Exhibit 99.2
[SILICON VALLEY BANK LOGO]
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT (the "Agreement"), dated as
of the Effective Date is between Silicon Valley Bank, Specialty Finance Division
of ("Bank"), and Proxim Corporation a Delaware corporation, ("Borrower"), whose
address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and with a FAX number
of (▇▇▇) ▇▇▇-▇▇▇▇.
1. DEFINITIONS. In this Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"ACCOUNT DEBTOR" is defined in the California Uniform Commercial Code and
shall include any person liable on any Financed Receivable, such as, a guarantor
of the Financed Receivable and any issuer of a letter of credit or banker's
acceptance.
"ADJUSTMENTS" are all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor for any Financed Receivable.
"ADVANCE" is defined in Section 2.2.
"ADVANCE RATE" is 80% (or 50% for Accounts for which the Account Debtor is
a distributor) net of deferred revenue and offsets related to each specific
Account Debtor, or another percentage as Bank establishes under Section 2.2.
"APPLICABLE RATE" is a rate per annum equal to the greater of either (i)
the "Prime Rate" plus 1.50 percentage points or (ii) 5.75%.
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"CODE" is the California Uniform Commercial Code.
"COLLATERAL" is attached as Exhibit "A".
"COLLATERAL HANDLING FEE" is defined in Section 3.5.
"COLLECTIONS" are all funds received by Bank from or on behalf of an
Account Debtor for Financed Receivables.
"COMPLIANCE CERTIFICATE" is attached as Exhibit "B".
"EARLY TERMINATION FEE" is defined in Section 3.6.
"EFFECTIVE DATE" is the date in which Bank executes this Agreement.
1
"EVENT OF DEFAULT" is defined in Section 9.
"FACILITY" is an extension of credit by Bank to Borrower in order to
finance receivables with an aggregate Account Balance not exceeding the Facility
Amount.
"FACILITY AMOUNT" is $25,000,000.
"FACILITY FEE" is defined in Section 3.4.
"FACILITY PERIOD" is the period beginning on this date and continuing
until APRIL 1, 2004, unless the period is terminated sooner by Bank with notice
to Borrower or by Borrower under Section 3.6.
"FINANCE CHARGES" is defined in Section 3.2.
"FINANCED RECEIVABLES" are all those accounts, receivables, chattel paper,
instruments, contract rights, documents, general intangibles, letters of credit,
drafts, bankers acceptances, and rights to payment, and all proceeds, including
their proceeds (collectively "receivables"), which Bank finances and make an
Advance. A Financed Receivable stops being a Financed Receivable (but remains
Collateral) when the Advance made for the Financed Receivable has been finally
paid.
"FINANCED RECEIVABLE BALANCE" is the total outstanding amount, at any
time, of all Financed Receivables.
"GUARANTOR" means any guarantor of the Obligations.
"INELIGIBLE RECEIVABLE" is any accounts receivable:
(A) that is unpaid (90) calendar days after the invoice date; or
(B) that is owed by an Account Debtor that has filed, or has had filed
against it, any bankruptcy case, assignment for the benefit of
creditors, receivership, or Insolvency Proceeding or who has become
insolvent (as defined in the United States Bankruptcy Code) or who
is generally not paying its debts as they become due; or
(C) for which there has been any breach of warranty or representation in
Section 6 or any breach of any covenant in this Agreement; or
(D) for which the Account Debtor asserts any discount, allowance,
return, dispute, counterclaim, offset, defense, right of recoupment,
right of return, warranty claim, or short payment.
"INSOLVENCY PROCEEDING" are proceedings by or against any person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INVOICE TRANSMITTAL" shows accounts receivable which Bank may finance
and, for each receivable, includes the Account Debtor's, name, address, invoice
amount, invoice date and invoice number and is signed by Borrower's authorized
representative.
"LOCKBOX" is described in Section 6.2.
"OBLIGATIONS" are all advances, liabilities, obligations, covenants and
duties owing, arising, due or payable by Borrower to Bank now or later under
this Agreement or any other document, instrument or agreement, account
(including those acquired by assignment) primary or secondary, such as all
Advances, Finance Charges, interest, fees, expenses, professional fees and
attorneys' fees or other.
"OTHER SERVICES AVAILABILITY" means an amount equal to the result of (a)
the Other Services Sublimit minus (b) the face amount of outstanding Letters of
Credit (including drawn but unreimbursed Letters of Credit) minus (c) 10% of
each outstanding FX Forward Contract minus (d) the aggregate amounts utilized
under the Other Services Sublimit for Cash Management Services.
2
"OTHER SERVICES SUBLIMIT" means the lesser of (a) the Facility Amount
minus the outstanding principal balance of the Advances, or (b) $10,000,000;
provided, however, outstanding Obligations under the Other Services Sublimit
must be supported by Financed Receivables.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it is
not Bank's lowest rate.
"RECONCILIATION DAY" is the last calendar day of each month.
"RECONCILIATION PERIOD" is each calendar month.
2. FINANCING OF ACCOUNTS RECEIVABLE.
2.1. REQUEST FOR ADVANCES. During the Facility Period, Borrower may offer
accounts receivable to Bank, if there is not an Event of Default. Borrower
will deliver an Invoice Transmittal for each accounts receivable it
offers. Bank may rely on information on or with the Invoice Transmittal.
