EXHIBIT 10.54
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: PROXIM CORPORATION
DATE: JULY 25, 2003
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between Silicon Valley
Bank ("Silicon") and the borrower named above ("Borrower"), with reference to
the following facts:
A. Silicon and the Borrower are parties to the following: the Loan and
Security Agreement between them, dated December 27, 2002 (the "Loan Agreement"),
the Accounts Receivable Financing Agreement dated June 13, 2003 (the "Accounts
Agreement"), the Temporary Overadvance Agreement dated June 23, 2003 (the
"Overadvance Agreement"), and the documents, instruments and agreements relating
thereto (with the Loan Agreement, the Accounts Agreement and the Overadvance
Agreement, collectively, the "Loan Documents").
B. The Parties agree to amend the Loan Documents, as follows.
(Capitalized terms used but not defined in this Amendment, shall have the
meanings set forth in the Loan Agreement.)
The parties agree as follows:
1. EXTENSION OF TEMPORARY OVERADVANCE AGREEMENT. Section 2(a) of the
Temporary Overadvance Agreement is amended to read as follows effective on the
date hereof:
"(a) Overadvances will be made and Overadvance LCs may be outstanding only
during the period from the date hereof to the earlier of the following
dates (the "Overadvance Maturity Date"): (i) July 31, 2003, or (ii) the
date the Borrower receives the proceeds of a $25,000,000 loan from Warburg
Pincus Private Equity VIII, L.P., as agent."
2. CONDITIONS PRECEDENT TO SECTION 3. The following are conditions
precedent to the amendments to the Loan Documents set forth in Section 3 below,
all of which shall be satisfied on or before July 31, 2003: (i) Borrower shall
receive at least $25,000,000 in cash proceeds of loans from Warburg Pincus
Private Equity VIII, L.P., as agent ("Warburg"),which are convertible into stock
of Borrower and which are otherwise on terms and conditions satisfactory to
Silicon, and (ii) Borrower shall provide Silicon with evidence of the foregoing
reasonably satisfactory to Silicon, and (iii) Borrower, Silicon and Warburg
shall enter into an Intercreditor Agreement on terms and conditions acceptable
to Silicon, which should provide (among other provisions) that Silicon consents
to the grant by the Borrower of a security interest in the Collateral to Warburg
and that the security interest OF Silicon in the Collateral shall at all
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
times have priority over the security interest of Warburg in the Collateral. If
the foregoing conditions have not been satisfied by July 31, 2003, the
amendments to the Loan Documents set forth in Section 3 below shall not be
effective.
3. ADDITIONAL AMENDMENTS TO LOAN DOCUMENTS. Effective on satisfaction
of the conditions set forth in Section 2 above by July 31, 2003, the Loan
Documents shall be amended as follows:
3.1 EXTENSION OF MATURITY DATE OF ACCOUNTS AGREEMENT. The date
"April 1, 2004" in the definition of "Facility Period" in Section 1 of the
Accounts Agreement is amended to read "July 31, 2004".
3.2 OVERADVANCE XX XXXXX. The Overadvance XX Xxxxx attached hereto
is hereby made a part of the Accounts Agreement.
3.3 FINANCIAL COVENANTS. A new Section 6.2 (O) is hereby added to
the Accounts Agreement as follows:
"(O) Financial Covenant.
(1) Borrower shall, at all times maintain Cash and Cash
Equivalents with Bank and Bank's affiliates in an amount nor less
than $8,000,000; provided that a failure to do so shall not
constitute an Event of Default hereunder if, at all times that
Borrower fails to meet said covenant Borrower has a Quick Ratio of
at least 5.0 to 1. If at any time Borrower fails to have Cash and
Cash Equivalents with Bank and Bank's affiliates in an amount not
less than $8,000,000 and fails to have a Quick Ratio of at least 5.0
to 1, the same shall constitute an Event of Default hereunder.
(2) As used herein, `Cash Equivalents' shall mean, at my
time, (a) any evidence of indebtedness with a maturity date of
ninety (90) days or less issued or directly and fully guaranteed or
insured by the United States of America of any agency or
instrumentality thereof; provided, that, the full faith and credit
of the United States of America is pledged in support thereof; (b)
certificates of deposit or bankers' acceptances with a maturity of
ninety (90) days or less of any financial institution that is a
member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $250,000,000; (c)
commercial paper (including variable rate demand notes) with a
maturity of ninety (90) days or less issued by a corporation (except
an affiliate of Borrower) organized under the laws of any State of
the United States of America or the District of Columbia and rated
at least A-l by Standard & Poor`s Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc. (`S&P') or at least P-1 by Xxxxx'x
Investors Service, Inc. (`Moody's'); (d) investments in money market
funds and mutual funds which invest substantially all of their
assets in securities of the types described in clauses (a) through
(c) above; and (e) marketable fixed income securities with a S&P
rating of AA or higher or a comparable Xxxxx'x rating.
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
(3) As used herein. `Quick Ratio' means the ratio of (i) the
total of Borrower's Cash, Cash Equivalents and Accounts which are,
in Bank's discretion, eligible for borrowing, to (ii) Borrower's
Current Liabilities. As used herein, `Current Liabilities' means
current liabilities in accordance with generally accepted accounting
principles, and all indebtedness, liabilities, guarantees and other
obligations of the Borrower to Bank, including without limitation
those relating to cash management services, letters of credit and
foreign exchange contracts."
