FINOVA-Registered Trademark-
FINANCIAL INNOVATORS
FINOVA Capital Corporation
Technology Finance
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MASTER LOAN AND SECURITY AGREEMENT
Master Loan and Security Agreement No. S7270 Dated April 22, 1999
FINOVA CAPITAL CORPORATION, with its principal place of business located at
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to make a loan (the "Loan") to SILICON LABORATORIES INC. ("you" or
"Borrower") under the terms and conditions contained in this Master Loan and
Security Agreement (this "Master Agreement"). The Loan will be secured by the
Collateral described in any schedule to this Master Agreement (a "Schedule").
The Collateral also includes any replacement parts, additions and accessories
that you may add to the Collateral, as well as any proceeds (including
without limitation to Insurance proceeds) of sale of the Collateral. We may
treat any Schedule as a separate loan and security agreement containing all
of the provisions of this Master Agreement.
1. THE CREDIT
We may make the Loan in more than one advance (an "Advance", each of which
shall be evidenced by a "Schedule"). All of the Schedules, taken together,
will make up the Loan. We will only make the Loan to you if all the
conditions in this Master Agreement have been met to our reasonable
satisfaction. We will rely on your representations and warranties, contained
in this Master Agreement, in making the Loan. The terms of this Agreement
will each apply to the Loan.
- USE OF PROCEEDS. You will use the proceeds of the Loan to pay for the
Collateral. We may pay the Supplier (whom you have chosen) of the
Collateral directly from the Loan proceeds. The Supplier will deliver the
Collateral to you at your expense. You will properly install the Collateral
at your expense at the location(s) indicated in the Schedule. If you have
already paid for the Collateral, we will pay the Loan proceeds to you or to
another person that you may designate in writing.
- NOTES. Your obligation to repay the Loan and to pay interest on the Loan
will be evidenced by Notes. Each Note will be dated the date of the
Schedule to which the Advance evidenced by the Note is related.
- TERM. The Term of each Schedule (and the related Advance) begins upon the
date that we make payment for the Collateral covered under each Schedule
(the "Closing Date"). The Term continues until you fully perform all of
your obligations under this Agreement and each Schedule and the related
Note(s). If the Collateral is not delivered, installed and accepted by you
by the date indicated in the Schedule, we may terminate this Agreement and
the Schedule as to the Collateral that was not delivered, installed and
accepted by giving you 10 days written notice of termination. Any advance
Loan payment you may have paid us is nonrefundable, even if the Term never
starts or if we rightfully terminate this Master Agreement or the Schedule.
- LOAN ACCOUNT. We will keep a loan account on our books and records (which
are computerized) for the Loan. We will record all payments of principal
and interest in the loan account. Unless the entries in the loan account
are clearly in error, the loan account will definitively indicate the
outstanding principal balance and accrued interest on the Loan. We may send
you loan account statements from time to time or upon your request.
- PAYMENTS. The scheduled loan payments (the "Payments") are indicated on the
Schedule. The Payments are payable periodically as specified on the
Schedule from time to time (for example, monthly). The Schedule also
indicates whether the Payments are payable "in advance" or "in arrears."
You agree that you owe us the total of all of these Payments over the Term
of the Schedule.
- FIRST PAYMENT. The first Payment is due at the beginning of the Term or at
a later date that we agree to in writing. Subsequent Payments are due on
the thirtieth day of each successive period (except the next following
period if Payments are payable in arrears) until you pay us in full all of
the Payments and any other charges or expenses you owe us.
- INTEREST. Prior to maturity of a Schedule, you will pay us interest on each
Schedule at the Interest Rate indicated in the Schedule. "Maturity" means
the scheduled maturity or any earlier date on which we accelerate the Loan.
The Payment amount indicated in the Schedule includes interest at this
Interest Rate. Interest is calculated in advance using a year of 360 days
with twelve months of 30 days.
- DEFAULT INTEREST RATE. After Maturity of the Loan you will pay us interest
at a rate of four (4%) percent per year above the Interest Rate. This is
referred to as the "Default Rate."
- INTERIM PAYMENT. If an Advance is made on a day other than the thirtieth or
thirty-first day of a period, you will also pay us an interim Payment on
the first Payment date. The interim Payment will be for the period from the
beginning of the Term until the twenty-ninth day of the period in which the
Advance is made, unless the Advance is made on the thirty-first day of a
period. If the Advance is made on the thirty-first day of a period, the
interim Payment will be for the period from the beginning of the Term
through and including the twenty-ninth day of the next following period.
The Interim Payment will be calculated on an interest only daily basis for
the number of days for which the interim Payment is due.
- USURY. You and we intend to obey the law. If the Interest Rate charged
would exceed the maximum legal rate, you will only have to pay the maximum
legal rate. You do not have to pay any excess interest over and above the
maximum legal rate of interest. However, if it later becomes legal for you
to pay all or part of any excess interest, you will then pay it to us upon
our request.
- PAYMENT DETAILS. You will make all payments due under this Master Agreement
by 12:00 P.M., Connecticut time, on the day they are due. You will make all
payments in US Dollars (US$) in immediately available funds. We do not have
to make or give "presentment, demand, protest or notice" to get paid. You
waive "presentment, demand and protest."
- APPLICATION OF PAYMENTS. Each payment under this Master Agreement is to be
applied in the following order: first, to any fees, costs, expenses and
charges you may owe us; second, to any interest due; and third to the
principal balance.
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- PREPAYMENT. You may not prepay the Loan, in whole or in part, unless this
is specifically permitted by Exhibit A to this Agreement. If prepayment is
permitted by Exhibit A to this Master Agreement, you will give us at least
30 days advance written notice of prepayment. You will pay us the
prepayment premium indicated in the Schedule(s). You will also pay us all
accrued and unpaid interest through the date of prepayment, as well as all
outstanding fees, costs, expenses and charges then due. Of course, you will
also pay the entire outstanding principal balance of the Loan. Once you
give us a notice of prepayment, that notice is final and irrevocable. If we
accelerate the Loan following an Event of Default, you will also owe us a
prepayment premium calculated as if the Loan were prepaid on the date of
acceleration. If no prepayment is permitted, the premium due upon
acceleration will be five (5%) percent of the outstanding principal balance.
- YOUR OBLIGATION TO PAY US ALL PAYMENTS IS ABSOLUTE AND UNCONDITIONAL. YOU
ARE NOT EXCUSED FROM MAKING THE PAYMENTS, IN FULL, FOR ANY REASON. YOU AGREE
THAT YOU HAVE NO DEFENSE FOR FAILURE TO MAKE THE PAYMENTS AND YOU WILL NOT
MAKE ANY COUNTERCLAIMS OR SETOFFS TO AVOID MAKING THE PAYMENTS.
2. SECURITY INTEREST
- You grant us a security interest in the Collateral. The Collateral secures
the full and timely payment and performance of all of your obligations to
us under this Master Agreement and any other agreement, loan or lease that
you may have with us (the "Obligations").
- If we request, you will put labels supplied by us stating "PROPERTY SUBJECT
TO A SECURITY INTEREST HELD BY FINOVA" on the Collateral where they are
clearly visible.
- You give us permission to add to this Master Agreement or any Schedule the
serial numbers and other information about the Collateral.
- You give us permission to file this Master Agreement or a Uniform
Commercial Code financing statement, at your expense, in order to perfect
our security interest in the Collateral. You also give us permission to
sign your name on the Uniform Commercial Code financing statements where
this is permitted by law.
- You will pay our reasonable cost to do searches for other filings or
judgments against you or your affiliates. You will also pay any filing,
recording or stamp fees or taxes resulting from filing this Agreement or a
Uniform Commercial Code financing statement. You will also pay our
reasonable fees in effect from time to time for documentation,
administration and Termination of this Master Agreement.
