan Account, Agent shall send a copy of such statement to each
Lender.



15.18 Several Obligations; No Liability. Notwithstanding that certain of the Loan
Documents now or hereafter may have been or will be executed only by or in favor of Agent in its
capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of
Agent (if any) to make any credit available hereunder shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their respective Revolver
Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time
outstanding, the amount of their respective Revolver Commitments. Nothing contained herein shall
confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect
of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall
be solely responsible for notifying its Participants of any matters relating to the Loan Documents
to the extent any such notice may be required, and no Lender shall have any obligation, duty, or
liability to any Participant of any other Lender. Except as provided in Section 15.7, no
member of the Lender Group shall have any liability for the acts of any other member of the Lender
Group. No Lender shall be responsible to Borrower or any other Person for any failure by any other
Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder,
nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any other
action on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the
financing contemplated herein.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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16. WITHHOLDING TAXES.



(a) All payments made by Borrower hereunder or under any note or other Loan Document will be
made without setoff, counterclaim, or other defense. In addition, all such payments will be made
free and clear of, and without deduction or withholding for, any present or future Taxes, and in
the event any deduction or withholding of Taxes is required, Borrower shall comply with the next
sentence of this Section 16(a). If any Taxes are so levied or imposed, Borrower agrees to
pay the full amount of such Taxes and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement, any note, or Loan Document, including any amount
paid pursuant to this Section 16(a) after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein; provided, however, that Borrower shall
not be required to increase any such amounts if the increase in such amount payable results from
Agent’s or such Lender’s own willful misconduct or gross negligence (as finally determined by a
court of competent jurisdiction). Borrower will furnish to Agent as promptly as possible after the
date the payment of any Tax is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by Borrower.



(b) Borrower agrees to pay any present or future stamp, value added or documentary taxes or
any other excise or property taxes, charges, or similar levies that arise from any payment made
hereunder or from the execution, delivery, performance, recordation, or filing of, or otherwise
with respect to this Agreement or any other Loan Document.



(c) If a Lender or Participant is entitled to claim an exemption or reduction from United
States withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver to
Agent (or, in the case of a Participant, to the Lender granting the participation only) one of the
following before receiving its first payment under this Agreement:



(i) if such Lender or Participant is entitled to claim an exemption from United States
withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender or
Participant, signed under penalty of perjury, that it is not a (I) a “bank” as described in Section
881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section
871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrower within the
meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BEN
or Form W-8IMY (with proper attachments);



(ii) if such Lender or Participant is entitled to claim an exemption from, or a reduction of,
withholding tax under a United States tax treaty, a properly completed and executed copy of IRS
Form W-8BEN;



(iii) if such Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because it is effectively connected with a
United States trade or business of such Lender, a properly completed and executed copy of IRS Form
W-8ECI;



(iv) if such Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because such Lender or Participant serves as
an intermediary, a properly completed and executed copy of IRS Form W-8IMY (with proper
attachments); or



(v) a properly completed and executed copy of any other form or forms, including IRS Form W-9,
as may be required under the IRC or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding or backup withholding tax.



Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a
Participant, to the Lender
granting the participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


55









 





(d) Subject to Section 16(l), if a Lender or Participant claims an exemption from
withholding tax in a jurisdiction other than the United States, such Lender or such Participant
agrees with and in favor of Agent, to deliver to Agent (or, in the case of a Participant, to the
Lender granting the participation only) any such form or forms, as may be required under the laws
of such jurisdiction as a condition to exemption from, or reduction of, foreign withholding or
backup withholding tax before receiving its first payment under this Agreement, but only if such
Lender or such Participant is legally able to deliver such forms. Each Lender and each Participant
shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously
delivered forms and to promptly notify Agent (or, in the case of a Participant, to the Lender
granting the participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.



(e) If a Lender or Participant claims exemption from, or reduction of, withholding tax and
such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of Borrower to such Lender or Participant, such Lender or Participant
agrees to notify Agent (or, in the case of a sale of a participation interest, to the Lender
granting the participation only) of the percentage amount in which it is no longer the beneficial
owner of Obligations of Borrower to such Lender or Participant. To the extent of such percentage
amount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant to
Section 16(c) or 16(d) as no longer valid. With respect to such percentage amount,
such Participant or Assignee will, if legally permissible, provide new documentation, pursuant to
Section 16(c) or 16(d), if applicable. Borrower agrees that each Participant shall
be entitled to the benefits of this Section 16 with respect to its participation in any portion of
the Revolver Commitments and the Obligations so long as such Participant complies with the
obligations set forth in this Section 16 with respect thereto.



(f) If a Lender or a Participant is entitled to a reduction in the applicable withholding tax,
Agent (or, in the case of a Participant, to the Lender granting the participation) may withhold
from any interest payment to such Lender or such Participant an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the forms or other documentation
required by Section 16(c) or 16(d) are not delivered to Agent (or, in the case of a
Participant, to the Lender granting the participation), then Agent (or, in the case of a
Participant, to the Lender granting the participation) may withhold from any interest payment to
such Lender or such Participant not providing such forms or other documentation an amount
equivalent to the applicable withholding tax.



(g) If the IRS or any other Governmental Authority of the United States or other jurisdiction
asserts a claim that Agent (or, in the case of a Participant, to the Lender granting the
participation) did not properly withhold tax from amounts paid to or for the account of any Lender
or any Participant due to a failure on the part of the Lender or any Participant (because the
appropriate form was not delivered, was not properly executed, or because such Lender failed to
notify Agent (or such Participant failed to notify the Lender granting the participation) of a
change in circumstances which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in
the case of a Participant, such Participant shall indemnify and hold the Lender granting the
participation harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of
a Participant, to the Lender granting the participation), as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent
(or, in the case of a Participant, to the Lender granting the participation only) under this
Section 16, together with all costs and expenses (including attorneys fees and expenses).
The obligation of the Lenders and the Participants under this subsection shall survive the payment
of all Obligations and the resignation or replacement of Agent.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(h) If Agent or a Lender determines, in its sole discretion, that it has received a refund of
any Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this Section 16, so long as no Default or Event of
Default has occurred and is continuing, it shall pay over such refund to Borrower (but only to the
extent of payments made, or additional amounts paid, by Borrower under this Section 16 with
respect to Taxes giving rise to such a refund), net of all out-of-pocket expenses of Agent or such
Lender and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such a refund); provided, that Borrower, upon the request of Agent or such Lender,
agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges,
imposed by the relevant Governmental Authority, other than such penalties, interest or other
charges imposed as a result of the willful misconduct or gross negligence of Agent hereunder) to
Agent or such Lender in the event Agent or such Lender is required to repay such refund to such
Governmental Authority. Notwithstanding anything in this Agreement to the contrary, this
Section 16 shall not be construed to require Agent or any Lender to make available its tax
returns (or any other information which it deems confidential) to Borrower or any other Person.



(i) WFCF, in its capacity as a Lender, hereby represents and warrants to Borrower that it is a
Treaty Lender at the date of this Agreement. “Treaty Lender” means, in relation to any Lender,
that the Lender: (i) is a resident of a Treaty State for the purposes of the relevant Treaty, and
is entitled to the full benefit of that Treaty with respect to interest payments, (ii) is the
beneficial owner of any payments made hereunder by Borrower for the purposes of the relevant
Treaty, and (iii) does not carry on a business in any state other than the Treaty State through a
permanent establishment with which that Lender’s receipt of any payments hereunder is effectively
connected. “Treaty State” means a jurisdiction having a Treaty with the United Kingdom which makes
provision for full exemption from Tax imposed by the United Kingdom on any payment of interest.
“Treaty” means a double taxation convention.



(j) Notwithstanding anything else in this Agreement, in respect of United Kingdom Taxes only,
so long as no Event of Default shall have occurred and be continuing, no Lender shall be able to
assign the benefit of Section 16(a) (pursuant to Section 13 or otherwise) unless the Assignee
represents to Borrower Agent, Agent, and the assigning Lender that it is a Treaty Lender or a
Qualifying Lender at the date of that assignment. “Qualifying Lender” means a bank within the
charge to United Kingdom corporation tax or a company resident in the United Kingdom for United
Kingdom Tax purposes (provided that such company or bank does not carry on any business through a
permanent establishment outside of the United Kingdom with which that Lender’s receipt of any
payments hereunder is effectively connected).



(k) Section 16(d) shall not apply where a Lender claims an exemption from withholding
tax in the United Kingdom and that Lender wishes the HMRC DT Treaty Passport Scheme to apply to
this Agreement and has notified the Borrower in writing of its scheme reference number and its
jurisdiction of tax residence. Each Lender and each Participant shall provide new details (or
successor details) upon the expiration or obsolescence of any previously delivered details and to
promptly notify Agent (or, in the case of a Participant, to the Lender granting the participation
only) of any change in circumstances which would modify or render invalid any claimed exemption or
reduction claimed under the HMRC DT Treaty Passport Scheme.



(l) WFCF, in its capacity as Lender, holds a passport under the HMRC DT Treaty Passport
scheme, and wishes that scheme to apply to this Agreement, for its own benefit and without
liability to any Loan Party. The HMRC DT Treaty Passport scheme number for WFCF is [***] and its
jurisdiction of tax residence is the United States of America. The Borrower shall accordingly file
a duly completed form DTTP2 in respect of WFCF as Lender with HM Revenue & Customs within 30 days
of the date of this Agreement and shall promptly provide the Lender with a copy of that filing.
Each Lender and each Participant shall provide new details (or successor details) upon the
expiration or obsolescence of any previously delivered details and to promptly notify Agent (or, in
the case of a Participant, to the Lender granting the participation only) of any change in
circumstances which would modify or render invalid any claimed exemption or reduction claimed under
the HMRC DT Treaty Passport Scheme.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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17. GENERAL PROVISIONS.



17.1 Effectiveness. This Agreement shall be binding and deemed effective when
executed by Parent, Borrower, Agent, and each Lender whose signature is provided for on the
signature pages hereof.



17.2 Section Headings. Headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything contained in each
Section applies equally to this entire Agreement.



17.3 Interpretation. Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed against the Lender Group or Parent or Borrower, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of all parties hereto.



17.4 Severability of Provisions. Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.



17.5 Bank Product Providers. Each Bank Product Provider shall be deemed a third party
beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference
in a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as agent
for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the
applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent
and to have accepted the benefits of the Loan Documents; it being understood and agreed that the
rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of
such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if
applicable, guarantees) granted to Agent and the right to share in payments and collections out of
the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue
of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent
shall have the right, but shall have no obligation, to establish, maintain, relax, or release
reserves in respect of the Bank Product Obligations and that if reserves are established there is
no obligation on the part of Agent to determine or insure whether the amount of any such reserve is
appropriate or not. In connection with any such distribution of payments or proceeds of
Collateral, Agent shall be entitled to assume no amounts are due or owing to any Bank Product
Provider unless such Bank Product Provider has provided a written certification (setting forth a
reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such
written certification is received by Agent a reasonable period of time prior to the making of such
distribution. Agent shall have no obligation to calculate the amount due and payable with respect
to any Bank Products, but may rely upon the written certification of the amount due and payable
from the relevant Bank Product Provider. In the absence of an updated certification, Agent shall
be entitled to assume that the amount due and payable to the relevant Bank Product Provider is the
amount last certified to Agent by such Bank Product Provider as being due and payable (less any
distributions made to such Bank Product Provider on account thereof). Borrower may obtain Bank
Products from any Bank Product Provider, although Borrower is not required to do so. Borrower
acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products
and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute
discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any
voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the
provider or holder of such agreements or products or the Obligations owing thereunder, nor shall
the consent of any such provider or holder be required (other than in their capacities as Lenders,
to the extent applicable) for any matter hereunder or under any of the other Loan Documents,
including as to any matter relating to the Collateral or the release of Collateral or Guarantors.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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17.6 Debtor-Creditor Relationship. The relationship between the Lenders and Agent, on
the one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. No
member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to
any Loan Party arising out of or in connection with the Loan Documents or the transactions
contemplated thereby, and there is no agency or joint venture relationship between the members of
the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any Loan
Document or any transaction contemplated therein.



17.7 Counterparts; Electronic Execution. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement
by telefacsimile or other electronic method of transmission shall be equally as effective as
delivery of an original executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by telefacsimile or other electronic method of transmission also
shall deliver an original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.



17.8 Revival and Reinstatement of Obligations. If the incurrence or payment of the
Obligations by Borrower or Guarantor or the transfer to the Lender Group of any property should for
any reason subsequently be asserted or declared to be void or voidable under any state or federal
law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, or other voidable or recoverable payments of money or
transfers of property (each, a “Voidable Transfer”), and if the Lender Group is required to
repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the
advice of counsel, then, as to any such Voidable Transfer, or the amount thereof that the Lender
Group is required or elects to repay or restore, and as to all reasonable costs, expenses, and
attorneys fees of the Lender Group related thereto, the liability of Borrower or Guarantor
automatically shall be revived, reinstated, and restored and shall exist as though such Voidable
Transfer had never been made.




17.9 Confidentiality.



(a) Agent and Lenders each individually (and not jointly or jointly and severally) agree that
material, non-public information regarding Parent and its Subsidiaries, their operations, assets,
and existing and contemplated business plans (“Confidential Information”) shall be treated
by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the
Lenders to Persons who are not parties to this Agreement, except: (i) to attorneys for and other
advisors, accountants, auditors, and consultants to any member of the Lender Group and to
employees, directors and officers of any member of the Lender Group (the Persons in this clause
(i), “Lender Group Representatives”) on a “need to know” basis in connection with this
Agreement and the transactions contemplated hereby and on a confidential basis, (ii) to
Subsidiaries and Affiliates of any member of the Lender Group (including the Bank Product
Providers), provided that any such Subsidiary or Affiliate shall have agreed to receive such
information hereunder subject to the terms of this Section 17.9, (iii) as may be required
by regulatory authorities so long as such authorities are informed of the confidential nature of
such information, (iv) as may be required by statute, decision, or judicial or administrative
order, rule, or regulation; provided that (x) prior to any disclosure under this clause (iv), the
disclosing party agrees to provide Borrower with prior notice thereof, to the extent that it is
practicable to do so and to the extent that the disclosing party is permitted to provide such prior
notice to Borrower pursuant to the terms of the applicable statute, decision, or judicial or
administrative order, rule, or regulation and (y) any disclosure under this clause (iv) shall be
limited to the portion of the Confidential Information as may be required by such statute,
decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in
advance in writing by Borrower, (vi) as requested or required by any Governmental Authority
pursuant to any subpoena or other legal process, provided, that, (x) prior to any disclosure under
this clause (vi) the disclosing party agrees to provide Borrower with prior written notice thereof,
to the extent that it is practicable to do so and to the extent that the disclosing party is
permitted to provide such prior written notice to Borrower




Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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pursuant to the terms of the subpoena or
other legal process and (y) any disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be required
by such Governmental Authority pursuant to such subpoena or other legal process, (vii) as to any
such information that is or becomes generally available to the public (other than as a result of
prohibited disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) in
connection with any assignment, participation or pledge of any Lender’s interest under this
Agreement, provided that prior to receipt of Confidential Information any such assignee,
participant, or pledgee shall have agreed in writing to receive such Confidential Information
hereunder subject to the terms of this Section, (ix) in connection with any litigation or other
adversary proceeding involving parties hereto which such litigation or adversary proceeding
involves claims related to the rights or duties of such parties under this Agreement or the other
Loan Documents; provided, that, prior to any disclosure to any Person (other than any Loan Party,
Agent, any Lender, any of their respective Affiliates, or their respective counsel) under this
clause (ix) with respect to litigation involving any Person (other than Borrower, Agent, any
Lender, any of their respective Affiliates, or their respective counsel), the disclosing party
agrees to provide Borrower with prior written notice thereof, and (x) in connection with, and to
the extent reasonably necessary for, the exercise of any secured creditor remedy under this
Agreement or under any other Loan Document.



(b) Anything in this Agreement to the contrary notwithstanding, Agent may (i) provide
customary information concerning the terms and conditions of this Agreement and the other Loan
Documents to loan syndication and pricing reporting services, and (ii) use the name, logos, and
other insignia of Borrower and the Loan Parties and the Revolver Commitments provided hereunder in
any “tombstone” or comparable advertising, on its website or in other marketing materials of Agent.



17.10 Lender Group Expenses. Borrower agrees to pay the Lender Group Expenses on the
earlier of (a) the first day of the month following the date on which such Lender Group Expenses
were first incurred or (b) the date on which demand therefor is made by Agent. Borrower agrees
that its obligations contained in this Section 17.10 shall survive payment or satisfaction in full
of all other Obligations.



17.11 Survival. All representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any loans and issuance of any Letters of Credit, regardless of any investigation made
by any such other party or on its behalf and notwithstanding that Agent, the Issuing Lender, or any
Lender may have had notice or knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Revolver Commitments have not expired or terminated.



17.12 Patriot Act. Each Lender that is subject to the requirements of the Patriot Act
hereby notifies Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies Borrower, which information includes the name and
address of Borrower and other information that will allow such Lender to identify Borrower in
accordance with the Patriot Act. In addition, if Agent is required by law or regulation or
internal policies to do so, it shall have the right to periodically conduct (a) Patriot Act
searches, OFAC/PEP searches, and customary individual background checks for the Loan Parties and
(b) OFAC/PEP searches and customary individual background checks for the Loan Parties’ senior
management and key principals, and Borrower agrees to cooperate in respect of the conduct of such
searches and further agrees that the reasonable costs and charges for such searches shall
constitute Lender Expenses hereunder and be for the account of Borrower.



17.13 Integration. This Agreement, together with the other Loan Documents, reflects
the entire understanding of the parties with respect to the transactions contemplated hereby and
shall not be contradicted or qualified by any other agreement, oral or written, before the date
hereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are
independent agreements governed by the
written provisions of such Bank Product Agreements, which will remain in full force and
effect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change in
the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank
Product Agreement.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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17.14 Judgment Currency. The specification under this Agreement of Dollars is of the
essence. Each Loan Party’s obligations hereunder and under the other Loan Documents to make
payments in Dollars shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than Dollars, except to the extent that
such tender or recovery results in the effective receipt by the Lender Group of the full amount of
Dollars expressed to be payable to the Lender Group under this Agreement or the other Loan
Documents. If, for the purpose of obtaining or enforcing judgment in any court, it is necessary to
convert into or from any currency other than Dollars (such other currency being hereinafter
referred to as the “Judgment Currency”) an amount due in Dollars, the rate of exchange used shall
be that at which Agent could, in accordance with normal banking procedures, purchase Dollars with
the Judgment Currency on the Business Day preceding that on which final judgment is given. The
obligation of each Loan Party in respect of any such sum due from it to Agent or Lenders hereunder
shall, notwithstanding any judgment in such Judgment Currency, be discharged only to the extent
that, on the Business Day immediately following the date on which Agent or such Lenders receive any
sum adjudged to be so due in the Judgment Currency, Agent or such Lenders may, in accordance with
normal banking procedures, purchase Dollars with the Judgment Currency. If the Dollars so
purchased are less than the sum originally due to Agent or such Lenders in Dollars, each Loan Party
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify Agent or such
Lenders, as the case may be, against such loss, and if the Dollars so purchased exceed the sum
originally due to Agent or Lenders in Dollars, Agent or Lenders, as the case may be, agree to remit
to such Loan Party such excess.



17.15 Amendment and Restatement of Original Credit Agreement. This Agreement
constitutes an amendment and restatement of the Original Credit Agreement effective from and after
the Closing Date. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby are not intended by the parties to be, and shall not constitute, a
novation or an accord and satisfaction of the Obligations or any other obligations owing to Agent
or the Lenders under the Original Credit Agreement or any other loan document executed in
connection therewith. On the Closing Date, the credit facilities and the terms and conditions
thereof described in the Original Credit Agreement shall be amended and replaced in their entirety
by the credit facilities and the terms and conditions described herein, and all Advances and other
Obligations of Borrower outstanding as of such date under the Original Credit Agreement shall be
deemed to be Advances, Letters of Credit and Obligations outstanding under the corresponding
facilities described herein (such that all Obligations which are outstanding on the Closing Date
under the Original Credit Agreement shall become Obligations under this Agreement), without further
action by any Person. Each of the parties hereto hereby acknowledges and agrees that the grant of
the security interests in the Collateral pursuant to the Security Agreement and in any other Loan
Document (unless explicitly agreed to by Agent in writing) is not intended to, nor shall it be
construed, as constituting a release of any prior security interests granted by any Loan Party in
favor of Agent for the benefit of itself, the Lenders, Issuing Lender, Underlying Issuer and the
Bank Product Providers in or to any Collateral or any other Property of such Loan Party, but is
intended to constitute a restatement and reconfirmation of the prior security interests granted by
the Loan Parties in favor of Agent for the benefit of itself, the Lenders, Issuing Lender,
Underlying Issuer and the Bank Product Providers in and to the Collateral and a grant of a new
security interest in any Collateral that is not included in the prior security grants by the Loan
Parties and in favor of Agent for the benefit of itself, the Lenders, Issuing Lender, Underlying
Issuer and the Bank Product Providers to the extent such grant was not included in the prior
security grants.



[Signature pages to follow.]


Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
as of the date first above written.