2.2. ACCEPTANCE OF ACCOUNTS RECEIVABLE. Bank is not obligated to finance
any accounts receivable. Bank may approve any Account Debtor's credit
before financing any receivable. When Bank accepts a receivable, it will
pay Borrower the Advance Rate times the face amount of the receivable (the
"Advance"). Bank may, in its discretion, change the percentage of the
Advance Rate. When Bank makes an Advance, the receivable becomes a
"Financed Receivable." All representations and warranties in Section 6
must be true as of the date of the Invoice Transmittal and of the Advance
and no Event of Default exists would occur as a result of the Advance. The
aggregate amount of all Financed Receivables outstanding at any time may
not exceed the Facility Amount minus the outstanding Obligations under the
Other Services Sublimit. In addition, (i) at no time shall the outstanding
Obligations under this Agreement and that certain Loan and Security
Agreement, dated December 27, 2002, by and between Borrower and Bank
exceed $20,000,000 in the aggregate, (ii) any Advances above $10,000,000
must be held in deposit accounts with Bank.
2.3 OTHER SERVICES AVAILABILITY.
(a) Letters of Credit. Bank will issue or has issued letters of
credit (each a "Letter of Credit" and collectively, the "Letters of
Credit") for Borrower's account not exceeding the Other Services
Availability. Borrower's Letter of Credit reimbursement obligation will be
secured by cash on terms acceptable to Bank at any time after the end of
the Facility Period if the term of this Agreement is not extended by Bank.
Borrower agrees to execute any further documentation in connection with
the Letters of Credit as Bank may reasonably request.
(b) Foreign Exchange Services. Borrower may enter into foreign
exchange forward contracts with the Bank under which Borrower commits to
purchase from or sell to Bank a set amount of foreign currency more than
one business day after the contract date (a "FX Forward Contract"). The
total FX Forward Contracts at any one time may not exceed 10 times the
amount of the Other Services Availability. Bank may terminate the FX
Forward Contracts if an Event of Default occurs.
(c) Cash Management Services. Borrower may use up to the amount of
the Other Services Availability for Bank's Cash Management Services, which
may include merchant services, direct deposit of payroll, business credit
card, and check cashing services identified in various cash management
services agreements related to such services (the "Cash Management
Services").
(d) Effect of Services Usage. Such aggregate amounts utilized under
the Other Services Sublimit will at all times reduce the amount otherwise
available to be borrowed under this Agreement. Any amounts Bank pays on
behalf of Borrower or any amounts that are not paid by Borrower for any
Letters of Credit, FX Forward Contracts or Cash Management Services will
be treated as Advances under this Agreement and will accrue interest at
the rate for Advances.
3. COLLECTIONS, FINANCE CHARGES, REMITTANCES AND FEES. The Obligations shall be
subject to the following fees and Finance Charges. Fees and Finance Charges may,
in Bank's discretion, be charged as an Advance, and shall thereafter accrue fees
and Finance Charges as described below. Bank may, in its discretion, charge fee
and Finance Charges to Borrower's deposit account maintained with Bank.
3
3.1. COLLECTIONS. Collections will be credited to the Financed Receivables
Balance, but if there is an Event of Default, Bank may apply Collections
to the Obligation in any order it chooses. If Bank receives a payment for
both Financed Receivable and a non Financed Receivable, the funds will
first be applied to the Financed Receivable and, if there is not an Event
of Default, the excess will be remitted to the Borrower, subject to
Section 3.10.
3.2. FINANCE CHARGES. In computing Finance Charges on the Obligations, all
Collections received by Bank shall be deemed applied by Bank on account of
the Obligations 3 Business Days after receipt of the Collections. Borrower
will pay a finance charge (the "Finance Charge"), which is the Applicable
Rate times the number of days in the Reconciliation Period times the
outstanding average daily Financed Receivable Balance for that
Reconciliation Period. After an Event of Default, Obligations accrue
interest at 5 percent above the Applicable Rate effective immediately
before the Event of Default.
3.3. INTENTIONALLY OMITTED.
3.4. FACILITY FEE. A fully earned, non-refundable facility fee of $100,000
is due upon execution of this Agreement.
3.5. COLLATERAL HANDLING FEE. On each Reconciliation Day, Borrower will
pay to Bank a collateral handling fee, equal to 0.25% per month of the
average daily Financed Receivable Balance outstanding during the
applicable Reconciliation Period. After an Event of Default, the
Collateral Handling Fee will increase an additional .50% effective
immediately before the Event of Default.
3.6. EARLY TERMINATION FEE. A fully earned, non-refundable early
termination fee of $200,000 is due upon voluntary or involuntary full
payment of the Obligations and termination of this Facility prior to APRIL
1, 2004 unless the Obligations are paid in full from an initial advance
from a loan agreement with Silicon Valley Bank.
3.7. ACCOUNTING. After each Reconciliation Period, Bank will provide an
accounting of the transactions for that Reconciliation Period, including
the amount of all Financed Receivables, all Collections, Adjustments,
Finance Charges and the Collateral Handling Fee. If Borrower does not
object to the accounting in writing within 30 days it is considered
correct. All Finance Charges and other interest and fees calculated on the
basis of a 360 day year and actual days elapsed.
