EXHIBIT 10.23
INTERCOMPANY
REVOLVING LOAN AGREEMENT
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This INTERCOMPANY REVOLVING LOAN AGREEMENT ("Loan Agreement"), dated as of
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August 15, 1998, is entered into by and between:
(1) SymmetriCom, Inc. ("Lender"); and
(2) Linfinity Microelectronics Inc. ("Borrower").
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In consideration of the covenants, conditions and agreements set forth herein,
the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Advance" shall have the meaning given in Section 2.1 of the Loan
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Agreement.
1.2 "Business Day" shall mean any day on which commercial banks are not
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authorized or required to close in San ▇▇▇▇, -California.
1.3 "Commitment" shall mean an amount equal to Five Million Dollars
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($5,000,000).
1.4 "Default" shall mean any event or circumstance not yet constituting an
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Event of Default but which, with the giving of any notice or the lapse of any
period of time or both, would become an Event of Default.
1.5 "Event of Default" shall have the meaning given to that term in
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Section 5.1.
1.6 "GAAP" shall mean generally accepted accounting principles and
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practices as promulgated by the Financial Accounting Standards Board and as in
effect in the United States of America from time to time, consistently applied.
Unless otherwise indicated in this Loan Agreement, all accounting terms used in
this Loan Agreement shall be construed, and all accounting and financial
computations hereunder or thereunder shall be computed, in accordance with GAAP.
1.7 "Governmental Authority" shall mean any domestic or foreign national,
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state or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
1.8 "Indebtedness" of any Person shall mean and include the aggregate
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amount of, without duplication (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (c) all obligations of such Person to pay the
deferred purchase price of property or services (other than accounts payable
incurred in the ordinary course of business determined in accordance with
generally accepted accounting principles), (d) all obligations under capital
leases of such Person, (e) all obligations or liabilities of others secured by a
lien on any asset of such Person, whether or not such obligation or liability is
assumed, (f) all guaranties of such Person of the obligations of another
Person; (g) all obligations created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even if the rights and remedies of the seller or lender under such agreement
upon an event of default are limited to repossession or sale of such property),
(h) net exposure under any interest rate swap, currency swap, forward, cap,
floor or other similar contract that is not entered to in connection with a bona
fide hedging operation that provides offsetting benefits to such Person, which
agreements shall be marked to market on a current basis, (i) all reimbursement
and other payment obligations, contingent or otherwise, in respect of letters of
credit.
1.9 "Prime Rate" shall mean the Prime Rate as quoted in the "Money Rates"
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column of The Wall Street Journal on the first Business Day of each calendar
month. All computations of such interest shall be based on a year of 360 days
and actual days elapsed. Such Prime Rate shall remain in effect until it is
adjusted on the first Business Day of the following calendar month.
1.10 "Loan Agreement" shall have the meaning set forth in the opening
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paragraph of this document.
1.11 "Loan Documents" shall mean and include this Loan Agreement and any
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other documents, instruments and agreements delivered to Lender in connection
with this Loan Agreement.
1.12 "Obligations" shall mean and include all Advances, debts, liabilities,
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and financial obligations, howsoever arising, owed by Borrower to Lender of
every kind and description (whether or not evidenced by any note or instrument),
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising pursuant to the terms of any of the Loan Documents,
including, without limitation, all interest, fees, charges, expenses, reasonable
attorneys' fees (and expenses) and accountants' fees (and expenses) chargeable
to Borrower or payable by Borrower hereunder or thereunder.
1.13 "Person" shall mean and include an individual, a partnership, a
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corporation (including a business trust), a joint stock company, a limited
liability company, an unincorporated association, a joint venture or other
entity or a Governmental Authority.
1.14 "Termination Date" shall mean the first anniversary of the date of
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this Loan Agreement.