	 	 	 	 	 
	 	OCLARO, INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Title: 	 	 



	 	 	 	 	 
	 	OCLARO TECHNOLOGY LIMITED,

a company incorporated under the laws of England and
Wales

 	 
	 	By:  	 	 
	 	 	Title: 	 	 



	 	 	 	 	 
	 	WELLS FARGO CAPITAL FINANCE, INC.,

a California corporation,

as Agent and as a Lender

 	 
	 	By:  	 	 
	 	 	Title: 	 	 




[SIGNATURE PAGE TO CREDIT AGREEMENT]





 


62









 







Schedule 1.1





As used in the Agreement, the following terms shall have the following definitions:




“Account” means an account (as that term is defined in the Code) and shall include:



(a) all book and other debts in existence from time to time (including, without limitation,
any sums whatsoever owed by banks or similar institutions) both present and future, actual or
contingent, due, owing to or which may become due, owing to or purchased or otherwise acquired by
any Loan Party; and



(b) the benefit of all rights whatsoever relating to the debts referred to in (a) above
including, without limitation, any related agreements, documents, rights and remedies (including,
without limitation, negotiable or non-negotiable instruments, guarantees, indemnities, legal and
equitable charges, reservation of proprietary rights, rights of tracing, unpaid vendor’s liens and
all similar connected or related rights and assets).



“Account Debtor” means any Person who is obligated on an Account, chattel paper, or a
general intangible.



“Accounting Changes” means changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or successor thereto or
any agency with similar functions).



“Acquired Indebtedness” means Indebtedness of a Person whose assets or Stock is
acquired by Parent or any of its Subsidiaries in a Permitted Acquisition; provided,
however, that such Indebtedness (a) is Permitted Indebtedness, (b) was in existence prior to the
date of such Permitted Acquisition, and (c) was not incurred in connection with, or in
contemplation of, such Permitted Acquisition.



“Acquisition” means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any division or business line of) any
other Person, or (b) the purchase or other acquisition (whether by means of a merger,
consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the
Stock of any other Person.



“Additional Documents” has the meaning specified therefor in Section 5.12 of
the Agreement.



“Advances” has the meaning specified therefor in Section 2.1(a) of the
Agreement.



“Affected Lender” has the meaning specified therefor in Section 2.13(b) of the
Agreement.



“Affiliate” means, as applied to any Person, any other Person who controls, is
controlled by, or is under common control with, such Person. For purposes of this definition,
“control” means the possession, directly or indirectly through one or more intermediaries, of the
power to direct the management and policies of a Person, whether through the ownership of Stock, by
contract, or otherwise; provided, however, that, for purposes of the definition of
Eligible Accounts and Section 6.12 of the Agreement: (a) any Person which owns directly or
indirectly 10% or more of the Stock having ordinary voting power for the election of directors or
other members of the governing body of a Person or 10% or more of the partnership or other
ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an
Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to
be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner
shall be deemed an Affiliate of such Person.



“Agent” has the meaning specified therefor in the preamble to the Agreement.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


1









 





“Agent-Related Persons” means Agent, together with its Affiliates, officers,
directors, employees, attorneys, and agents.



“Agent’s Account” means the Deposit Account of Agent identified on Schedule
A-1.



“Agent’s Liens” means the Liens granted by Parent or its Subsidiaries to Agent under
the Loan Documents.




“Agreement” means the Credit Agreement to which this Schedule 1.1 is attached.



“Application Event” means the occurrence of (a) a failure by Borrower to repay all of
the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent
or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to
Section 2.4(b)(ii) of the Agreement.



“Appointee” means any receiver, administrator or other insolvency officer appointed in
respect of any Loan Party or its assets.



“Assignee” has the meaning specified therefor in Section 13.1(a) of the
Agreement.



“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially
in the form of Exhibit A-1.



“Authorized Person” means any one of the individuals identified on Schedule
A-2, as such schedule is updated from time to time by written notice from Borrower to Agent.



“Availability” means, as of any date of determination, the amount that Borrower is
entitled to borrow as Advances under Section 2.1 of the Agreement (after giving effect to
all then outstanding Obligations (other than Bank Product Obligations)).



“Avanex China” means Avanex Communications Technologies Co. Ltd., a company organized
under the laws of The Republic of China.



“Bank Product” means any one or more of the following financial products or
accommodations extended to Borrower by a Bank Product Provider: (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) stored value cards, (e) purchase cards (including
so-called “procurement cards” or “P-cards”), (f) Cash Management Services, or (g) transactions
under Hedge Agreements.



“Bank Product Agreements” means those agreements entered into from time to time by
Borrower with a Bank Product Provider in connection with the obtaining of any of the Bank Products.



“Bank Product Collateralization” means providing cash collateral (pursuant to
documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank
Product Providers (other than the Hedge Providers) in an amount determined by Agent as sufficient
to satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product
Obligations (other than Hedge Obligations).



“Bank Product Obligations” means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by Borrower to any Bank Product Provider pursuant to or
evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether
direct or indirect, absolute or contingent, due or to become due, now existing or hereafter
arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to
pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from,
or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider
with respect to the Bank Products provided by such Bank Product Provider to Borrower.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Bank Product Provider” means Wells Fargo or any of its Affiliates (including WFCF).



“Bank Product Reserve Amount” means, as of any date of determination, the Dollar
amount of reserves that Agent has determined it is necessary or appropriate to establish (based
upon the Bank Product Providers’ reasonable determination of their credit exposure in respect of
Bank Product Obligations) in respect of Bank Products then provided or outstanding.



“Bankruptcy Code” means title 11 of the United States Code, as in effect from time to
time.



“Base Rate” means the greatest of (a) the Federal Funds Rate plus 1/2%, (b) the LIBOR
Rate (which rate shall be calculated based upon an Interest Period of 3 months and shall be
determined on a daily basis), plus 1 percentage point, and (c) the rate of interest announced, from
time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with
the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the
lowest of such rates) and serves as the basis upon which effective rates of interest are calculated
for those loans making reference thereto and is evidenced by the recording thereof after its
announcement in such internal publications as Wells Fargo may designate.



“Base Rate Loan” means each portion of the Advances that bears interest at a rate
determined by reference to the Base Rate.




“Base Rate Margin” means 1.50 percentage points.



“Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35) of ERISA)
for which Parent or any of its Subsidiaries or ERISA Affiliates has been an “employer” (as defined
in Section 3(5) of ERISA) within the past six years.



“Board of Directors” means the board of directors (or comparable managers) of Parent
or any committee thereof duly authorized to act on behalf of the board of directors (or comparable
managers).




“Borrower” has the meaning specified therefor in the preamble to the Agreement.



“Borrowing” means a borrowing consisting of Advances made on the same day by the
Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by Agent
in the case of a Protective Advance.



“Borrowing Base” means, as of any date of determination, the result of 80% of the
amount of Eligible Accounts, minus the sum of (i) the amount, if any, of the Dilution Reserve, and
(ii) the aggregate amount of reserves, if any, established by Agent under Section 2.1(c) of
the Agreement.




“Borrowing Base Certificate” means a certificate in the form of Exhibit B-1.



“Business Day” means any day that is not a Saturday, Sunday, or other day on which
banks are authorized or required to close in the state of California or London (UK), except that,
if a determination of a Business Day shall relate to a LIBOR Rate Loan, the term “Business Day”
also shall exclude any day on which banks are closed for dealings in Dollar deposits in the London
interbank market.



“Capital Expenditures” means, with respect to any Person for any period, the aggregate
of all expenditures by such Person and its Subsidiaries during such period that are capital
expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or
financed; provided, that Capital Expenditures shall not include expenditures made with
proceeds of insurance, condemnation awards or other settlements in respect of lost, destroyed,
damaged or condemned assets to the extent such expenditures are to repair or replace such assets as
permitted under the Agreement.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Capitalized Lease Obligation” means that portion of the obligations under a Capital
Lease that is required to be capitalized in accordance with GAAP.



“Capital Lease” means a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.



“Cash Equivalents” means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the
full faith and credit of the United States, in each case maturing within 1 year from the date of
acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by the United
Kingdom or any state of the United States or any political subdivision of any such state or any
public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at
the time of acquisition, having one of the two highest ratings obtainable from either Standard &
Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c)
commercial paper maturing no more than 270 days from the date of creation thereof and, at the time
of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d)
certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing
within 1 year from the date of acquisition thereof issued by any bank organized under the laws of
the United States or of the United Kingdom or any state thereof or the District of Columbia or any
United States branch of a foreign bank having at the date of acquisition thereof combined capital
and surplus of not less than $250,000,000, (e) Deposit Accounts maintained with (i) any bank that
satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the
laws of the United States or any state thereof so long as the full amount maintained with any such
other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of
any commercial bank satisfying the requirements of clause (d) of this definition or recognized
securities dealer having combined capital and surplus of not less than $250,000,000, having a term
of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or
(d) above, (g) debt securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any commercial bank satisfying the criteria described
in clause (d) above, and (h) Investments in money market funds substantially all of whose assets
are invested in the types of assets described in clauses (a) through (g) above.



“Cash Management Services” means any cash management or related services including
treasury, depository, return items, overdraft, controlled disbursement, merchant store value
cards, e-payables services, electronic funds transfer, interstate depository network, automatic
clearing house transfer (including the Automated Clearing House processing of electronic funds
transfers through the direct Federal Reserve Fedline system) and other cash management
arrangements.




“CFC” means a controlled foreign corporation (as that term is defined in the IRC).



“Change of Control” means that (a) any “person” or “group” (within the meaning of
Sections 13(d) and 14(d) of the Exchange Act), becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 35%, or more, of the Stock of Parent
having the right to vote for the election of members of the Board of Directors of Parent, or (b) a
majority of the members of the Board of Directors of Parent do not constitute Continuing Directors,
or (c) any Loan Party ceases to own and control, directly or indirectly, 100% (or such lesser
percentage owned by such Loan Party as of the Closing Date) of the outstanding capital Stock of
each of its respective Subsidiaries existing as of the Closing Date, other than as a result of a
Permitted Disposition or as otherwise specifically permitted under the Agreement.



“Charged Property” means all of the assets of the Loan Parties the subject of the UK
Transaction Security.



“Closing Date” means the date of the making of the initial Advance (or other extension
of credit) under the Agreement.



“Code” means the California Uniform Commercial Code, as in effect from time to time.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Collateral” means all assets and interests in assets and proceeds thereof now owned
or hereafter acquired by Parent or its Subsidiaries in or upon which a Lien is granted by such
Person in favor of Agent or the Lenders under any of the Loan Documents.



“Collateral Access Agreement” means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in
possession of, having a Lien upon, or having rights or interests in Parent’s or its Subsidiaries’
books and records, Equipment, or Inventory, in each case, in form and substance reasonably
satisfactory to Agent.



“Collections” means all cash, checks, notes, instruments, and other items of payment
(including insurance proceeds, cash proceeds of asset sales, rental proceeds, and tax refunds).



“Compliance Certificate” means a certificate substantially in the form of Exhibit
C-1 delivered by the chief financial officer of Parent to Agent.



“Confidential Information” has the meaning specified therefor in Section
17.9(a) of the Agreement.



“Continuing Director” means (a) any member of the Board of Directors who was a
director (or comparable manager) of Parent on the Closing Date, and (b) any individual who becomes
a member of the Board of Directors of Parent after the Closing Date if such individual was
approved, appointed or nominated for election to the Board of Directors of Parent by a majority of
the Continuing Directors, but excluding any such individual originally proposed for election in
opposition to the Board of Directors in office at the Closing Date in an actual or threatened
election contest relating to the election of the directors (or comparable managers) of Parent and
whose initial assumption of office resulted from such contest or the settlement thereof.



“Control Agreement” means a control agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by Parent or one of its Subsidiaries, Agent, and the
applicable securities intermediary (with respect to a Securities Account) or bank (with respect to
a Deposit Account).



“Controlled Account Agreement” has the meaning specified therefor in the Security
Agreement.



“Copyright Security Agreement” has the meaning specified therefor in the Security
Agreement.



“Daily Balance” means, as of any date of determination and with respect to any
Obligation, the amount of such Obligation owed at the end of such day.



“Default” means an event, condition, or default that, with the giving of notice, the
passage of time, or both, would be an Event of Default.



“Defaulting Lender” means any Lender that (a) has failed to fund any amounts required
to be funded by it under the Agreement on the date that it is required to do so under the Agreement
(including the failure to make available to Agent amounts required pursuant to a Settlement or to
make a required payment in connection with a Letter of Credit Disbursement), (b) notified Borrower,
Agent, or any Lender in writing that it does not intend to comply with all or any portion of its
funding obligations under the Agreement, (c) has made a public statement to the effect that it does
not intend to comply with its funding obligations under the Agreement or under other agreements
generally (as reasonably determined by Agent) under which it has committed to extend credit, (d)
failed, within 1 Business Day after written request by Agent, to confirm that it will comply with
the terms of the Agreement relating to its obligations to fund any amounts required to be funded by
it under the Agreement, (e) otherwise failed to pay over to Agent or any other Lender any other
amount required to be paid by it under the Agreement on the date that it is required to do so under
the Agreement, or (f) (i) becomes or is insolvent or has a parent company that has become or is
insolvent or (ii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee, or
custodian or appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment or has a parent
company that has become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee, or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Defaulting Lender Rate” means (a) for the first 3 days from and after the date the
relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to
Advances that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).



“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Agent
(in its capacity as security trustee) appointed under Section 15.12(h) of the Agreement.




“Deposit Account” means any deposit account (as that term is defined in the Code).



“Designated Account” means the Deposit Account of Borrower identified on Schedule
D-1.




“Designated Account Bank” has the meaning specified therefor in Schedule D-1.



“Dilution” means, as of any date of determination, a percentage, based upon the
experience of the immediately prior 90 consecutive days, that is the result of dividing the Dollar
amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive
items with respect to Borrower’s Accounts during such period, by (b) Borrower’s billings with
respect to Accounts during such period.



“Dilution Reserve” means, as of any date of determination, an amount sufficient to
reduce the advance rate against Eligible Accounts by 1 percentage point for each percentage point
by which Dilution is in excess of 5%.




“Dollars” or “$” means United States dollars.



“Earn-Outs” shall mean unsecured liabilities of a Loan Party arising under an
agreement to make any deferred payment as a part of the Purchase Price for a Permitted Acquisition,
including performance bonuses or consulting payments in any related services, employment or similar
agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or
profits (or the like) of the underlying target.




“EBITDA” means, with respect to any fiscal period, the sum of:




(a) Parent’s and its Subsidiaries’ consolidated net earnings (or loss) for such period, plus



(b) without duplication, the sum of the following amounts for such period, to the extent such
amounts were deducted in determining such consolidated net earnings (or loss) for such period: (i)
interest expense, plus (ii) income tax expense, plus (iii) depreciation and amortization, plus (iv)
non-cash extraordinary or unusual losses, plus (v) with respect to any Permitted Acquisition after
the Closing Date, costs, fees, charges, or expenses consisting of out-of-pocket expenses owed by
Parent or any of its Subsidiaries to any Person for services performed by such Person in connection
with such Permitted Acquisition incurred within 30 days of the consummation of such Permitted
Acquisition, (i) up to an aggregate amount for such Permitted Acquisition not to exceed the
greater of (1) $1,000,000 and (2) 10% of the Purchase Price of such Permitted Acquisition, plus
(vi) losses resulting from litigation settlements, plus (vii) non-cash exchange, translation, or
performance losses relating to any hedging transactions or foreign currency fluctuations, plus
(viii) non-cash impairment and non-cash charges related to the issuance of stock and options, plus
(ix) one time restructuring charges in connection with Permitted Restructuring Transaction in
amounts approved by Agent in writing; minus

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(c) without duplication, the sum of the following amounts, to the extent such amounts were
included in determining such consolidated net earnings (or loss) for such period: (i) extraordinary
or unusual gains (including any gains from litigation settlements), plus (ii) interest income, plus
(iii) exchange, translation or performance gains relating to any hedging transactions or foreign
currency fluctuations.



“Eligible Accounts” means, without duplication, (i) the Eligible [***] Accounts, (ii)
the Eligible Alcatel [***] Accounts, (iii) the Eligible [***] Accounts, (iv) Eligible [***]
Accounts, (v) Eligible [***] Accounts, (vi) Eligible [***] Accounts, (vii) Eligible [***] Accounts,
(viii) Eligible [***] Accounts, and (ix) those Accounts created by Borrower in the ordinary course
of its business, that arise out of its sale of goods or rendition of services, that comply with
each of the representations and warranties respecting Eligible Accounts made in the Loan Documents,
and that are not excluded as ineligible by virtue of one or more of the excluding criteria set
forth below; provided, however, that such criteria may be revised from time to time by Agent in
Agent’s Permitted Discretion to address the results of any audit performed by Agent from time to
time after the Closing Date. In determining the amount to be included, Eligible Accounts shall be
calculated net of customer deposits and unapplied cash. Eligible Accounts shall not include the
following:



(a) Accounts that the Account Debtor has failed to pay within 90 days of original invoice date
or Accounts with selling terms of more than 60 days,



(b) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts
owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above,



(c) Accounts with respect to which the Account Debtor is an Affiliate of Borrower or an
employee or agent of Borrower or any Affiliate of Borrower,



(d) Accounts arising in a transaction wherein goods are placed on consignment or are sold
pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other
terms by reason of which the payment by the Account Debtor may be conditional,




(e) Accounts that are not payable in Dollars,



(f) Accounts with respect to which the Account Debtor either (i) does not maintain its chief
executive office or its registered office in the United States, Canada, the United Kingdom, or such
other juridiction(s) permitted by Agent in its Permitted Discretion, or (ii) is not organized or
incorporated under the laws of the United States, Canada, the United Kingdom, or such other
jurisdiction(s) permitted by Agent in its Permitted Discretion, or any state, province,
municipality, or other political subdivision thereof, or (iii) is the government of any foreign
country or sovereign state, or of any state, province, municipality, or other political subdivision
thereof, or of any department, agency, public corporation, or other instrumentality thereof,
unless, in each such case, (y) the Account is supported by an irrevocable letter of credit
satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank) that has been
delivered to Agent and is directly drawable by Agent, or (z) the Account is covered by credit
insurance in form, substance, and amount, and by an insurer, satisfactory to Agent,



(g) Accounts with respect to which the Account Debtor is either (i) the United States or any
department, agency, or instrumentality of the United States (exclusive, however, of Accounts with
respect to which Borrower has complied, to the reasonable satisfaction of Agent, with the
Assignment of Claims Act, 31 USC § 3727), or (ii) any state or other political subdivision of the
United States,



(h) Accounts with respect to which the Account Debtor is a creditor of Borrower, has or has
asserted a right of setoff, or has disputed its obligation to pay all or any portion of the
Account, to the extent of such claim, right of setoff, or dispute,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(i) Accounts with respect to an Account Debtor whose total obligations owing to Borrower
exceed 10% (or 20% with respect to [***]) of all Eligible Accounts (such percentage, as applied to
a particular Account Debtor, being subject to reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor deteriorates), to the extent of the obligations owing by
such Account Debtor in excess of such percentage; provided, however, that, in each case, the amount
of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be
determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any
eliminations based upon the foregoing concentration limit,



(j) Accounts with respect to which the Account Debtor is subject to an Insolvency Proceeding,
is not Solvent, has gone out of business, or as to which Borrower has received notice of an
imminent Insolvency Proceeding or a material impairment of the financial condition of such Account
Debtor,



(k) Accounts with respect to which the Account Debtor is located in a state or jurisdiction
(e.g., New Jersey, Minnesota, and West Virginia) that requires, as a condition to access to the
courts of such jurisdiction, that a creditor qualify to transact business, file a business
activities report or other report or form, or take one or more other actions, unless Borrower has
so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any
required fees or other charges), except to the extent that Borrower may qualify subsequently as a
foreign entity authorized to transact business in such state or jurisdiction and gain access to
such courts, without incurring any cost or penalty viewed by Agent to be significant in amount, and
such later qualification cures any access to such courts to enforce payment of such Account,



(l) Accounts, the collection of which, Agent, in its Permitted Discretion, believes to be
doubtful by reason of the Account Debtor’s financial condition,




(m) Accounts that are not subject to a valid and perfected first priority Agent’s Lien,



(n) Accounts with respect to which (i) the goods giving rise to such Account have not been
shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not
been performed and billed to the Account Debtor, or



(o) Accounts that represent the right to receive progress payments or other advance billings
that are due prior to the completion of performance by Borrower of the subject contract for goods
or services.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) [***] has not failed to
pay within the earlier of [***] days of original invoice date or 60 days after the due date; and
(iii) do not contain selling terms of more than [***] days.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) [***] has not failed to
pay within the earlier of [***] days of original invoice date or 60 days after the due date; and
(iii) do not contain selling terms of more than [***] days.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) [***] has not failed to
pay within the earlier of [***] days of original invoice date or 60 days after the due date; and
(iii) do not contain selling terms of more than [***] days.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of
the definition of Eligible Accounts; (ii) [***] has not failed to pay within the earlier of
[***] days of original invoice date or 60 days after the due date; and (iii) do not contain selling
terms of more than [***] days.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) [***] has not failed to
pay within the earlier of [***] days of original invoice date or 60 days after the due date; and
(iii) do not contain selling terms of more than [***] days.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) [***] has not failed to
pay within the earlier of [***] days of original invoice date or 60 days after the due date; and
(iii) do not contain selling terms of more than [***] days.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) [***] has not failed to
pay within the earlier of [***] days of original invoice date or 60 days after the due date; and
(iii) do not contain selling terms of more than [***] days.