- At your expense, you will defend our first priority security interest in
the Collateral against, and keep the Collateral free of, any legal process,
liens, other security interests, attachments, levies and executions. You
will give us three (3) business days written notice of any legal process,
liens, attachments, levies or executions, and you will indemnify us against
any loss that results to us from these causes.
- You will notify us at least 15 days before you change the address of your
principal executive office.
- You will promptly sign and return additional documents that we may
reasonably request in order to protect our first priority security interest
in the Collateral.
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- Except for the 20% soft cost (which will be allocated as follows: $300,000
for shipping, tax, software and installation and $100,000 for tenant
improvements) portion of this Master Agreement the Collateral is personal
property and will remain personal property. You will not incorporate it
into real estate and will not do anything that will cause the Collateral to
become part of real estate or a fixture.
3. CONDITIONS OF LENDING
- See our Commitment Letter to you dated April 14, 1999, which you and we
consider to be a part of this Master Agreement. The terms and conditions of
the Commitment Letter continue following the making of the first Advance.
However, if there is a conflict between the terms and conditions of this
Master Agreement, any Schedule or any Note and the terms and conditions of
the Commitment Letter, then you and we agree that the terms and conditions
of this Master Agreement, the Schedules and the Notes control over the
Commitment Letter terms and conditions.
- Before we disburse any proceeds of any Advance, we also require the
following:
- That no payment is past due to us under any other agreement, loan or lease
that you have with us.
- That you are complying with all terms of this Master Agreement.
- That we have received all the documents we requested, including the signed
Schedule, Note and Delivery and Acceptance Certificate.
- That there has been no material adverse change in your financial condition,
business, operations or prospects, from the financial condition that you
disclosed to us in your application for credit.
4. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us as follows:
- All financial information and other information that you have given us is
true and complete. You have not failed to tell us anything that would make
the financial information not misleading. There has been no material
adverse change in your financial condition, business, operations or
prospects, from the financial condition that you disclosed to us in your
application for credit.
- You have supplied us with information about the Collateral. You promise to
us that the amount of our Advance as to each item of Collateral is no more
than the fair and usual price for this kind of Collateral, taking into
account any discounts, rebates and allowances that you or any affiliate of
yours may have been given for the Collateral.
- You have complied with all "environmental laws" and will continue to comply
with all "environmental laws." No "hazardous substances" are used,
generated, treated, stored or disposed of by you or at your properties
except in compliance with all environmental laws. "Environmental laws" mean
all federal, state or local environmental laws and regulations, including
the following laws: CERCLA, RCRA. Hazardous Material Transport Act and The
Federal Water Pollution Control Act. "Hazardous substances" means all
hazardous or toxic wastes, materials or substances, as defined in the
environmental laws, as well as oil, flammable substances, asbestos that is
or could become friable, urea formaldehyde insulation, polychlorinated
biphenyls and radon gas.
5. COVENANTS
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You agree to do the following things (or not to do the following things if so
stated) until full payment of all amounts due to us under this Master
Agreement, the Schedules and the Notes:
CARE, USE, LOCATION AND ALTERATION OF THE COLLATERAL
- You will make sure that the Collateral is maintained in good operating
condition, and that it is serviced, repaired and overhauled when this is
necessary to keep the Collateral in good operating condition. All
maintenance must be done according to the Supplier's or Manufacturer's
requirements or recommendations. All maintenance must also comply with any
legal or regulatory requirements.
- You will maintain service logs for the Collateral and permit us to inspect
the Collateral, the service logs and service reports. You give us
permission to make copies of the service logs and service reports.
- We will give you prior notice if we, or our agent, want to inspect the
Collateral or the service logs or service reports. We may inspect it during
regular business hours. You will pay our travel, meals and lodging costs to
inspect the Collateral, but only for one inspection per year. If we find
during an inspection that you are not complying with this Master Agreement,
you will pay our travel, meals and lodging costs, our salary costs, and the
costs and fees of our agents for reinspection. You will promptly cure any
problems with the Collateral that are discovered during our inspection.
- You will use the Collateral only for business purposes. You will obey all
legal and regulatory requirements in your material use of the Collateral.
- You will make all additions, modifications and improvements to the
Collateral that are required by law or government regulation.
Except for alterations in accordance with industry practices, you will not
alter the Collateral without our written permission. You will replace all
worn, lost, stolen or destroyed parts of the Collateral with replacement
parts that are as good or better than the original parts. The new parts
will become subject to our security interest upon replacement.
- You will not remove the Collateral from the location indicated in the
Schedule without our written permission.
- If the Collateral is removed from the location indicated in the Schedule A,
you will give us (a) 30 days prior written notice of the actual move (b) if
premises is leased, prior to such move, Lender shall have received a
Landlord Waiver executed by the Landlord (c) Lender shall have been granted
a first perfected Lien on such moved collateral and there shall be no other
liens covering such collateral (d) Borrower shall have executed and
delivered to lender all such agreements and instruments in connection
therewith.
YEAR 2000 COMPLIANT
You represent, warrant and agree to take all action necessary including, but
not limited to due inquiry and due diligence with critical business partners
to assure that there will be no material adverse change to your business by
reason of the advent of the year 2000, including without limitation that all
computer-based systems, embedded microchips and other processing capabilities
effectively recognize and process all dates before and after December 31,
1999 ("Y2K Compliant"). At our request, you shall provide to us assurance
reasonably acceptable to us that your computer-based systems, embedded
microchips and other processing capabilities are Y2K Compliant.
RISK OF LOSS
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- You have the complete risk of loss or damage to the Collateral. Loss or
damage to the Collateral will not relieve you of your obligation to make
the Payments.
- If any Collateral is lost or damaged, you have two choice (although if you
are in default under this Master Agreement, we and not you will have the
two choices). The choices are:
(1) Repair or replace the damaged or lost Collateral so that, once again,
the Collateral is in good operating condition and we have a perfected
first priority security interest in it.
(2) Pay us the present value (as of the date of payment) of the remaining
Payments. We will calculate the present value using a discount rate of
five (5%) percent per year. Once you have paid us this amount and any
other amount that you may owe us, we will release our security interest
in the damaged or lost Collateral and you (or your insurer) may keep
the Collateral and you (or your insurer) may keep the Collateral for
salvage purposes, on an "AS IS, WHERE IS" basis.
INSURANCE
- Until you have made all Payments to us under this Master Agreement, the
Schedules and the Notes, you will keep the Collateral insured. The amount
of insurance, the coverage, and the insurance company must be acceptable to
us.
- If you do not provide us with written evidence of insurance that is
acceptable to us, we may buy the insurance ourselves, at your expense. You
will promptly pay us the cost of this insurance. We have no obligation to
purchase any insurance. Any insurance that we purchase will be our
insurance, and not yours.
- Insurance proceeds may be used to repair or replace damaged or lost
Collateral or to pay us the present value of the Payments, as provided
above.
- You appoint us as your "attorney-in-fact" to make claims under the
insurance policies, to receive payments under the insurance policies, and
to endorse your name on all documents, checks or drafts relating to
insurance claims for Collateral.
TAXES
- You will pay all sales, use, excise, stamp, documentary and ad valorum
taxes, license, recording and registration fees, assessments, fines,
penalties and similar charges imposed on the ownership, possession, use,
lease or rental of the equipment or on the Loan.
- You will pay all taxes (other than our federal, state net income taxes or
Texas Franchise Tax imposed on you or on us regarding the Payments.
- You will reimburse us for any of these taxes that we pay or advance.
- You will file and pay for any personal property taxes on the Collateral.