3.8. DEDUCTIONS. Bank may deduct fees, finance charges and other amounts
due from any Advances made or Collections received by Bank.
3.9. INTENTIONALLY OMITTED.
3.10. ACCOUNT COLLECTION SERVICES. All Borrowers' receivables are to be
paid to the same address/or party and Borrower and Bank must agree on such
address. If Bank collects all receivables and there is not an Event of
Default or an event that with notice or lapse of time will be an Event of
Default, within FIVE (5) days of receipt of those collections, Bank will
give Borrower, the receivables collections it receives for receivables
other than Financed Receivables and/or amount in excess of the amount for
which Bank has made an Advance to Borrower, less any amount due to Bank,
such as the Finance Charge, Collateral Handling Fee and expenses or
otherwise. This Section does not impose any affirmative duty on Bank to do
any act other than to turn over amounts. All receivables and collections
are Collateral and if an Event of Default occurs, Bank need not remit
collections of Collateral and may apply them to the Obligations.
4. REPAYMENT OF OBLIGATIONS.
4.1. REPAYMENT ON MATURITY. Borrower will repay each Advance on the
earliest of: (a) payment of the Financed Receivable in respect which the
Advance was made, (b) the Financed Receivable becomes an Ineligible
Receivable, (c) when any Adjustment is made to the Financed Receivable
(but only to the extent of the Adjustment if the Financed Receivable is
not otherwise an Ineligible Receivable, or (d) the last day of the
Facility Period (including any early termination). Each payment will also
include all accrued Finance Charges on the Advance and all other amounts
due hereunder.
4
4.2. REPAYMENT ON EVENT OF DEFAULT. When there is an Event of Default,
Borrower will, if Bank demands (or, in an Event of Default under Section
9(B), immediately without notice or demand from Bank) repay all of the
Advances. The demand may, at Bank's option, include the Advance for each
Financed Receivable then outstanding and all accrued Finance Charges,
attorneys and professional fees, court costs and expenses, and any other
Obligations.
5. POWER OF ATTORNEY. Borrower irrevocably appoints Bank and its successors and
assigns it attorney-in-fact and authorizes Bank, regardless of whether there has
been an Event of Default, to:
(A) sell, assign, transfer, pledge, compromise, or discharge all or any
part of the Financed Receivables;
(B) demand, collect, ▇▇▇, and give releases to any Account Debtor for
monies due and compromise, prosecute, or defend any action, claim,
case or proceeding about the Financed Receivables, including filing
a claim or voting a claim in any bankruptcy case in Bank's or
Borrower's name, as Bank chooses;
(C) prepare, file and sign Borrower's name on any notice, claim,
assignment, demand, draft, or notice of or satisfaction of lien or
mechanics' lien or similar document;
(D) notify all Account Debtors to pay Bank directly;
(E) receive, open, and dispose of mail addressed to Borrower;
(F) endorse Borrower's name on check or other instruments;
(G) execute on Borrower's behalf any instruments, documents, financing
statements to perfect Bank's interests in the Financed Receivables
and Collateral; and
(H) do all acts and things necessary or expedient.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants for
each Financed Receivable:
(A) It is the owner with legal right to sell, transfer and assign it;
(B) The correct amount is on the Invoice Transmittal and is not
disputed;
(C) Payment is not contingent on any obligation or contract and it has
fulfilled all its obligations as of the Invoice Transmittal date;
(D) It is based on an actual sale and delivery of goods and/or services
rendered, due to Borrower, it is not past due or in default, has not
been previously sold, assigned, transferred, or pledged and is free
of any liens, security interests and encumbrances;
(E) There are no defenses, offsets, counterclaims or agreements for
which the Account Debtor may claim any deduction or discount;
(F) It reasonably believes no Account Debtor is insolvent or subject to
any Insolvency Proceedings;
(G) It has not filed or had filed against it Insolvency Proceedings and
does not anticipate any filing;
(H) Bank has the right to endorse and/or require Borrower to endorse
all payments received on Financed Receivables and all proceeds of
Collateral.
(I) No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statement contained in the certificates or
statement not misleading.
5
6.1.1 ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants as follows:
(A) Borrower is duly existing and in good standing in its state of
formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its
ownership of property requires that it be qualified. The execution,
delivery and performance of this Agreement has been duly authorized,
and does not conflict with Borrower's organizational documents, nor
constitute an Event of Default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to
which or by which it is bound.
(B) Borrower has good title to the Collateral. All inventory is in all
material respects of good and marketable quality, free from material
defects.
(C) Borrower is not an "investment company" or a company "controlled" by
an "investment company" under the Investment Company Act. Borrower
is not engaged as one of its important activities in extending
credit for margin stock (under Regulations G, T and U of the Federal
Reserve Board of Governors). Borrower has complied with the Federal
Fair Labor Standards Act. Borrower has not violated any laws,
ordinances or rules. None of Borrower's properties or assets has
been used by Borrower, to the best of Borrower's knowledge, by
previous persons, in disposing, producing, storing, treating, or
transporting any hazardous substance other than legally. Borrower
has timely filed all required tax returns and paid, or made adequate
provision to pay, all taxes. Borrower has obtained all consents,
approvals and authorizations of, made all declarations or filings
with, and given all notices to, all government authorities that are
necessary to continue its business as currently conducted.
