Exhibit 10.33
RESTATED NON-RECOURSE RECEIVABLES PURCHASE
MODIFICATION AGREEMENT
This Restated Non-Recourse Receivables Purchase Modification Agreement
is entered into as of December 14, 2001, by and between Harmonic Inc. (the
"Seller") and Silicon Valley Bank ("Buyer").
1. DESCRIPTION OF EXISTING OBLIGATIONS: Among other amounts which may be
owing by Seller to Buyer, Seller is indebted to Buyer pursuant to, among other
documents, a Restated Non-Recourse Receivables Purchase Agreement, dated
September 25, 2001, by and between Seller and Buyer, as may be amended from time
to time, (the "Non-Recourse Receivables Purchase Agreement"). Capitalized terms
used without definition herein shall have the meanings assigned to them in the
Non-Recourse Receivables Purchase Agreement.
Hereinafter, all obligations owing by Seller to Buyer shall be referred to as
the "Obligations" and the Non-Recourse Receivables Purchase Agreement and any
and all other documents executed by Seller in favor of Buyer shall be referred
to as the "Existing Documents."
2. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Non-Recourse Receivables Purchase
Agreement:
The second paragraph under Section 2.1 entitled "Sales and
Purchase" is hereby amended to read as follows:
Each purchase and sale is at Buyer and Seller's discretion.
Buyer will not (i) pay Seller an aggregate outstanding amount
exceeding $12,500,000.00 or (ii) buy any Purchased Receivable
after April 1, 2003 (the "Maturity Date"). Each purchase and
sale will be on an assignment form acceptable to Buyer.
3. CONSISTENT CHANGES. The Existing Documents are each hereby amended
wherever necessary to reflect the changes described above.
4. NO DEFENSES OF SELLER. Seller agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Obligations.
5. PAYMENT OF LOAN FEE. Seller shall pay to Buyer a fee in the amount of
Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) (the "Loan Fee") plus
all out-of-pocket expenses, for increasing and extending the line.
6. CONTINUING VALIDITY. Seller understands and agrees that in modifying
the existing Obligations, Buyer is relying upon Seller's representations,
warranties, and agreements, as set forth in the Existing Documents. Except as
expressly modified pursuant to this Non-Recourse Receivables Purchase
Modification Agreement, the terms of the Existing Documents remain unchanged and
in full force and effect. Buyer's agreement to modifications to the existing
Obligations pursuant to this Non-Recourse Receivables Purchase Modification
Agreement in no way shall obligate Buyer to make any future modifications to the
Obligations. Nothing in this Non-Recourse Receivables Purchase Modification
Agreement shall constitute a satisfaction of the Obligations. It is the
intention of Buyer and Seller to retain as liable parties all makers and
endorsers of Existing Documents, unless the party is expressly released by Buyer
in writing. No maker, endorser, or guarantor will be released by virtue of this
Non-Recourse Receivables Purchase Modification Agreement. The terms of this
paragraph apply not only to this Non-Recourse Receivables Purchase
1
Modification Agreement, but also to any subsequent Non-Recourse Receivables
Purchase modification agreements.
7. CONDITIONS. The effectiveness of this Non-Recourse Receivables Purchase
Modification Agreement is conditioned upon payment of the Loan Fee.
8. COUNTERSIGNATURE. This Non-Recourse Receivables Purchase Modification
Agreement shall become effective only when executed by Seller and Buyer.
SELLER: BUYER:
Harmonic Inc. Silicon Valley Bank
By: ______________________________ By: ______________________________
Name:______________________________ Name:_____________________________
Title:_____________________________ Title:____________________________
2
SCHEDULE DATED __________________
TO
RESTATED NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 25, 2001
SELLER: HARMONIC INC.
BUYER: SILICON VALLEY BANK
PURCHASE DATE: ______________________________________
DUE DATE: _____ days from Purchase Date
TOTAL PURCHASED RECEIVABLES: $______________________(List of Receivables total)
DISCOUNT RATE: _________% (Buyer's most recently announced
Prime Rate plus 1.50% per annum (for domestic and
Canadian receivables with a discount period of 90
days or less))
_________% (Buyer's most recently announced Prime
Rate plus 2.00% per annum (for foreign receivables
with a discount period of 90 days or less))
PURCHASE PRICE: $________________ (is _________ % of the Total
Purchased Receivables which is the straight
discount of the Total Purchased Receivables
discounted from the Due Date to the Purchase Date
at the Discount Rate).
ADMINISTRATIVE FEE: (a) If quarterly Total Purchased Receivables are
equal to or less than $2,500,000.00 then the
Administrative Fee will be an amount equal to .50%
multiplied by the Total Purchased Receivables;
(b) If Total Purchased Receivable are greater than
$2,500,000.00 but less than $7,499,999.99 then the
Administrative Fee will be an amount equal to .25%
multiplied by the Total Purchased Receivables;
(c) No Administrative Fee if Total Purchased
Receivables are equal to or greater than
$7,500,000.00.
Seller warrants and represents that (a) its warranties and representations in
the Agreement are true and correct as of the date of this Schedule and (b) no
Event of Default has occurred under the Agreement.
SELLER: HARMONIC, INC.
By: ________________________
Title: ________________________
BUYER: SILICON VALLEY BANK
By: ________________________
Title: ________________________
3