FINANCIAL STATEMENTS
- During the Term you will promptly give copies of any filings you make with
the Securities and Exchange Commission (SEC). You will also provide us with
the following financial statements:
* Quarterly balance sheet and statements of earnings and cash flow - within
45 days after the ed of your first three fiscal quarters in each fiscal
year. These will be certified by your chief financial officer and
accompanied by a certificate of your chief financial officer stating that
no default exists, or, if he or she cannot certify this because a default
does exist, he or she must
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specify in reasonable detail the nature of the default.
- Annual balance sheet and statements of earnings and cash flow - within 90
days after the end of each fiscal year. These will be audited by
independent auditors acceptable to us and will be accompanied by a
certificate executed by such independent auditors stating that you have
complied with all covenants contained in the Master Agreement and that
there are no events of default thereunder (the "Compliance Certificate").
Their audit report must be unqualified.
These financial statements will be prepared according to generally accepted
accounting principles, consistently applied.
All financial statements and SEC filings that you provide us will be true and
complete. They will not fail to tell us anything that would make them not
misleading.
In the event you become a public company, your reporting responsibilities
will be no greater than that required by the Securities and Exchange
Commission (the "SEC") and related securities disclosure laws other than the
accompanying certificates set forth herein, provided that the disclosure
dates of such certificates correspond to the then existing SEC reporting
dates requirements.
6. DEFAULTS
You are in default if any of the following happens:
- You do not pay us within 5 business days after written notice, any Payment
or other payment that you owe us under this Master Agreement, any Schedule,
Note or that you owe under any other agreement, loan or lease that you have
with us.
- Any of the financial information that you give us is not true and complete,
or you fail to tell us anything that would make the financial information
not misleading.
- You do something you are not permitted to do, or you fail to do anything
that is required of you, under this Master Agreement, any Schedule or any
other lease, loan or other financial arrangement that you have with us and
it remains uncured after written notice, provided, that you shall not be
entitled to any notice or cure period in the case of a breach of any of
your obligations with respect to maintenance of insurance and delivery of
documents related thereto, as provided herein or in any other documents
executed in connection herewith.
- An event of default occurs for any other lease, loan or obligation of yours
(or any guarantor) that exceeds $50,000 in the aggregate.
You file bankruptcy and such involuntary bankruptcy is not dismissed within
sixty (60) days.
- You are subject to involuntary bankruptcy or any other insolvency
proceeding other than bankruptcy (for example, a receivership action or
an assignment for the benefit of creditors) and such proceeding that is
involuntary is not dismissed within sixty (60) days.
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- Without our permission, you sell all or a substantial part of its assets,
merge or consolidate, or a majority of your voting stock or interests is
transferred.
REMEDIES, DEFAULT INTEREST, LATE FEES
If you are in default we may exercise one or more of our "remedies." Each of
our remedies is independent. We may exercise any of our remedies, all of our
remedies or none of our remedies. We may exercise them in any order we
choose. Our exercise of any remedy will not
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prevent us from exercising any other remedy or be an "election of remedies."
If we do not exercise a remedy, or if we delay in exercising a remedy, this
does not mean that we are forgiving your default or that we are giving up our
right to exercise the remedy. Our remedies allow us to do one or more of the
following:
- "Accelerate" the Loan balance under any or all Notes. This means that we
may require you to immediately pay us all Payments for the entire Term for
any or all Schedules.
- Require you to immediately pay us all amounts that you are required to pay
us for the entire Term of any other agreements, loans or leases that you
have with us.
- ▇▇▇ you for all Payments and other amounts you owe us plus the Prepayment
Premium (see Section 1 above).
- Require you at your expense to assemble the Collateral at a location we
request in the Continental United States of America.
- Remove and repossess the Collateral from where it is located, without
demand or notice, or make the Collateral inoperable. We have your
permission to remove any physical obstructions to removal of the
Collateral. We may also disconnect and separate all Collateral from other
property. No court order, court hearing or "legal process" will be required
for us to repossess the Collateral. You will not be entitled to any damages
resulting from removal or repossession of the Collateral. Except for gross
negligence or willful misconduct by FINOVA or FINOVA's agents we may use,
ship, store, repair or lease any Collateral that we repossess. We may sell
any repossessed Collateral at private or public sale. You give us
permission to show the Collateral to buyers at your location free of charge
during normal business hours. If we do this, we do not have to remove the
Collateral from your location. If we repossess the Collateral and sell it,
we will give you credit for the net sale price, after subtracting our costs
of repossessing and selling the Collateral. If we rent the Collateral to
somebody else, we will give you credit for the net rent received, after
subtracting our costs of repossessing and renting the Collateral, but the
credit will be discounted to present value using a discount rate equal
to the Default Rate. The credit will be applied against what you owe us
under this Master Agreement, the Schedules, the Notes and any other
agreements, loans or leases that you have with us. If the credit exceeds
the amount you owe under this Master Agreement, the Schedule, the Notes
and any other agreements, loans or leases that you have with us, we will
refund the amount of the excess to you.
- Return conditions: Following an Event of Default, at our request you will
return the Collateral, freight and insurance prepaid by you, to us at a
location we request in the Continental United States of America. It will be
returned in good operating condition, as required by Section 5 above. The
Collateral will not be subject to any liens when it is returned. All
advertising insignia will be removed and the finish will be painted or
blended so that nobody can see that advertising insignia used to be there.
* You will pack or crate the Collateral for shipping in the original
containers, or comparable ones. You will do this carefully and follow all
recommendations of the Supplier and the Manufacturer as to packing or
crating.
* You will also return to us the plans, specifications, operating manuals,
software documentation, discs, warranties and other documents furnished by
the Manufacturer or Supplier. You will also return to us all service logs
and service reports, as well as all written materials that you may have
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concerning the maintenance and operation of the Collateral.
* At our request, you will provide us with up to 60 days free storage of the
Collateral at your location provided that Borrower is still in possession
or control of the space, and will let us (or our agent) have access to the
Collateral in order to inspect it and sell it.
* You will pay us what it costs us to repair the Collateral if you do not
return it in the required condition.
You will also pay us for the following:
- All our expenses of enforcing our remedies. This includes all our expenses
to repossess, store, ship, repair and sell the Collateral.
- Our reasonable attorney's fees and expenses.
- Default interest on everything you owe us from the date of your default to
the date on which we are paid in full at the Default Rate.
You realize that the damages we could suffer as a result of your default are
very uncertain. This is why we have agreed with you in advance on the Default
Rate to be used in calculating the payments you will owe us if you default.
You agree that, for these reasons, the payments you will owe us if you
default are "agreed" or "liquidated" damages. You understand that these
payments are not "penalties" or "forfeitures."
LATE FEES. You will pay us a late fee whenever you pay any amount that you
owe us more than ten (10) days after it is due. You will pay the late fee
within one month after the late Payment was originally due. The late fee will
be ten (10%) percent of the late Payment. If this exceeds the highest legal
amount we can charge you, you will only be required to pay the highest legal
amount. The late fee is intended to reimburse us for our collection costs
that are caused by late Payment. It is charged in addition to all other
amounts you are required to pay us, including Default Interest.
7. EXPENSES AND INDEMNITIES
PERFORMING YOUR OBLIGATIONS IF YOU DO NOT
If you do not perform one or more of your obligations under this Master
Agreement or a Schedule or Note, we may perform it for you. We will notify
you in writing at least ten (10) days before we do this. We do not have to
perform any of your obligations for you. If we do choose to perform them, you
will pay us all of our expenses to perform the obligations. You will also
reimburse us for any money that we advance to perform your obligations,
together with interest at the Default Rate on that amount. These will be
additional "Payments" that you will owe us and you will pay them at the same
time that your next Payment is due.
- You will indemnify us, defend us and hold us harmless for any and all
claims, expenses and attorney's fees concerning or arising from the
Collateral, this Master Agreement, or any Schedule or Note, or your breach
of any representation or warranty. It includes any claims concerning the
manufacture, selection, delivery, possession, use, operation or return of
the Collateral.