ARTICLE 2
ADVANCES
2.1 Terms. Subject to the terms and conditions of this Loan Agreement,
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Lender agrees to advance to Borrower from time to dine and until the Termination
Date, such sums as Borrower may request (the "Advances") but which shall not
exceed, in the aggregate principal amount at any one time outstanding, the
Commitment. Advances shall be made in lawful currency of the United States of
America and shall be made in same day or immediately available funds. Each
advance shall be in an amount equal to at least $500,000 or any integral
multiple of $100,000 in excess thereof and shall be made three Business Days
after written request (or telephonic request confirmed in writing). Subject to
the terms and conditions hereof, Borrower may borrow pursuant to this Section
2.1, prepay the Advances and reborrow pursuant to this Section 2. 1.
2.2 Payment of Principal upon Maturity. If not paid earlier, the
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outstanding principal balance of all Advances shall be due and payable to the
Lender on the Termination Date.
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2.3 Interest Payments. Interest on the outstanding principal balance under
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the Advances shall accrue at the Prime Rate in effect. All computations of such
interest shall be based on a year of 360 days and actual days elapsed for each
day on which any principal balance is outstanding under the terms of the Loan
Agreement.
2.4 Interest Payments. All accrued and unpaid interest shall be due on the
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first Business Day of each month. If not paid earlier, all outstanding accrued
interest hereunder shall be due and payable to the Lender on the Termination
Date.
2.5 Other Payment Terms.
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(a) Place and Manner. Borrower shall make all payments due to Lender
hereunder in lawful money of the United States and in same day or immediately
available funds.
(b) Date. Whenever any payment due hereunder shall fall due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall be included in the computation of
interest or fees, as the case may be.
(c) Default Rate. From and after the occurrence of an Event of Default
and during the continuance thereof, Borrower shall pay interest on all
Obligations not paid when due, from the date due thereof until such amounts are
paid in full at a per annum. rate equal to the two (2) percentage points in
excess of the rate otherwise applicable to Advances. All computations of such
interest shall be based on a year of 360 days and actual days elapsed.
2.6 Loan Account. The Obligations of Borrower to Lender hereunder shall be
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evidenced by one or more accounts or records maintained by Lender in the
ordinary course of business. The accounts or records maintained by Lender shall
be presumptive evidence of the amount of such Obligations, and the interest and
principal payments thereon. Any failure so to record or any error in so doing
shall not, however, limit, increase or otherwise affect the obligation of
Borrower hereunder to pay any amount owning hereunder. Upon Lender's request,
Borrower shall execute a promissory note in favor of Lender.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BORROWER
To induce Lender to enter into this Loan Agreement and to make Advances
hereunder, Borrower represents and warrants to Lender as follows:
3.1 Due Incorporation, Qualification, etc. Borrower is a corporation duly
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organized, validly existing and in good standing under the laws of its state of
incorporation.
3.2 Authority. The execution, delivery and performance by Borrower of each
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Loan Document to be executed by Borrower and the consummation of the
transactions contemplated thereby (i) are within the power of Borrower and (ii)
have been duly authorized by all necessary actions on the part of Borrower.
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3.3 Enforceability. Each Loan Document executed, or to be executed, by
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Borrower has been, or will be, duly executed and delivered by Borrower and
constitutes, or will constitute, a legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors' rights generally and general
principles of equity.
ARTICLE 4
CONDITIONS TO MAKING ADVANCES
Lender's obligation to make the initial Advance and each subsequent Advance
is subject to the prior satisfaction or waiver of all the conditions set forth
in this Article 4.
4.1 Principal Loan Documents. Borrower shall have duly executed and
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delivered to Lender: (a) the Loan Agreement; and (b) such other documents,
instruments and agreements as Lender may reasonably request.
4.2 Representations and Warranties Correct. The representations and
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warranties made by Borrower in Article 3 hereof shall be true and correct as of
the date on which each Advance is made and after giving effect to the making of
the Advance. The submission by Borrower to Lender of a request for an Advance
shall be deemed to be a certification by the Borrower that as of the date of
borrowing, the representations and warranties made by Borrower in Article 3
hereof are true and correct.
4.3 No Event of Default or Default. No Event of Default or Default has
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occurred or is continuing.
4.4 Total Outstanding Advances. The total aggregate principal amount of
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outstanding Advances does not exceed the Commitment.
