AMENDMENT NUMBER SIX TO CREDIT AGREEMENT
Exhibit 10.11
AMENDMENT NUMBER SIX TO CREDIT AGREEMENT
This Amendment Number Six to Credit Agreement (“Amendment”) is entered into as of July
20, 2010, by and among XXXXX FARGO CAPITAL FINANCE, INC., a California corporation, formerly known
as Xxxxx Fargo Foothill, Inc., as Agent (the “Agent”) for the Lenders set forth in the
signature pages hereof (the “Lenders”) and the Lenders, on the one hand, and OCLARO, INC.,
a Delaware corporation, formerly known as Bookham, Inc. (“Parent”), and each of Parent’s
Subsidiaries identified on the signature pages hereof (such Subsidiaries, together with Parent, are
referred to hereinafter each individually as a “Borrower”, and individually and
collectively, jointly and severally, as the “Borrowers”), on the other hand, with reference
to the following facts:
A. Agent, Lenders and Borrowers have previously entered into that certain Credit Agreement,
dated as of August 2, 2006 (as amended, supplemented, amended and restated, or otherwise modified,
the “Credit Agreement”).
B. Borrowers, Agent and Lenders desire to amend the Credit Agreement as provided for and on
the conditions herein.
NOW, THEREFORE, Borrowers, Agent and Lenders hereby amend and supplement the Credit Agreement
as follows:
22. DEFINITIONS. All initially capitalized terms used in this Amendment shall have the
meanings given to them in the Credit Agreement unless specifically defined herein.
23. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Section 6.1 of the Credit Agreement is hereby amended by (i) deleting the word
“and” at the end of clause (h), (ii) replacing the period at the end of clause (i) with a semicolon
followed by the word “and”, and (iii) adding new clause (j) after clause (i) that reads as follows:
(j) Indebtedness arising under the Mintera Merger Agreement owed to certain
shareholders or option holders of Mintera immediately prior to the consummation of
the transaction contemplated in the Mintera Merger Agreement.
(b) The first sentence of Section 6.12(i) of the Credit Agreement is hereby amended by
(i) deleting the word “and” after clause (a) and inserting a comma in its place, (ii) inserting the
word “and” at the end of clause (b), and (iii) inserting a new clause (c) after clause (b) that
reads as follows:
(c) during the period commencing on July 20, 2010 and
ending on August 4, 2010, Mintera may maintain balances in Deposit
Accounts and Securities Accounts without Mintera and the applicable
securities intermediary or bank having entered into a Control
Agreement.
(c) The definition of “Permitted Liens” in Schedule 1.1 of the Credit Agreement is
hereby amended to add the following as new clauses (m) and (n):
(m) Liens comprised of the escrow arrangements contemplated by the Mintera
Merger Agreement to be entered into with the consummation of the merger
arrangements as provided therein; and
(n) Lien comprised of a security deposit of $40,000 in favor of a landlord with
respect to real property leased by Mintera, as provided in Section 2.9(b) of the
Mintera Merger Agreement.
(d) Schedule 1.1 of the Credit Agreement is hereby amended by adding the following
definitions in the appropriate alphabetical order:
(i) “Mintera” means Mintera Corporation, a Delaware corporation.
(ii) “Mintera Merger Agreement” means that certain Agreement of Merger
dated as of July 20, 2010, by and among Parent, Nikko Acquisition Corp., a Delaware
corporation, and Mintera.
24. CONSENT TO MERGER.
(a) Parent has informed Agent that: (i) Parent has previously formed Nikko Acquisition Corp.,
a Delaware corporation (“Merger Sub”); and (ii) Parent, Merger Sub, and Mintera, Inc., a
Delaware corporation (“Mintera”), have entered into that certain Agreement of Merger dated
as of July 20, 2010 (the “Mintera Merger Agreement”), pursuant to which Merger Sub will be
merged with and into Mintera with Mintera as the surviving entity and a wholly owned subsidiary of
Parent (the “Mintera Merger”).