6.2. AFFIRMATIVE COVENANTS. Borrower will do all of the following:
(A) Maintain its corporate existence and good standing in its
jurisdictions of incorporation and maintain its qualification in
each jurisdiction necessary to Borrower's business or operations.
(B) Give Bank at least 10 days prior written notice of changes to its
name, organization, chief executive office or location of records.
(C) Pay all its taxes including gross payroll, withholding and sales
taxes when due and will deliver satisfactory evidence of payment if
requested.
(D) Provide a written report within 10 days, if payment of any Financed
Receivable does not occur by its due date and include the reasons
for the delay.
(E) Give Bank copies of all Forms 10-K, 10-Q and 8-K (or equivalents)
within 5 days of filing with the Securities and Exchange Commission,
while any Financed Receivable is outstanding.
(F) Execute any further instruments and take further action as Bank
requests to perfect or continue Bank's security interest in the
Collateral or to effect the purposes of this Agreement.
(G) Provide Bank with a Compliance Certificate no later than 5 days
following each quarter end or as requested by Bank.
(H) Provide Bank with, as soon as available, but no later than 20 days
following each Reconciliation Period (and prior to each Advance), an
aged listing of accounts receivable and accounts payable along with
a deferred revenue schedule.
(I) Provide Bank with, as soon as available, but no later than 7 days
following each the end of each week, a sell through report.
(J) Provide Bank as soon as available, but no later than 90 days after
the last day of Borrower's fiscal year, audited consolidated
financial statements prepared under GAAP, consistently applied,
together with an unqualified opinion on the financial statements
from an independent certified public accounting firm reasonably
acceptable to Bank.
6
(K) Immediately notify, transfer and deliver to Bank all collections
Borrower receives for Financed Receivables.
(L) Borrower will remit all payments for Accounts to the Bank by the
close of business on each Friday along with a detailed cash receipts
journal and shall immediately notify and direct all of the
Borrower's Account Debtors to make all payments for Borrower's
Accounts to a lockbox account established with the Bank ("Lockbox")
or to wire transfer payments to a cash collateral account that Bank
controls. It will be considered an immediate Event of Default if the
Lockbox is not set-up and operational within 45 days from the date
of this Agreement.
(M) Borrower will allow Bank to audit Borrower's Collateral, including
but not limited to Borrower's Accounts, at Borrowers expense, prior
to the initial Advance and every 6 months thereafter. Provided
however, if an Event of Default has occurred, Bank may audit
Borrower's Collateral, including but not limited to Borrower's
Accounts at Bank's sole discretion and without notification and
authorization from Borrower.
6.3. NEGATIVE COVENANTS. Borrower will not do any of the following without
Bank's prior written consent:
(A) Assign, transfer, sell or grant, or permit any lien or security
interest in the Collateral.
(B) Convey, sell, lease, transfer or otherwise dispose of the
Collateral.
(C) Create, incur, assume, or be liable for any indebtedness.
(D) Become an "investment company" or a company controlled by an
"investment company," under the Investment Company Act of 1940 or
undertake as one of its important activities extending credit to
purchase or carry margin stock, or use the proceeds of any Advance
for that purpose; fail to meet the minimum funding requirements of
ERISA, permit a Reportable Event or Prohibited Transaction, as
defined in ERISA, to occur; fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, or
permit any of its subsidiaries to do so.
7. ADJUSTMENTS. If any Account Debtor asserts a discount, allowance, return,
offset, defense, warranty claim, or the like (an "Adjustment") or if Borrower
breaches any of the representations, warranties or covenants set forth in
Section 6., Borrower will promptly advise Bank. Borrower will resell any
rejected, returned, or recovered personal property for Bank, at Borrower's
expense, and pay proceeds to Bank. While Borrower has returned goods that are
Borrower property, Borrower will segregate and ▇▇▇▇ them "property of Silicon
Valley Bank." Bank owns the Financed Receivables and until receipt of payment,
has the right to take possession of any rejected, returned, or recovered
personal property.
8. SECURITY INTEREST. Borrower grants to Bank a continuing security interest in
all presently and later acquired Collateral to secure all Obligations and the
performance of each of Borrower's duties hereunder. Any security interest will
be a first priority security interest in the Collateral.
9. EVENTS OF DEFAULT. Any one or more of the following is an Event of Default.
(A) Borrower fails to pay any amount owed to Bank when due;
(B) Borrower files or has filed against it any Insolvency Proceedings or
any assignment for the benefit of creditors, or appointment of a
receiver or custodian for any of its assets;
(C) Borrower becomes insolvent or is generally not paying its debts as
they become due or is left with unreasonably small capital;
(D) Any involuntary lien, garnishment, attachment attaches to the
Financed Receivables or any Collateral;
(E) Borrower breaches any covenant, agreement, warranty, or
representation is an immediate Event of Default;
7
(F) Borrower is in default under any document, instrument or agreement
evidencing any debt, obligation or liability in favor of Bank its
affiliates or vendors regardless of whether the debt, obligation or
liability is direct or indirect, primary or secondary, or fixed or
contingent;
(G) An event of default occurs under any Guaranty of the Obligations or
any material provision of any Guaranty is not valid or enforceable
or a Guaranty is repudiated or terminated;
(H) A material default or Event of Default occurs under any agreement
between Borrower and any creditor of Borrower that signed a
subordination agreement with Bank;
(I) Any creditor that has signed a subordination agreement with Bank
breaches any terms of the subordination agreement; or
(J) (i) A material impairment in the perfection or priority of the
Bank's security interest in the Collateral; (ii) a material adverse
change in the business, operations, or conditions (financial or
otherwise) of the Borrower occurs; or (iii) a material impairment of
the prospect of repayment of any portion of the Advances occurs.