ARTICLE 5
EVENTS OF DEFAULT
5.1 Events of Default. The occurrence of any of the following shall
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constitute an "Event of Default" under this Loan Agreement and the Note:
(a) Failure to Pay. Borrower shall fail to pay (i) the principal
amount of all outstanding Advances on the Termination Date hereunder; (ii) any
interest, Obligation or other payment required under the terms of this Loan
Agreement or any other Loan Document on the date due and such failure shall
continue for ten (10) Business Days after Borrower's receipt of Lender's written
notice thereof to Borrower; or (iii) any Indebtedness (excluding Obligations)
owed by Borrower to Lender on the date due and such failure shall continue for
ten (10) Business Days after Borrower's receipt of Lender's written notice
thereof to Borrower.
(b) Breaches of Covenants. Borrower shall fail to observe or perform
any other covenant, obligation, condition or agreement contained in this Loan
Agreement or any other Loan Document and (i) such failure shall continue for ten
(10) Business Days, or (ii) if such failure is not curable within such ten (10)
Business Day period, but is reasonably capable of cure within thirty (30)
Business Days, either (A) such failure
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shall continue for thirty (30) Business Days or (B) Borrower shall not have
commenced a cure in a manner reasonably satisfactory to Lender within the
initial ten (10) Business Day period; or
(c) Representations and Warranties. Any representation, warranty,
certificate, or other statement (financial or otherwise) made or furnished by or
on behalf of Borrower to Lender in writing in connection with any of the Loan
Documents, or as an inducement to Lender to enter into this Loan Agreement,
shall be false, incorrect, incomplete or misleading in any material respect when
made or furnished; or
(d) Voluntary Bankruptcy or Insolvency Proceedings. Borrower shall (i)
apply for or consent to the appointment of a receiver, trustee, liquidation or
custodian of itself or of all or a substantial part of its property, (ii) be
unable, or admit in writing its inability, to pay its debts generally as they
mature, (iii) make a general assignment for the benefit of its or any of its
creditors, (iv) be dissolved or liquidated in full or in part, (v) become
insolvent (as such term is defined in 11 U.S. C. (S) 10 1 (32), as amended from
time to time), (vi) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or consent to any such relief or to the appointment of or taking possession of
its property by any official in an involuntary case or other proceeding
commenced against it, or (vii) take any action for the purpose of effecting any
of the foregoing; or
(e) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for
the appointment of a receiver, trustee, liquidator or custodian of Borrower or
of all or a substantial part of the property thereof, or an involuntary case or
other proceedings seeking liquidation, reorganization or other relief with
respect to Borrower or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within
sixty (60) calendar days of commencement.
5.2 Rights of Lender upon Default.
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(a) Acceleration. Upon the occurrence or existence of any Event of
Default described in Sections 5. 1(d) and 5. l(e), automatically and without
notice or, at the option of Lender, upon the occurrence of any other Event of
Default, all outstanding Obligations payable by Borrower hereunder shall become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the other Loan Documents to the contrary notwithstanding.
(b) Cumulative Rights, etc. The rights, powers and remedies of Lender
under this Loan Agreement shall be in addition to all rights, powers and
remedies given to Lender by virtue of any applicable law, rule or regulation of
any Governmental Authority, any transaction contemplated thereby or any other
agreement, all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Lender's rights
hereunder.
ARTICLE 6
MEERGER, ASSET SALE OR OTHER DISPOSITION
6.1 Rights of Lender Upon Merger, Asset Sale or Other Disposition of the
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Borrower. In the event of a merger of the Borrower with or into another
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corporation, or the sale of substantially all of the assets of the Borrower, or
any other disposition of the Borrower, automatically and without notice, all
outstanding
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Obligations payable by Borrower hereunder shall become immediately due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived, anything contained herein or in the
other Loan Documents to the contrary notwithstanding.