(b) Pursuant to the terms of the Credit Agreement, at the time any Obligor forms any direct or
indirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such
Obligor shall (i) cause 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 of such new Subsidiary), as well as appropriate financing statements (and with
respect to all property subject to a Mortgage, fixture filings), all in form and substance
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), (ii) provide to
Agent a pledge agreement and appropriate certificates and powers or financing statements,
hypothecating all of the direct or beneficial ownership interest in such new Subsidiary, in form
and substance satisfactory to Agent, and (iii) provide to Agent all other documentation, including
one or more opinions of counsel satisfactory to Agent, which in Agent’s 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 property subject to a
Mortgage) (such covenants, collectively, the “New Subsidiary Covenants”). Therefore,
Parent should comply with New Subsidiary Covenants with respect to Mintera.
(c) Pending the consummation of the Mintera Merger, Parent has requested that the Lender Group
consent to the Mintera Merger and provide a limited extension for the compliance period with
respect to the New Subsidiary Covenants for Mintera.
(d) Notwithstanding any term or provision of the Credit Agreement to the contrary, including,
without limitation, Section 5.16, the Lender Group hereby waives Parent’s compliance with
the New Subsidiary Covenants (except as provided in clause (f) below), so long as the Mintera
Merger is consummated on or before July 20, 2010 (the “Consummation Deadline”);
provided, that in the event the Mintera Merger is not consummated by the Consummation
Deadline, such waiver shall continue to be effective so long as Parent and Borrowers perform and
cause Mintera to perform each of the New Subsidiary Covenants within 15 days of the Consummation
Deadline.
(e) In addition to the foregoing, notwithstanding any term or provision of the Credit
Agreement to the contrary, including, without limitation, Section 6.1, the Lender Group
hereby consents to the Mintera Merger and agrees that the Mintera Merger shall not cause an Event
of Default, subject to the satisfaction (or waiver) of each of the following conditions precedent
and affirmative and negative covenants:
(i) The Mintera Merger shall be subject to terms and conditions materially consistent (as
determined by Agent, in its reasonable discretion) with the Mintera Merger Agreement;
(ii) The date of consummation of the Mintera Merger (hereafter defined as the “Mintera
Merger Date”) must occur on or before the Consummation Deadline;
(iii) No Default or Event of Default shall have occurred and be continuing or would result
immediately after giving effect to the Mintera Merger;
(iv) On or before the Mintera Merger Date, Agent shall have completed its legal due diligence
with respect to the Mintera Merger and Mintera, including (1) receipt and review of consolidated
and consolidating quarterly projections for Parent and its Subsidiaries for the 12-month period
following the Mintera Merger Date which projections shall take into consideration the effects of
the Mintera Merger and addition of Mintera as a Subsidiary, with the results of such review to be
satisfactory to Agent, (2) review of Parent’s and its Subsidiaries’ corporate structure (taking
into consideration the effects of the Mintera Merger and creation of Mintera) and capital structure
(taking into consideration the effects of the Mintera Merger and creation of Mintera), with the
results of such review to be satisfactory to Agent, (3) receipt and review of the final executed
version of the Mintera Merger Agreement (and related documents) and the pro forma consolidated and
consolidating financial statements of Parent’s and its Subsidiaries’ business (taking into
consideration the effects of the Mintera Merger and addition of Mintera as a Subsidiary), in form
and substance satisfactory to Agent with the results of such review to be satisfactory to Agent,
and (4) receipt of UCC, tax lien, litigation and intellectual property searches (including foreign
searches, as applicable) with respect to Mintera, the results of which shall be satisfactory to
Agent;
(v) On the Mintera Merger Date, Agent shall have received a certificate (dated as of the
Mintera Merger Date) on behalf of Parent of an Authorized Person of Parent attaching true and
correct copies of the Mintera Merger Agreement, with such certificate to certify on behalf of
Parent that the attached document is a true and correct copy of such document and that such
document remains in full force and effect and no Obligor that is a party thereto is in default in
the performance of, or compliance with, any provisions thereof;
(vi) No Indebtedness (other than Indebtedness permitted under Section 6.1 of the
Credit Agreement (after giving effect to the amendments set forth in this Amendment) and
obligations, to the extent constituting Indebtedness, described below in clause (e)(vii)) will
exist or be incurred as a result of the Mintera Merger, and no Liens that are not permitted under
Section 6.2 of the Credit Agreement will exist or be incurred as a result of the Mintera
Merger;
(vii) The aggregate cash consideration paid in connection with the Mintera Merger shall not
exceed (i) $12.1 million plus Mintera’s cash on hand with respect to up front payments at closing,
plus (ii) $20 million with respect to post closing payments under the Mintera Merger Agreement,
which include all earn outs but are exclusive of any amounts paid in stock of Parent. For clarity,
the foregoing does not include any payment of fees and expenses to be paid by Parent or any of its
Subsidiaries;
(viii) The failure to satisfy any of the conditions in clause (i) through (vii) above shall
render the foregoing consent to the Mintera Merger ineffective and therefore the consummation of
the Mintera Merger an Event of Default.