- This obligation of yours to indemnify us continues even after the Term is
over.
8. MISCELLANEOUS
WE MAY ASSIGN OR GRANT A SECURITY INTEREST IN THIS AGREEMENT, ANY SCHEDULE,
ANY NOTE OR ANY PAYMENTS WITHOUT YOUR PERMISSION. THE PERSON TO WHOM WE
ASSIGN IS CALLED THE "ASSIGNEE." THE ASSIGNEE WILL NOT HAVE ANY OF OUR
OBLIGATIONS UNDER THIS MASTER AGREEMENT. YOU WILL NOT BE ABLE TO RAISE ANY
DEFENSE,
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COUNTERCLAIM OR OFFSET AGAINST THE ASSIGNEE. NOTWITHSTANDING ANY SUCH
ASSIGNMENT OR GRANTING OF A SECURITY INTEREST, WE WILL CONTINUE TO BE
LIABLE FOR ALL OF OUR OBLIGATIONS UNDER THIS MASTER AGREEMENT.
AFTER ASSIGNMENT YOU MAY "QUIETLY ENJOY" THE USE OF THE COLLATERAL SO LONG AS
YOU ARE NOT IN DEFAULT.
UNLESS YOU RECEIVE OUR WRITTEN PERMISSION, YOU MAY NOT ASSIGN OR TRANSFER
YOUR RIGHTS UNDER THIS MASTER AGREEMENT OR ANY SCHEDULE. YOU ALSO ARE NOT
ALLOWED TO LEASE OR RENT THE COLLATERAL OR LET ANYBODY ELSE USE IT UNLESS WE
GIVE YOU OUR WRITTEN PERMISSION, PROVIDED, HOWEVER, SO LONG AS YOU ARE NOT IN
DEFAULT HEREUNDER OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT
EXECUTED IN CONNECTION HEREWITH OR BETWEEN US, YOU MAY LEASE, RENT AND PERMIT
OTHERS TO USE THE COLLATERAL, PROVIDED THAT (i) YOU SHALL HAVE GIVEN US NOT
LESS THAN THIRTY (30) DAYS PRIOR WRITTEN NOTICE THEREOF, WHICH NOTICE SHALL
INCLUDE THE NAME AND ADDRESS OF THE USER AND THE AMOUNT YOU WILL BE PAID FOR
THE USE AND SUCH OTHER INFORMATION AS WE SHALL DEEM NECESSARY, (ii) THE
COLLATERAL SHALL ONLY BE USED AT THE PREMISES SET FORTH ON THE SCHEDULE AND
SHALL NOT BE REMOVED THEREFROM, (iii) THE EQUIPMENT SHALL BE USED BY
EMPLOYEES OF THE USER PROPERLY TRAINED IN THE OPERATION OF THE EQUIPMENT,
(iv) YOU SHALL HAVE DELIVERED TO US EVIDENCE THAT YOUR INSURANCE CONTINUES IN
FORCE AND COVERAGE, NOTWITHSTANDING THAT SUCH USER IS OPERATING THE
EQUIPMENT, AND (v) YOU SHALL HAVE DELIVERED TO US EVIDENCE THAT SUCH USER HAS
OBTAINED SUCH INSURANCE OF SUCH TYPES, AMOUNTS AND ISSUED BY SUCH INSURANCE
COMPANIES COVERING ITS USE AND OPERATION OF THE EQUIPMENT, AS WE SHALL
REQUIRE, IN OUR SOLE DISCRETION, INCLUDING, WITHOUT LIMITATION, CASUALTY,
LIABILITY AND WORKERS' COMPENSATION, AND WE SHALL BE NAMED AS LENDERS LOSS
PAYABLE AND ADDITIONAL INSURED WITH RESPECT TO SUCH INSURANCE.
WE DID NOT MANUFACTURE OR SUPPLY THE COLLATERAL. WE ARE NOT A DEALER IN THE
COLLATERAL. INSTEAD, YOU CHOSE THE COLLATERAL.
WE DO NOT MAKE ANY WARRANTY AS TO THE COLLATERAL. WE DO NOT MAKE ANY WARRANTY
AS TO "MERCHANTABILITY" OR "SUITABILITY" OR "FITNESS FOR A PARTICULAR
PURPOSE" OR "NONINFRINGEMENT" OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL
PROPERTY RIGHT.
WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR INJURY TO YOU OR ANYBODY
ELSE AS A RESULT OF ANY DEFECTS, HIDDEN OR OTHERWISE, IN THE COLLATERAL UNDER
"STRICT LIABILITY" LAWS OR ANY OTHER LAWS.
WE WILL NOT BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, LOSS OF PROFITS OR GOODWILL.
If the Collateral is unsatisfactory, you will continue to pay us all Payments
and other amounts you are required to pay us. You must seek repair or
replacement of the equipment solely from the Manufacturer or Supplier and not
from us. Neither the Manufacturer nor the Supplier is our "agent," so they
cannot speak for us and they are not allowed to make any changes in this
Master Agreement or any Schedule or Note, or give up any of our rights.
10
ACCEPTANCE BY FINOVA, GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF PROCESS,
WAIVER OF JURY TRIAL.
THIS MASTER AGREEMENT WILL ONLY BE BINDING WHEN WE HAVE ACCEPTED IT IN
WRITING.
THIS MASTER AGREEMENT IS GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF
ARIZONA (NOT INCLUDING THE "CHOICE OF LAW" DOCTRINE), THE STATE IN WHICH OUR
OFFICE IS LOCATED IN WHICH FINAL APPROVAL OF THE TERMS OR CONDITIONS OF THIS
MASTER AGREEMENT OCCURRED AND FROM WHICH DISBURSEMENT OF THE LOAN PROCEEDS
WILL BE ORDERED. HOWEVER, IF THIS MASTER AGREEMENT IS UNENFORCEABLE UNDER
ARIZONA LAW, IT WILL INSTEAD BE GOVERNED BY THE LAWS OF THE STATE IN WHICH
THE COLLATERAL IS LOCATED.
YOU MAY ONLY ▇▇▇ US IN A FEDERAL OR STATE COURT THAT IS LOCATED IN MARICOPA
COUNTY, ARIZONA. THIS APPLIES TO ALL LAWSUITS UNDER ALL LEGAL THEORIES,
INCLUDING CONTRACT, TORT AND STRICT LIABILITY. YOU CONSENT TO THE PERSONAL
JURISDICTION OF THESE ARIZONA COURTS. YOU WILL NOT CLAIM THAT MARICOPA
COUNTY, ARIZONA, IS AN "INCONVENIENT FORUM" OR THAT IT IS NOT A PROPER "VENUE".
WE MAY ▇▇▇ YOU IN ANY COURT THAT HAS JURISDICTION. WE MAY SERVE YOU WITH
PROCESS IN A LAWSUIT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO YOUR
ADDRESS INDICATED AFTER YOUR SIGNATURE BELOW.
YOU AND WE EACH WAIVE ANY RIGHT YOU OR WE MAY HAVE TO A JURY TRIAL IN ANY
LAWSUIT BETWEEN YOU AND US.
NOTICES. We may give you written notice in person, by mail, by overnight
delivery service, or by fax. Notice will be sent to your address below your
signature. Mail notice will be effective three (3) days after we mail it with
prepaid postage to the address stated. Overnight delivery notice requires a
receipt and tracking number. Fax notice requires a receipt from the sending
machine showing that it has been sent to your fax number and received.
You may give us notice the same way the we may give you notice.
The Master Agreement benefits our successors and assigns. This Master
Agreement benefits only those successors and assigns of yours that we have
approved in writing.
This Master Agreement binds you successors and assigns. This Master Agreement
binds only those successors and assigns of ours that clearly assume our
obligations in writing.