ARTICLE 7
MISCELLANEOUS
7.1 Notices. Except as otherwise provided herein, all notices, requests,
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demands, consents, instructions or other communications to or upon Lender or
Borrower under this Agreement or the other Loan Documents shall be in writing
and telecopier, mailed or delivered to each party at its telecopier number or
address set forth below (or to such other telecopier number or address for any
party as indicated in any notice given by that party to the other party). All
such notices and communications shall be effective (a) when sent by Federal
Express or other overnight service of recognized standing, on the Business Day
following the deposit with such service; (b) when mailed by registered or
certified mail, first class postage prepaid and addressed as aforesaid through
the United States Postal Service, upon receipt; (c) when delivered by hand, upon
delivery; and (d) when telecopier, upon confirmation of receipt; provided,
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however, that any notice delivered to Lender under Article 2 shall not be
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effective until received by Lender.
LENDER: SymmetriCom, Inc.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
BORROWER: Linfinity Microelectronics Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
7.2 Waivers; Amendments. Any term, covenant, agreement or condition of
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this Loan Agreement or any other Loan Document may be amended or waived if such
amendment or waiver is in writing and is signed by Borrower and Lender. No
failure or delay by lender in exercising any right hereunder shall operate as a
waiver thereof or of any other right nor shall any single or partial exercise of
any such right preclude any other further exercise thereof or of any other
right. A waiver or consent given hereunder shall be effective only if in writing
and in the specific instance and for the specific purpose for which given.
7.3 Successors and Assigns. This Loan AGREEMENT AND THE OTHER Loan
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Documents shall be binding upon and inure to the benefit of Borrower, Lender and
their respective successors and permitted assigns, except that Borrower may not
assign or transfer (and any such attempted assignment or transfer shall be void)
any of its rights or obligations under any Loan Document without the prior
written consent of Lender.
7.4 Set-off. In addition to any rights and remedies of Lender provided by
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law, Lender shall have the right, without prior notice to Borrower, any such
notice being expressly waived by Borrower to the extent permitted by applicable
law, upon the occurrence and during the continuance of a Default or an Event of
Default, to set-off and apply against any Indebtedness, whether matured or
unmatured, of Borrower to Lender (including, without limitation, the
Obligations), any amount owing from Lender to Borrower. The aforesaid
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right of set-off may be exercised by Lender against Borrower or against any
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of Borrower or
against anyone else claiming through or against Borrower or such trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by Lender prior to
the occurrence of a Default or an Event of Default. Lender agrees promptly to
notify Borrower after any such set-off and application made by Lender, provided
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that the failure to give such notice shall not affect the validity of such set-
off and application.
7.5 No Third Party Rights. Nothing expressed in or to be implied from this
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Agreement or any other Loan Document is intended to give, or shall be construed
to give, any Person, other than the parties hereto and thereto and their
permitted successors and assigns, any benefit or legal or equitable right,
remedy or claim under or by virtue of this Agreement or any other Loan Document.
7.6 Partial Invalidity. If at any time any provision of this Loan
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Agreement or any of the Loan Documents is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of the Loan
Agreement or such other Loan Documents, nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction, shall
in any way be affected or impaired thereby.
7.7 Governing Law. This Loan Agreement and each of the other Loan
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Documents shall be governed by and construed in accordance with the laws of the
State of California without reference to conflicts of law rules.
7.8 Construction. Each of this Loan Agreement and the other Loan Documents
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is the result of negotiations among, and has been reviewed by, Borrower, Lender
and their respective counsel. Accordingly, this Loan Agreement and the other
Loan Documents shall be deemed to be the product of all parties hereto, and no
ambiguity shall be construed in favor of or against Borrower or Lender.
7.9 Entire Agreement. This Loan Agreement and the other Loan Documents,
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taken together, constitute and contain the entire agreement of Borrower and
Lender with respect to the subject matter hereby and supersede any and all prior
agreements, negotiations, correspondence, understandings and communications
among the parties, whether written or oral, respecting the subject matter
hereof.
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IN WITNESS WHEREOF, the parties have executed this Loan Agreement as of the
date first set forth above.
BORROWER:
Linfinity Microelectronics Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President & Chief Operating Officer
LENDER:
SymmetriCom, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Finance
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