“Eligible Transferee” means (a) a commercial bank organized under the laws of the
United States, or any state thereof, and having total assets in excess of $250,000,000, (b) a
commercial bank organized under the laws of any other country which is a member of the Organization
for Economic Cooperation and Development or a political subdivision of any such country and which
has total assets in excess of $250,000,000, provided that such bank is acting through a branch or
agency located in the United States, (c) a finance company, insurance company, or other financial
institution or fund that is engaged in making, purchasing, or otherwise investing in commercial
loans in the ordinary course of its business and having (together with its Affiliates) total assets
in excess of $250,000,000, (d) any Affiliate (other than individuals) of a pre-existing Lender, (e)
so long as no Event of Default has occurred and is continuing, any other Person approved by Agent
and Borrower (such approval by Borrower not to be unreasonably withheld, conditioned or delayed),
and (f) during the continuation of an Event of Default, any other Person approved by Agent.



“Eligible [***] Accounts” means Accounts created by Borrower owing from [***] to
Borrower that (i) would otherwise constitute Eligible Accounts but for the exclusionary criteria
set forth in parts (a) or (f) of the definition of Eligible Accounts; (ii) do not exceed $2,000,000
in the aggregate; (iii) [***] has not failed to pay within the earlier of [***] days of original
invoice date or 60 days after the due date; (iv) do not contain selling terms of more than [***]
days; and (v) are supported by an irrevocable letter of credit satisfactory to Agent (as to form,
substance, and issuer or domestic confirming bank) that has been delivered to Agent.



“Environmental Action” means any written complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative proceeding,
judgment, letter, or other written communication from any Governmental Authority, or any third
party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any
assets, properties, or businesses of Parent, any Subsidiary of Parent, or any of their predecessors
in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which
received Hazardous Materials generated by any Parent, any Subsidiary of Parent, or any of their
predecessors in interest.



“Environmental Law” means any applicable federal, state, provincial, foreign or local
statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and
enforceable written policy, or rule of common law now or hereafter in effect and in each case as
amended, or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, in each case, to the extent binding on Parent or
its Subsidiaries, relating to the environment, the effect of the environment on employee health, or
Hazardous Materials, in each case as amended from time to time.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Environmental Liabilities” means all liabilities, monetary obligations, losses,
damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel,
experts, or consultants, and costs of investigation and feasibility studies), fines, penalties,
sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required,
by any Governmental Authority or any third party, and which relate to any Environmental Action.



“Environmental Lien” means any Lien in favor of any Governmental Authority for
Environmental Liabilities.




“Equipment” means equipment (as that term is defined in the Code).



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto.



“ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as
employed by the same employer as the employees of Parent or its Subsidiaries under IRC Section
414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the
same employer as the employees of Parent or its Subsidiaries under IRC Section 414(c), (c) solely
for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA
that is a member of an affiliated service group of which Parent or any of its Subsidiaries is a
member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412
of the IRC, any Person subject to ERISA that is a party to an arrangement with Parent or any of its
Subsidiaries and whose employees are aggregated with the employees of Parent or its Subsidiaries
under IRC Section 414(o).



“Event of Default” has the meaning specified therefor in Section 8 of the
Agreement.



“Excess Availability” means, as of any date of determination, the amount equal to
Availability minus the aggregate amount, if any, of all trade payables of Parent and its
Subsidiaries aged in excess of historical levels with respect thereto and all book overdrafts of
Parent and its Subsidiaries in excess of historical practices with respect thereto, in each case as
determined by Agent in its Permitted Discretion.



“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to
time.



“Excluded Accounts” means (i) the collateral deposit accounts of Parent at US Bank
National Association for Parent’s corporate credit cards issued by US Bank National Association, so
long as the balance of such deposit account at no time exceeds $125,000, and (ii) the collateral
deposit account for the Borrower maintained with Barclay’s Bank PLC which supports a government
import bond issued by Barclay’s Bank PLC, so long as the balance of such deposit account at no time
exceeds $250,000.



“Existing Letters of Credit” means those letters of credit described on Schedule
E-1 to the Agreement.



“Fee Letter” means that certain fee letter, dated as of even date with the Agreement,
between Borrower and Agent, in form and substance reasonably satisfactory to Agent.



“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal to, for each day during such period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three Federal funds brokers of recognized
standing selected by it.



“Fixed Charges” means, with respect to any fiscal quarter and with respect to Parent
and its Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum, without
duplication, of (a)
Interest Expense accrued during such period, (b) principal payments in respect of Indebtedness
that are required to be paid during such period, and (c) all federal, state, and local income taxes
accrued during such period.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Fixed Charge Coverage Ratio” means, with respect to Parent and its Subsidiaries on a
consolidated basis measured quarterly as of the last day of each quarter for the most recently
ended 12 month period, the ratio of (i) EBITDA for such period minus Capital Expenditures made (to
the extent not already incurred in a prior period) or incurred during such period, to (ii) Fixed
Charges for such period.



“Foreign Lender” means any Lender or Participant that is not a United States person
within the meaning of IRC section
7701(a)(30).



“Foreign Security Documents” means, collectively, the documents set forth on
Schedule F-1 together with the documents, agreements, or instruments executed or delivered
in connection therewith, and “Foreign Security Document” means any one of them.




“Funding Date” means the date on which a Borrowing occurs.



“Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of
the Agreement.



“GAAP” means in respect of the Parent generally accepted accounting principles as in
effect from time to time in the United States, consistently applied; provided,
however, that all calculations relative to liabilities shall be made without giving effect
to Statement of Financial Accounting Standards No. 159, and, in respect of the Borrower, generally
accepted accounting principles as in effect from time to time in United Kingdom, consistently
applied.



“Governing Documents” means, with respect to any Person, the certificate or articles
of incorporation, by-laws, or other organizational documents of such Person.



“Governmental Authority” means any federal, state, local, or other governmental or
administrative body, instrumentality, board, department, or agency or any court, tribunal,
administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.



“Guarantors” means (a) each Subsidiary of Parent that is a guarantor on the Closing
Date, (b) Parent, and (c) each other Person that becomes a guarantor after the Closing Date
pursuant to Section 5.11 of the Agreement, and “Guarantor” means any one of them.



“Guaranty” means one or more general continuing guaranties, dated as of even date with
the Agreement, executed and delivered by one or more Guarantors in favor of Agent, for the benefit
of the Lender Group and the Bank Product Providers, in form and substance reasonably satisfactory
to Agent.



“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise
classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous
materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define,
list, or classify substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or
petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil
or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per
million.



“Hedge Agreement” means a “swap agreement” as that term is defined in Section
101(53B)(A) of the Bankruptcy Code.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Hedge Obligations” means any and all obligations or liabilities, whether absolute or
contingent, due or to become due, now existing or hereafter arising, of Borrower arising under,
owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the
Bank Product Providers.




“Hedge Provider” means Wells Fargo or any of its Affiliates.



“Holdout Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.



“Inactive Subsidiaries” means, collectively, [***], and “Inactive Subsidiary” means
any one of them.



“Indebtedness” as to any Person means (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar
instruments and all reimbursement or other obligations in respect of letters of credit, bankers
acceptances, or other financial products, (c) all obligations of such Person as a lessee under
Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such
Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of
such Person to pay the deferred purchase price of assets (other than trade payables incurred in the
ordinary course of business and repayable in accordance with customary trade practices), (f) all
obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on
the amount that would be payable by such Person if the Hedge Agreement were terminated on the date
of determination), (g) any Prohibited Preferred Stock of such Person, and (h) any obligation of
such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed,
endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that
constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this
definition, (i) the amount of any Indebtedness represented by a guaranty or other similar
instrument shall be the lesser of the principal amount of the obligations guaranteed and still
outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the
terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness
described in clause (d) above shall be the lower of the amount of the obligation and the fair
market value of the assets of such Person securing such obligation.



“Indemnified Liabilities” has the meaning specified therefor in Section 10.3
of the Agreement.



“Indemnified Person” has the meaning specified therefor in Section 10.3 of the
Agreement.



“Insolvency Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code, Insolvency Act of 1986 of England and Wales, the Enterprise
Act 2002 of England and Wales and the Companies Acts 1985 and 2006 of England and Wales or under
any other state or federal bankruptcy or insolvency law or any equivalent laws in any other
jurisdiction, assignments for the benefit of creditors, formal or informal moratoria, compositions,
liquidations, administrations, extensions generally with creditors, or proceedings seeking
reorganization, arrangement, or other similar relief and including, in the case of any Person
incorporated in England and Wales, any corporate action, legal proceedings or other procedure or
step is taken (including the making of an application, the presentation of a petition, the filing
or service of a notice or the passing of a resolution) in relation to:



(a) the suspension of payments, a moratorium or any indebtedness, winding-up, dissolution,
administration or reorganization (by way of voluntary arrangement scheme of arrangement or
otherwise) of such Person other than a solvent liquidation or reorganization of such Person;




(b) a composition, assignment or arrangement with any creditor of such Person; or



(c) the appointment of a liquidator, supervisor, receiver, administrator, administrative
receiver, compulsory manager, trustee or other similar officer in respect of such Person or any of
its assets.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


12









 





“Intercompany Advances” means loans or advances or the repayment of loans or advances
from Parent or one of its Subsidiaries to Parent or one of its Subsidiaries, and includes the
repayment of intercompany payables owing on the Closing Date.



“Intercompany Subordination Agreement” means an intercompany subordination agreement,
dated as of even date with the Agreement, executed and delivered by Parent, each of its
Subsidiaries, and Agent, the form and substance of which is reasonably satisfactory to Agent.



“Interest Expense” means, for any period, the aggregate of the interest expense of
Parent for such period, determined on a consolidated basis in accordance with GAAP.



“Interest Period” means, with respect to each LIBOR Rate Loan, a period commencing on
the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the
conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending 1, 2, or 3 months thereafter;
provided, however, that (a) interest shall accrue at the applicable rate based upon
the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day
on which any Interest Period expires, (b) any Interest Period that would end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on the next preceding
Business Day, (c) with respect to an Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period), the Interest Period shall end on the last Business Day
of the calendar month that is 1, 2, or 3 months after the date on which the Interest Period began,
as applicable, and (d) Borrower may not elect an Interest Period which will end after the Maturity
Date.




“Inventory” means inventory (as that term is defined in the Code).



“Investment” means, with respect to any Person, any investment by such Person in any
other Person (including Affiliates) in the form of loans, guarantees, advances, capital
contributions (excluding (a) commission, travel, and similar advances to officers and employees of
such Person made in the ordinary course of business, and (b) bona fide Accounts arising in the
ordinary course of business), or acquisitions of Indebtedness, Stock, or all or substantially all
of the assets of such other Person (or of any division or business line of such other Person), and
any other items that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.




“IRC” means the Internal Revenue Code of 1986, as in effect from time to time.



“Issuing Lender” means WFCF or any other Lender that, at the request of Borrower and
with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Lender
for the purpose of issuing Letters of Credit or Reimbursement Undertakings pursuant to Section
2.11 of the Agreement and the Issuing Lender shall be a Lender.



“Lender” has the meaning set forth in the preamble to the Agreement, shall include the
Issuing Lender and the Swing Lender, and shall also include any other Person made a party to the
Agreement pursuant to the provisions of Section 13.1 of the Agreement and “Lenders”
means each of the Lenders or any one or more of them.



“Lender Group” means each of the Lenders (including the Issuing Lender and the Swing
Lender) and Agent, or any one or more of them.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


13









 





“Lender Group Expenses” means all (a) reasonable costs or expenses (including taxes,
and insurance premiums) required to be paid by Parent or its Subsidiaries under any of the Loan
Documents that are paid, advanced, or incurred by the Lender Group, (b) reasonable out-of-pocket
fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with
Parent or its Subsidiaries under any of the
Loan Documents, including, fees or charges for photocopying, notarization, couriers and
messengers, telecommunication, public record searches (including tax lien, litigation, and UCC
searches and including searches with the patent and trademark office, the copyright office, or the
department of motor vehicles), filing, recording, publication, appraisal (including periodic
collateral appraisals or business valuations to the extent of the fees and charges (and up to the
amount of any limitation) contained in the Agreement or the Fee Letter), real estate surveys, real
estate title policies and endorsements, and environmental audits, (c) Agent’s customary fees and
charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt
of funds) to or for the account of Borrower (whether by wire transfer or otherwise), together with
any out-of-pocket costs and expenses incurred in connection therewith, (d) reasonable out-of-pocket
charges paid or incurred by Agent resulting from the dishonor of checks payable by or to any Loan
Party, (e) reasonable out-of-pocket costs and expenses paid or incurred by the Lender Group to
correct any default or enforce any provision of the Loan Documents, or during the continuance of an
Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping,
selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof,
irrespective of whether a sale is consummated, (f) reasonable out-of-pocket audit fees and expenses
(including travel, meals, and lodging) of Agent related to any inspections or audits to the extent
of the fees and charges (and up to the amount of any limitation) contained in the Agreement or the
Fee Letter, (g) reasonable out-of-pocket costs and expenses of third party claims or any other suit
paid or incurred by the Lender Group in enforcing or defending the Loan Documents or in connection
with the transactions contemplated by the Loan Documents or the Lender Group’s relationship with
Parent or any of its Subsidiaries, (h) Agent’s reasonable costs and expenses (including reasonable
attorneys fees) incurred in advising, structuring, drafting, reviewing, administering (including
travel, meals, and lodging), syndicating, or amending the Loan Documents, (i) Agent’s and each
Lender’s reasonable costs and expenses (including reasonable attorneys, accountants, consultants,
and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys,
accountants, consultants, and other advisors fees and expenses incurred in connection with a
“workout,” a “restructuring,” or an Insolvency Proceeding concerning Parent or any of its
Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan
Documents, irrespective of whether suit is brought, or in taking any Remedial Action concerning the
Collateral, and (j) usage charges, charges, fees, costs and expenses for amendments, renewals,
extensions, transfers, or drawings from time to time imposed by the Underlying Issuer or incurred
by the Issuing Lender in respect of Letters of Credit and out-of-pocket charges, fees, costs and
expenses paid or incurred by the Underlying Issuer or Issuing Lender in connection with the
issuance, amendment, renewal, extension, or transfer of, or drawing under, any Letter of Credit or
any demand for payment thereunder.



“Lender Group Representatives” has the meaning specified therefor in Section
17.9 of the Agreement.



“Lender-Related Person” means, with respect to any Lender, such Lender, together with
such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.



“Letter of Credit” means a letter of credit (as that term is defined in the Code)
issued by Issuing Lender or a letter of credit (as that term is defined in the Code) issued by
Underlying Issuer, as the context requires.



“Letter of Credit Collateralization” means either (a) providing cash collateral
(pursuant to documentation reasonably satisfactory to Agent, including provisions that specify that
the Letter of Credit fee and all usage charges set forth in the Agreement will continue to accrue
while the Letters of Credit are outstanding) to be held by Agent for the benefit of those Lenders
with a Revolver Commitment in an amount equal to 105% of Dollar denominated Letters of Credit and
115% of foreign currency denominated Letters of Credit included within the then existing Letter of
Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the Letters
of Credit, in form and substance reasonably satisfactory to Agent and the Issuing Lender,
terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Agent
with a standby letter of credit, in form and substance reasonably satisfactory to Agent, from a
commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of Dollar
denominated Letters of Credit and 115% of foreign currency denominated Letters of Credit included
within the
then existing Letter of Credit Usage (it being understood that the Letter of Credit fee and
all usage charges set forth in the Agreement will continue to accrue while the Letters of Credit
are outstanding and that any such fees that accrue must be an amount that can be drawn under any
such standby letter of credit).

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


14









 





“Letter of Credit Disbursement” means a payment made by Issuing Lender or Underlying
Issuer pursuant to a Letter of Credit.



“Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit.



“LIBOR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of
the Agreement.




“LIBOR Notice” means a written notice in the form of Exhibit L-1.



“LIBOR Option” has the meaning specified therefor in Section 2.12(a) of the
Agreement.



“LIBOR Rate” means the greater of the rate per annum rate appearing on Bloomberg
L.P.’s (the “Service”) Page BBAM1/(Official BBA USD Dollar Libor Fixings) (or on any
successor or substitute page of such Service, or any successor to or substitute for such Service) 2
Business Days prior to the commencement of the requested Interest Period, for a term and in an
amount comparable to the Interest Period and the amount of the LIBOR Rate Loan requested (whether
as an initial LIBOR Rate Loan or as a continuation of a LIBOR Rate Loan or as a conversion of a
Base Rate Loan to a LIBOR Rate Loan) by Borrower in accordance with the Agreement, which
determination shall be conclusive in the absence of manifest error.



“LIBOR Rate Loan” means each portion of an Advance that bears interest at a rate
determined by reference to the LIBOR Rate.




“LIBOR Rate Margin” means 2.50 percentage points.



“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other
security arrangement and any other preference, priority, or preferential arrangement of any kind or
nature whatsoever, including any conditional sale contract or other title retention agreement, the
interest of a lessor under a Capital Lease and any synthetic or other financing lease having
substantially the same economic effect as any of the foregoing.



“Liquidity” means, the sum of Excess Availability and Qualified Cash. For purposes of
this definition, Agent will test Liquidity at any time in its discretion during the term of this
Agreement.



“Loan Account” has the meaning specified therefor in Section 2.9 of the
Agreement.



“Loan Documents” means the Agreement, any Borrowing Base Certificate, the Controlled
Account Agreements, the Control Agreements, the Copyright Security Agreement, the Fee Letter, the
Guaranty, the Intercompany Subordination Agreement, the Letters of Credit, the Patent Security
Agreement, the Security Agreement, the Trademark Security Agreement, the Foreign Security
Documents, any note or notes executed by Borrower in connection with the Agreement and payable to
any member of the Lender Group, any letter of credit application or letter of credit agreement
entered into by Borrower in connection with the Agreement, and any other instrument or agreement
entered into, now or in the future, by Parent or any of its Subsidiaries and any member of the
Lender Group in connection with the Agreement.




“Loan Party” means Borrower or any Guarantor.



“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


15









 





“Material Adverse Change” means (a) a material adverse change in the business,
operations, results of operations, assets, liabilities or financial condition of Parent and its
Subsidiaries, taken as a whole, (b) a material impairment of Parent’s and its Subsidiaries ability,
taken as a whole, to perform their obligations under the Loan Documents to which they are parties
or of the Lender Group’s ability to enforce the Obligations or realize upon the Collateral, or (c)
a material impairment of the enforceability or priority of Agent’s Liens with respect to the
Collateral as a result of an action or failure to act on the part of Parent or its Subsidiaries.



“Material Contract” means, with respect to any Person, each contract or agreement to
which such Person or any of its Subsidiaries is a party that would be required to be disclosed in
the Parent’s filings with the US Securities and Exchange Commission under applicable securities
laws.



“Maturity Date” has the meaning specified therefor in Section 3.3 of the
Agreement.



“Maximum Revolver Amount” means the sum of the Revolver Commitments set forth on
Schedule C-1, as such Revolver Commitments may be reduced pursuant to Section
2.4(c) of the Agreement.




“Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.



“Obligations” means (a) all loans (including the Advances (inclusive of Protective
Advances and Swing Loans)), debts, principal, interest (including any interest that accrues after
the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole
or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification
obligations with respect to Reimbursement Undertakings or with respect to Letters of Credit
(irrespective of whether contingent), premiums, liabilities (including all amounts charged to the
Loan Account pursuant to the Agreement), obligations (including indemnification obligations), fees
(including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or
expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether
allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties,
and all covenants and duties of any other kind and description owing by any Loan Party pursuant to
or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and including all interest not paid when due and all other expenses
or other amounts that Borrower is required to pay or reimburse by the Loan Documents or by law or
otherwise in connection with the Loan Documents, (b) all debts, liabilities, or obligations
(including reimbursement obligations, irrespective of whether contingent) owing by Borrower or any
other Loan Party to an Underlying Issuer now or hereafter arising from or in respect of an
Underlying Letters of Credit, and (c) all Bank Product Obligations. Any reference in the Agreement
or in the Loan Documents to the Obligations shall include all or any portion thereof and any
extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any
Insolvency Proceeding.



“Oclaro China” means Oclaro Technology (Shenzhen) (FFTZ) Co. Ltd., a company organized
under the laws of The People’s Republic of China.




[***]



“Oclaro Israel” means Oclaro Israel Ltd (formerly known as Xtellus Ltd.), a company
organized under the laws of Israel.




“Oclaro Korea” means Oclaro Korea, Inc., a company organized under the laws of Korea.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


16









 





“Oclaro Korea Mortgage” means, collectively, those two (2) certain Kun-mortgages that
were entered into to secure the debts of Oclaro Korea, with one Kun-mortgage established for the
first floor #102, Panam-dong, 239-2, Dong-gu, Daejeon-si in favor of Hana Bank with the maximum
secured amount of KRW
802,750,000 on July 14, 2008, and one Kun-mortgage established for the first floor #101,
Panam-dong, 239-2, Dong-gu, Daejeon-si in favor of Hana Bank with the maximum secured amount of KRW
260,000,000 and $130,000 on July 14, 2008; provided that these Kun-mortgages constitute a “factory
mortgage” established under the Factory Mortgage Act, which provides for the mortgage with a
security interest with respect to the land and buildings constituting the factory, as well as all
of the machinery, equipment and other assets located in the factory over which the mortgage has
been established.