(f) The failure by Obligors to satisfy any of the following conditions or covenants or, if
applicable, the condition in clause (d) above, within the prescribed time periods shall constitute
an Event of Default:
(i) On or before the date that is 15 days after the Mintera Merger Date (the “Mintera
Delivery Deadline”), Agent shall have received copies of the Governing Documents of Mintera, as
amended, modified, or supplemented as of the date of delivery;
(ii) On or before the Mintera Delivery Deadline, Agent shall have received a certificate of
status with respect to Mintera, dated within 15 days of the date of delivery, such certificate to
be issued by the appropriate officer of Mintera’s jurisdiction of organization, which certificate
shall indicate that Mintera is in good standing in such jurisdiction;
(iii) On or before the Mintera Delivery Deadline, Agent shall have received a certificate of
status with respect to Mintera, dated within 30 days of the date of delivery, such certificates to
be issued by the appropriate officer of the jurisdictions (other than Mintera’s jurisdiction of
organization) in which the failure of Mintera to be duly qualified or licensed would constitute a
Material Adverse Change, which certificates shall indicate that Mintera is in good standing in such
jurisdictions;
(iv) Within 2 Business Days of the Mintera Merger Date, Borrowers shall deliver to Agent a
certificate of an Authorized Person of Parent attaching the Certificate of Merger issued by
the Secretary of State of Delaware evidencing the consummation of the Mintera Merger;
(v) On or before the Mintera Delivery Deadline, Agent, for the ratable benefit of the Lenders,
shall have a perfected (other than as contemplated by clause (ix) below) first priority Lien over
all the Collateral of Mintera, subject only to Permitted Liens;
(vi) On or before the Mintera Delivery Deadline, Parent and Borrowers shall cause Mintera to
deliver to Agent’s counsel all documents that would be required following the Mintera Merger
pursuant to the New Subsidiary Covenants, fully executed and in final form, and Parent and Obligors
shall enter into any amendments to the Loan Documents deemed necessary by Agent to take into
account the effects of the Mintera Merger and addition of Mintera as a Subsidiary;
(vii) On or before the Mintera Delivery Deadline, Parent and Borrowers shall cause the
termination of the Amended and Restated Loan and Security Agreement dated September 14, 2009, by
and between Mintera and Silicon Valley Bank, the Export-Import Bank Loan and Security Agreement
dated September 14, 2009, by and between Mintera and Silicon Valley Bank, and the Loan and Security
Agreement dated as of December 31, 2008, by and between Mintera and Velocity Financial Group, Inc.
