AMENDMENT NO. 9 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.46
THIS AMENDMENT NO. 9 to Second Amended and Restated Loan and Security Agreement (this
“Amendment”) is entered as of this 2nd day of June, 2011, by and between Silicon Valley Bank
(“Bank”) and Harmonic Inc., a Delaware corporation (“Borrower”) whose address is 0000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000.
Recitals
A. Bank and Borrower have entered into that Second Amended and Restated Loan and Security
Agreement dated as of December 17, 2004 (as amended by the First Amendment to Second Amended and
Restated Loan and Security Agreement dated as of December 16, 2005, Amendment No. 2 to Second
Amended and Restated Loan and Security Agreement dated as of December 15, 2006, Amendment No. 3 to
Second Amended and Restated Loan and Security Agreement dated as of March 15, 2007, Amendment No. 4
to Second Amended and Restated Loan and Security Agreement dated as of March 12, 2008, Amendment
No. 5 to Second Amended and Restated Loan and Security Agreement dated as of March 4, 2009,
Amendment No. 6 to Second Amended and Restated Loan and Security Agreement dated as of March 4,
2010, Amendment No. 7 to Second Amended and Restated Loan and Security Agreement dated as of March
4, 2011, and Amendment No. 8 to Second Amended and Restated Loan and Security Agreement dated as of
April 29, 2011, and as may be further amended, modified, supplemented or restated, the “Loan
Agreement”).
B. Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that Bank amend the Loan Agreement to extend the maturity date.
D. Bank has agreed to so amend the Loan Agreement, but only to the extent, in accordance with
the terms, subject to the conditions and in reliance upon the representations and warranties set
forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have
the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement.
2.1 Section 13 (Definitions). The following term and its definition set forth in
Section 13.1 is amended in its entirety and replaced with the following:
| ““Maturity Date” is August 2, 2011.” |
3. Limitation of Amendment.
3.1 The amendment set forth in Section 2, above, 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 Loan
Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may have
in the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and as part of the 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 Bank to enter into this Amendment,
Borrower hereby represents and warrants to Bank as follows:
4.1 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 Event of Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute and deliver this Amendment and to
perform its obligations under the Loan Agreement, as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to Bank on December 17, 2004
remain true, accurate and complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect;
4.4 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have
been duly authorized;
4.5 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not
and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) any
contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree
of any court or other governmental or public
body or authority, or subdivision thereof, binding on Borrower, or (d) the
organizational documents of Borrower;
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4.6 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not
require any order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by any governmental or public body or
authority, or subdivision thereof, binding on either Borrower, except as already has been
obtained or made; and
4.7 This Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium or other similar laws of general application and equitable principles relating to
or affecting creditors’ rights.
5. Counterparts. This Amendment may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Effectiveness. This Amendment shall be deemed effective upon (a) the due execution
and delivery to Bank of this Amendment by each party hereto and (b) Borrower’s payment to
Bank of all Bank Expenses (including all reasonable attorneys’ fees and reasonable expenses)
incurred in the preparation of this Amendment.
[Signature page follows.]
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In Witness Whereof, the parties hereto have caused this Amendment to be duly executed
and delivered as of the date first written above.
| BANK | BORROWER | |||||||||
| Silicon Valley Bank | Harmonic Inc. | |||||||||
By
|
Xxxx Xxxxxxxx | By | Xxxxxxx X. Aver | |||||||
| Name: /s/ Xxxx Xxxxxxxx | Name: /s/ Xxxxxxx X. Aver | |||||||||
| Title: Relationship Manager | Title: Chief Financial Officer | |||||||||