TIME IS OF THE ESSENCE OF THIS MASTER AGREEMENT
This Master Agreement, all of the Schedules and the Notes and the Commitment
Letter are together the entire agreement between you and us concerning the
Collateral.
Only an employee of FINOVA who is authorized by corporate resolution or policy
may modify or amend this Loan or any Schedule or Note on our behalf, and this
must be in writing. Only he or she may give up any of our rights, and this
must be in writing. If more than one person is the Borrower under this Master
Agreement, then each of you is jointly and severally liable for your
obligations under this Master Agreement.
This Master Agreement is only for your benefit and for our benefit, as well
as our successors
-11-
and assigns. It is not intended to benefit any other person.
If any provision in this Master Agreement is unenforceable, then that
provision must be deleted. Only unenforceable provisions are to be deleted.
The rest of this Master Agreement will remain as written.
PUBLICITY. We may make press releases and publish a tombstone announcing this
transaction and its total amount with your prior written consent which shall
not be unreasonably withheld. You may publicize this transaction without
prior written consent.
LENDER: BORROWER:
FINOVA CAPITAL CORPORATION SILICON LABORATORIES INC.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
PRINTED NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ PRINTED NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: DIRECTOR - CONTRACT ADMINISTRATION TITLE: CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
Taxpayer ID# ▇▇-▇▇▇▇▇▇▇
FAX NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇ FAX NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
DATE ACCEPTED: June 10, 1999 DATED: JUNE 8, ▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ OF ▇▇▇▇▇▇
I acknowledge that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, who stated that he/she is CHAIRMAN AND
CHIEF EXECUTIVE OFFICER of the Borrower named above, signed this Master Loan
and Security Agreement in my presence today: June 8, 1999. He/She acknowledged
to me that his/her signature on this Master Loan and Security Agreement was
authorized by a valid resolution or other valid authorization from Borrower's
board of directors or other governing body.
[SEAL] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Notary Public
-13-
EXHIBIT A
PREPAYMENT PREMIUM
The Prepayment Premium shall be determined by multiplying the outstanding
principal balance by the percentage amount shown below which corresponds with
the month during the Term in which the prepayment occurs:
MONTH OF THE TERM PERCENTAGE AMOUNT
1 THROUGH 22 No Prepayment Allowed
23 THROUGH 36 4%
37 THROUGH 45 2%
-14-
LANDLORD'S WAIVER
This Landlord's waiver is made by the person identified below ("you" or
"Landlord") for FINOVA Capital Corporation ("we," "us" or "FINOVA").
You are the owner of real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇. You have entered into a lease for all or part of this property (the
"Premises") with Silicon Laboratories Inc. (the "Tenant").
We will be financing to Tenant personal property, which may be machinery,
equipment, furniture or fixtures. This personal property may be financed now
or in the future. We may be filing Uniform Commercial Code financing
statements to protect our interest in this personal property, as well as in
any proceeds from the property. This personal property and its proceeds are
referred to as the "Equipment." The Equipment will be located at the Premises.
We would not finance the Equipment to Tenant without this Landlord's Waiver.
You are benefiting from our leasing the Equipment to Tenant because the
Equipment will be used in Tenant's business. Revenues from Tenant's business
can be used by Tenant to pay you rent for the Premises. You intend to be
legally bound by this Landlord's Waiver.
1. WAIVER.
You acknowledge that you do not own the Equipment. You have no right or
interest in the Equipment. You waive any right under law to any lien on the
Equipment. You waive any right you may have under law or under your lease
with Tenant to levy on the Equipment or distrain the Equipment. You waive any
right to make any claim with respect to the Equipment.
2. PERSONAL PROPERTY.
The Equipment will remain personal property, even if it is attached to your
real estate.
3. REMOVAL OR SALE BY FINOVA
We may remove the Equipment from the Premises. You will not prevent or hinder
us from doing this. We will have no liability to you for this except for the
cost to repair damage actually caused by us to the Premises by removal. If
you have not re-let the Premises to somebody other than Tenant, we may sell
the Equipment from the Premises without having to pay rent.
4. SUCCESSORS AND ASSIGNS.
This Landlord's Waiver is binding upon and benefits your successors and
assigns (including any of your heirs or personal representatives) and our
successors and assigns.
LANDLORD: /s/ ▇. ▇. ▇▇▇▇▇▇ Office Ltd.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Title: Partner
Date: June 8, 1999
ACCEPTED AND AGREED TO:
FINOVA CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: DIRECTOR - CONTRACT ADMINISTRATION
Date: 6/10/99
TECHNOLOGY FINANCE (logo)
November 5, 1999 FINOVA CAPITAL CORPORATION
TECHNOLOGY FINANCE
Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Silicon Laboratories, Inc. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ TEL ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ FAX ▇▇▇ ▇▇▇ ▇▇▇▇
RE: Commitment Letter dated April 14, 1999
Dear ▇▇. ▇▇▇▇▇▇▇▇:
Silicon Laboratories, Inc. ("Borrower") and FINOVA Capital Corporation
("Lender") hereby amend the above referenced Commitment Letter. The language
below replaces the language in the Commitment Letter specific to the sections
listed below.
ANTICIPATED DELIVERY: June 30, 1999 through November 30, 1999.
CLOSING DATE: The date on which all conditions to the Loan
are satisfied by the Borrower and the Loan
proceeds are disbursed to the Borrower or to
other Persons at the Borrower's direction. Each
Loan shall have a principal amount of not less
than $200,000 secured by delivered and accepted
Collateral, but no later than three months
after in-service date. No Closing Dates shall
occur after November 30, 1999.
All other terms and conditions of the Commitment Letter dated April 14, 1999
shall remain in full force and effect.
Sincerely,
Agreed to by:
FINOVA CAPITAL CORPORATION SILICON LABORATORIES INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President--Credit Chief Financial Officer
[LOGO]
FINANCIAL INNOVATORS
TECHNOLOGY FINANCE
FINOVA CAPITAL CORPORATION
TECHNOLOGY FINANCE
November 5, 1999
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer TEL ▇▇▇ ▇▇▇ ▇▇▇▇
Silicon Laboratories, Inc. FAX ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇:
FINOVA Capital Corporation ("we" or "Lender") is pleased to enter into the
following transaction with Silicon Laboratories, Inc. ("you" or "Borrower")
on the terms and conditions hereinafter set forth.
The outline of this Commitment is as follows:
BORROWER: Silicon Laboratories, Inc.
LENDER: FINOVA Capital Corporation
TERM OF LOANS: Each Loan shall have a term until payment in
full of fifty-three (53) consecutive months from
the thirtieth day of the month coincident with
or (as the case may be) the month next following
the making of the Loan.
FACILITY: A $2,500,000 line of credit. Subject to the
terms of the Loan Documents (as hereinafter
defined), we will from time to time make loans
to you under the Facility (each, a "Loan" and
collectively, the "Loans"). Once a Loan is made,
it cannot be reborrowed. Each Loan shall be
evidenced by a separate promissory note in form
and substance satisfactory to Lender.
PURPOSE OF LOANS: For the acquisition of one (1) new 100LC Analog
Teradyne mixed signal tester with bolt-on
handlers, two multitest quad site handlers, one
ATM lead conditioner, two tape and reel
inspection systems, CAD software and leasehold
improvements. Lender will finance soft costs in
amounts not in excess of twenty (20%) percent of
the aggregate principal amount of the Loans
outstanding at any time. Such soft costs to
include, but not be limited to leasehold
improvements (up to maximum of $125,000),
delivery, installation, sales tax and software.
All items financed with the proceeds of the Loan
are subject to final review and acceptance by
the Lender.
