EXHIBIT 10.68
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: PROXIM CORPORATION
DATED AS OF: AS OF JULY 31, 2004
This Amendment to Overadvance XX Xxxxx is entered into between Silicon
Valley Bank ("Bank") and the borrower named above ("Borrower"), with reference
to the following facts:
Bank 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 Amended Overadvance XX Xxxxx dated October 31, 2003 to the
Accounts Agreement (the "Overadvance XX Xxxxx"), and the documents, instruments
and agreements relating thereto (with the Loan Agreement, the Accounts
Agreement, and the Overadvance XX Xxxxx, collectively, the "Loan Documents").
(Capitalized terms used but not defined in this Amendment, shall have the
meanings set forth in the Accounts Agreement.)
The parties agree as follows:
1. EXTENSION -- ACCOUNTS AGREEMENT. The definition of "Facility Period" in
Section 1 of the Accounts Agreement, is amended by replacing the date "July 31,
2004" therein with the date "July 30, 2005", so that is reads as follows:
" 'Facility Period' is the period beginning on this date and continuing
until July 30, 2005, unless the period is terminated sooner by Bank
with notice to Borrower or by Borrower under Section 3.6."
2. EXTENSION -- OVERADVANCE XX XXXXX. Section 2(a) of the Overadvance XX
Xxxxx, is amended by replacing the date "July 31, 2004" therein with the date
"August 31, 2004", so that it reads as follows:
"(a) Overadvance LCs may be outstanding only during the period from the
date hereof to the earlier of the following (the "Overadvance Maturity
Date"); August 31, 2004 or the date the Accounts Agreement terminates
by its terms or is terminated by any party in accordance with its
terms."
3. LITIGATION. The portion of Section 5 of the Amendment to Loan Documents
dated October 31, 2003, which presently reads:
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SILICON VALLEY BANK AMENDMENT
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Without limiting any of the Events of Default in the Loan Documents,
any of the following shall constitute an Event of Default under the
Loan Agreement, the Accounts Agreement and the other Loan Documents,
upon Silicon giving Borrower written notice that it has elected to
declare an Event of Default based on the same (which shall be a matter
of Silicon's sole discretion): (i) any judgment shall be entered
against Borrower in the Litigation; (ii)..."
is amended to read as follows:
Without limiting any of the Events of Default in the Loan Documents,
any of the following shall constitute an Event of Default under the
Loan Agreement, the Accounts Agreement and the other Loan Documents,
upon Silicon giving Borrower written notice that it has elected to
declare an Event of Default based on the same (which shall be a matter
of Silicon's sole discretion): (i) any attempt by the plaintiff to
execute on the judgment obtained by the plaintiff in the Litigation,
or if a stay of the judgment is not granted by August 31, 2004, or if
a stay of the judgment is dissolved after being granted; (ii)..."
Clauses (ii), (iii), and (iv) of said Section 5 continue in full force and
effect.
4. FEE. In consideration for Bank entering into this Amendment, Borrower
shall concurrently pay Silicon a fee in the amount of $105,000, which is fully
earned on the date hereof, is non-refundable and is in addition to all interest
and other fees and charges payable to Silicon. Silicon is authorized to charge
said fee to Borrower's loan account or to any of Borrower's deposit accounts.
5. REPRESENTATIONS TRUE. Borrower represents and warrants to Bank that
all representations and warranties set forth in the Accounts Agreement, as
amended hereby, and the other Loan Documents (other than the Loan Agreement, the
representations in which were replaced by those in the Accounts Agreement) are
true and correct.
6. GENERAL PROVISIONS. This Amendment, and the other Loan Documents 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 Overadvance XX Xxxxx, and all other Loan Documents shall
continue in full force and effect and the same are hereby ratified and
confirmed.
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SILICON VALLEY BANK AMENDMENT
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Overadvance XX Xxxxx as of the date first above written.
Borrower: Bank:
PROXIM CORPORATION SILICON VALLEY BANK
By Xxxxxxx X. Xxxxx By Xxxxx Xxxxxxx Leaf
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President or Vice President Title SVP
EVP & CFO
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SILICON VALLEY BANK AMENDMENT
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CONSENT
Each of the undersigned acknowledges that its consent to the foregoing
Amendment is not required, but the undersigned nevertheless do hereby consent to
the foregoing Amendment 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/ Xxxxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxx
-------------------------------- --------------------------------
Name Xxxxxxx X. Xxxxx Name Xxxxxxx X. Xxxxx
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Title CEO Title CEO
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Proxim International Holdings, Inc.
(formerly Western Multiplex International
Holdings, Inc.)
By /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name Xxxxxxx X. Xxxxx
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Title CEO
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