EXHIBIT 4.20
AMENDMENT NO. 3 TO LOAN AGREEMENT
This Amendment No. 3 to the Loan Agreement (this "AMENDMENT"), dated as of the
30 day of December, 2009, is made and entered into by Metalink Ltd., an Israeli
corporation (the "COMPANY"), and the Lender identified on the signature page
hereto ("LENDER" or "HOLDER").
WHEREAS, the parties have entered into a certain Loan Agreement dated as of
September 8, 2008 (as amended on December 31, 2008 and on September 6, 2009, the
"LOAN AGREEMENT");
WHEREAS, the Company is currently negotiating a certain Asset Purchase Agreement
(the "APA"), whereby it is contemplated that the Company will transfer certain
of its assets to a third party and such third party will assume certain
liabilities of the Company;
WHEREAS, the parties have agreed to amend the Loan Agreement upon the terms and
conditions of this Amendment.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS. Capitalized terms not otherwise defined in this Amendment
are used with the definitions assigned to them in the Loan Agreement.
2. EFFECTIVE DATE. This Amendment shall become effective upon the
execution of the APA, provided such execution shall occur no later
than January 31, 2010.
3. REPAYMENT. Subject to the closing of the transactions contemplated
under the APA, the Company shall repay the Lender, by wire transfer to
the bank account designated in writing by Lender on ANNEX A, a total
sum of $4,100,000 (the "REPAYMENT AMOUNT"), which will be repaid as
follows:
a. An amount of $3,750,000 will be repaid out of the non-contingent
payments due to the Company in the APA concurrently with the
closing of the transactions contemplated under the APA;
b. An amount of $100,000 will be repaid out of the non-contingent
payments due to the Company in the APA by September 30, 2010;
c. An amount of $100,000 will be repaid out of the non-contingent
payments due to the Company in the APA by December 31, 2010; and
d. An amount of $150,000 will be repaid by March 31, 2011.
4. RELEASE OF LIENS. Lender hereby acknowledges that, in order to effect
the closing of the transactions contemplated under the APA, it will
release the liens and charges created in its favor under the Loan
Agreement and shall cooperate in such regard (such as by way of
accepting a standard pay-off letter) against receipt of $3,750,000 of
the Repayment Amount.
5. FULL PAYMENT. Upon the full and timely payment of the Repayment
Amount, all of the Company's financial obligations (including any
interest) to Lender in general, and with respect to the APA in
particular, under the Transaction Documents shall be deemed fully and
forever paid and the Notes shall be deemed canceled.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
makes the representations and warranties set forth below to the Holder
as of the date of its execution of this Agreement:
a. AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by this Amendment and otherwise to
carry out its obligations hereunder. The execution and delivery
of this Amendment by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by
all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the
Company's stockholders in connection therewith. This Amendment
has been duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may
be limited by applicable law.
b. NO CONFLICTS. The execution, delivery and performance of this
Amendment by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not: (i)
conflict with or violate any provision of the Company's or any
Subsidiary's certificate or articles of incorporation, memorandum
of association, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of
the properties or assets of the Company or any Subsidiary, or
give to others any rights of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both)
of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party
or by which any property or asset of the Company or any
Subsidiary is bound or affected, or (iii) assuming the accuracy
of the representations made in Section 6A, conflict with or
result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is
subject (including federal and state and Israeli securities laws
and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse Effect.
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6A. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. The Holder hereby makes the
following representations and warranties to the Company as of the date of its
execution of this Amendment: (a) the execution and delivery of this Amendment by
it and the consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary action on its behalf, (b) this Amendment has
been duly executed and delivered by the Holder and constitutes the valid and
binding obligation of the Holder, enforceable against it in accordance with its
terms except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law, and (c) Holder, either
alone or together with its representatives, (i) has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of this Amendment and the
transactions contemplated hereunder, and has so evaluated the merits and risks
thereof, (ii) is able to bear the economic risk of this Amendment and the
transactions contemplated hereunder and, at the present time, is able to afford
a complete loss of its investment and (iii) has been given the opportunity to
ask questions of, and receive answers from, the Company concerning the business
and financial status of the Company and the transactions contemplated hereunder.
7. EFFECT ON TRANSACTION DOCUMENTS. Except as expressly set forth above,
all of the terms and conditions of the Loan Agreement, Note and
Warrants shall continue in full force and effect after the execution
of this Amendment and shall not be in any way changed, modified or
superseded by the terms set forth herein, including, but not limited
to, any other obligations the Company may have to the Holder under the
Loan Agreement, Note and Warrants. Notwithstanding the foregoing, this
Amendment shall be deemed for all purposes as an amendment to any and
all of the Loan Agreement, Note and Warrants as required to serve the
purposes hereof, and in the event of any conflict between the terms
and provisions of any other of the Loan Agreement, Note or Warrants,
on the one hand, and the terms and provisions of this Amendment, on
the other hand, the terms and provisions of this Amendment shall
prevail.
8. MISCELLANEOUS. In the event of any conflict between the terms and
provisions of any other of the Loan Agreement, Note or Warrants, on
the one hand, and the terms and provisions of this Amendment, on the
other hand, the terms and provisions of this Amendment shall prevail.
This Amendment may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same
agreement. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a ".pdf" format data file, such
signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or ".pdf" signature page
were an original thereof.
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9. ENTIRE AGREEMENT. This Amendment, together with the exhibits and
schedules hereto, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such
matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
10. AMENDMENTS AND WAIVERS. The provisions of this Amendment, including
the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and the Holder. All questions
concerning the construction, validity, enforcement and interpretation
of this Amendment shall be determined pursuant to the Governing Law
provision of the Loan Agreement.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to the
Loan Agreement to be duly executed by their respective authorized signatories as
of the date first indicated above.
Metalink Ltd. Lender
By: ________________ By:________________
Name: Name:
Title: Title:
Date: Date:
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