10. REMEDIES.
10.1. REMEDIES UPON DEFAULT. When an Event of Default occurs, (1) Bank may
stop financing receivables or extending credit to Borrower; (2) at Banks
option and on demand, all or a portion of the Obligations or, for to an
Event of Default described in Section 9(B), automatically and without
demand, are due and payable in full; (3) apply to the Obligations any (i)
balances and deposits of Borrower it holds, or (ii) any amount held by
Bank owing to or for the credit or the account of Borrower; and (4) Bank
may exercise all rights and remedies under this Agreement and the law,
including those of a secured party under the Code, power of attorney
rights in Section 5 for the Collateral, and the right to collect, dispose
of, sell, lease, use, and realize upon all Financed Receivables and
Collateral in any commercial manner. Borrower agrees that any notice of
sale required to be given to Borrower is deemed given if at least five
days before the sale may be held.
10.2. DEMAND WAIVER. Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default,
nonpayment at maturity, release, compromise, settlement, extension, or
renewal of accounts, documents, instruments, chattel paper, and guaranties
held by Bank on which Borrower is liable.
10.3. DEFAULT RATE. If any amount is not paid when due, the amount bears
interest at the Applicable Rate plus five percent until the earlier of (a)
payment in good funds or (b) entry of a final judgment when the principal
amount of any money judgment will accrue interest at the highest rate
allowed by law.
11. FEES, COSTS AND EXPENSES. The Borrower will pay on demand all fees, costs
and expenses (including attorneys' and professionals fees with costs and
expenses) that Bank incurs from: (a) preparing, negotiating, administering, and
enforcing this Agreement or related agreement, including any amendments, waivers
or consents, (b) any litigation or dispute relating to the Financed Receivables,
the Collateral, this Agreement or any other agreement, (c) enforcing any rights
against Borrower or any guarantor, or any Account Debtor, (d) protecting or
enforcing its interest in the Financed Receivables or other Collateral, (e)
collecting the Financed Receivables and the Obligations, and (f) any bankruptcy
case or insolvency proceeding involving Borrower, any Financed Receivable, the
Collateral, any Account Debtor, or any Guarantor.
12. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. California law governs this
Agreement. Borrower and Bank each submit to the exclusive jurisdiction of the
State and Federal courts in Santa ▇▇▇▇▇ County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
13. NOTICES. Notices or demands by either party about this Agreement must be in
writing and personally delivered or sent by an overnight delivery service, by
certified mail postage prepaid return receipt requested, or by FAX to the
8
addresses listed at the beginning of this Agreement. A party may change notice
address by written notice to the other party.
14. GENERAL PROVISIONS.
14.1. SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit
of successors and permitted assigns of each party. Borrower may not assign
this Agreement or any rights under it without Bank's prior written consent
which may be granted or withheld in Bank's discretion. Bank may, without
the consent of or notice to Borrower, sell, transfer, or grant
participation in any part of Bank's obligations, rights or benefits under
this Agreement.
14.2. INDEMNIFICATION. Borrower will indemnify, defend and hold harmless
Bank and its officers, employees, and agents against: (a) obligations,
demands, claims, and liabilities asserted by any other party in connection
with the transactions contemplated by this Agreement; and (b) losses or
expenses incurred, or paid by Bank from or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and
expenses), except for losses caused by Bank's gross negligence or willful
misconduct.
14.3. TIME OF ESSENCE. Time is of the essence for performance of all
obligations in this Agreement.
14.4. SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability of
any provision.
14.5. AMENDMENTS IN WRITING, INTEGRATION. All amendments to this Agreement
must be in writing. This Agreement is the entire agreement about this
subject matter and supersedes prior negotiations or agreements.
14.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts and when
executed and delivered are one Agreement.
14.7. SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in force while any Financed Receivable amount remains
outstanding. Borrower's indemnification obligations survive until all
statutes of limitations for actions that may be brought against Bank have
run.
14.8. CONFIDENTIALITY. Bank will use the same degree of care handling
Borrower's confidential information that it uses for its own confidential
information, but may disclose information; (i) to its subsidiaries or
affiliates in connection with their business with Borrower, (ii) to
prospective transferees or purchasers of any interest in the Agreement,
(iii) as required by law, regulation, subpoena, or other order, (iv) as
required in connection with an examination or audit and (v) as it
considers appropriate exercising the remedies under this Agreement.
Confidential information does not include information that is either: (a)
in the public domain or in Bank's possession when disclosed, or becomes
part of the public domain after disclosure to Bank; or (b) disclosed to
Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.