“Oclaro Switzerland” means Oclaro (Switzerland) AG, a company organized under the laws
of Switzerland.



“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the
Treasury.



“Originating Lender” has the meaning specified therefor in Section 13.1(e) of
the Agreement.



“Overadvance” has the meaning specified therefor in Section 2.5 of the
Agreement.




“Parent” has the meaning specified therefor in the preamble to the Agreement.



“Participant” has the meaning specified therefor in Section 13.1(e) of the
Agreement.



“Patent Security Agreement” has the meaning specified therefor in the Security
Agreement.



“Patriot Act” has the meaning specified therefor in Section 4.18 of the
Agreement.



“Payoff Date” means the first date on which all of the Obligations are paid in full
and the Revolver Commitments of the Lenders are terminated.




“Permitted Acquisition” means any Acquisition so long as:



(a) no Default or Event of Default shall have occurred and be continuing or would result from
the consummation of the proposed Acquisition and the proposed Acquisition is consensual,



(b) no Indebtedness will be incurred, assumed, or would exist with respect to Parent or its
Subsidiaries as a result of such Acquisition, other than Permitted Indebtedness and no Liens will
be incurred, assumed, or would exist with respect to the assets of Parent or its Subsidiaries as a
result or such Acquisition other than Permitted Liens,



(c) Borrower has provided Agent with their due diligence package relative to the proposed
Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow
statements of the Person or assets to be acquired, all prepared on a basis consistent with such
Person’s (or assets’) historical financial statements, together with appropriate supporting details
and a statement of underlying assumptions for the 1 year period following the date of the proposed
Acquisition, on a quarter by quarter basis), in form and substance (including as to scope and
underlying assumptions) reasonably satisfactory to Agent,



(d) Borrower shall have (i) Liquidity in an amount equal to or greater than [***] and (ii)
Excess Availability in an amount equal to or greater than [***], in each case immediately after
giving effect to the consummation of the proposed Acquisition,



(e) Borrower has provided Agent with written notice of the proposed Acquisition at least 15
Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than
5 Business Days prior to the anticipated closing date of the proposed Acquisition, copies of the
then current drafts of acquisition agreement and other material documents relative to the proposed
Acquisition,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


17









 





(f) the assets being acquired (other than a de minimis amount of assets in relation to
Parent’s and its Subsidiaries’ total assets), or the Person whose Stock is being acquired, are
useful in or engaged in, as applicable, the business of Parent and its Subsidiaries or a business
reasonably related thereto,



(g) the subject assets or Stock, as applicable, are being acquired directly by Borrower or one
of its Subsidiaries that is a Loan Party, and, in connection therewith, such Borrower or the
applicable Loan Party shall comply with Section 5.11 and 5.12, of the Agreement
and, in the case of an acquisition of Stock, Borrower or the applicable Loan Party shall have
demonstrated to Agent that the new Loan Parties have received consideration sufficient to make the
joinder documents binding and enforceable against such new Loan Parties, and



(h) the purchase consideration payable in respect of all Permitted Acquisitions (including the
proposed Acquisition and including any Acquired Indebtedness and deferred payment obligations)
shall not exceed, together with the purchase consideration payable in respect of all Investments
permitted under clause (p) of the definition of Permitted Investments, [***] in the aggregate;
provided, however, that the purchase consideration payable in respect of any single
Acquisition or series of related Acquisitions shall not exceed [***] in the aggregate.



Notwithstanding anything contained herein to the contrary, in no event will assets acquired
pursuant to a Permitted Acquisition constitute assets eligible for inclusion in the Borrowing Base
prior to completion of a field examination and other due diligence acceptable to Agent in its
Permitted Discretion (which field examination may be conducted prior to the closing of such
Permitted Acquisition).



“Permitted Discretion” means a determination made in the exercise of reasonable (from
the perspective of a secured lender) business judgment.




“Permitted Dispositions” means:




(a) sales of Inventory to buyers in the ordinary course of business,



(b) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the
terms of the Agreement or the other Loan Documents,



(c) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other
intellectual property rights in the ordinary course of business,




(d) the granting of Permitted Liens,



(e) the sale or discount, in each case without recourse, of Accounts arising in the ordinary
course of business, but only in connection with the compromise or collection thereof,




(f) any involuntary loss, damage or destruction of property,



(g) any involuntary condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, or confiscation or requisition of use of property,



(h) the leasing or subleasing of assets (which, in the case of a UK Loan Party, are subject to
a floating charge created under a UK Collateral Document) of Parent or its Subsidiaries in the
ordinary course of business,



(i) the sale or issuance of Stock (other than Prohibited Preferred Stock) of Parent,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.





 


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(j) the lapse of registered patents, trademarks and other intellectual property of Parent and
its Subsidiaries to the extent not economically desirable in the conduct of their business and so
long as such lapse is not materially adverse to the interests of the Lenders,



(k) the making of a Restricted Junior Payment that is expressly permitted to be made pursuant
to the Agreement,




(l) the making of a Permitted Investment,



(m) the transfer of assets by a Loan Party or a Subsidiary of Parent that is not a Loan Party
to a Loan Party,




(n) [***]




(o) [***]




(p) [***]



(q) dispositions of assets (which in the case of a UK Loan Party, are subject to a floating
charge created under a UK Collateral Document) acquired by Parent and its Subsidiaries pursuant to
a Permitted Acquisition consummated within 12 months of the date of the proposed Disposition (the
“Subject Permitted Acquisition”) so long as (i) the consideration received for the assets
to be so disposed is at least equal to the fair market value thereof, (ii) the assets to be so
disposed are not necessary or economically desirable in connection with the business of Parent and
its Subsidiaries, and (iii) the assets to be so disposed are readily identifiable as assets
acquired pursuant to the Subject Permitted Acquisition,



(r) dispositions of assets (which, in the case of a UK Loan Party, are subject to a floating
charge created under a UK Collateral Document) (other than Accounts, intellectual property,
licenses, Stock of Subsidiaries of Parent, or Material Contracts) not otherwise permitted in
clauses (a) through (q) above so long as made at fair market value and the aggregate fair
market value of all assets disposed of in all such dispositions since the Closing Date (including
the proposed disposition) would not exceed $2,000,000 (or its equivalent in any other currency),




(s) [***]




(t) [***]




(u) [***]




“Permitted Indebtedness” means:



(a) Indebtedness evidenced by the Agreement or the other Loan Documents, as well as
Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit,



(b) Indebtedness set forth on Schedule 4.19 and any Refinancing Indebtedness in
respect of such Indebtedness,



(c) Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such
Indebtedness,



(d) endorsement of instruments or other payment items for deposit,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(e) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of
business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds,
completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect to
customary indemnification obligations to purchasers in connection with Permitted Dispositions; and
(iii) unsecured guarantees with respect to Indebtedness of Parent or one of its Subsidiaries, to
the extent that the Person that is obligated under such guaranty could have incurred such
underlying Indebtedness,



(f) Indebtedness incurred in the ordinary course of business under performance, surety,
statutory, and appeal bonds,



(g) Indebtedness owed to any Person providing property, casualty, liability, or other
insurance to Parent or any of its Subsidiaries, so long as the amount of such Indebtedness is not
in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of,
such insurance for the year in which such Indebtedness is incurred and such Indebtedness is
outstanding only during such year,



(h) the incurrence by Parent or its Subsidiaries of Indebtedness under Hedge Agreements that
are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency
risks associated with Parent’s and its Subsidiaries’ operations and not for speculative purposes,



(i) Indebtedness incurred in respect of credit cards, credit card processing services, debit
cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”),
or Cash Management Services, in each case, incurred in the ordinary course of business,




(j) Indebtedness composing Permitted Investments,




(k) Indebtedness evidenced by Permitted Intercompany Advances,




(l) [***]




(m) Indebtedness in connection with the Oclaro Korea Mortgage.



(n) unsecured Indebtedness owing to sellers of assets or Stock to a Loan Party that is
incurred by the applicable Loan Party in connection with the consummation of one or more Permitted
Acquisitions so long as (i) the aggregate principal amount for all such unsecured Indebtedness does
not exceed $5,000,000 (or its equivalent in any other currency) at any one time outstanding, (ii)
is subordinated to the Obligations on terms and conditions reasonably acceptable to Agent, and
(iii) is otherwise on terms and conditions (including all economic terms and the absence of
covenants) reasonably acceptable to Agent,



(o) contingent liabilities in respect of any indemnification obligation, adjustment of
purchase price, non-compete, or similar obligation of Parent or the applicable Loan Party incurred
in connection with the consummation of one or more Permitted Acquisitions,



(p) Acquired Indebtedness in an amount not to exceed $5,000,000 (or its equivalent in any
other currency) outstanding at any one time, and



(q) other unsecured Indebtedness of the Parent and its Subsidiaries which is subordinated to
the Obligations on terms and conditions (including all economic and subordination terms and the
absence of covenants) acceptable to Lenders and does not exceed in the aggregate $5,000,000 (or its
equivalent in any other currency) at any time outstanding, and any Refinancing Indebtedness in
respect of such Indebtedness.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Permitted Intercompany Advance” means Intercompany Advances:



(a) made by any of Parent’s Subsidiaries that is not a Loan Party to any of Parent’s other
Subsidiaries that is not a Loan Party;



(b) made by Parent or any of Parent’s Subsidiaries to a Loan Party so long as they are the
subject of the Intercompany Subordination Agreement;



(c) made by any of Parent’s Subsidiaries that is a Loan Party to any of Parent’s other
Subsidiaries that is not a Loan Party, so long as (i) no Default or Event of Default has occurred
and is continuing or would result therefrom, and (ii) Borrower has (x) Liquidity in an amount equal
to or greater than $30,000,000 and (y) Excess Availability in an amount equal to or greater than
$15,000,000, in each case both before and after giving effect to any such Intercompany Advance; and



(d) made by any of Parent’s Subsidiaries that is a Loan Party to any of Parent’s other
Subsidiaries that is not a Loan Party which Intercompany Advance is not permitted under clause
(c)(ii) above so long as the following conditions are satisfied:



(i) made by any of Parent’s Subsidiaries that is a Loan Party to Oclaro China, so long as (i)
no Default or Event of Default has occurred and is continuing or would result therefrom, and (ii)
all such Intercompany Advances do not exceed [***] per month (subject to annual increases requested
by Borrower and acceptable to Agent, which increases must be based upon historic revenue growth
since the Closing Date), provided, that no such Intercompany Advances may be made following Oclaro
China’s receipt of cash proceeds from the Oclaro China Sale and Leaseback, until such cash proceeds
have been fully utilized to fund the ongoing business of Oclaro China;



(ii) made by any of Parent’s Subsidiaries that is a Loan Party to Oclaro Switzerland, so long
as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, and
(ii) all such Intercompany Advances do not exceed [***] in any calendar month;



(iii) made by any of Parent’s Subsidiaries that is a Loan Party to Oclaro Thailand, so long as
(i) no Default or Event of Default has occurred and is continuing or would result therefrom, and
(ii) all such Intercompany Advances do not exceed [***] in any calendar month;



(iv) made by any of Parent’s Subsidiaries that is a Loan Party to Avanex China, so long as (i)
no Default or Event of Default has occurred and is continuing or would result therefrom, and (ii)
all such Intercompany Advances do not exceed [***] in any calendar month;



(v) made by any of Parent’s Subsidiaries that is a Loan Party to Oclaro Israel or Oclaro
Korea, so long as (i) no Default or Event of Default has occurred and is continuing or would result
therefrom, and (ii) all such Intercompany Advances do not exceed [***] in any calendar month.



(vi) made by any of Parent’s Subsidiaries that is a Loan Party to Avanex France OIF SA, so
long as (i) no Default or Event of Default has occurred and is continuing or would result
therefrom, and (ii) all such Intercompany Advances do not exceed [***] during the term of this
Agreement;



(vii) made by any of Parent’s Subsidiaries that is a Loan Party to any of Parent’s other
Subsidiaries that is not a Loan Party (other than Oclaro China, Oclaro Switzerland, Oclaro
Thailand, Avanex China, Oclaro Israel, Oclaro Korea and Avanex France OIF SA), so long as (i) no
Default or Event of Default has occurred and is continuing or would result therefrom, and (ii) all
such Intercompany Advances do not exceed $100,000 in any calendar month;

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(e) payments made by any Loan Party to the Lender Group in respect of obligations under this
Agreement or the Loan Documents, to the extent that the same are construed as “advances” for the
benefit of one or more of the other Loan Parties and so long as they are subject to the
Intercompany Subordination Agreement.



“Permitted Intercompany Transactions” means (a) each of the transactions set forth on
Schedule P-2 that are materially consistent with the past practices of Parent’s and its
Subsidiaries’ business operations as in effect on the Closing Date and disclosed to Agent on or
before the Closing Date, (b) transactions by and between Loan Parties that are materially
consistent with the past practices of Loan Parties’ business operations as in effect on the Closing
Date and disclosed to Agent on or before the Closing Date, and (c) transactions between Parent or
its Subsidiaries, on the one hand, and any Affiliate of Parent or its Subsidiaries, on the other
hand, so long as such transactions (i) are upon fair and reasonable terms, (ii) are fully disclosed
to Agent if they involve one or more payments by Parent or any of Subsidiary of Parent in excess of
$500,000 (or its equivalent in any other currency) for any single transaction or series of
transactions, and (iii) are no less favorable to Parent or its Subsidiaries, as applicable, than
would be obtainable in an arm’s length transaction with a non-Affiliate.




“Permitted Investments” means:




(a) Investments in cash and Cash Equivalents,



(b) Investments in negotiable instruments deposited or to be deposited for collection in the
ordinary course of business,



(c) advances made in connection with purchases of goods or services in the ordinary course of
business,



(d) Investments received in settlement of amounts due to Parent or any of its Subsidiaries
effected in the ordinary course of business or owing to Parent or any of its Subsidiaries as a
result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement
of any Lien in favor of Parent or its Subsidiaries,



(e) Investments owned by Parent or any of its Subsidiaries on the Closing Date and set forth
on Schedule P-1,




(f) guarantees permitted under the definition of Permitted Indebtedness,




(g) Permitted Intercompany Advances,



(h) Stock or other securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to Parent or its Subsidiaries (in bankruptcy of customers or
suppliers or otherwise outside the ordinary course of business) or as security for any such
Indebtedness or claims,



(i) deposits of cash made in the ordinary course of business to secure performance of
operating leases,



(j) non-cash loans to employees, officers, and directors of Parent or any of its Subsidiaries
for the purpose of purchasing Stock in Parent so long as the proceeds of such loans are used in
their entirety to purchase such stock in Parent,



(k) Investments resulting from entering into Bank Product Agreements,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(l) so long as no Default or Event of Default has occurred and is continuing, the transfer of
wafers and die banks from Borrower to Oclaro China in the ordinary course of Parent’s and its
Subsidiaries’ business as in effect on the Closing Date,



(m) contributions by Borrower to Oclaro China consisting of Equipment to be used by Oclaro
China in the ordinary course of business so long as (i) no Default or Event of Default has occurred
and is continuing or would result therefrom, (ii) all such contributions do not exceed [***] in
the aggregate in any calendar year, and (iii) Agent is given prior written notice by Parent of any
single contribution in excess of [***],




(n) Permitted Acquisitions,



(o) Investments held by a Person acquired in a Permitted Acquisition to the extent that such
Investments were not made in contemplation of or in connection with such Permitted Acquisition and
were in existence on the date of such Permitted Acquisition, and



(p) so long as (i) no Event of Default has occurred and is continuing or would result
therefrom, and (ii) Borrower has (x) Liquidity in an amount equal to or greater than $30,000,000
and (y) Excess Availability in an amount equal to or greater than $15,000,000, in each case both
before and after giving effect to any such Investment, any other Investments (other than
Acquisitions) in an aggregate amount not to exceed, together with all purchase consideration
payable in respect of all Permitted Acquisitions (including all Acquired Indebtedness and deferred
payment obligations), [***] during the term of the Agreement.




“Permitted Liens” means




(a) Liens granted to, or for the benefit of, Agent to secure the Obligations,



(b) Liens for unpaid taxes, assessments, or other governmental charges or levies that either
(i) are not yet delinquent, or (ii) do not have priority over Agent’s Liens and the underlying
taxes, assessments, or charges or levies are the subject of Permitted Protests,



(c) judgment Liens arising solely as a result of the existence of judgments, orders, or awards
that do not constitute an Event of Default under Section 8.3 of the Agreement,



(d) Liens set forth on Schedule P-3; provided, however, that to
qualify as a Permitted Lien, any such Lien described on Schedule P-3 shall only secure the
Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect
thereof,



(e) the interests of lessors under operating leases and non-exclusive licensors under license
agreements,



(f) purchase money Liens or the interests of lessors under Capital Leases to the extent that
such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i) such Lien
attaches only to the asset purchased or acquired and the proceeds thereof, and (ii) such Lien only
secures the Indebtedness that was incurred to acquire the asset purchased or acquired or any
Refinancing Indebtedness in respect thereof,



(g) Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business and not
in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(h) Liens on amounts deposited to secure Parent’s and its Subsidiaries obligations in
connection with worker’s compensation or other unemployment insurance,



(i) Liens on amounts deposited to secure Parent’s and its Subsidiaries obligations in
connection with the making or entering into of bids, tenders, or leases in the ordinary course of
business and not in connection with the borrowing of money,



(j) Liens on amounts deposited to secure Parent’s and its Subsidiaries reimbursement
obligations with respect to surety or appeal bonds obtained in the ordinary course of business,



(k) with respect to any Real Property, easements, rights of way, and zoning restrictions that
do not materially interfere with or impair the use or operation thereof,



(l) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property
rights in the ordinary course of business,



(m) Liens that are replacements of Permitted Liens to the extent that the original
Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement
Liens only encumber those assets that secured the original Indebtedness,



(n) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other
depository institutions, solely to the extent incurred in connection with the maintenance of such
deposit accounts in the ordinary course of business,



(o) Liens granted in the ordinary course of business on the unearned portion of insurance
premiums securing the financing of insurance premiums to the extent the financing is permitted
under the definition of Permitted Indebtedness,



(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods,



(q) Liens solely on any cash earnest money deposits made by Parent or any of its Subsidiaries
in connection with any letter of intent or purchase agreement with respect to a Permitted
Acquisition,



(r) Liens assumed by Parent or its Subsidiaries in connection with a Permitted Acquisition
that secure Acquired Indebtedness, and




(s) Liens securing the Oclaro Korea Mortgage.



“Permitted Liquidation” means the liquidation, winding up, or dissolution of any
Subsidiary of Parent that is not a Loan Party, Oclaro China, or Oclaro Switzerland so long as (i)
Parent provides Agent with not less than 10 days prior written notice of such liquidation, winding
up, or dissolution, (ii) no Default or Event of Default has occurred and is continuing or would
result therefrom, and (iii) on or before the consummation of any such liquidation, winding up, or
dissolution, Parent delivers to Agent updated schedules to the Loan Documents reflecting such
liquidation, winding up, or dissolution, provided, that in no event may any schedule be updated in
a manner that would reflect or evidence a Default or an Event of Default.



“Permitted Merger” means (a) the merger or consolidation of any Subsidiary of Parent
with and into any Subsidiary of Parent which is a Loan Party so long as a Loan Party is the
surviving entity and if Borrower is involved, Borrower is the surviving entity, (b) the merger or
consolidation of any Subsidiary of Parent that is not a Loan Party with any other Subsidiary of
Parent that is not a Loan Party, provided that, in any of the forgoing cases, (i) Parent provides
Agent with not less than 10 days prior written notice of such merger or
consolidation, (ii) no Default or Event of Default has occurred and is continuing or would
result therefrom, (iii) Agent’s Liens on the Collateral pledged by any Loan Party under the Loan
Documents to which it is a party are not adversely affected, and (iv) on or before the consummation
of any such merger or consolidation, Parent delivers to Agent updated schedules to the Loan
Documents reflecting such merger or consolidation, provided, that in no event may any schedule be
updated in a manner that would reflect or evidence a Default or an Event of Default.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Permitted Preferred Stock” means and refers to any Preferred Stock issued by Parent
(and not by one or more of its Subsidiaries) that is not Prohibited Preferred Stock.



“Permitted Protest” means the right of Parent or any of its Subsidiaries to protest
any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or
taxes that are the subject of a United States federal tax lien), or rental payment, provided that
(a) a reserve with respect to such obligation is established on Parent’s or its Subsidiaries’ books
and records in such amount as is required under GAAP, (b) any such protest is instituted promptly
and prosecuted diligently by Parent or its Subsidiary, as applicable, in good faith, and (c) Agent
is satisfied that, while any such protest is pending, there will be no impairment of the
enforceability, validity, or priority of any of Agent’s Liens.



“Permitted Purchase Money Indebtedness” means, as of any date of determination,
Purchase Money Indebtedness incurred after the Closing Date in an aggregate principal amount
outstanding at any one time not in excess of $5,000,000 (or its equivalent in any other currency).



“Permitted Restructuring Transaction” means a Permitted Merger or a Permitted
Liquidation.



“Person” means natural persons, corporations, limited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land
trusts, business trusts, or other organizations, irrespective of whether they are legal entities,
and governments and agencies and political subdivisions thereof.



“Preferred Stock” means, as applied to the Stock of any Person, the Stock of any class
or classes (however designated) that is preferred with respect to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Stock of any other class of such Person.



