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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Date:
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February 24, 2006
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THIS AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT is
entered into between Silicon Valley Bank (“Silicon”)
and the sellers named above (jointly and severally,
“Seller”).
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. Modification of
Section 2.1. Section 2.1 of the Purchase Agreement is
hereby amended in its entirety to read as follows:
“2.1 Sale and
Purchase. Subject to the
terms and conditions of this Agreement, with respect to each
Purchase, effective on each applicable Purchase Date, Seller agrees
to sell to Buyer and Buyer agrees to buy from Seller all right,
title, and interest (but none of the obligations with respect to)
of the Seller to the payment of all sums owing or to be owing from
the Account Debtors under each Purchased Receivable to the extent
of the Purchased Receivable Amount for such Purchased
Receivable.
Each purchase and sale hereunder
shall be in the sole discretion of Buyer and Seller. In any event,
Buyer will not (i) purchase any Receivables in excess of an
aggregate outstanding amount exceeding the “Receivables
Purchase Sublimit” (as defined in the Loan Agreement), or
(ii) purchase any Receivables under this
Agreement after February 21,
2007. The purchase of each Purchased Receivable may be evidenced by
an assignment or bill of sale in a form acceptable to Buyer, but
the purchase shall be fully effective notwithstanding any failure
to sign any such assignment or bill of sale.”
2. Fee. In consideration for Silicon entering into this
Amendment, Seller shall is paying to Silicon a joint facility fee
under the Amendment to Loan Documents being entered concurrently
herewith between the parties hereto.
3. 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.
4. 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 t