14.9. OTHER AGREEMENTS. This Agreement may not adversely affect Banks
rights under any other document or agreement. If there is a conflict
between this Agreement and any agreement between Borrower and Bank, Bank
may determine in its sole discretion which provision applies. Borrower
acknowledges that any security agreements, liens and/or security interests
securing payment of Borrower's Obligations also secure Borrower's
Obligations under this Agreement and are not adversely affected by this
Agreement. Additionally, (a) any Collateral under other agreements or
documents between Borrower and Bank secures Borrowers Obligations under
this Agreement and (b) a default by Borrower under this Agreement is a
default under agreements between Borrower and Bank.
BORROWER: PROXIM CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title EVP & CFO, Secretary
-------------------------------
9
BANK: SILICON VALLEY BANK
By /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title VP
-------------------------------
Effective Date: 6/13/03
---------------------
10
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest in
and to the following:
All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles (as such definitions may be
amended from time to time according to the Code), now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower (as such definitions may be amended from time
to time according to the Code) whether or not earned by performance, and any and
all credit insurance, insurance (including refund) claims and proceeds,
guaranties, and other security therefor, as well as all merchandise returned to
or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, investment property, financial assets,
letters of credit, letter of credit rights, certificates of deposit, instruments
and chattel paper and electronic chattel paper now owned or hereafter acquired
and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations and
like protections in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; all trade secret
rights, including all rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all mask work or similar rights available for the
protection of semiconductor chips, now owned or hereafter acquired; all claims
for damages by way of any past, present and future infringement of any of the
foregoing; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
1
EXHIBIT "B"
[SILICON VALLEY BANK LOGO]
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
Compliance Certificate
I, as authorized officer of Proxim Corporation ("Borrower") certify under the
Accounts Receivable Financing Agreement (the "Agreement") between Borrower and
Silicon Valley Bank ("Bank") as follows.
BORROWER REPRESENTS AND WARRANTS FOR EACH FINANCED RECEIVABLE:
It is the owner with legal right to sell, transfer and assign it;
The correct amount is on the Invoice Transmittal and is not disputed;
Payment is not contingent on any obligation or contract and it has
fulfilled all its obligations as of the Invoice Transmittal date;
It is based on an actual sale and delivery of goods and/or services
rendered, due to Borrower, it is not past due or in default, has not been
previously sold, assigned, transferred, or pledged and is free of any liens,
security interests and encumbrances;
There are no defenses, offsets, counterclaims or agreements for which the
Account Debtor may claim any deduction or discount;
It reasonably believes no Account Debtor is insolvent or subject to any
Insolvency Proceedings;
It has not filed or had filed against it proceedings and does not
anticipate any filing;
Bank has the right to endorse and/or require Borrower to endorse all
payments received on Financed Receivables and all proceeds of Collateral.
No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue statement of
a material fact or omits to state a material fact necessary to make the
statement contained in the certificates or statement not misleading.
ADDITIONALLY, BORROWER REPRESENTS AND WARRANTS AS FOLLOWS:
Borrower is duly existing and in good standing in its state of formation
and qualified and licensed to do business in, and in good standing in, any state
in which the conduct of its business or its ownership of property requires that
it be qualified. The execution, delivery and performance of this Agreement has
been duly authorized, and do not conflict with Borrower's formations documents,
nor constitute an Event of Default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to which or by
which it is bound.
Borrower has good title to the Collateral. All inventory is in all
material respects of good and marketable quality, free from material defects.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act. Borrower is not engaged
as one of its important activities in extending credit for margin stock (under
Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has
complied with the Federal Fair Labor Standards Act. Borrower has not violated
any laws, ordinances or rules. None of Borrower's properties or assets has been
used by Borrower, to the best of Borrower's knowledge, by previous persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower has timely filed all required tax returns and paid,
or made adequate provision to pay, all taxes. Borrower has obtained all
consents, approvals and authorizations of, made all declarations or filings
with, and given all notices to, all government authorities that are necessary to
continue its business as currently conducted.
All representations and warranties in the Agreement are true and correct
in all material respects on this date.
Sincerely,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
SIGNATURE
EVP & CFO, Secretary
---------------------------------
TITLE
June 13, 2003
---------------------------------
DATE
2
[SILICON VALLEY BANK LOGO]
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
SECRETARY'S CERTIFICATE OF RESOLUTION
I, as Secretary of Proxim Corporation, a Delaware corporation (the
"Corporation"), certify that at a meeting duly convened at which a quorum was
present the following resolutions were adopted by the Board of Directors of the
Corporation and that these resolutions have not been modified, amended, or
rescinded and remain effective as of today's date.
It is resolved that ANY ONE of the following officers of the Corporation, whose
name, title and signature is below:
NAME TITLE SIGNATURE
---- ----- ---------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ EVP & CFO, Secretary /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- ------------------------ --------------------------
----------------------- ------------------------ --------------------------
----------------------- ------------------------ --------------------------
----------------------- ------------------------ --------------------------
----------------------- ------------------------ --------------------------
may act for Borrower and:
Sell the corporation's accounts receivable to Bank
Grant to Bank a security interest in any of the corporation's assets
Execute and deliver certain agreements in connection with the sale
of receivables, and granting of security interests.
Designate other individuals to request advances, pay fees and costs
and execute other documents or agreements (including documents or
agreement that waive the Corporation's right to a jury trial) they
think necessary to effectuate these Resolutions.
Further resolved that all acts authorized by these Resolutions and performed
before they were adopted are ratified. These Resolutions remain in effect and
Bank may rely on them until Bank receives written notice of their revocation.