“Prohibited Preferred Stock” means any Preferred Stock that by its terms is
mandatorily redeemable or subject to any other payment obligation (including any obligation to pay
dividends, other than dividends of shares of Preferred Stock of the same class and series payable
in kind or dividends of shares of common stock) on or before a date that is less than 1 year after
the Maturity Date, or, on or before the date that is less than 1 year after the Maturity Date, is
redeemable at the option of the holder thereof for cash or assets or securities (other than
distributions in kind of shares of Preferred Stock of the same class and series or of shares of
common stock).



“Projections” means Parent’s forecasted (a) balance sheets, (b) profit and loss
statements, and (c) cash flow statements, all prepared on a basis consistent with Parent’s
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.




“Pro Rata Share” means, as of any date of determination:



(a) with respect to a Lender’s obligation to make Advances and right to receive payments of
principal, interest, fees, costs, and expenses with respect thereto, (i) prior to the Revolver
Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such
Lender’s Revolver Commitment, by (z) the aggregate Revolver Commitments of all Lenders, and (ii)
from and after the time that the Revolver Commitments have been terminated or reduced to zero, the
percentage obtained by
dividing (y) the outstanding principal amount of such Lender’s Advances by (z) the outstanding
principal amount of all Advances,

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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(b) with respect to a Lender’s obligation to participate in Letters of Credit and
Reimbursement Undertakings, to reimburse the Issuing Lender, and right to receive payments of fees
with respect thereto, (i) prior to the Revolver Commitments being terminated or reduced to zero,
the percentage obtained by dividing (y) such Lender’s Revolver Commitment, by (z) the aggregate
Revolver Commitments of all Lenders, and (ii) from and after the time that the Revolver Commitments
have been terminated or reduced to zero, the percentage obtained by dividing (y) the outstanding
principal amount of such Lender’s Advances by (z) the outstanding principal amount of all Advances;
provided, however, that if all of the Advances have been repaid in full and Letters
of Credit remain outstanding, Pro Rata Share under this clause shall be determined based upon
subclause (i) of this clause as if the Revolver Commitments had not been terminated or reduced to
zero and based upon the Revolver Commitments as they existed immediately prior to their termination
or reduction to zero, and



(c) with respect to all other matters as to a particular Lender (including the indemnification
obligations arising under Section 15.7 of the Agreement), (i) prior to the Revolver
Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such
Lender’s Revolver Commitment, by (z) the aggregate amount of Revolver Commitments of all Lenders,
and (ii) from and after the time that the Revolver Commitments have been terminated or reduced to
zero, the percentage obtained by dividing (y) the outstanding principal amount of such Lender’s
Advances, by (z) the outstanding principal amount of all Advances; provided,
however, that if all of the Advances have been repaid in full and Letters of Credit remain
outstanding, Pro Rata Share under this clause shall be determined based upon subclause (i) of this
clause as if the Revolver Commitments had not been terminated or reduced to zero and based upon the
Revolver Commitments as they existed immediately prior to their termination or reduction to zero.



“Protective Advances” has the meaning specified therefor in Section 2.3(d)(i)
of the Agreement.



“Purchase Money Indebtedness” means Indebtedness (other than the Obligations, but
including Capitalized Lease Obligations), incurred at the time of, or within 20 days after, the
acquisition of any fixed assets for the purpose of financing all or any part of the acquisition
cost thereof.



“Purchase Price” means, with respect to any Acquisition, an amount equal to the
aggregate consideration, whether cash, property or securities (including the fair market value of
any Stock of Parent issued in connection with such Acquisition and including the maximum amount of
Earn-Outs), paid or delivered by Parent or one of its Subsidiaries in connection with such
Acquisition (whether paid at the closing thereof or payable thereafter and whether fixed or
contingent), but excluding therefrom (a) any cash of the seller and its Affiliates used to fund any
portion of such consideration and (b) any cash or Cash Equivalents acquired in connection with such
Acquisition.



“Qualified Cash” means, as of any date of determination, the amount of unrestricted
cash and Cash Equivalents of Parent and its Subsidiaries that is in Deposit Accounts or in
Securities Accounts, or any combination thereof, and which such Deposit Account or Securities
Account is the subject of a Control Agreement and is maintained by a branch office of the bank or
securities intermediary located within the United States, United Kingdom or Canada.




“Qualifying Lender” has the meaning specified therefor in Section 16(k).



“Real Property” means any estates or interests in real property now owned or hereafter
acquired by Parent or its Subsidiaries and the improvements thereto.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


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“Receiver” means a receiver or receiver and manager or administrative receiver of the
whole or part of the Charged Property.



“Record” means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.



“Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness
so long as:



(a) such refinancings, renewals, or extensions do not result in an increase in the principal
amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of
premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount
of unfunded commitments with respect thereto,



(b) such refinancings, renewals, or extensions do not result in a shortening of the average
weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so
refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are
or could reasonably be expected to be materially adverse to the interests of the Lenders,



(c) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of
payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension
must include subordination terms and conditions that are at least as favorable to the Lender Group
as those that were applicable to the refinanced, renewed, or extended Indebtedness, and



(d) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person
that is liable on account of the Obligations other than those Persons which were obligated with
respect to the Indebtedness that was refinanced, renewed, or extended.



“Reimbursement Undertaking” has the meaning specified therefor in Section
2.11(a) of the Agreement.



“Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.



“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or
outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials
so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor
or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform
any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or
(e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.



“Replacement Lender” has the meaning specified therefor in Section 2.13(b) of
the Agreement.




“Report” has the meaning specified therefor in Section 15.17 of the Agreement.



“Required Lenders” means, at any time, Lenders whose aggregate Pro Rata Shares
(calculated under clause (c) of the definition of Pro Rata Shares) exceed 50%; provided,
however, that at any time there are 2 or more Lenders, “Required Lenders” must include at
least 2 Lenders.



“Restricted Junior Payment” means to (a) declare or pay any dividend or make any other
payment or distribution on account of Stock issued by Parent (including any payment in connection
with any merger or consolidation involving Parent) or to the direct or indirect holders of Stock
issued by Borrower in their
capacity as such (other than dividends or distributions payable in Stock (other than
Prohibited Preferred Stock) issued by Parent, or (b) purchase, redeem, or otherwise acquire or
retire for value (including in connection with any merger or consolidation involving Parent) any
Stock issued by Parent.


Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


27









 





“Revolver Commitment” means, with respect to each Lender, its Revolver Commitment,
and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts
are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in
the Assignment and Acceptance pursuant to which such Lender became a Lender under the Agreement, as
such amounts may be reduced or increased from time to time pursuant to assignments made in
accordance with the provisions of Section 13.1 of the Agreement.



“Revolver Usage” means, as of any date of determination, the sum of (a) the amount of
outstanding Advances, plus (b) the amount of the Letter of Credit Usage.



“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of
the government of a country, (c) an organization directly or indirectly controlled by a country or
its government, (d) a Person resident in or determined to be resident in a country, in each case,
that is subject to a country sanctions program administered and enforced by OFAC.



“Sanctioned Person” means a person named on the list of Specially Designated Nationals
maintained by OFAC.



“San Donato Accounts” means the Deposit Accounts of the San Donato branch of Oclaro
(North America), Inc. [***].




“S&P” has the meaning specified therefor in the definition of Cash Equivalents.



“SEC” means the United States Securities and Exchange Commission and any successor
thereto.



“Secured Parties” means the Lenders Group, any Bank Product Providers, any Hedge Provider, any
Receiver.




“Securities Account” means a securities account (as that term is defined in the Code).



“Securities Act” means the Securities Act of 1933, as amended from time to time, and
any successor statute.



“Security Agreement” means one or more security agreements, dated as of even date with
the Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by
any of Borrower and Guarantors to Agent.



“Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the
Agreement.



“Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of
the Agreement.



“Solvent” means, with respect to any Person on a particular date, that, at fair
valuations, the sum of such Person’s assets is greater than all of such Person’s debts.



“Stock” means all shares, options, warrants, interests, participations, or other
equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting,
including common stock, preferred stock, or any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act);
provided, that the convertible Indebtedness of Parent under
clause (l) of the definition of Permitted Indebtedness shall not be deemed Stock of Parent
until it is converted into such Stock according to its terms.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


28









 





“Subsidiary” of a Person means a corporation, partnership, limited liability company,
or other entity in which that Person directly or indirectly owns or controls the shares of Stock
having ordinary voting power to elect a majority of the board of directors (or appoint other
comparable managers) of such corporation, partnership, limited liability company, or other entity.



“Swing Lender” means WFCF or any other Lender that, at the request of Borrower and
with the consent of Agent agrees, in such Lender’s sole discretion, to become the Swing Lender
under Section 2.3(b) of the Agreement.



“Swing Loan” has the meaning specified therefor in Section 2.3(b) of the
Agreement.



“Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges
of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments and all interest, penalties or
similar liabilities with respect thereto; provided, however, that Taxes shall
exclude (i) any tax imposed on the net income or net profits of any Lender or any Participant
(including any branch profits taxes), in each case imposed by the jurisdiction (or by any political
subdivision or taxing authority thereof) in which such Lender or such Participant is organized or
the jurisdiction (or by any political subdivision or taxing authority thereof) in which such
Lender’s or such Participant’s principal office is located in each case as a result of a present or
former connection between such Lender or such Participant and the jurisdiction or taxing authority
imposing the tax (other than any such connection arising solely from such Lender or such
Participant having executed, delivered or performed its obligations or received payment under, or
enforced its rights or remedies under the Agreement or any other Loan Document); (ii) taxes
resulting from a Lender’s or a Participant’s failure to comply with the requirements of Section
16(c) or (d) of the Agreement, and (iii) any United States federal withholding taxes
that would be imposed on amounts payable to a Foreign Lender based upon the applicable withholding
rate in effect at the time such Foreign Lender becomes a party to the Agreement (or designates a
new lending office), except that Taxes shall include (A) any amount that such Foreign
Lender (or its assignor, if any) was previously entitled to receive pursuant to Section
16(a) of the Agreement, if any, with respect to such withholding tax at the time such Foreign
Lender becomes a party to the Agreement (or designates a new lending office), and (B) additional
United States federal withholding taxes that may be imposed after the time such Foreign Lender
becomes a party to the Agreement (or designates a new lending office), as a result of a change in
law, rule, regulation, order or other decision with respect to any of the foregoing by any
Governmental Authority.



“Tax Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.



“Trademark Security Agreement” has the meaning specified therefor in the Security
Agreement.




“Treaty” has the meaning specified therefor in Section 16(j).




“Treaty Lender” has the meaning specified therefor in Section 16(j).




“Treaty State” has the meaning specified therefor in Section 16(j).



“Triggering Event” means, as of any date of determination, that (a) an Event of
Default has occurred and is continuing, or (b) Liquidity is less than $15,000,000, or (iii) Excess
Availability in an amount less than $7,500,000.



“Triggering Period” means, the period commencing upon the occurrence of a Triggering
Event and ending on the day on which Agent has waived the occurrence of the Trigger Event.

 Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


29









 






“UK Collateral Documents” means each of:



(a) the debenture dated 2 August 2006 entered into between (1) Bookham Technology plc (2)
Bookham Nominees Limited and (3) Wells Fargo Foothill, Inc.;



(b) the debenture dated 21 July 2010 entered into between (1) Oclaro Innovations LLP and (2)
Wells Fargo Capital Finance, Inc.; and



(c) the debenture dated on or about the date of this Agreement entered into between (1) the
Borrower (2) Bookham Nominees Limited (3) the Parent (4) Oclaro (North America) Inc. and (5) the
Agent



“UK Loan Party” means each of the Borrower, Bookham Nominees Limited (a company
registered in England & Wales with registration number 05865912) and Oclaro Innovations LLP (a
limited liability partnership registered in England & Wales with registration number OC356079).



“UK Transaction Security” means the Liens created or expressed to be created in favor
of the Agent pursuant to the UK Collateral Documents.




“Underlying Issuer” means Wells Fargo or one of its Affiliates.



“Underlying Letter of Credit” means a Letter of Credit that has been issued by an
Underlying Issuer.




“United States” means the United States of America.



“Voidable Transfer” has the meaning specified therefor in Section 17.8 of the
Agreement.



“Wells Fargo” means Wells Fargo Bank, National Association, a national banking
association.



“WFCF” means Wells Fargo Capital Finance, Inc., a California corporation.



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential information
subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document
has been filed separately with the Securities and Exchange Commission.




 


30











 




EXHIBIT A-1




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT




This ASSIGNMENT AND ACCEPTANCE AGREEMENT (“Assignment Agreement”) is entered into as of                      between
                                        (“Assignor”) and                                   
       (“Assignee”). Reference is made to the Agreement described in Annex I
hereto (the “Credit Agreement”). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Credit Agreement.



1. In accordance with the terms and conditions of Section 13 of the Credit Agreement,
the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, that interest in and to the Assignor’s rights and obligations under the
Loan Documents as of the date hereof with respect to the Obligations owing to the Assignor, and
Assignor’s portion of the Commitments, all to the extent specified on Annex I.



2. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim and (ii) it has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment Agreement and to consummate the transactions contemplated hereby; (b) makes
no representation or warranty and assumes no responsibility with respect to (i) any statements,
representations or warranties made in or in connection with the Loan Documents, or (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant thereto; (c) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
Borrower or any Guarantor or the performance or observance by Borrower or any Guarantor of any of
their respective obligations under the Loan Documents or any other instrument or document furnished
pursuant thereto, and (d) represents and warrants that the amount set forth as the Purchase Price
on Annex I represents the amount owed by Borrower to Assignor with respect to Assignor’s
share of the and the Advances assigned hereunder, as reflected on Assignor’s books and records.



3. The Assignee (a) confirms that it has received copies of the Credit Agreement and the other
Loan Documents, together with copies of the financial statements referred to therein and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment Agreement; (b) agrees that it will, independently and without
reliance upon Agent, Assignor, or any other Lender, based upon such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking any action under the Loan Documents; (c) confirms that it is an Eligible Transferee; (d)
appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (e) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender; and (f) attaches the forms prescribed by the Internal Revenue Service
of the United States certifying as to the Assignee’s status for purposes of determining exemption
from United States withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that all such payments
are subject to such rates at a rate reduced by an applicable tax treaty.



4. Following the execution of this Assignment Agreement by the Assignor and Assignee, the
Assignor will deliver this Assignment Agreement to the Agent for recording by the Agent. The
effective date of this Assignment (the “Settlement Date”) shall be the latest to occur of (a) the
date of the execution and delivery hereof by the Assignor and the Assignee, (b) the receipt by
Agent for its sole and separate account a
processing fee in the amount of $5,000 (if required by the Credit Agreement), (c) the receipt
of any required consent of the Agent, and (d) the date specified in Annex I.



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





5. As of the Settlement Date (a) the Assignee shall be a party to the Credit Agreement and, to
the extent of the interest assigned pursuant to this Assignment Agreement, have the rights and
obligations of a Lender thereunder and under the other Loan Documents, and (b) the Assignor shall,
to the extent of the interest assigned pursuant to this Assignment Agreement, relinquish its rights
and be released from its obligations under the Credit Agreement and the other Loan Documents,
provided, however, that nothing contained herein shall release any assigning Lender
from obligations that survive the termination of this Agreement, including such assigning Lender’s
obligations under Article 15 and Section 17.9(a) of the Credit Agreement.



6. Upon the Settlement Date, Assignee shall pay to Assignor the Purchase Price (as set forth
in Annex I). From and after the Settlement Date, Agent shall make all payments that are
due and payable to the holder of the interest assigned hereunder (including payments of principal,
interest, fees and other amounts) to Assignor for amounts which have accrued up to but excluding
the Settlement Date and to Assignee for amounts which have accrued from and after the Settlement
Date. On the Settlement Date, Assignor shall pay to Assignee an amount equal to the portion of any
interest, fee, or any other charge that was paid to Assignor prior to the Settlement Date on
account of the interest assigned hereunder and that are due and payable to Assignee with respect
thereto, to the extent that such interest, fee or other charge relates to the period of time from
and after the Settlement Date.



7. This Assignment Agreement may be executed in counterparts and by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. This Assignment Agreement may be
executed and delivered by telecopier or other facsimile transmission all with the same force and
effect as if the same were a fully executed and delivered original manual counterpart.



8. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA.



IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement and Annex I hereto to
be executed by their respective officers, as of the first date written above.



	 	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]


as Assignor	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]


as Assignee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





ACCEPTED THIS
 _____ 

DAY OF

                    



WELLS FARGO CAPITAL FINANCE, INC.,

a California corporation, as Agent



	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






[AND IF REQUIRED BY SECTION 13.1(a)
OF THE CREDIT AGREEMENT

OCLARO TECHNOLOGY LIMITED,

a company incorporated under the laws of England and Wales




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:

	 	 	 	]
	 

	 	 

	 	 






ANNEX FOR ASSIGNMENT AND ACCEPTANCE




ANNEX I




	 	 	 	 	 	 	 	 	 	 	 
	1.	 	Borrower: Oclaro Technology Limited	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	2.	 	Name and Date of Credit Agreement:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amended and Restated Credit Agreement, dated as of                     , by and among
Oclaro, Inc. as Parent, Oclaro Technology Limited as Borrower, the lenders
from time to time a party thereto (the “Lenders”), Wells Fargo Capital
Finance, Inc., a California corporation, as the arranger and administrative
agent for the Lenders
	 
	 	 	 	 	 	 	 	 	 	 
	3.	 	Date of Assignment Agreement:	 	                    
	 
	 	 	 	 	 	 	 	 	 	 
	4.	 	Amounts:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Assigned Amount of Revolver Commitment	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Assigned Amount of Advances	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	5.	 	Settlement Date:	 	                    
	 
	 	 	 	 	 	 	 	 	 	 
	6.	 	Purchase Price	 	$                    






Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	7.	 	Notice and Payment Instructions, etc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Assignee:	 	Assignor:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	8.	 	Agreed and Accepted:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	[ASSIGNOR]	 	[ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	By:	 	 	 	By:	 	 	 	 
	 
	 	 	 	 
	 	 	 	 
	 	 
	 
	 	Title:	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 
	 	 	 	 
	 	 






Accepted:



WELLS FARGO CAPITAL FINANCE, INC.,

a California corporation, as Agent



	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






[AND IF REQUIRED BY SECTION 13.1(a)
 OF THE CREDIT AGREEMENT

OCLARO TECHNOLOGY LIMITED,

a company incorporated under the laws of England and Wales




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:

	 	 	 	]
	 

	 	 

	 	 






Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





EXHIBIT B-1


FORM OF BORROWING BASE CERTIFICATE




Summary Page Borrowing Base Certificate




Date

Name
Oclaro, Inc.




A/R As of:           1/0/00




The undersigned,                      (“Borrower”), pursuant to that certain Credit Agreement dated as of
                     (as amended, restated, modified, supplemented, refinanced, renewed, or extended from
time to time, the “Credit Agreement”), entered into among Borrower, the lenders signatory thereto
from time to time and Wells Fargo Capital Finance, LLC, a Delaware limited liability company as the
arranger and administrative agent (in such capacity, together with its successors and assigns, if
any, in such capacity, “Agent”), hereby certifies to Agent that the following items, calculated in
accordance with the terms and definitions set forth in the Credit Agreement for such items are true
and correct, and that Borrower is in compliance with and, after giving effect to any currently
requested Advances, will be in compliance with, the terms, conditions, and provisions of the Credit
Agreement.



Accounts Receivable




Accounts Receivable Balance per Aging Report Assigned To Wells Fargo Capital Finance



-




Less Ineligibles (detailed on page 2)



-



Net Eligible Accounts Receivable


-



Accounts Receivable Availability before Sublimit(s)


-



Net Available Accounts Receivable after Sublimit(s)


-



Availability before Loan Balance


-



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





			
	 	 	 
	Letter of Credit Balance
	 	As of: 1/0/00
	                    -	 	 






				
	 	 	 	 
	Loan Ledger Balance
	 	As of: 1/0/00	 
	-	 	 	 






Cash in-transit

Adjusted Loan Balance

                    -




Net Availability

-




Additionally, the undersigned hereby certifies and represents and warrants to the Lender Group on
behalf of Borrower that (i) as of the date hereof, each representation or warranty contained in or
pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing
furnished at any time under or in connection with any Loan Document, and as of the effective date
of any advance, continuation or conversion requested above is true and correct in all material
respects (except to the extent any representation or warranty expressly related to an earlier
date), (ii) each of the covenants and agreements contained in any Loan Document have been performed
(to the extent required to be performed on or before the date hereof or each such effective date),
(iii) no Default or Event of Default has occurred and is continuing on the date hereof, nor will
any thereof occur after giving effect to the request above, and (iv) all of the foregoing is true
and correct as of the effective date of the calculations set forth above and that such calculations
have been made in accordance with the requirements of the Credit Agreement.



			
	 	 	 
	 
	 	List of attachments with this Borrowing Base Certificate:
	 	 	 
	 
	Authorized Signer
	 	Page 2 — Accounts Receivable Availability Detail






Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





EXHIBIT C-1




FORM OF COMPLIANCE CERTIFICATE




[ON BORROWER’S LETTERHEAD]




	 	 	 
	To:

	 	Wells Fargo Capital Finance, Inc. 

