AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.37
THIS AMENDMENT NO. 5 to Second Amended and Restated Loan and Security Agreement (this
“Amendment”) is entered as of the 4th day of March, 2009, by and between Silicon Valley Bank
(“Bank”) and Harmonic, Inc., a Delaware corporation (“Borrower”) whose address is 000 Xxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxxxx 00000.
Recitals
A. Bank and Borrower have entered into that certain Second Amended and Restated Loan and
Security Agreement dated as of December 17, 2004, as amended by that certain First Amendment to
Second Amended and Restated Loan and Security Agreement dated December 16, 2005, that certain
Amendment No. 2 to Second Amended and Restated Loan and Security Agreement dated December 15, 2006,
that certain Amendment No. 3 to Second Amended and Restated Loan and Security Agreement dated March
15, 2007 and as amended by that certain Amendment No. 4 to Second Amended and Restated Loan and
Security Agreement dated March 12, 2008 (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 certain provisions of 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 6.2 (Financial Statements, Reports, Certificates). Section 6.2(b) is amended and
restated in its entirety and replaced with the following:
(b) Borrower will deliver to Bank a Compliance Certificate with the quarterly financial
statements within 45 days after the last day of each of the first three
fiscal quarters and a Compliance Certificate upon the earlier of delivery of the report on Form
10-K or 120 days after the last day of the fourth quarter of the fiscal year.
2.2 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 March 3, 2010.
2.3 Exhibit C. Exhibit C to the Loan Agreement is replaced in its entirety by Exhibit A
hereto.
3. Limitation of Amendments.
3.1 The amendments 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;
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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;
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 as of March 4, 2009 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 through the date 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:
|
/s/ Xxxx Xxxxxxxx
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By: | /s/ Xxxxx X. Xxxxxxx
|
|||||||
Name:
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Xxxx Xxxxxxxx | Name: | Xxxxx X. Xxxxxxx | |||||||
Title:
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Relationship Manager — Corporate | Title: | CFO | |||||||
| Technology Banking | ||||||||||
[Signature page to Amendment No. 5]
EXHIBIT A
COMPLIANCE CERTIFICATE
TO:
|
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000 |
|
FROM:
|
HARMONIC INC. 000 Xxxxxx Xxx Xxxxxxxxx, XX 00000 |
The undersigned authorized officer of Harmonic Inc. (“Borrower”) certifies that under
the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the
“Agreement”), (i) Borrower is in complete compliance for the period ending with all
required covenants, except as noted below, and (ii) all representations and warranties in the
Agreement are true and correct in all material respects on this date. Attached are the required
documents supporting the certification. The undersigned officer certifies that such documents were
prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied
from one period to the next, except as explained in an accompanying letter or footnotes. The
undersigned officer acknowledges that no borrowings may be requested at any time or date of
determination that Borrower is not in compliance with any of the terms of the Agreement, and that
compliance is determined not just at the date this certificate is delivered.
Please indicate compliance status by circling Yes/No under “Complies” column.
| Reporting Covenant | Required | Complies | ||||
Compliance certificate
|
Quarterly within 45 days,except together with report on Form 10-K following Q4 |
Yes | No | |||
Quarterly financial statements
|
Quarterly within 45 days | Yes | No | |||
Annual financial statements (Audited)
|
FYE within 120 days | Yes | No | |||
| Financial Covenant | Required | Actual | Complies | |||||||
Maintain at all times: |
||||||||||
Unrestricted cash and
cash equivalents
|
$40,000,000 | Yes | No | |||||||
BANK USE ONLY
Received by: |
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| AUTHORIZED SIGNER | ||
Date: |
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Verified: |
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| AUTHORIZED SIGNER | ||
Date: |
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| Compliance Status: Yes No | ||