I certify that the persons listed above are the Corporation's officers with the
titles and signatures shown following their names and that these resolutions
have not been modified are currently effective.
X /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ June 13, 2003 EVP & CFO, Secretary
--------------------------------- --------------- ---------------------
*Secretary or Assistant Secretary Date
X
---------------------------------
* If the certifying officer is designated as a signer in these resolutions then
another corporate officer must also sign.
3
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement (this "IP Agreement") is
made as of the Effective Date by and between Proxim Corporation ("Grantor"), and
Silicon Valley Bank, a California banking corporation ("Bank").
RECITALS
A. Bank will make advances to Grantor ("Advances") as described in the
Accounts Receivable Financing Agreement (the "Financing Agreement"), but only if
Grantor grants Bank a security interest in its Copyrights, Trademarks, Patents,
and Mask Works. Defined terms used but not defined herein shall have the same
meanings as in the Financing Agreement.
B. Pursuant to the terms of the Financing Agreement, Grantor has granted
to Bank a security interest in all of Grantor's right title and interest,
whether presently existing or hereafter acquired in, to and under all of the
Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged and intending to be legally bound, as collateral security
for the prompt and complete payment when due of Grantor's Indebtedness under the
Financing Agreement, Grantor hereby represents, warrants, covenants and agrees
as follows:
1. Grant of Security Interest. As collateral security for the prompt and
complete payment and performance of all of Grantor's present or future
Indebtedness, obligations and liabilities to Bank, Grantor hereby grants a
security interest in all of Grantor's right, title and interest in, to and under
its Intellectual Property Collateral (all of which shall collectively be called
the "Intellectual Property Collateral"), including, without limitation, the
following:
(a) Any and all copyright rights, copyright applications, copyright
registrations and like protections in each work or authorship and derivative
work thereof, whether published or unpublished and whether or not the same also
constitutes a trade secret, now or hereafter existing, created, acquired or
held, including without limitation those set forth on Exhibit A attached hereto
(collectively, the "Copyrights");
(b) Any and all trade secrets, and any and all intellectual property
rights in computer software and computer software products now or hereafter
existing, created, acquired or held;
(c) Any and all design rights which may be available to Grantor now
or hereafter existing, created, acquired or held;
(d) All patents, patent applications and like protections including,
without limitation, improvements, divisions, continuations, renewals, reissues,
extensions and continuations-in-part of the same, including without limitation
the patents and patent applications set forth on Exhibit B attached hereto
(collectively, the "Patents");
(e) Any trademark and servicemark rights, whether registered or not,
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Grantor connected with and symbolized by
such trademarks, including without limitation those set forth on Exhibit C
attached hereto (collectively, the "Trademarks");
(f) All mask works or similar rights available for the protection of
semiconductor chips, now owned or hereafter acquired, including, without
limitation those set forth on Exhibit D attached hereto (collectively, the "Mask
Works");
(g) Any and all claims for damages by way of past, present and
future infringements of any of the rights included above, with the right, but
not the obligation, to ▇▇▇ for and collect such damages for said use or
infringement of the intellectual property rights identified above;
(h) All licenses or other rights to use any of the Copyrights,
Patents, Trademarks, or Mask Works and all license fees and royalties arising
from such use to the extent permitted by such license or rights; and
(i) All amendments, extensions, renewals and extensions of any of
the Copyrights, Trademarks, Patents, or Mask Works; and
1
(j) All proceeds and products of the foregoing, including without
limitation all payments under insurance or any indemnity or warranty payable in
respect of any of the foregoing.
2. Authorization and Request. Grantor authorizes and requests that the
Register of Copyrights and the Commissioner of Patents and Trademarks record
this IP Agreement.
3. Covenants and Warranties. Grantor represents, warrants, covenants and
agrees as follows:
(a) Grantor is now the sole owner of the Intellectual Property
Collateral, except for non-exclusive licenses granted by Grantor to its
customers in the ordinary course of business.
(b) Performance of this IP Agreement does not conflict with or
result in a breach of any IP Agreement to which Grantor is bound, except to the
extent that certain intellectual property agreements prohibit the assignment of
the rights thereunder to a third party without the licensor's or other party's
consent and this IP Agreement constitutes a security interest.
(c) During the term of this IP Agreement, Grantor will not transfer
or otherwise encumber any interest in the Intellectual Property Collateral,
except for non-exclusive licenses granted by Grantor in the ordinary course of
business or as set forth in this IP Agreement;
(d) To its knowledge, each of the Patents is valid and enforceable,
and no part of the Intellectual Property Collateral has been judged invalid or
unenforceable, in whole or in part, and no claim has been made that any part of
the Intellectual Property Collateral violates the rights of any third party;
(e) Grantor shall promptly advise Bank of any material adverse
change in the composition of the Collateral, including but not limited to any
subsequent ownership right of the Grantor in or to any Trademark, Patent,
Copyright, or Mask Work specified in this IP Agreement;
(f) Grantor shall (i) protect, defend and maintain the validity and
enforceability of the Trademarks, Patents, Copyrights, and Mask Works, (ii) use
its best efforts to detect infringements of the Trademarks, Patents, Copyrights,
and Mask Works and promptly advise Bank in writing of material infringements
detected and (iii) not allow any Trademarks, Patents, Copyrights, or Mask Works
to be abandoned, forfeited or dedicated to the public without the written
consent of Bank, which shall not be unreasonably withheld, unless Grantor
determines that reasonable business practices suggest that abandonment is
appropriate.