(as predecessor in interest to Velocity Venture Funding, LLC), and the termination of any security
interests relating to any of the agreements described in this Section 3(f)(vii), and shall deliver
to Agent’s counsel evidence, satisfactory to Agent, of such terminations;
(viii) On or before the date that is 60 days after the Mintera Merger Date, Borrowers shall
deliver to Agent’s counsel updated schedules to the Loan Documents, as applicable;
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; provided further, that pending such
direct update of the schedules to the Loan Documents, such schedules shall be deemed to be amended
to include and reflect (i) the information about Mintera as reflected in the disclosures attached
to the Mintera Merger Agreement, so long as none of the information reflected in such disclosures
is determined by Agent to be adverse to the interests of the Lenders, and (ii) the basic corporate
information regarding Mintera;
(ix) Within 60 days of the Mintera Merger Date, at Agent’s request, Borrowers shall use their
commercially reasonable best efforts to deliver to Agent a Collateral Access Agreement with respect
to (1) 35 and 00 Xxxxx Xxxx, Xxxxx, XX 00000, and (2) any other facilities located within the
United States where Mintera’s assets therein are valued at more than: (y) $250,000 in the aggregate
for all such facilities or (z) $100,000 with respect to any individual facility; and
(x) Within 60 days of the Mintera Merger Date, with respect to each Deposit Account and
Securities Account maintained in the United States and owned by Mintera, Borrowers shall either (i)
deliver to Agent Cash Management Agreements and Control Agreements with respect to the relevant
Deposit Account or Securities Account, each in form and substance satisfactory to Agent, or (ii)
cause the relevant Deposit Account and Securities Account to be closed and provide Agent
satisfactory written evidence of such closure, it being understood that during the period
commencing on the Mintera Merger Date and ending on the Mintera Delivery Deadline and
notwithstanding Section 6.12, Mintera may maintain balances in such Deposit Accounts and
Securities Accounts.
(g) The consent set forth herein shall be limited precisely as written and shall not be deemed
to be (1) an amendment, waiver or modification of any other term or condition of the Credit
Agreement, or (2) prejudice any right or remedy which the Lender Group may now or in the future
have under or in connection with the Credit Agreement.
25. CONSENT TO NAME CHANGE OF XTELLUS INC. Parent has advised Agent that Xtellus Inc.
changed its name to Oclaro (New Jersey), Inc., in February 2010 (the “Name Change”).
Notwithstanding any term or provision of the Credit Agreement to the contrary, including, without
limitation, Section 6.5, the Lender Group hereby consents to the Name Change and waives any
Event of Default that occurred because of the Name Change (such Event(s) of Default, the “Name
Change Defaults”). This waiver of the Name Change Defaults shall be effective only in this
specific instance and for the specific purpose for which it is given, and shall not entitle Parent
or Borrowers to any other or further waiver in any similar or other circumstances.
26. REPRESENTATIONS AND WARRANTIES. Parent and each Borrower hereby affirms to Agent and
Lenders that, after giving effect to the consents and waivers herein, all of such its
representations and warranties set forth in the Credit Agreement are true, complete and accurate in
all respects as of the date hereof.
27. NO DEFAULTS. Parent and Borrowers hereby affirm to the Lender Group that no Event of
Default has occurred and is continuing as of the date hereof.
28. CONDITION PRECEDENT. The effectiveness of this Amendment is expressly conditioned upon
receipt by Agent of the following: (i) completed reference checks (including compliance with
Section 326 of the US Patriot Act) with respect to Mintera, the results of which are satisfactory
to Agent in its sole discretion, and (ii) a fully executed copy of this Amendment.
29. COSTS AND EXPENSES. Borrowers shall pay to Agent all of Agent’s out-of-pocket costs
and reasonable expenses (including, without limitation, the fees and expenses of its counsel, which
counsel may include any local counsel deemed necessary, search fees, filing and recording fees,
documentation fees, appraisal fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related documents.
30. LIMITED EFFECT. In the event of a conflict between the terms and provisions of this
Amendment and the terms and provisions of the Credit Agreement, the terms and provisions of this
Amendment shall govern. In all other respects, the Credit Agreement, as amended and supplemented
hereby, shall remain in full force and effect.
31. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which when so executed and
delivered shall be deemed to be an original. All such counterparts, taken together, shall
constitute but one and the same Amendment. This Amendment shall become effective upon the
execution of a counterpart of this Amendment by each of the parties hereto.
[Signatures on next page]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first set
forth above.
| XXXXX FARGO CAPITAL FINANCE, INC., a California corporation, as Agent and a Lender |
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| By: | ||||
| Title: | ||||
| OCLARO, INC., a Delaware corporation, as Parent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| OCLARO TECHNOLOGY LIMITED, a limited liability company incorporated under the laws of England and Wales, as a Borrower |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OCLARO PHOTONICS, INC., a Delaware corporation, as a Borrower |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| OCLARO TECHNOLOGY, INC., a Delaware corporation, as a Borrower |
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| By: | ||||
| Name: | ||||
| Title: | ||||