3.4 SOQUEL LEASE. A new Section 13A is hereby added to the Accounts
Agreement as follows:
"13A. Bank consents to Borrower (i) terminating its lease of the
Soquel real property, (ii) purchasing said real property, and (iii)
in connection with said purchase, assuming a mortgage on said real
property with an unpaid balance of approximately $3,200.000. This
consent does not constitute a consent to any other action by
Borrower (whether or not similar to the foregoing)."
4. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
5. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower set forth in
full all of the representations and agreements of the parties with respect to
the subject matter hereof and supersede all prior discussions, representations,
agreements and understandings between the parties with respect to the subject
hereof. Except as herein expressly amended, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
BORROWER: SILICON:
PROXIM CORPORATION SILICON VALLEY BANK
BY /s/ Xxxxx X. Xxxxxx BY /s/ Xxxxxxxx X. Xxxxx
---------------------------- --------------------------------
PRESIDENT OR VICE PRESIDENT TITLE VICE PRESIDENT
-----------------------------
BY /s/ Xxxxx X. Xxxxxx
----------------------------
SECRETARY OR ASS'T SECRETARY
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
CONSENT
Each of the undersigned acknowledges that its consent to the foregoing
Agreement is not required, but, the undersigned nevertheless does hereby consent
to the foregoing Agreement and to the documents and agreements referred to
therein and to all future modifications and amendments thereto, and any
termination thereof, and to any and all other present and future documents and
agreements between or among the foregoing parties. Nothing herein shall in any
way limit any of the terms or provisions of the Continuing Guaranty of the
undersigned, all of which are hereby ratified and affirmed.
Proxim Wireless Networks, Inc. Wirelesshome Corporation
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxxx X. Xxxxxx
---------------------------- --------------------------------
Name Xxxxx X. Xxxxxx Name Xxxxx X. Xxxxxx
-------------------------- ------------------------------
Title EVP, CFO & Secretary Title EVP, CFO & Secretary
------------------------- -----------------------------
Western Multiplex International Holdings, Inc.
[Proxim International Holdings, Inc.]
By /s/ Xxxxx X. Xxxxxx
----------------------------
Name Xxxxx X. Xxxxxx
--------------------------
Title EVP, CFO & Secretary
-------------------------
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EXHIBIT A TO AMENDMENT TO LOAN DOCUMENTS
OVERADVANCE XX XXXXX
This Overadvance XX Xxxxx is attached to and forms a part of the Accounts
Receivable Financing Agreement dated as of June 13, 2003 (the "Accounts
Agreement") between Proxim Corporation ("Borrower") and Silicon Valley Bank
("Bank").
1. Overadvances LCs.
(a) Bank may, in its good faith business judgment, provide
Borrower with Letters of Credit in excess of the formulas set forth in the
Accounts Agreement (the "Overadvance LCs"), as set forth in this Rider. (If a
Letter of Credit is 100% secured by cash or is 100% reserved for from Advances
which would otherwise be available to the Borrower under the Accounts Agreement
(after all other reserves), such Letter of Credit will not be deemed an
Overadvance LC. If only part of the face amount of a Letter of Credit is
secured by cash or is so reserved, then such Letter of Credit shall only be
deemed an Overadvance LC to the extent such Letter of Credit is not cash secured
and not covered by such reserves.)
(b) The unpaid balance of all Overadvance LCs from time to time
outstanding shall not at any time exceed $4,000,000, and in the event it does,
at any time, Borrower will provide Bank with cash collateral in an amount equal
to 100% of the excess immediately, without notice or demand.
(c) In no event shall the total Obligations (including without
limitation the Overadvance LCs) exceed $20,000,000.
2. Overadvance Maturity Date.
(a) Overadvance LCs may be outstanding only during the period from
the date hereof to the earlier of the following (the "Overadvance Maturity
Date"): July 31, 2004 or the date the Accounts Agreement terminates by its terms
or is terminated by any party in accordance with its terms.
(b) On and after the Overadvance Maturity Date, the Overadvance
facility established by this Rider will expire, and no further Overadvance LCs
will be issued. On or before the Overadvance Maturity Date, Borrower shall
provide Bank with cash collateral in an amount equal to 100% of the face amount
of all outstanding Overadvance LCs (including without limitation drawn, but
unreimbursed Overadvance LCs). All cash collateral provided pursuant to this
Rider shall be held as "Collateral" for all purposes of the Accounts Agreement.
In the event, on the Overadvance Maturity Date, Borrower fails to provide Bank
with cash collateral in an amount equal to 100% of the face amount of all
outstanding Overadvance LCs, such failure shall constitute an Event of Default
under the Accounts Agreement,
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
3. Fees. Borrower shall pay all standard charges with respect to
Overadvance LCs as are charged by Bank's international Department.
4. Collateral. The Obligation to reimburse Bank for all Overadvance
LCs, and all of Borrower's other obligations under this Rider shall for all
purposes be deemed "Obligations" under the Accounts Agreement and shall be
secured by all of the Collateral. All Overadvance LCs shall, for all purposes,
be deemed to be "Letters of Credit" under the Accounts Agreement, and all
Overadvance LCs shall be entitled to all of the benefits of, and (except as
herein expressly set forth) shall be subject to all of the terms and provisions
of, all of the Loan Documents.
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