COLLATERAL: The due payment and performance of all of
Borrower's present and future obligations to
Lender, with the exception of CAD software and
leasehold improvements, shall be secured by a
first and only perfected lien on and security
interest in and to all items financed with the
proceeds of a Loan, and all replacements,
substitutions, accessions and additions thereto,
and all proceeds thereof
1
[LOGO]
FINANCIAL INNOVATORS
(including, without limitation, proceeds of
insurance). Each Loan shall be cross
collateralized.
COLLATERAL LOCATION: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ANTICIPATED DELIVERY: November 1999 through December 31, 1999
CLOSING DATE: The date on which all conditions to a Loan are
satisfied by the Borrower and the Loan proceeds
are disbursed to the Borrower or to other
Persons at the borrower's direction, but no
later than 3 months after delivery of
Collateral. Each Loan shall have a principal
amount of not less than $200,000 secured by all
Collateral. No Closing Dates shall occur after
December 31, 1999.
MONTHLY PAYMENTS: Each Loan shall be paid in fifty-three (53)
consecutive installments of principal and
interest. Each of the first eighteen (18)
Monthly Payments shall be in an amount equal to
2.0% of the principal amount of the Loan. Each
of the next thirty-four (34) Monthly Payments
shall be in an amount equal to 2.3% of the
principal amount of the Loan and the final
fifty-third (53rd) Monthly Payment shall be in
an amount equal to twenty (20%) percent of the
principal amount of the Loan. All payments are
payable in advance and the first Monthly Payment
applicable to a Loan shall be payable on the
Closing Date of such Loan and shall be withheld
by the Lender from the Loan proceeds disbursed
by the Lender.
ADJUSTMENT TO
MONTHLY PAYMENTS: If, on the second business day preceding the
Closing Date for each Loan the highest yield for
four-year U.S. Treasury Notes as published in
THE WALL STREET JOURNAL on such date is greater
or less than the yield as published on October
4, 1999, the Monthly Payments shall be increased
or decreased (point for point) to reflect such
change in the yield. The yield as of October 4,
1999 was 6.05%. As of the Closing Date, the
Monthly Payments with respect to the applicable
Loan being made shall be fixed for the entire
Term.
INTERIM PAYMENTS: If the date we make the Loan to you is not the
thirtieth (30th) or the thirty-first (31st) day
of the month, you will pay, on the thirtieth
(30th) day of the month in which we make the
Loan to you, interest only, at the applicable
adjusted interest rate, from the date we make
the Loan to you to the twenty-ninth (29th) day
of the same month. If the date we make the Loan
to you is the thirty-first (31st), you will pay
interest at the applicable adjusted interest
rate, from the date we make the Loan to you to
the twenty-ninth (29th) day of the next
following month. The interim payment (as well as
the first Monthly Payment) shall be payable on
the Closing Date and shall be withheld by the
Lender from the Loan proceeds disbursed by the
Lender.
INSURANCE: Borrower shall, at its own expense, maintain and
deliver evidence to Lender of such insurance
required by Lender, written by insurers and in
amounts satisfactory to Lender.
2
[LOGO]
FINANCIAL INNOVATORS
LOAN PROVISIONS
AND COVENANTS: All documentation shall be prepared and reviewed
by us or our counsel and shall be in form and
substance satisfactory to us and our counsel in
our and our counsel's sole and absolute
discretion, and shall include, without
limitation, a promissory note (and related
schedule) for each Loan, a master loan and
security agreement, environmental certificate
and indemnity agreement, opinion of outside
counsel, financing statements, releases, waivers
and consents (including, but not limited to,
landlord's and mortgagee's waivers), corporate
resolutions and incumbencies, insurance letter,
insurance certificates and copies of insurance
policies, and such other documents as we and our
counsel deem appropriate in our or their sole
discretion (collectively, the "Loan Documents").
The Loan Documents contemplated hereby shall
contain such conditions, representations,
warranties, covenants, events of default
(including, without limitation, cross default
provisions), remedies, and other terms and
provisions as are customarily required by
lenders in transactions of this type or as the
parties shall agree.
ADDITIONAL COVENANTS: There shall be no actual or threatened conflict
with, or violation of, any regulatory statute,
standard or rule relating to the Borrower, its
present or future operations, or the Collateral.
All information supplied by the Borrower shall
be correct and shall not omit any statement
necessary to make the information supplied not
be misleading. There shall be no material breach
of the representations and warranties of the
Borrower in the Loan Agreement. The
representations shall include that the Cost of
each item of the Collateral does not exceed the
fair and usual price for like quantity
purchases of such item. The master loan and
security agreement shall also contain the
following covenant.
FINANCIAL REPORTING. During the period of the
Commitment and while any Loan is outstanding,
Borrower shall deliver to Lender or cause to be
delivered to Lender the Borrower's quarterly
financial statements within 45 days following
the end of each respective fiscal quarter and
annual financial statements within 90 days
following the end of each respective fiscal
year. All annual financial statements shall be
prepared in accordance with generally accepted
accounting principles ("GAAP") and be audited by
a reputable firm of certified public accountants
acceptable to Lender, and shall be accompanied
by a certificate executed by such certified
public accountants to the effect that the
Borrower has complied with all covenants
contained in the Loan Documents and there are no
events of default thereunder ("Compliance
Certificate"). All quarterly financial
statements may be internally prepared in
accordance with GAAP, and accompanied by a
Compliance Certificate executed by the Borrower's
Chief Financial Officer.
3
[LOGO]
FEES AND EXPENSES: The Borrower shall be responsible for the
Lender's reasonable fees and out-of-pocket
expenses in connection with the transaction,
including the expenses of counsel to prepare
and review the documentation. Fees and
expenses related to the closing of this
transaction will be limited to $1,500 with
Lender providing notice to Borrower when $500
in costs have been incurred.
This Commitment and the Closing of each Loan contemplated herein are subject,
amongst other things, to receipt by us, in form and substance satisfactory to
us and our counsel, at or prior to Closing, of:
(i) all documentation and other requirements set forth herein
including but not limited to the Loan Documents and other
requirements set forth herein and as may be required by our
counsel; and
(ii) our receipt, in form and substance satisfactory to us, of all
financial and credit information requested by us, which reflects
no material adverse change in your condition, business,
financial or otherwise; and
(iii) evidence that the Collateral is owned by you, free and clear of
all liens and encumbrances; and
(iv) evidence of such insurance required by us, written by insurers
and in amounts satisfactory to us; and
(v) such opinions of your outside counsel, certificates, waivers,
releases, Uniform Commercial Code Financing Statements, due
diligence searches, and further documents as may be required by
us or our counsel; and
(vi) evidence that no payment is past due to the Lender from the
Borrower, whether as a borrower, a lessee, a guarantor or in
some other capacity and that there be no default under any
agreement, instrument or document between the Lender and the
Borrower (including, without limitation, the Loan Documents); and
(vii) evidence that the Borrower is in compliance with the provisions
of this Commitment; and
(viii) our receipt of evidence satisfactory to us, in our sole
discretion that the subject transaction is environmentally
acceptable. We shall have the right to require you to retain the
services of a firm acceptable to us and knowledgeable in
environmental matters to perform environmental investigations
of the Collateral and real property owned, operated or occupied
by you (including, without limitation, the Collateral Location)
and the surrounding areas. Such investigation may include, but
not be limited to, soil and ground water testing to fully
identify the scope of any environmental issues impacting the
transaction (including Phase I and/or Phase II environmental
reports). The scope and results of such investigations must be
satisfactory to us, in our sole discretion.
4
[LOGO]
In addition to all other conditions and requirements set forth herein, this
Commitment and the closing of each Loan contemplated hereunder shall be
subject, in our sole judgment, that there be no material adverse change in
your financial, business or other condition. This Commitment is not
assignable without our prior written consent. We reserve the right to cancel
this Commitment in the event you or any of your officers, employees, agents
or representatives has made any misrepresentation to us or has withheld any
information from us with regard to the transaction contemplated hereby.