2450 Colorado Avenue 

Suite 3000 West 

Santa Monica, California 90404

Attn: Business Finance Division Manager






	 	 	 
	Re:

	 	Compliance Certificate dated                                         






Ladies and Gentlemen:



Reference is made to that certain AMENDED AND RESTATED CREDIT AGREEMENT (the “Credit Agreement”)
dated as of                     , by and among the lenders identified on the signature pages thereof
(such lenders, together with their respective successors and permitted assigns, are referred to
hereinafter each individually as a “Lender” and collectively as the “Lenders”), WELLS FARGO CAPITAL
FINANCE, INC., a California corporation, as the arranger and administrative agent for the Lenders
(“Agent”), Oclaro, Inc., (“Parent”) and Oclaro Technology Limited (the “Borrower”). Capitalized
terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement
unless specifically defined herein.



Pursuant to Schedule 5.1 of the Credit Agreement, the undersigned officer of Parent hereby
certifies, in such capacity, that:



1 The financial information of Parent and its Subsidiaries furnished in Schedule 1
attached hereto, has been prepared in accordance with GAAP (except for year-end adjustments and the
lack of footnotes), and fairly presents in all material respects the financial condition of Parent
and its Subsidiaries.



2 Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be
made under his/her supervision, a review in reasonable detail of the transactions and condition of
Parent and its Subsidiaries during the accounting period covered by the financial statements
delivered pursuant to Schedule 5.1 of the Credit Agreement.



3 Such review has not disclosed the existence on and as of the date hereof, and the
undersigned does not have knowledge of the existence as of the date hereof, of any event or
condition that constitutes a Default or Event of Default, except for such conditions or events
listed on Schedule 2 attached hereto, specifying the nature and period of existence thereof
and what action Parent and its Subsidiaries have taken, are taking, or propose to take with respect
thereto.



4 The representations and warranties of Parent and its Subsidiaries set forth in the Credit
Agreement and the other Loan Documents are true and correct in all material respects on and as of
the date hereof (except to the extent they relate to a specified date), except as set forth on
Schedule 3 attached hereto.



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





5 Parent and its Subsidiaries are in compliance with the applicable covenants contained in
Section 7 of the Credit Agreement as demonstrated on Schedule 4 hereof.



Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.


 


 









 





IN WITNESS WHEREOF, this Compliance Certificate is executed by the undersigned this
 _____ 

day of
                    ,
 _____.



	 	 	 	 	 	 	 
	 	 	OCLARO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






SCHEDULE 1




Financial Information




SCHEDULE 2


Default or Event of Default




SCHEDULE 3


Representations and Warranties




SCHEDULE 4


Financial Covenants




9. Fixed Charge Coverage Ratio.



Parent’s and its Subsidiaries’ Fixed Charge Coverage Ratio, measured on a fiscal quarter-end basis,
for the quarter ending                     ,                      is
_____:1.0, which [is/is not] greater than or equal to
the amount set forth in Section 7 of the Credit Agreement for the corresponding period.1




 



	 	 	 
	1	 	To be provided for any measurement date occurring
immediately before the occurrence or at any time during the existence of a
Triggering Period.




Confidential treatment is being requested for portions of this document.
This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with
the Securities and Exchange Commission.




 


 











 




EXHIBIT L-1




FORM OF LIBOR NOTICE




Wells Fargo Capital Finance, Inc., as Agent

under the below referenced Credit Agreement

2450 Colorado Avenue

Suite 3000 West

Santa Monica, California 90404




Ladies and Gentlemen:



Reference hereby is made to that certain Amended and Restated Credit Agreement, dated as of                      (the
“Credit Agreement”), among Oclaro, Inc. (“Parent”), Oclaro Technology Limited
(“Borrower”), the lenders signatory thereto (the “Lenders”), and Wells Fargo
Capital Finance, Inc., a California corporation, as the arranger and administrative agent for the
Lenders (“Agent”). Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement.



This LIBOR Notice represents Borrower’s request to elect the LIBOR Option with respect to
outstanding Advances in the amount of $                     (the “LIBOR Rate Advance”)[, and is a
written confirmation of the telephonic notice of such election given to Agent].



The LIBOR Rate Advance will have an Interest Period of [1, 2, or 3] month(s) commencing on                     .



This LIBOR Notice further confirms Borrower’s acceptance, for purposes of determining the rate of
interest based on the LIBOR Rate under the Credit Agreement, of the LIBOR Rate as determined
pursuant to the Credit Agreement.



Borrower represents and warrants that (i) as of the date hereof, each representation or warranty
contained in or pursuant to any Loan Document is true and correct in all material respects (except
that such materiality qualifier shall not be applicable to any representation or warranty that
already is qualified or modified by materiality in the text thereof and except to the extent any
representation or warranty expressly related to an earlier date), (ii) each of the covenants and
agreements contained in any Loan Document have been performed (to the extent required to be
performed on or before the date hereof or each such effective date), and (iii) no Default or Event
of Default has occurred and is continuing on the date hereof, nor will any thereof occur after
giving effect to the request above.



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 





SCHEDULE A-1




Agent’s Account




Wells Fargo Capital Finance, Inc.




WIRE INSTRUCTIONS




Wells Fargo Bank, N.A.




420 Montgomery Street

San Francisco, CA

[***]




Account Name:




[***]




[***]




Ref: [***]




Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 







SCHEDULE A-2




Authorized Persons





	•	 	Alain Couder, Chief Executive Officer






	•	 	Jerry Turin, Chief Financial Officer






	•	 	Topher Croddy, Corporate Controller
	 
	•	 	Catherine Rundle, Secretary





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 





SCHEDULE C-1




Revolver Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver Commitment	 	 	Total Commitment	 
	Wells Fargo Capital Finance, Inc.
	 	$	45,000,000	 	 	$	45,000,000	 
	All Lenders
	 	$	45,000,000	 	 	$	45,000,000	 






Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 





SCHEDULE D-1




Designated Account




[***]




Account Name: [***]




Account #[***]




Swift Code: [***]




Contacts:



[***]




or




[***]




Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 





SCHEDULE E-1




Existing Letters of Credit




$1,000,000.00 to [***].




$118,479.44 to [***].




$30,000.00 to [***].



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.




 


 









 







SCHEDULE F-1




Foreign Security Documents 





	•	 	Debenture, dated as of 2 August 2006, granted by the Borrower and Bookham Nominees Limited,
a company incorporated under the laws of England and Wales (“BNL”), in favor of Agent
as amended pursuant to a deed of amendment and confirmation dated as of the Closing Date.
	 
	•	 	Mortgage Over Shares, dated as of 2 August 2006, granted by Parent and BNL in favor of
Agent as amended pursuant to a deed of amendment and confirmation dated as of the Closing
Date.
	 
	•	 	Deed of Charge, dated as of 2 August 2006, by and among Bookham International Limited, an
exempted company incorporated with limited liability under the laws of the Cayman Islands, and
Agent.
	 
	•	 	Charge Over Shares, dated as of 2 August 2006, by and between the Borrower and Agent.
	 
	•	 	Confirmatory Assignment of Security Interest for filing under the Patent Act (Canada),
dated as of 2 August 2006, by and between the Borrower and Agent.
	 
	•	 	Debenture dated as of 21 July 2010, granted by Oclaro Innovations LLP (“LLP”) in favor of
the Agent as amended pursuant to a deed of amendment and confirmation dated as of the Closing
Date.
	 
	•	 	Debenture dated as of the Closing Date, granted by the Borrower, BNL, LLP, Parent and
Oclaro (North America), Inc. in favor of the Agent.





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 





SCHEDULE P-1




Permitted Investments





	•	 	Parent has a $7.5 million investment in ClariPhy Communications, Inc. (“ClariPhy”) and
received in exchange 18,386,860 shares of ClariPhy’s Series C Preferred Stock.






	•	 	Parent currently owns [***] common shares of [***] stock with current net book value of
$1.2 million at July 2, 2011.






	•	 	Parent currently owns [***] common shares of [***] stock with a book value of $166,000
at July 2, 20111.





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.




 


 









 







SCHEDULE P-2




Permitted Intercompany Transactions





	•	 	Intellectual property cross-charges






	•	 	Shared manufacturing support services






	•	 	Shared research and development services






	•	 	Shared sales and marketing services






	•	 	Shared general and administration services
	 
	•	 	Allocations of facility costs





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.




 


 












 




SCHEDULE P-3




Permitted Liens




Oclaro Technology Ltd has the following facilities outstanding with [***]:




	 	(i)	 	a bonds, guarantees and indemnities facility of up to [***] pounds sterling;
	 
	 	(ii)	 	a spot and forward exchange transaction facility of up to a gross limit of [***] pounds
sterling;
	 
	 	(iii)	 	overdraft facility up to an aggregate gross limit of [***] pounds sterling.





Two Korean kun-mortgages with [***] for [***] as of July 2, 2011.




[***]



These Kun-mortgages constitute a “factory mortgage” established under the Factory Mortgage
Act, which provides for the mortgage with a security interest with respect to the land and
buildings constituting the factory, as well as all of the machinery, equipment and other assets
located in the factory over which the mortgage has been established.



1. LETTERS OF CREDIT





	 	•	 	$1,000,000.00 to [***].






	 	•	 	$118,479.44 to [***].






	 	•	 	$30,000.00 to [***].





2. RESTRICTED CASH ACCOUNTS (Balances as of July 2, 2011)





	 	•	 	Oclaro, Inc has [***] in a restricted cash account with [***] as collateral for its
corporate credit card program






	 	•	 	Oclaro Technology Ltd has $[***] in a restricted cash account in favor of HM Revenue &
Customs, and is the Bond provided to allow us to operate our import deferment account
(covers payments of UK Import Duty & UK import VAT). $[***] of the balance in this account
also covers the UK corporate credit card program.






	 	•	 	Bookham Canada has $[***] CAD in a restricted cash account to secure GST taxes owed






	 	•	 	Bookham Switzerland has USD $[***] in a restricted cash account as collateral for its
building lease.






	 	•	 	Oclaro Technology (Shenzhen) Co. Ltd has a restricted cash account for $[***] USD.





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 





3. LIEN SUMMARY



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	OCLARO (NORTH AMERICA), INC.

(A DELAWARE CORPORATION)

(Formerly known as Avanex Corporation)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1.

	 	Oclaro (North
America), Inc.
	 	DE SOS 

(UCC & 

Tax

Liens)
	 	2009 

1658456

05/26/2009
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	06/16/2011

Certified	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.

	 	Oclaro (North
America), Inc.
	 	CA SOS 

(UCC, Tax 

Liens and 

Judgments)
	 	 	 	 	 	 	 	06/28/2011

Certified
	 	Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.

	 	Oclaro (North
America), Inc.
	 	Santa Clara County,

CA 

(UCC, Tax 

Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No.
3:11-cv-02448
05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	07/07/2011	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MINTERA CORPORATION

(A DELAWARE CORPORATION)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4.

	 	Mintera Corporation
	 	DE SOS 

(UCC & Tax
Liens)
	 	2008 

1829249

05/28/2008
	 	Dell Financial
Services, L.L.C.
	 	Computer Equipment
and Software Leased
and Financed
	 	06/09/2011

Certified	 	 
	 
	 

	 	 	 	 	 	2008

 2284683

07/03/2008
	 	Dell Financial
Services, L.L.C.
	 	Computer Equipment
and Software Leased
and Financed	 	 	 	 





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	 

	 	 	 	 	 	2008 

2999173

08/27/2008
	 	General Electric

Capital Corporation
	 	Lease Filing
(Specific Equip.)	 	 	 	 
	 
	 

	 	 	 	 	 	2008 

3585781

10/24/2008
	 	General Electric
Capital Corp.
	 	All Equipment

Leased or Financed	 	 	 	 
	 
	 

	 	 	 	 	 	2010 

2716037

08/04/2010
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5.

	 	Mintera Corporation
	 	CA SOS 

(UCC, Tax 

Liens and 

Judgments)
	 	 	 	 	 	 	 	06/16/2011

Certified
	 	Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6.

	 	Mintera Corporation
	 	Santa Clara County,

CA 

(UCC, Tax 

Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No.
3:11-cv-02448
05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	06/15/2011	 	 





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	OCLARO (NEW JERSEY), INC.

(A DELAWARE CORPORATION)

(Formerly known as Xtellus, Inc.)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	7.

	 	Oclaro (New
Jersey), Inc.
	 	DE SOS

 (UCC, and 

Federal Tax Liens)
	 	2009 
4195332

12/31/2009
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET, excluding
Investment Related
Property as defined
in the Security
Agreement, as
amended from time
to time) and stock
of (i) Forthaven,
Ltd, (ii) Bookham
China, (iii) Avanex
China, (iv) Avanex
France, (v) Avanex
Thailand, (vi)
Xtellus Korea, and
(vii) Xtellus
Israel
	 	06/09/2011

Certified	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	8.

	 	Oclaro (New
Jersey), Inc.
	 	CA SOS 

(USS, Tax 

Liens and 

Judgments)
	 	 	 	 	 	 	 	06/16/2011

Certified
	 	Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	9.

	 	Oclaro (New
Jersey), Inc.
	 	Santa Clara County,

CA

 (UCC, Tax Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No. 

3:11-cv-02448

05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	06/15/2011	 	 






Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	OCLARO, INC.

(A DELAWARE CORPORATION)

Formerly known as Bookham, Inc.

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	10.

	 	Oclaro, Inc.
	 	DE SOS 

(UCC & Tax

Liens)
	 	6259031 3

07/26/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET; Partial
Release Filed
07/06/2009
	 	06/09/2011

Certified	 	 
	 
	 

	 	 	 	 	 	2009 

1349890

04/29/2009
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET; Partial
Release Filed
07/06/2009	 	 	 	 
	 
	 

	 	 	 	 	 	2009 

4039068

12/17/2009
	 	Ricoh Americas

Corporation
	 	All Equipment

Leased or Financed	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	11.

	 	Oclaro, Inc.
	 	CA SOS 

(USS, Tax 

Liens and 

Judgments)
	 	 	 	 	 	 	 	06/16/2011

Certified
	 	Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	12.

	 	Oclaro, Inc.
	 	Santa Clara County,

CA (UCC, Tax Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No. 

3:11-cv-02448

05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	06/15/2011	 	 





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	OCLARO TECHNOLOGY, INC.

(A DELAWARE CORPORATION)

Formerly known as Bookham (US), Inc.

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	13.

	 	Oclaro Technology,
Inc.
	 	DE SOS 

(UCC, and 

Federal Tax Liens)
	 	6267370 5

08/02/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	06/09/2011

Certified	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	14.

	 	Oclaro Technology,
Inc.
	 	CA SOS 

(UCC, Tax

Liens & Judgments)
	 	 	 	 	 	 	 	06/16/2011

Certified
	 	Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	15.

	 	Oclaro Technology,
Inc.
	 	Santa Clara County,

CA 

(UCC, Tax 

Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No.
3:11-cv-02448
05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	06/15/2011	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OCLARO INNOVATIONS, LLP

(A LIMITED LIABILITY PARTNERSHIP ORGANIZED UNDER THE LAWS OF ENGLAND AND WALES)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Country of Organization — England and Wales

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	16.

	 	Oclaro Innovations,

LLP
	 	DC Recorder of 

Deeds 

(UCC, Tax 

Liens and 

Judgments)
	 	2010065775

07/27/2010
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	06/14/2011

Prelim	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OCLARO TECHNOLOGY LIMITED

(A COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)

(Formerly known as Bookham Technology PLC and Oclaro Technology PLC)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Country of Organization — England and Wales

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	17.

	 	Oclaro Technology

Limited
	 	DC Recorder of 

Deeds 

(UCC, Tax 

Liens and 

Judgments)
	 	2006101776

07/27/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET; Partial
Releases Filed
07/08/2007;
11/14/2007;
11/13/2008 &
07/07/2009
	 	06/14/2011

Prelim	 	 





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	RIO SUB 1, INC.

(A DELAWARE CORPORATION)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	18.

	 	Rio Sub 1, Inc.
	 	DE SOS 

(UCC, and 

Federal Tax Liens)
	 	2009 

4195340

12/31/2009
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	06/16/2011

Certified	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	19.

	 	Rio Sub 1, Inc.
	 	CA SOS 

(UCC, Tax

Liens & Judgments)
	 	 	 	 	 	 	 	06/28/2011

Certified
	 	Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	20.

	 	Rio Sub 1, Inc.
	 	Santa Clara County,

CA

 (UCC, Tax 

Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No.
3:11-cv-02448
05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	07/07/2011	 	 





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	RIO SUB 2, INC.

(A DELAWARE CORPORATION)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	21.

	 	Rio Sub 2, Inc.
	 	DE SOS 

(UCC, and 

Federal Tax Liens)
	 	2009 

4195357

12/31/2009
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	06/16/2011

Certified	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	22.

	 	Rio Sub 2, Inc.
	 	CA SOS 

(UCC, Tax

Liens & Judgments)
	 	 	 	 	 	 	 	06/28/2011 Clear

Certified	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	23.

	 	Rio Sub 2, Inc.
	 	Santa Clara County,

CA 

(UCC, Tax Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No.

3:11-cv-02448

05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	07/07/2011	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOOKHAM NOMINEES LIMITED

(A COMPANY ORGANIZED UNDER THE LAWS OF ENGLAND AND WALES)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Country of Organization — England and Wales

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	24.

	 	Bookham Nominees

Limited
	 	DC Recorder of 

Deeds 

(UCC, Tax 

Liens and 

Judgments)
	 	2006106162

08/04/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	06/30/2011

Prelim	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OCLARO PHOTONICS, INC.

(A DELAWARE CORPORATION)

(Formerly known as New Focus, Inc.)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	State of Organization — Delaware

State of Chief Executive Office — California

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	25.

	 	Oclaro Photonics,
Inc.
	 	DE SOS 

(UCC, and 

Federal Tax Liens)
	 	6259032 1

07/26/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET; Partial
Release Filed
07/06/2009
	 	06/23/2011

Certified	 	 





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Search	 	 
	 	 	Debtor	 	 	 	File No.	 	Secured	 	 	 	Thru	 	 
	No.	 	Name	 	Jurisdiction	 	and Date	 	Party	 	Collateral	 	Date	 	Status
	 
	26.

	 	Oclaro Photonics,
Inc.
	 	CA SOS 

(UCC, Tax

Liens & Judgments)
	 	 	 	 	 	 	 	07/04/2011

Certified	 	 Clear
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	27.

	 	Oclaro Photonics,
Inc.
	 	Santa Clara County,

CA 

(UCC, Tax Liens,

Judgments/Suits,

Bankruptcy)
	 	Case No. 

3:11-cv-02448

05/19/2011
	 	Curtis and
Charlotte Westley
v. Oclaro, Inc.,
Alan Couder, Jerry
Turin and James
Haynes
	 	Complaint for
Violation of the
Federal Securities
Law
	 	07/12/2011	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOOKHAM INTERNATIONAL LTD

(A COMPANY ORGANIZED UNDER THE LAWS OF THE CAYMAN ISLANDS)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Country of Organization — Cayman Islands

	28.

	 	Bookham
International Ltd.
	 	DC Recorder of 

Deeds 

(UCC, Tax 

Liens and 

Judgments)
	 	2006107436

08/08/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	07/01/2011

Prelim	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OCLARO (CANADA), INC.

(A FEDERALLY INCORPORATED CANADIAN CORPORATION)

(Formerly known as Bookham (Canada), Inc.)

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Country of Organization — Cayman Islands

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	29.

