exv10w39






Exhibit
10.39




AMENDMENT NO. 6

TO

SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT




     THIS AMENDMENT NO. 6 to Second Amended and Restated Loan and Security Agreement (this
“Amendment”) is entered as of the 4th day of March, 2010, by and between Silicon Valley Bank
(“Bank”) and Harmonic Inc., a Delaware corporation (“Borrower”) whose address is 549 Baltic Way,
Sunnyvale, California 94089.



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 and Amendment
No. 5 to Second Amended and Restated Loan and Security Agreement dated as of March 4, 2009 (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 and
modify the financial covenant therein.



     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. Amendments to Loan Agreement.




               2.1 Section 6.7 (Financial Covenant). Section 6.7 is amended and restated in its
entirety and replaced with the following:



               “6.7 Financial Covenant.



                    At all times, Borrower shall have unrestricted cash and cash equivalents (net of Credit
Extensions) of not less than $35,000,000.”



               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 2, 2011.”



 









 





               2.3 Exhibit C. Exhibit C to the Loan Agreement is replaced in its entirety by
Exhibit C 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;



               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 3, 2010 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.]




 









 





     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/ Tom Smith	 	 	 	By	 	/s/ Patrick Harshman	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Tom Smith
	 	 	 	 	 	Name:
	 	Patrick Harshman	 	 
	 

	 	Title:
	 	Managing Director
	 	 	 	 	 	Title:
	 	President & CEO	 	 






 









 






EXHIBIT C




COMPLIANCE CERTIFICATE



	 	 	 
	TO:

	 	SILICON VALLEY BANK

3003 Tasman Drive

Santa Clara, CA 95054
	 
	 	 
	FROM:

	 	HARMONIC INC.

549 Baltic Way 

Sunnyvale, CA 94089






     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

	 	$35,000,000	 	 	 	 	Yes
	 	No








Comments Regarding Exceptions: See Attached.



Sincerely,




HARMONIC INC.



 

Signature



 

Title



 

Date












BANK USE ONLY



Received by:                                              



AUTHORIZED SIGNER



Date:                                                          



Verified:                                                    



AUTHORIZED SIGNER



Date:                                                          




Compliance Status:                   Yes     No