As used in this Commitment the terms "satisfactory to us" or "acceptable to
us" or "satisfactory to our counsel" or "acceptable to our counsel" or terms
of similar import mean satisfactory or acceptable to us or our counsel in our
or its sole judgment and discretion.
This Commitment and the Loan Documents shall be governed by the laws of the
State of Arizona. Any dispute arising under this Commitment shall be
litigated by you only in any federal or state court located in the State of
Arizona, or any state court located in Maricopa County, Arizona; and you
hereby irrevocably submit to the personal jurisdiction of such courts and
waive any objection that may exist as to venue or convenience of such forums.
Nothing contained herein shall preclude us from commencing any action in
any court having jurisdiction thereof.
In the event that the Loans do not close prior to January 1, 2000 because of
your failure to satisfy the conditions for the closing, or because of a
material adverse change in your financial, business or other condition, this
Commitment shall terminate and we shall have no liability to you and we shall
retain, as earned, the Commitment Fee.
In the event we fail to complete this transaction and such failure is not
because of your inability to satisfy all the conditions for closing or a
material adverse change in your financial, business or other condition, our
liability shall be limited to a return of the Commitment Fee, less Fees and
Expenses due hereunder.
Please execute the copy of this letter acknowledging your acceptance of the
terms hereof and return it to us. If a copy of this Commitment is not
executed and returned by you on or before November 19, 1999, this Commitment
shall be deemed withdrawn.
Sincerely,
FINOVA CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Accepted this 18th day of November, 1999
SILICON LABORATORIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
5
SCHEDULE NO. S7270001 TO
MASTER LOAN AND SECURITY AGREEMENT
Schedule No. 1, dated June 9, 1999, (this "Schedule") to MASTER LOAN AND
SECURITY AGREEMENT dated as of April 22, 1999 (the "Master Agreement")
between SILICON LABORATORIES INC, a Delaware corporation with its executive
office and principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("you"), and FINOVA CAPITAL CORPORATION, a Delaware corporation with a place
of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("we,"
"us", or "FINOVA").
1. OBLIGATION TO PAY. You are presently borrowing of One-Million Two
Hundred Fifteen Thousand, Seven Hundred Ninety-Six and 61/00 Dollars
($1,215,796.61) from us. This borrowing is evidenced by your promissory note
dated the same date as this Schedule in the amount of $1,215,796.61 (the
"Note") to which this Schedule is attached.
2. PAYMENTS (SUBJECT TO ADJUSTMENT IN PARAGRAPH 3). You will repay the Loan,
together with interest at the interest rate, in forty-six (46) consecutive
monthly payments of principal and interest as follows: forty-five (45) monthly
payments each in the amount of $30,151.75, followed by one (1) final monthly
payment in the amount of $243,159.32 (the "Final Payment"). These payments
will be adjusted two business days prior to the date we make the Loan to you
as set forth in Paragraph 3.
The first monthly payment of principal and interest will be due on the
thirtieth (30th) day of the month that we make the Loan to you. The remaining
payments will continue on the same day in each and every month thereafter
through and including the date upon which the Final Payment is scheduled to
be due (the "Maturity Date"). Any remaining amount that you owe us is due on
the "Maturity Date."
If the date we make the Loan to you is not the thirtieth (30th) or the
thirty-first (31st) day of the month, you will pay, on the thirtieth (30th)
day of the month in which we make the Loan to you (in the case of making the
Loan the 30th), interest only, at the interest rate, from the date we make
the Loan to you to the twenty-ninth (29th) day of the same month.
If the date we make the Loan to you is the thirty-first (31st), you will pay
interest at the interest rate, from the date we make the Loan to you to the
twenty-ninth (29th) day of the next following month.
3. RATE FACTOR: INTEREST: INDEXING. The Loan Rate Factor for the first 45
consecutive monthly payments of principal and interest is equal to 2.48% of
the principal amount of the Loan, subject to an increase or decrease in the
interest rate. The interest rate in your payments shown above is calculated
at your regular rate of 8.51% per annum plus an "Index Rate," of 5.13%. The
Index Rate means the highest yield, as published in THE WALL STREET JOURNAL
of four-year United States Treasury Notes. Two-business days prior to the
date we make the Loan to you, we
will read THE WALL STREET JOURNAL to determine the final Index Rate. If the
Index Rate is not published in THE WALL STREET JOURNAL, we will determine it
from another reliable source. We will increase or decrease the payments set
forth above in Paragraph 2 to reflect any increase or decrease in the Index
Rate. We will give you notice of any increase or decrease as soon as we can.
You will pay the increased payments unless we have made an obvious mistake in
our calculations. Interest is calculated in advance using a 360-day year of
twelve 30-day months.
4. PURPOSE OF LOAN: SECURITY INTEREST. You are making this borrowing to
finance (or refinance) your purchase of the collateral described in the
attached Schedule A to this Schedule, which you and we refer to as the
"Collateral." You grant us a security interest in the Collateral, as well as
any additions, omissions, substitutions and proceeds of the Collateral. This
security interest secures the Note. It also secures the full and timely
payment and performance of all of your other obligations to us under the
Master Agreement and any other agreement, loan or lease that you may have
with us.
5. COLLATERAL ACCEPTANCE DATE. The Collateral shall be delivered, installed
and accepted no later than October 30, 1999.
6. TERMS OF MASTER AGREEMENT. The terms of the Master Agreement are made a
part of this Schedule as if repeated in this Schedule. Any declaration of
default under the Master Agreement is a default under this Schedule and
permits us to exercise all remedies provided by the Master Agreement.
SILICON LABORATORIES INC. ATTEST:
[SEAL]
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- ---------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Secretary
----------------
Title CHAIRMAN AND CHIEF EXECUTIVE OFFICER
------------------------------------
Date JUNE 9, 1999
------------
PROMISSORY NOTE
NO. S7270001
$1,215,796.61 June 9, 1999
SILICON LABORATORIES INC. ("you") promise to pay to the order of FINOVA
CAPITAL CORPORATION ("we," "us" or "FINOVA") the principal amount of
One-Million Two Hundred Fifteen Thousand, Seven Hundred Ninety-Six and 61/00
Dollars ($1,215,796.61), together with interest on the unpaid principal
balance at the interest rate per annum and on the dates and as otherwise
provided in the "Master Agreement" and "Schedule" referred to below.
If the interest rate charged would exceed the maximum legal rate, you will
only have to pay the maximum legal rate. You do not have to pay any excess
interest over and above the maximum legal rate of interest. However, if it
later becomes legal for you to pay all or part of any excess interest, you
will then pay it to us upon our request.
You will make all payments in US Dollars at our offices at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or to another address that we
request in writing. All payments will be made in immediately available funds.
This Note is secured by a Master Loan and Security Agreement dated April 22,
1999 (the "Master Agreement"), between you and FINOVA, and by the Collateral
and other collateral listed in the attached Schedule (the "Schedule"), dated
the same date as this Note. This Note may be accelerated by us upon a payment
default or upon another default under the Master Agreement.
TIME IS OF THE ESSENCE.
If you do not make a payment within ten (10) days of when it is due, you will
also pay us a late charge of ten (10%) of the amount past due. Your interest
rate will be increased by 4% per annum, over and above your regular interest
rate if payment is not made at the scheduled or accelerated Maturity of this
Note. You will also pay all of our costs of collection, including our
reasonable attorney's fees and expenses. If we accelerate this Note, you will
also owe a prepayment premium, as set forth in Exhibit A to the Master
Agreement.
You waive diligence, presentment, formalities of demand, protest or dishonor
as to this Note.