	 	Oclaro (Canada),
Inc.
	 	DC Recorder of 

Deeds 

(UCC, Tax 

Liens and 

Judgments)
	 	2006106156

08/04/2006
	 	Wells Fargo Capital
Finance, Inc., As
Agent
	 	BLANKET
	 	07/01/2011

Prelim	 	 






Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 







SCHEDULE 3.1


Conditions Precedent




The obligation of each Lender to make its initial extension of credit provided for in the Agreement
is subject to the fulfillment, to the satisfaction of each Lender (the making of such initial
extension of credit by any Lender being conclusively deemed to be its satisfaction or waiver of the
following), of each of the following conditions precedent:



(a) Agent shall have received evidence that appropriate financing statements have been duly
filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to
perfect the Agent’s Liens in and to the Collateral, and Agent shall have received searches
reflecting the filing of all such financing statements;



(b) Agent shall have received each of the following documents, in form and substance
satisfactory to Agent, duly executed, and each such document shall be in full force and effect:




	 	(i)	 	the Agreement,
	 
	 	(ii)	 	the Controlled Account Agreements,
	 
	 	(iii)	 	the Control Agreements,
	 
	 	(iv)	 	the Security Agreement,
	 
	 	(v)	 	the Patent Security Agreement,
	 
	 	(vi)	 	the Trademark Security Agreement,
	 
	 	(vii)	 	the Fee Letter,
	 
	 	(viii)	 	the Guaranty,
	 
	 	(ix)	 	the Intercompany Subordination Agreement,
	 
	 	(x)	 	the UK Collateral Documents;





(c) Agent shall have received a certificate from a Director of Borrower (i) attesting to the
resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance
of this Agreement and the other Loan Documents to which Borrower is a party, (ii) authorizing
specific officers of Borrower to execute the same, and (iii) attesting to the incumbency and
signatures of such specific officers of Borrower;



(d) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified,
or supplemented to the Closing Date, certified by a Director of Borrower;



(e) Agent shall have received a certificate of status with respect to Borrower, dated within
10 days of the Closing Date, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good
standing in such jurisdiction;



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





(f) [Intentionally Omitted];



(g) Agent shall have received a certificate from the Secretary (or other applicable officer)
of each Guarantor (i) attesting to the resolutions of such Guarantor’s Board of Directors (or other
applicable authorizing body) authorizing its execution, delivery, and performance of the Loan
Documents to which such Guarantor is a party, (ii) authorizing specific officers of such Guarantor
to execute the same and (iii) attesting to the incumbency and signatures of such specific officers
of Guarantor;



(h) Agent shall have received copies of each Guarantor’s Governing Documents, as amended,
modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;



(i) Agent shall have received a certificate of status with respect to each Guarantor, dated
within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of such Guarantor, which certificate shall indicate that such
Guarantor is in good standing in such jurisdiction;



(j) Agent shall have received certificates of status with respect to each Guarantor, each
dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer
of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its
failure to be duly qualified or licensed would constitute a Material Adverse Change, which
certificates shall indicate that such Guarantor is in good standing in such jurisdictions;



(k) Agent shall have received certificates of insurance (or maintained equivalent carryovers),
together with the endorsements thereto, as are required by Section 5.6, the form and substance of
which shall be satisfactory to Agent;



(l) Agent shall have received an opinion of Borrower’s counsel in form and substance
satisfactory to Agent;



(m) Agent shall have received an opinion of Agent’s UK counsel in form and substance
satisfactory to Agent;



(n) Agent shall have completed its business, legal, and collateral due diligence, including
(i) a collateral audit and review of each Borrower’s and its Subsidiaries’ books and records and
verification of such Borrower’s representations and warranties to Lender Group, the results of
which shall be satisfactory to Agent, and (ii) an inspection of each of the locations where each
Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory
to Agent;



(o) Agent shall have completed (i) Patriot Act searches, OFAC/PEP searches and customary
individual background checks for each Borrower, and (ii) OFAC/PEP searches and customary individual
background searches for each Borrower’s senior management and key principals, and each Guarantor,
in each case, the results of which shall be satisfactory to Agent;



(p) Borrower shall have paid all Lender Group Expenses incurred in connection with the
transactions evidenced by this Agreement;



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





(q) Parent and each of its Subsidiaries shall have received all licenses, approvals or
evidence of other actions required by any Governmental Authority in connection with the execution
and delivery by Parent or its Subsidiaries of the Loan Documents or with the consummation of the
transactions contemplated thereby; and



(r) All other documents and legal matters in connection with the transactions
contemplated by this Agreement shall have been delivered, executed, or recorded and
shall be in form and substance satisfactory to Agent.



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





SCHEDULE 3.6




Conditions Subsequent




The obligation of the Lender Group (or any member thereof) to make any Advances hereunder at any
time (or to extend any other credit hereunder) shall be subject to the fulfillment, to the
satisfaction of Agent (or waiver thereby), of each of the post-closing covenants set forth below.
Parent shall, and shall cause its Subsidiaries to, satisfy each of the post-closing covenants set
forth below within such covenant’s prescribed time period; provided that such covenants may
be waived and/or time periods extended by Agent in its sole discretion. Parent’s failure to
satisfy any covenant within the prescribed time period shall constitute an Event of Default under
the Agreement. The representations, warranties and covenants set forth in the Loan Documents shall
be deemed qualified by the additional timing of deliverables set forth in this Schedule 3.6
(so long as such deadlines set forth herein are satisfied).



9. Within 14 days of the Closing Date, Borrower shall deliver to Agent all of the original
certificates representing the shares of Stock pledged under the Security Agreement, to the extent
certificated, with respect to each of Oclaro Technology, Inc., Oclaro Photonics Inc., Oclaro Israel
Limited, Oclaro Korea, Inc., Forthaven Ltd., Oclaro (Thailand) Limited, Avenex Communications
Technologies Co. Ltd, Avanex France OIF S.A., and Oclaro Tech (Shenzhen) Co. Ltd., together with a
power endorsed in blank with respect to each such certificate.



10. Within 14 days of the Closing Date, Borrower shall deliver to Agent fully executed notices
and acknowledgments (each in substantially the form of Schedule 3 of the debenture dated on or
about the date of this Agreement among Borrower, Bookham Nominees Limited, Parent, Oclaro (North
America) Inc. and Agent) with respect to Deposit Accounts held at [***] in form and substance
reasonably satisfactory to Agent.



11. Within 30 days of the Closing Date, Borrower shall deliver to Agent a completed
Schedule 4 (Patents), listed by ownership of each Grantor, for each Security Agreement in
form and substance reasonably satisfactory to Agent.



12. Within 60 days of the Closing Date, Borrower shall deliver to Agent, those duly executed
Control Agreements with respect to Deposit Accounts with account numbers [***] and [***] held at
the [***] in form and substance reasonably satisfactory to Agent.



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





SCHEDULE 4.1(b)


Capitalization of Parent




As of the close of business on July 2, 2011:



Authorized Preferred Stock (undesignated): 5,000,000

Outstanding Preferred Stock: None



Authorized Common Stock: 90,000,000

Outstanding Common Stock: 50,475,436



There are warrants for 1,398,151 shares outstanding. For details, see below:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Grant Assumption	 	 	 	 	 	Expiration
	Total Shares	 	 	Date	 	Exercise Price	 	 	Date
	 	55,000	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	668	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	4,850	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	2,924	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	4,058	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	32,500	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	50,000	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	40,000	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	746	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	2,693	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	4,630	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	5,093	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	4,630	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	7,500	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	6,432	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	186	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	55,000	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	1,764	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	52,797	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	32,500	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	38,433	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	18,949	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	80,000	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	19,029	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	8,880	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	18,625	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011
	 	31,852	 	 	9/1/2006
	 	$	20.00	 	 	9/1/2011





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Grant Assumption	 	 	 	 	 	Expiration
	Total Shares	 	 	Date	 	Exercise Price	 	 	Date
	 	12,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	30,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	48,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	15,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	30,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	105,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	30,240	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	2,712	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	7,058	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	2,088	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	7,769	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	438	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	510	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	771	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	391	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	22	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	26	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	137	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	1,523	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	394	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	105	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	60,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	131,270	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	153,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	18,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	9,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	9,375	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	5,625	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	22,500	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	37,500	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	2,958	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	30,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012
	 	45,000	 	 	3/22/2007
	 	$	14.00	 	 	3/22/2012





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





In connection with the acquisition of Xtellus on December 17, 2009, we are obligated to pay an
additional $7.0 million in consideration to the former Xtellus stockholders after an 18 month
escrow period, which expired June 15, 2011. We initially issued 994,318 shares of Oclaro common
stock into a third-party escrow account to secure our obligation under the escrow
agreement, which shares are included in our issued and outstanding shares as of July 2, 2011. On
July 7, 2011, we directed the escrow agent to release 872,793 of the escrow shares to the former
Xtellus stockholders and return the remaining 121,525 shares to Oclaro, Inc.’s treasury stock
account. The settlement of this transaction is in process and will be completed in July 2011.



On July 21, 2010, Parent acquired Mintera Corporation. Under the terms of this agreement, Parent
agreed to pay additional revenue-based consideration whereby former security holders of Mintera are
entitled to receive up to $20.0 million, determined based on a set of sliding scale formulas, to
the extent revenue from Mintera products is more than $29.0 million in the 12 months following the
acquisition and/or more than $40.0 million in the 18 months following the acquisition. The earnout
consideration, if any, will be payable in cash or, at our option, newly issued shares of Parent
common stock, or a combination of cash and stock, in October 2011 for the 12 month earnout
liability and April 2012 for the 18 month earnout liability.



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 







SCHEDULE 4.1(c)




Capitalization of Parent’s Subsidiaries




	 	 	 	 	 
	Name of Company	 	Authorized Securities	 	Outstanding Securities
	Avalon Photonics AG

(Switzerland)

	 	[***]
	 	[***]
	Avanex Communications
Technologies Co. Ltd,
a corporation
organized under the
laws of the People’s
Republic of China

	 	[***]
	 	[***]
	Avanex France OIF
S.A., a French Company

	 	[***]
	 	[***]
	Avanex International
Corporation, a
Delaware Corporation

	 	[***]
	 	[***]
	Avanex U.S.A.
Corporation, a
Delaware Corporation

	 	[***]
	 	[***]
	Bookham International
Ltd, a corporation
organized under the
laws of the Cayman
Islands

	 	[***]
	 	[***]
	Bookham Nominees
Limited, a company
incorporated under the
laws of England and
Wales

	 	[***]
	 	[***]
	Forthaven, Ltd., a
corporation organized
under the laws of
England and Wales

	 	[***]
	 	[***]
	Mintera Corporation, a
Delaware Corporation

	 	[***]
	 	[***]
	New Focus GmbH, a
corporation organized
under the laws of
Germany

	 	[***]
	 	[***]





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 
	Name of Company	 	Authorized Securities	 	Outstanding Securities
	Oclaro (Canada) Inc.,
a federally
incorporated Canadian
corporation

	 	[***]
	 	[***]
	Oclaro (Canada) Inc.
(formerly Bookham
(Canada) Inc.), a
federally incorporated
Canadian corporation

	 	[***]
	 	[***]
	Oclaro Innovations
LLP, a U.K. limited
liability partnership

	 	[***]
	 	[***]
	Oclaro Israel Limited,
an Israeli Corporation

	 	[***]
	 	[***]
	Oclaro Japan K.K., a
corporation organized
under the laws of
Japan

	 	[***]
	 	[***]
	Oclaro (New Jersey),
Inc., a Delaware
Corporation

	 	[***]
	 	[***]
	Oclaro (North
America), Inc., a
Delaware corporation

	 	[***]
	 	[***]
	Oclaro Photonics,
Inc., a Delaware
corporation

	 	[***]
	 	[***]
	Oclaro (Switzerland)
AG, a corporation
organized under the
laws of Switzerland

	 	[***]
	 	[***]
	Oclaro Technology,
Inc., a Delaware
corporation

	 	[***]
	 	[***]
	Oclaro Technology,
Ltd, a limited
liability company
incorporated under the
laws of England and
Wales

	 	[***]
	 	[***]





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





	 	 	 	 	 
	Name of Company	 	Authorized Securities	 	Outstanding Securities
	Oclaro Technology
(Shenzhen) Co. Ltd, a
corporation organized
under the laws of the
People’s Republic of
China

	 	[***]
	 	[***]
	Oclaro (Thailand)
Limited, a Thai
Company

	 	[***]
	 	[***]
	Rio Sub 1, Inc., a
Delaware Corporation

	 	[***]
	 	[***]
	Rio Sub 2, Inc., a
Delaware Corporation

	 	[***]
	 	[***]
	Oclaro Korea, Inc., A
Korean Corporation

	 	[***]
	 	[***]





Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





SCHEDULE 4.6(a)




Jurisdictions of Organization




Avanex Communications Technologies Co., Ltd., a People’s Republic of China Company

Avanex France OIF S.A., a French company

Avanex International Corporation, a Delaware corporation

Avanex U.S.A. Corporation, a Delaware corporation

Avalon Photonics AG, a Swiss corporation

Bookham International Ltd., a Cayman Islands company

Bookham Nominees Ltd., a U.K. company

Forthaven Ltd, a U.K. company

Mintera Corporation, a Delaware corporation

New Focus GmbH, a German corporation

Oclaro, Inc., a Delaware corporation

Oclaro (Canada), Inc., a Canadian corporation

Oclaro Innovations LLP, a U.K. limited liability partnership

Oclaro Israel Limited, an Israeli corporation

Oclaro Japan K.K., a Japanese corporation

Oclaro (New Jersey), Inc., a Delaware corporation

Oclaro (North America), Inc., a Delaware corporation

Oclaro Photonics, Inc., a Delaware corporation

Oclaro (Switzerland) AG, a Swiss corporation

Oclaro Technology, Inc., a Delaware corporation

Oclaro Technology Ltd, a U.K. corporation

Oclaro Technology (Shenzhen) Co., Ltd., a People’s Republic of China company

Oclaro (Thailand) Limited, a Thai company

Rio Sub 1, Inc., a Delaware corporation

Rio Sub 2, Inc., a Delaware corporation

Oclaro Korea, Inc. a Korean corporation




Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





SCHEDULE 4.6(b)




Chief Executive Offices




Oclaro, Inc. 





2560 Junction Ave.

San Jose, CA 95134

USA



Avanex France OIF S.A.

Avanex International Corporation

Avanex U.S.A. Corporation

Oclaro (North America), Inc.

Oclaro Photonics, Inc.

Oclaro Technology, Inc.

Rio Sub 1, Inc.

Rio Sub 2, Inc.





2560 Junction Ave.

San Jose, CA 95134

USA



Oclaro Technology Ltd

Bookham Nominees Ltd

Forthaven Limited

Oclaro Innovations LLP





Caswell, Towcester

Northamptonshire NN12 8EQ

United Kingdom



Avanex Communications Technologies Co. Ltd





11/F, Building 89

No. 1122 North Qinzhou Rd.

Caohejing Hi-Tech Park,

Shanghai, 200233, P.R.C.



Bookham International Ltd.





c/o Maples and Calder

Ugland House

P.O. Box 309

George Town, Grand Cayman 

Cayman Island, British West Indies



Mintera Corporation





35 Nagog Park

Acton, MA 01720

USA



New Focus GmbH 





c/o Ernst & Young

Elisentrasse 3a 80335

Munich, Germany



Oclaro (Canada) Inc. 





308 Palladium Drive

Suite 104

Kanata, Ontario K2V 1A1

Canada



Oclaro Israel, Ltd





8 Hartom Street

Beck Science Center

P.O. Box 45079

Jerusalem 91450

Israel



Oclaro Japan KK





28-15 Marunouchi-2chome,

Kofu City

Yamanashi prefecture

Japan



Oclaro (New Jersey), Inc.





66 Ford Road, Suite 1221

Denville, NJ 07834

USA



Oclaro (Switzerland) AG 

Avalon Photonics AG




Binzstrasse 17

CH-8045

Zurich, Switzerland



Oclaro Technology (Shenzhen) Co. Ltd. 





2 Phoenix Road

Futian Free Trade Zone

Shenzhen 518038, PRC



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 





Oclaro (Thailand) Limited





Zeer IT Mall Building, 8th Fl.

294 Moo8, Vibhavadi Rangsit Rd.

Kookot, Lumlookka,

Patumthanee 12130

Thailand



Oclaro Korea Inc.





2nd Floor Panam Factory Complex

239-2 Panam-Dong, Dong-Gu

Daejeon 300-832

Korea



Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential
information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 











 





SCHEDULE 4.6(c)




Organizational Identification Numbers




	 	 	 	 	 	 	 	 	 
	 	 	 	Organizational	 	 	 	Federal Taxpayer	 
	Entity	 	 	Identification Number	 	 	 	Identification Number	 
	Oclaro, Inc.
	 	 	[***]	 	 	 	[***]	 
	Oclaro Technology, Ltd
	 	 	[***]	 	 	 	[***]	 
	Avalon Photonics AG.
	 	 	[***]	 	 	 	[***]	 
	Avanex Communication Technologies Co. Ltd
	 	 	[***]	 	 	 	[***]	 
	Avanex France OIF S.A.
	 	 	[***]	 	 	 	[***]	 
	Avanex International Corporation
	 	 	[***]	 	 	 	[***]	 
	Avanex U.S.A. Corporation
	 	 	[***]	 	 	 	[***]	 
	Bookham International Ltd.
	 	 	[***]	 	 	 	[***]	 
	Bookham Nominees Limited
	 	 	[***]	 	 	 	[***]	 
	Forthaven Ltd.
	 	 	[***]	 	 	 	[***]	 
	Mintera Corporation
	 	 	[***]	 	 	 	[***]	 
	New Focus GmbH
	 	 	[***]	 	 	 	[***]	 
	Oclaro (Canada) Inc.
	 	 	[***]	 	 	 	[***]	 
	Oclaro Innovations LLP
	 	 	[***]	 	 	 	[***]	 
	Oclaro Israel, Ltd.
	 	 	[***]	 	 	 	[***]	 
	Oclaro Japan KK
	 	 	[***]	 	 	 	[***]	 
	Oclaro (New Jersey), Inc.
	 	 	[***]	 	 	 	[***]	 
	Oclaro (North America), Inc
	 	 	[***]	 	 	 	[***]	 
	Oclaro Photonics, Inc.
	 	 	[***]	 	 	 	[***]	 
	Oclaro (Switzerland) AG
	 	 	[***]	 	 	 	[***]	 
	Oclaro Technology, Inc.
	 	 	[***]	 	 	 	[***]	 
	Oclaro Technology (Shenzhen) Co. Ltd.
	 	 	[***]	 	 	 	[***]	 







			
	Confidential treatment is being requested for portions of this document. This copy
of the document filed as an exhibit omits the confidential information subject to the
confidentiality request. Omissions are designated by the symbol [***]. A complete version of this
document has been filed separately with the Securities and Exchange Commission.





 












 






	 	 	 	 	 	 	 	 	 
	 	 	 	Organizational	 	 	 	Federal Taxpayer	 
	Entity	 	 	Identification Number	 	 	 	Identification Number	 
	Oclaro (Thailand) Limited
	 	 	[***]	 	 	 	[***]	 
	Rio Sub 1, Inc.
	 	 	[***]	 	 	 	[***]	 
	Rio Sub 2, Inc.
	 	 	[***]	 	 	 	[***]	 
	Oclaro Korea, Inc.
	 	 	[***]	 	 	 	[***]	 









			
	Confidential treatment is being requested for portions of this document. This copy
of the document filed as an exhibit omits the confidential information subject to the
confidentiality request. Omissions are designated by the symbol [***]. A complete version of this
document has been filed separately with the Securities and Exchange Commission.




 


 









 










SCHEDULE 4.6(d)




Commercial Tort Claims




None.







			
	Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.







 


 









 








SCHEDULE 4.7(a)




Material Litigation




On May 19, 2011, Curtis and Charlotte Westley filed a purported class action complaint in the
United States District Court for the Northern District of California, against us and certain of our
officers and directors, allegedly on behalf of persons who purchased or otherwise acquired our
common stock between May 6 and October 27, 2010. The complaint, captioned as Westley v. Oclaro,
Inc., No. 11 Civ. 2448 EMC (N.D. Cal. filed May 19, 2011), alleges generally that defendants issued
materially false and misleading statements during the relevant time period regarding our current
business and financial condition, including projections for our revenues, earnings, and gross
margins, for the first quarter of fiscal year 2011 as well as the full fiscal year. The complaint
alleges violations of section 10(b) of the Securities Exchange Act and Securities and Exchange
Commission Rule 10b-5, as well as section 20(a) of the Securities Exchange Act. The complaint
seeks damages and costs of an unspecified amount. Discovery has not commenced, and no trial has
been scheduled in this action. We intend to defend this litigation vigorously. We are unable at
this time to estimate the effects of this lawsuit on our financial position, results of operations
or cash flows.




On June 10, 2011, a purported shareholder, Stanley Moskal, filed a purported derivative action in
the Superior Court for the State of California, County of Santa Clara, against us, as nominal
defendant, and certain of our current and former officers and directors, as defendants. The case
is styled Moskal v. Couder, No. 1:11 CV 202880 (Santa Clara County Super. Ct. filed June 10, 2011).
Three other purported shareholders, Matteo Guindani, Jermaine Coney, and Jefferson Braman,
separately filed substantially similar lawsuits in the United States District Court for the
Northern District of California on June 27, 28 and July 7, 2011, respectively. The cases are
styled Guindani v. Couder, No. 11 Civ. 3176 PSG (N.D. Cal. filed June 27, 2011), Coney v. Couder,
No. 11 Civ. 3214 HRL (N.D. Cal. filed June 28, 2011), and Braman v. Couillaud, No. 11 Civ. 3322 RS
(N.D. Cal. filed July 7, 2011). Each purported derivative complaint alleges that Oclaro has been,
or will be, damaged by the actions alleged in the Westley complaint, and the litigation of the
Westley action, and any damages or settlement paid in the Westley action. Each purported
derivative complaint alleges counts for breaches of fiduciary duty, waste, and unjust enrichment.
Each purported derivative complaint seeks damages and costs of an unspecified amount, as well as
injunctive relief. Discovery has not commenced, and no trial has been scheduled in any of these
actions. We are unable at this time to estimate the effects of these lawsuits on our financial
position, results of operations or cash flows.




Confidential treatment is being requested for portions of this document. This copy of the document
filed as an exhibit omits the confidential information subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document has been filed
separately with the Securities and Exchange Commission.





 


 









 








SCHEDULE 4.7(b)




Status of Closing Date Litigation




On May 19, 2011, Curtis and Charlotte Westley filed a purported class action complaint in the
United States District Court for the Northern District of California, against us and certain of our
officers and directors, allegedly on behalf of persons who purchased or otherwise acquired our
common stock between May 6 and October 27, 2010. The complaint, captioned as Westley v. Oclaro,
Inc., No. 11 Civ. 2448 EMC (N.D. Cal. filed May 19, 2011), alleges generally that defendants issued
materially false and misleading statements during the relevant time period regarding our current
business and financial condition, including projections for our revenues, earnings, and gross
margins, for the first quarter of fiscal year 2011 as well as the full fiscal year. The complaint
alleges violations of section 10(b) of the Securities Exchange Act and Securities and Exchange
Commission Rule 10b-5, as well as section 20(a) of the Securities Exchange Act. The complaint
seeks damages and costs of an unspecified amount. Discovery has not commenced, and no trial has
been scheduled in this action. We intend to defend this litigation vigorously. We are unable at
this time to estimate the effects of this lawsuit on our financial position, results of operations
or cash flows.




