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Exhibit 10.23
Silicon Valley Bank
Amendment to
Receivables Purchase Agreement
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Sellers:
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ZTI Merger Subsidiary III, Inc.
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(formerly known as Zhone Technologies,
Inc.)
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Zhone Technologies, Inc.
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(formerly known as Tellium,
Inc.)
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Address:
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7001 Oakport St.
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Oakland, California 94621
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Effective Date:
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as of February 21, 2007
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THIS AMENDMENT TO RECEIVABLES PURCHASE
AGREEMENT , with an effective date of February 21,
2007, is entered into between Silicon Valley Bank ("Silicon") and
the sellers named above (jointly and severally, "Seller"),
effective as of the first date written above.
The Parties agree to amend the Non-Recourse Receivables Purchase
Agreement between them, dated as of March 15, 2005, as amended
from time to time (the "Purchase Agreement"), as follows, effective
as of the date hereof. (Capitalized terms used but not defined in
this Amendment, shall have the meanings set forth in the Purchase
Agreement.)
1. Extension. The portion of Section 2.1 of the
Purchase Agreement, which presently reads as follows:
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"In any event, Buyer will not (i) purchase any Receivables
in excess of an aggregate outstanding amount exceeding the
"Receivables Purchase Sublimit" (as defined in the Loan Agreement),
or (ii) purchase any Receivables under this Agreement after
February 21, 2007."
is hereby amended to read as follows:
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"In any event, Buyer will not (i) purchase any Receivables
in excess of an aggregate outstanding amount exceeding the
"Receivables Purchase Sublimit" (as defined in the Loan Agreement),
or (ii) purchase any Receivables under this Agreement after
February 20, 2008."
2. Limitation of Amendments.
A. The amendments set forth herein are effective for the
purposes set forth herein and shall be limited precisely as written
and shall not be deemed to (a) be a consent to any amendment,
waiver or modification of any other term or condition of any
document or agreement relating to the Purchase Agreement
(individually a "Loan Document" and collectively the "Loan
Documents"), or (b) otherwise prejudice any right or remedy
which Silicon may now have or may have in the future under or in
connection with any Loan Document.
B. This Amendment shall be construed in connection with and as
part of Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan
Documents, except as herein amended, are hereby ratified and
confirmed and shall remain in full force and effect.
3. Representations and Warranties. To induce Silicon to
enter into this Amendment, Seller hereby represents and warrants to
Silicon as follows:
A. Immediately after giving effect to this Amendment
(a) the representations and warranties contained in the Loan
Documents are true, accurate and complete in all material respects
as of the date hereof (except to the extent such representations
and warranties relate to an earlier date, in which case they are
true and correct as of such date), and (b) no default or Event
of Default has occurred and is continuing;
B. Seller has the power and authority to execute and deliver
this Amendment and to perform its obligations under the Purchase
Agreement, as amended by this Amendment;
C. The organizational documents of Seller delivered to Silicon
in connection with the original execution of the Purchase Agreement
remain true, accurate and complete and have not been amended,
supplemented or restated and are and continue to be in full force
and effect;
D. The execution and delivery by Seller of this Amendment and
the performance by Seller of its obligations under the Purchase
Agreement, as amended by this Amendment, have been duly
authorized;
E. The execution and delivery by Seller of this Amendment and
the performance by Seller of its obligations under the Purchase
Agreement, as amended by this Amendment, do not and will not c
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