THIS NOTE IS GOVERNED BY THE SUBSTANTIVE LAWS (AND NOT THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ARIZONA, THE STATE IN WHICH OUR OFFICE IS LOCATED
IN WHICH FINAL APPROVAL OF THE TERMS AND CONDITIONS OF THIS NOTE OCCURRED AND
FROM WHICH THE ORDER TO PAY THE LOAN FUNDS WAS MADE. YOU CONSENT TO THE
JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN THE STATE OF ARIZONA.
YOU WAIVE TRIAL BY JURY.
You represent to us that the proceeds of the loan evidenced by this Note are
being used to finance (or refinance) your purchase of the Collateral
described in the Schedule, and that the Collateral will only be used for
business purposes.
SILICON LABORATORIES INC. ATTEST:
[SEAL]
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Title Chairman and Chief Executive Officer
------------------------------------
Date June 9, 1999 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------ --------------------
Secretary
FTF PROMISSORY NOTE & SCHEDULE
SCHEDULE NO. S7270002 TO
MASTER LOAN AND SECURITY AGREEMENT
Schedule No. 2, dated November 8, 1999, (this "Schedule") to MASTER LOAN AND
SECURITY AGREEMENT dated as of April 22, 1999 (the "Master Agreement")
between SILICON LABORATORIES INC, a Delaware corporation with its executive
office and principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("you"), and FINOVA CAPITAL CORPORATION, a Delaware corporation with a place
of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("we,"
"us", or "FINOVA").
1. OBLIGATION TO PAY. You are presently borrowing of Seven Hundred
Sixty-Four Thousand Five Hundred Sixty-One and 60/00 Dollars ($764,561.60)
from us. This borrowing is evidenced by your promissory note dated the same
date as this Schedule in the amount of $764,561.60 (the "Note") to which this
Schedule is attached.
2. PAYMENTS (SUBJECT TO ADJUSTMENT IN PARAGRAPH 3). You will repay the Loan,
together with interest rate, in forty-six (46) consecutive monthly payments
of principal and interest as follows: forty-five (45) monthly payments each
in the amount of $18,961.13, followed monthly payment in the amount of
$152,912.32 (the "Final Payment"). These payments will be adjusted two
business days prior to the date we make the Loan to you as set forth in
Paragraph 3.
The first monthly payment of principal and interest will be due on the
thirtieth (30th) day of the month that we make the Loan to you. The remaining
payments will continue on the same day in each and every month thereafter
through and including the date upon which the Final Payment is scheduled to
be due (the "Maturity Date"). Any remaining amount that you owe us is due on
the "Maturity Date."
If the date we make the Loan to you is not the thirtieth (30th) or the
thirty-first (31st) day of the month, you will pay, on the thirtieth (30th)
day of the month in which we make the Loan to you (in the case of making the
Loan the 30th), interest only, at the interest rate, from the date we make
the Loan to you to the twenty-ninth (29th) day of the same month.
If the date we make the Loan to you is the thirty-first (31st), you will pay
interest at the interest rate, from the date we make the Loan to you to the
twenty-ninth (29th) day of the next following month.
3. RATE FACTOR; INTEREST; INDEXING. The Loan Rate Factor for the first 45
consecutive monthly payments of principal and interest is equal to 2.48% of
the principal amount of the Loan, subject to any increase or decrease in the
interest rate. The interest rate in your payments shown above is calculated
at your regular rate of 8.51% per annum plus an "Index Rate," of 5.13%. The
Index Rate means the highest yield, as published in THE WALL STREET JOURNAL
of four
- year United States Treasury Notes. Two-business days prior to the
date we make the Loan to you, we will read THE WALL STREET JOURNAL to
determine the final Index Rate. If the Index Rate is not published in THE
WALL STREET JOURNAL, we will determine it from another reliable source. We
will increase or decrease the payments set forth above in Paragraph 2 to
reflect any increase or decrease in the Index Rate. We will give you notice
of any increase or decrease as soon as we can. You will pay the increased
payments unless we have made an obvious mistake in our calculations. Interest
is calculated in advance using a 360-day year of twelve 30-day months.
4. PURPOSE OF LOAN; SECURITY INTEREST. You are making this borrowing to
finance (or refinance) your purchase of the collateral described in the
attached Schedule A to this Schedule, which you and we refer to as the
"Collateral." You grant us a security interest in the Collateral, as well as
any additions, omissions, substitutions and proceeds of the Collateral. This
security interest secures the Note. It also secures the full and timely
payment and performance of all of your other obligations to us under the
Master Agreement and any other agreement, loan or lease that you may have
with us.
5. COLLATERAL ACCEPTANCE DATE. The Collateral shall be delivered, installed
and accepted no later than November 30, 1999.
6. TERMS OF MASTER AGREEMENT. The terms of the Master Agreement are made a
part of this Schedule as if repeated in this Schedule. Any declaration of
default under the Master Agreement is a default under this Schedule and
permits us to exercise all remedies provided by the Master Agreement.
SILICON LABORATORIES INC. ATTEST:
[SEAL]
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Title Chairman and Chief Executive Officer
------------------------------------
Date November 8, 1999 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------- --------------------
Secretary
PROMISSORY NOTE
NO. S7270002
$764,561.60 November 8, 1999
SILICON LABORATORIES INC. ("you") promise to pay to the order of FINOVA
CAPITAL CORPORATION ("we," "us" or "FINOVA") the principal amount of Seven
Hundred Sixty-Four Thousand Five Hundred Sixty-One and 60/00 Dollars
($764,561.60), together with interest on the unpaid principal balance at the
interest rate per annum and on the dates and as otherwise provided in the
"Master Agreement" and "Schedule" referred to below.
If the interest rate charged would exceed the maximum legal rate, you will
only have to pay the maximum legal rate. You do not have to pay any excess
interest over and above the maximum legal rate of interest. However, if it
later becomes legal for you to pay all or part of any excess interest, you
will then pay it to us upon our request.
You will make all payments in US Dollars at our offices at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or to another address that we
request in writing. All payments will be made in immediately available funds.
This Note is secured by a Master Loan and Security Agreement dated April 22,
1999 (the "Master Agreement"), between you and FINOVA, and by the Collateral
and other collateral listed in the attached Schedule (the "Schedule"), dated
the same date as this Note. This Note may be accelerated by us upon a payment
default or upon another default under the Master Agreement.
TIME IS OF THE ESSENCE.
If you do not make a payment within ten (10) days of when it is due, you will
also pay us a late charge of ten (10%) of the amount past due. Your interest
rate will be increased by 4% per annum, over and above your regular interest
rate if payment is not made at the scheduled or accelerated Maturity of this
Note. You will also pay all of our costs of collection, including our
reasonable attorney's fees and expenses. If we accelerate this Note, you will
also owe a prepayment premium, as set forth in Exhibit A to the Master
Agreement.
You waive diligence, presentment, formalities of demand, protest or dishonor
as to this Note.
THIS NOTE IS GOVERNED BY THE SUBSTANTIVE LAWS (AND NOT THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ARIZONA, THE STATE IN WHICH OUR OFFICE IS LOCATED
IN WHICH FINAL APPROVAL OF THE TERMS AND CONDITIONS OF THIS NOTE OCCURRED AND
FROM WHICH THE ORDER TO PAY THE LOAN FUNDS WAS MADE. YOU CONSENT TO THE
JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN THE STATE OF ARIZONA.
YOU WAIVE TRIAL BY JURY.
You represent to us that the proceeds of the loan evidenced by this Note are
being used to finance (or refinance) your purchase of the Collateral
described in the Schedule, and that the Collateral will only be used for
business purposes.
SILICON LABORATORIES INC. ATTEST:
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Title Chairman and Chief Executive Officer
------------------------------------
Date November 8, 1999 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------- --------------------
Secretary
FTF PROMISSORY NOTE & SCHEDULE