On June 10, 2011, a purported shareholder, Stanley Moskal, filed a purported derivative action in
the Superior Court for the State of California, County of Santa Clara, against us, as nominal
defendant, and certain of our current and former officers and directors, as defendants. The case
is styled Moskal v. Couder, No. 1:11 CV 202880 (Santa Clara County Super. Ct. filed June 10, 2011).
Three other purported shareholders, Matteo Guindani, Jermaine Coney, and Jefferson Braman,
separately filed substantially similar lawsuits in the United States District Court for the
Northern District of California on June 27, 28 and July 7, 2011, respectively. The cases are
styled Guindani v. Couder, No. 11 Civ. 3176 PSG (N.D. Cal. filed June 27, 2011), Coney v. Couder,
No. 11 Civ. 3214 HRL (N.D. Cal. filed June 28, 2011), and Braman v. Couillaud, No. 11 Civ. 3322 RS
(N.D. Cal. filed July 7, 2011). Each purported derivative complaint alleges that Oclaro has been,
or will be, damaged by the actions alleged in the Westley complaint, and the litigation of the
Westley action, and any damages or settlement paid in the Westley action. Each purported
derivative complaint alleges counts for breaches of fiduciary duty, waste, and unjust enrichment.
Each purported derivative complaint seeks damages and costs of an unspecified amount, as well as
injunctive relief. Discovery has not commenced, and no trial has been scheduled in any of these
actions. We are unable at this time to estimate the effects of these lawsuits on our financial
position, results of operations or cash flows.



Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.







 


 









 








SCHEDULE 4.11




Defined Benefit Plans



We have a pension plan covering employees of Oclaro (Switzerland) AG, as described in our Annual
Report on Form 10-K for the fiscal year ended July 3, 2010.



Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.




 


 









 










SCHEDULE 4.12




Environmental Matters



None.



Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.




 


 









 










SCHEDULE 4.13




Intellectual Property




[*** 110 pages have been redacted***]


Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.







 


 









 








SCHEDULE 4.15




Deposit Accounts and Securities Accounts




[***]





Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.






 


 









 








SCHEDULE 4.17




Material Contracts




From Oclaro, Inc.’s Annual Report on Form 10-K for the fiscal year ended July 3, 2010:




	 	 	 	 	 

	 	10.13	 	 	Share Purchase Agreement dated August 10, 2005 among London Industrial Leasing Limited, Deutsche Bank AG (acting through its London Branch) and Oclaro Technology Ltd (previously filed as Exhibit 10.1 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended October 1, 2005, and incorporated herein by reference).

	 	10.14	 	 	Loan Facility Agreement dated August 10, 2005 between City Leasing (Creekside) Limited and Deutsche Bank AG, Limited, for a facility of up to £18,348,132.33 (previously filed as Exhibit 10.2 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended October 1, 2005, and incorporated herein by reference).

	 	10.15	 	 	Loan Facility Agreement dated August 10, 2005 between City Leasing (Creekside) Limited and Deutsche Bank AG, Limited for a facility of up to £42,500,000.00 (previously filed as Exhibit 10.3 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended October 1, 2005, and incorporated herein by reference).

	 	10.16	 	 	Lease dated December 23, 1999 by and between Silicon Valley Properties, LLC and Oclaro Photonics, Inc., with respect to 2560/2580 Junction Avenue, San Jose, California (previously filed as Exhibit 10.32 to Registrant’s Amendment No. 1 to Transition Report on Form 10-K for the for the transition period from January 1, 2004 to July 3, 2004, and incorporated herein by reference).

	 	10.17	 	 	Agreement for Sale and Leaseback dated as of March 10, 2006, by and among Oclaro Technology Ltd, Coleridge (No. 24) Limited and Oclaro, Inc. (previously filed as Exhibit 10.3 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2006, and incorporated herein by reference).

	 	10.18	 	 	Pre-emption Agreement dated as of March 10, 2006, by and among Oclaro Technology Ltd, Coleridge (No. 24) Limited and Oclaro, Inc. (previously filed as Exhibit 10.4 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2006, and incorporated herein by reference).

	 	10.19	 	 	Lease dated as of March 10, 2006, by and among Oclaro Technology Ltd, Coleridge (No. 24) Limited and Oclaro, Inc. (previously filed as Exhibit 10.5 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2006, and incorporated herein by reference).

	 	10.20	 	 	Volume Supply Agreement, dated May 6, 2004, between Avanex Corporation and Fabrinet. (previously filed as Exhibit 10.12 of Avanex Corporation’s Quarterly Report (File No. 000-29175) on Form 10-Q filed on February 14, 2006, and incorporated herein by reference).

	 	10.21	 	 	First Amendment to the Volume Supply Agreement, dated April 1, 2008, between Avanex Corporation and Fabrinet. (previously filed as Exhibit 10.33 of Avanex Corporation’s Annual Report on Form 10-K (File No. 000-29175) filed on September 5, 2008, and incorporated herein by reference).

	 	10.28	 	 	Contract of Employment between Oclaro Technology Ltd and Jim Haynes (previously filed as Exhibit 10.38 to Registrant’s Annual Report on Form 10-K for the year ended July 2, 2005, and incorporated herein by reference).

	 	10.31	 	 	Amended and Restated Employment Agreement, dated August 4, 2010, between the Oclaro, Inc. and Alain Couder (previously filed as Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed on August 10, 2010 and incorporated herein by reference).

	 	10.32	 	 	Form of Indemnification Agreement, between Oclaro, Inc. and directors and executive officers (previously filed as Exhibit 10.2 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended December 29, 2007 and incorporated herein by reference).

	 	10.33	 	 	Form of Executive Severance and Retention Agreement, between Oclaro, Inc. and its executive officers (previously filed as Exhibit 10.1 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 29, 2008 and incorporated herein by reference).







From Oclaro, Inc.’s Quarterly Report on Form 10-Q for the fiscal period ended January 1, 2011:




	 	 	 	 	 

	 	10.2	 	 	First Amendment to the Executive Severance and Retention
Agreement, dated as of December 14, 2010, by and between Oclaro,
Inc., a Delaware corporation, and Catherine Hunt Rundle (also
known as Kate Rundle).

	 	10.3	 	 	First Amendment to the Executive Severance and Retention
Agreement, dated as of December 14, 2010, by and between Oclaro,
Inc., a Delaware corporation, and Jerry Turin.






Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with the Securities
and Exchange Commission.

 


 









 






From Oclaro, Inc.’s Current Report on Form 8-K dated July 1, 2011:





			
	Item 1.02	 	Termination of a Material Definitive Agreement.





On July 1, 2011, Oclaro, Inc. (the “Company”) delivered a notice of termination to Fabrinet
Co. Ltd. (“Fabrinet”) under the Volume Supply Agreement, dated May 6, 2004, between the Company and
Fabrinet (as amended, the “Supply Agreement”). The Company is currently in discussions with
multiple third party manufacturers, including Fabrinet, for one or more of such third party
manufacturers to manufacture for the Company those products that are currently being manufactured
by Fabrinet under the Supply Agreement. Pursuant to its terms, the Supply Agreement automatically
renews for a term of one year unless a notice of termination is delivered by either party 180 days
prior to the expiration of the then current term. Pursuant to the notice of termination, the Supply
Agreement will terminate on December 31, 2011. The Company delivered the notice of termination in
order to ensure that it is free to timely enter into replacement agreement(s). The Company does not
anticipate any interruption in its ability to supply products to its customers as a result of this
action.







Confidential treatment is being requested for portions of this document. This copy of the document
filed as an exhibit omits the confidential information subject to the confidentiality request.
Omissions are designated by the symbol [***]. A complete version of this document has been filed
separately with the Securities and Exchange Commission.

 


 









 










Schedule 4.19




Permitted Indebtedness





	•	 	[***]
	 
	•	 	Oclaro Technology Ltd has the following facilities outstanding with [***]:






	 	•	 	a bonds, guarantees and indemnities facility of up to [***] pounds sterling;
	 
	 	•	 	a spot and forward exchange transaction facility of up to a gross limit of
[***] pounds sterling;
	 
	 	•	 	overdraft facility up to an aggregate gross limit of [***] pounds sterling.






	•	 	Two Korean kun-mortgages with [***] for [***] as of July 2, 2011.






	 	 	 	[***]
	 
	 	 	 	These Kun-mortgages constitute a “factory mortgage” established under the Factory Mortgage
Act, which provides for the mortgage with a security interest with respect to the land and
buildings constituting the factory, as well as all of the machinery, equipment and other assets
located in the factory over which the mortgage has been established.






	•	 	On July 21, 2010, Parent acquired Mintera Corporation. Under the terms of this agreement,
Parent agreed to pay additional revenue-based consideration whereby former security holders of
Mintera are entitled to receive up to $20.0 million, determined based on a set of sliding
scale formulas, to the extent revenue from Mintera products is more than $29.0 million in the
12 months following the acquisition and/or more than $40.0 million in the 18 months following
the acquisition. The earnout consideration, if any, will be payable in cash or, at our option,
newly issued shares of Parent common stock, or a combination of cash and stock, in October
2011 for the 12 month earnout liability and April 2012 for the 18 month earnout liability.






	1.	 	LETTERS OF CREDIT






	 	•	 	$1,000,000.00 to [***].
	 
	 	•	 	$118,479.44 to [***].
	 
	 	•	 	$30,000.00 to [***].






	2.	 	RESTRICTED CASH ACCOUNTS (Balances as of July 2, 2011)






	 	•	 	Oclaro, Inc has [***] in a restricted cash account with [***] as collateral for its
corporate credit card program







Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with the Securities
and Exchange Commission.



 


 









 











	 	•	 	Oclaro Technology Ltd has [***] in a restricted cash account in favor of HM Revenue
& Customs, and is the Bond provided to allow us to operate our import deferment account
(covers payments of UK Import Duty & UK import VAT).
	 
	 	•	 	Bookham Canada has [***] CAD in a restricted cash account to secure GST taxes owed
	 
	 	•	 	Bookham Switzerland has USD [***] in a restricted cash account as collateral for its
building lease
	 
	 	•	 	Oclaro Technology (Shenzhen) Co. Ltd has a restricted cash account for [***] USD






	3.	 	GUARANTEES






	•	 	Oclaro, Inc. Guarantee of Oclaro Technology Ltd’s performance of Caswell lease, unsecured.






	•	 	Oclaro, Inc. Guarantee to [***] in the UK for any outstanding amounts of Oclaro Technology
Ltd under the facilities described above.






	•	 	Guaranty Agreement backing Wells Fargo FX program, guaranteed by Wells Capital Management
account.








	
	Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.









 


 









 








SCHEDULE 4.29




Locations of Inventory and Equipment




As of July 2, 2011, Oclaro, Inc. holds inventory at the Oclaro Facilities described below and the
following offsite locations listed below, organized by operating site, with legal entity noted in
brackets where appropriate. This information refers to estimates of these balances at July 2, 2011.




[***]




LISTING OF OCLARO FACILITIES




Oclaro, Inc.

Oclaro (North America), Inc.




2560 Junction Ave.

San Jose, CA 95134

USA



Oclaro Technology Ltd




Caswell, Towcester

Northamptonshire NN12 8EQ

United Kingdom



Paignton Office

Westfield Business Park

Long Road

Paignton

Devon

TQ4 7AU



Avanex Communications Technologies Co. Ltd




11/F, Building 89

No. 1122 North Qinzhou Rd.

Caohejing Hi-Tech Park,

Shanghai, 200233, P.R.C.



Mintera Corporation




35 Nagog Park

Acton, MA 01720

USA



Oclaro (New Jersey), Inc.




66 Ford Road, Suite 1221

Denville, NJ 07834

USA





Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 










Oclaro (Switzerland) AG




Binzstrasse 17

CH-8045

Zurich, Switzerland



Oclaro Technology (Shenzhen) Co. Ltd.




2 Phoenix Road

Futian Free Trade Zone

Shenzhen 518038, PRC



Oclaro Korea Inc.




2nd Floor Panam Factory Complex

239-2 Panam-Dong, Dong-Gu

Daejeon 300-832

Korea



Oclaro, Inc. — San Donato facility




Via Federico Fellini, 4

San Donato Milanese

20097 Milano Italy



Oclaro (North America), Inc. — Horseheads facility




343 Daniel Zenker Drive

Horseheads, NY 14845



Oclaro Photonics, Inc. — Tucson Facility




10831 N. Mavinee Drive, Suite 165

Oro Valley, AZ 85737



Oclaro Technology, Inc. — Santa Rosa Facility




3640 Westwind Boulevard

Santa Rosa, CA 95403



Oclaro (Canada) Inc.




308 Palladium Drive

Suite 104

Kanata, Ontario K2V 1A1

Canada



Oclaro Israel, Ltd




8 Hartom Street

Beck Science Center

P.O. Box 45079

Jerusalem 91450

Israel





Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.





 


 









 








SCHEDULE 5.1




Deliver to Agent, with copies to each Lender, each of the financial statements, reports, or other
items set forth set forth below at the following times in form satisfactory to Agent:




	 	 	 

	as soon as
available, but in
any event within 30
days (45 days in
the case of a month
that is the end of
one of Parent’s
fiscal quarters)
after the end of
each month during
each of Parent’s
fiscal years

	 	an unaudited consolidated and consolidating balance
sheet and income statement covering Parent’s and its
Subsidiaries’ operations during such period, and 




a Compliance Certificate.
	 
	 	 
	as soon as
available, but in
any event within 45
days after the
end of each quarter
during each of
Parent’s fiscal
years

	 	an unaudited consolidated statement of cash flow
covering Parent’s and its Subsidiaries’ operations
during such period.
	 
	 	 
	as soon as
available, but in
any event within 90
days after the end
of each of Parent’s
fiscal years

	 	consolidated and consolidating financial statements of
Parent and its Subsidiaries for each such fiscal year,
audited by independent certified public accountants
reasonably acceptable to Agent and certified, without
any qualifications (including any (A) “going concern”
or like qualification or exception, (B) qualification
or exception as to the scope of such audit, or (C)
qualification which relates to the treatment or
classification of any item and which, as a condition to
the removal of such qualification, would require an
adjustment to such item, the effect of which would be
to cause any noncompliance with the provisions of
Section 6.16), by such accountants to have been
prepared in accordance with GAAP (such audited
financial statements to include a balance sheet, income
statement, and statement of cash flow and, if prepared,
such accountants’ letter to management), and
	 
	 	 
	 

	 	a Compliance Certificate.
	 
	 	 
	as soon as
available, but in
any event within 30
days prior to the
start of each of
Parent’s fiscal
years,

	 	copies of Parent’s Projections, in form and substance
(including as to scope and underlying assumptions)
satisfactory to Agent, in its Permitted Discretion, for
the forthcoming 2 years, year by year, and for the
forthcoming fiscal year, quarter by quarter, certified
by the chief financial officer of Parent as being such
officer’s good faith estimate of the financial
performance of Parent during the period covered
thereby.







Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 






	 	 	 

	if and when filed
by Parent or any of
its Subsidiaries,

	 	Form 10-Q quarterly reports, Form 10-K annual reports,
and Form 8-K current reports, 


any other filings made by any Borrower with the SEC, 



and
any other information that is provided by Parent to its
shareholders generally.
	 
	 	 
	promptly, but in
any event within 5
days after Parent
or any of its
Subsidiaries has
knowledge of any
event or condition
that constitutes a
Default or an Event
of Default,

	 	notice of such event or condition and a statement of
the curative action that Parent and its Subsidiaries
proposes to take with respect thereto.
	 
	 	 
	promptly after the
commencement
thereof, but in any
event within 5 days
after the service
of process with
respect thereto on
Parent or any
Subsidiary of a
Parent,

	 	notice of all actions, suits, or proceedings brought by
or against Parent or any Subsidiary of Parent before
any Governmental Authority which reasonably could be
expected to result in a Material Adverse Change.
	 
	 	 
	upon the request of
Agent,

	 	any other information reasonably requested relating to
the financial condition of Parent or its Subsidiaries.
	 
	 	 
	Promptly, but in
any event within 5
days after Parent
or any of its
Subsidiaries has
knowledge thereof,

	 	the termination of any Material Contract.









Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.



 


 









 










SCHEDULE 5.2




Provide Agent (and if so requested by Agent, with copies for each Lender) with each of the
documents set forth below at the following times in form satisfactory to Agent:




	 	 	 

	Weekly (at any time the sum of
Excess Availability and
Qualified Cash is less than
$30,000,000 (of which at least
$15,000,000 shall be from
Excess Availability))

	 	an Account roll-forward with supporting
details supplied from sales journals,
collection journals, credit registers and
any other records, in each case, in a
format acceptable to Agent in its
discretion, tied to the beginning and
ending account receivable balances of
Borrower’s general ledger, and
	 
	 	 
	 

	 	a detailed report regarding Parent’s and
its Subsidiaries’ cash and Cash
Equivalents, including an indication of
which amounts constitute Qualified Cash.
	 
	 	 
	Monthly (no later than the
10th day of each month)

	 	unless delivered pursuant to clause (a)
above, an Account roll-forward with
supporting details supplied from sales
journals, collection journals, credit
registers and any other records, in each
case, in a format acceptable to Agent in
its discretion, tied to the beginning and
ending account receivable balances of
Borrower’s general ledger,
	 
	 	 
	 

	 	unless delivered pursuant to clause (b)
above, a detailed report regarding
Parent’s and its Subsidiaries’ cash and
Cash Equivalents, including an indication
of which amounts constitute Qualified
Cash,
	 
	 	 
	 

	 	notice of all claims, offsets, or disputes
asserted by Account Debtors with respect
to Parent’s and its Subsidiaries’
Accounts, and
	 
	 	 
	 

	 	a Borrowing Base Certificate, 




a detailed aging, by total, of Borrower’s
Accounts, together with a reconciliation
and supporting documentation for any
reconciling items noted (delivered
electronically in an acceptable format, if
Borrowers have implemented electronic
reporting),
	 
	 	 
	 

	 	a detailed calculation of those Accounts
that are not eligible for the Borrowing
Base, if Borrowers have not implemented
electronic reporting,
	 
	 	 
	 

	 	a summary aging, by vendor, of Parent’s
and its Subsidiaries’ accounts payable and
any book overdrafts (delivered
electronically in an acceptable format, if
Borrowers have implemented electronic
reporting) and an aging, by vendor, of any
held checks, and
	 
	 	 
	 

	 	a monthly Account roll-forward,.





Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.




 


 









 






	 	 	 

	Monthly (no later than the
30th day of each month)

	 	a reconciliation of Accounts of Borrower’s
general ledger accounts and trade accounts
payable of Parent and its Subsidiaries’
general ledger accounts to, in each case,
their monthly financial statements
including any book reserves related to
each category, and
	 
	 	 
	 

	 	a report regarding Parent’s and its
Subsidiaries’ accrued, but unpaid, ad
valorem taxes.
	 
	 	 
	Quarterly

	 	a detailed report regarding Parent’s and
its Subsidiaries’ Permitted Dispositions
including a detailed list of the assets
sold or disposed of since the Closing Date
and the consideration received in
connection therewith.
	 
	 	 
	Annually

	 	a detailed list of Parent’s and its
Subsidiaries’ customers, including
contract expiration dates, together with
address and contact information.
	 
	 	 
	Upon request by Agent

	 	copies of invoices together with
corresponding shipping and delivery
documents, and credit memos together with
corresponding supporting documentation,
with respect to invoices and credit memos
in excess of an amount determined in the
sole discretion of Agent, from time to
time.
	 
	 	 
	 

	 	such other reports as to the Collateral or
the financial condition of Parent and its
Subsidiaries, as Agent may reasonably
request.








Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.






 


 









 








SCHEDULE 6.6




Nature of Business




The following are brief descriptions of the nature of the businesses of Parent, Borrower and
other subsidiaries of Parent




Oclaro, Inc. ( “Oclaro-Inc” or “Parent”)

[***]




Oclaro Technology Ltd (“Oclaro-UK” or “Borrower”)

[***]




Avanex Communications Technologies Co., Ltd

[***]




Avanex France OIF S.A.

[***]




Avanex International Corporation




[***]



Avanex U.S.A. Corporation

[***]




Avalon Photonics AG

[***]




Bookham International Ltd.

[***]




Bookham Nominees Ltd.

[***]




Forthaven Ltd

[***]




Mintera Corporation

[***]




New Focus GmbH

[***]




Oclaro (Canada), Inc.

[***]







Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the symbol [***]. A complete version of this document has
been filed separately with the Securities and Exchange Commission.


 


 









 










Oclaro Innovations LLP

[***]




Oclaro Japan K.K.

[***]




Oclaro (North America), Inc.

[***]




Oclaro Photonics, Inc.

[***]




Oclaro (Switzerland) AG

[***]




Oclaro Technology, Inc.

[***]




Oclaro Technology (Shenzhen) Co., Ltd. (“Oclaro-SZ”)

[***]




Oclaro (Thailand) Limited

[***]




Rio Sub 1, Inc.

[***]




Rio Sub 2, Inc.

[***]




Legacy Xtellus Group




Oclaro (New Jersey), Inc.

Oclaro Korea, Inc.




Oclaro Israel Limited

[***]








Confidential treatment is being requested for portions of this document. This copy of the
document filed as an exhibit omits the confidential information subject to the confidentiality
request. Omissions are designated by the
symbol [***]. A complete version of this document has been filed separately with the Securities
and Exchange Commission.