(g) Grantor shall not register any Copyrights with the United States
Copyright Office unless it (i) has given at least fifteen (15) days' prior
notice to Bank of its intent to register such Copyrights and has provided Bank
with a copy of the application it intends to file with the United States
Copyright Office (excluding exhibits thereto), and (ii) executes a short-form
security agreement or such other documents as Bank may reasonably request in
order to maintain the perfection and priority of Bank's security interest in the
Copyrights proposed to be registered with the United States Copyright Office,
and (iii) records such security documents with the United States Copyright
Office contemporaneously with filing the Copyright application(s) with the
United States Copyright Office. Grantor shall promptly provide to Bank a copy of
the Copyright application(s) so filed with the United States Copyright Office,
together with evidence of the recording of the security documents necessary for
Bank to maintain the perfection and priority of its security interest in such
Copyrights.
(h) This IP Agreement creates, and in the case of after acquired
Intellectual Property Collateral, this IP Agreement will create at the time
Grantor first has rights in such after acquired Intellectual Property
Collateral, in favor of Bank a valid and perfected first priority security
interest in the Intellectual Property Collateral in the United States securing
the payment and performance of the obligations evidenced by the Note and the
Financing Agreement upon making the filings referred to in clause (i) below;
(i) To its knowledge, except for, and upon, the filing with the
United States Patent and Trademark office with respect to the Patents and
Trademarks and the Register of Copyrights with respect to the Copyrights and
Mask Works necessary to perfect the security interests created hereunder and
except as has been already made or obtained, no authorization, approval or other
action by, and no notice to or filing with, any U.S. governmental authority of
U.S. regulatory body is required either (i) for the grant by Grantor of the
security interest granted hereby or for the execution, delivery or performance
of this IP Agreement by Grantor in the U.S. or (ii) for the perfection in the
United States or the exercise by Bank of its rights and remedies thereunder;
2
(j) All information heretofore, herein or hereafter supplied to Bank
by or on behalf of Grantor with respect to the Intellectual Property Collateral
is accurate and complete in all material respects.
(k) Grantor shall not enter into any agreement that would materially
impair or conflict with Grantor's obligations hereunder without Bank's prior
written consent, which consent shall not be unreasonably withheld. Grantor shall
not permit the inclusion in any material contract to which it becomes a party of
any provisions that could or might in any way prevent the creation of a security
interest in Grantor's rights and interest in any property included within the
definition of the Intellectual property Collateral acquired under such
contracts, except that certain contracts may contain anti-assignment provisions
that could in effect prohibit the creation of a security interest in such
contracts.
(l) Upon any executive officer of Grantor obtaining actual knowledge
thereof, Grantor will promptly notify Bank in writing of any event that
materially adversely affects the value of any material Intellectual Property
Collateral, the ability of Grantor to dispose of any material Intellectual
Property Collateral of the rights and remedies of Bank in relation thereto,
including the levy of any legal process against any of the Intellectual Property
Collateral.
4. Bank's Rights. Bank shall have the right, but not the obligation, to
take, at Grantor's sole expense, any actions that Grantor is required under this
IP Agreement to take but which Grantor fails to take, after fifteen (15) days'
notice to Grantor. Grantor shall reimburse and indemnify Bank for all reasonable
costs and reasonable expenses incurred in the reasonable exercise of its rights
under this section 4.
5. Inspection Rights. Grantor hereby grants to Bank and its employees,
representatives and agents the right to visit, during reasonable hours upon
prior reasonable written notice to Grantor, and any of Grantor's plants and
facilities that manufacture, install or store products (or that have done so
during the prior six-month period) that are sold utilizing any of the
Intellectual Property Collateral, and to inspect the products and quality
control records relating thereto upon reasonable written notice to Grantor and
as often as may be reasonably requested, but not more than one (1) in every six
(6) months; provided, however, nothing herein shall entitle Bank access to
Grantor's trade secrets and other proprietary information.
6. Further Assurances; Attorney in Fact.
(a) On a continuing basis, Grantor will, subject to any prior
licenses, encumbrances and restrictions and prospective licenses, make, execute,
acknowledge and deliver, and file and record in the proper filing and recording
places in the United States, all such instruments, including appropriate
financing and continuation statements and collateral agreements and filings with
the United States Patent and Trademarks Office and the Register of Copyrights,
and take all such action as may reasonably be deemed necessary or advisable, or
as requested by Bank, to perfect Bank's security interest in all Copyrights,
Patents, Trademarks, and Mask Works and otherwise to carry out the intent and
purposes of this IP Agreement, or for assuring and confirming to Bank the grant
or perfection of a security interest in all Intellectual Property Collateral.
(b) Grantor hereby irrevocably appoints Bank as Grantor's
attorney-in-fact, with full authority in the place and stead of Grantor and in
the name of Grantor, Bank or otherwise, from time to time in Bank's discretion,
upon Grantor's failure or inability to do so, to take any action and to execute
any instrument which Bank may deem necessary or advisable to accomplish the
purposes of this IP Agreement, including:
(i) To modify, in its sole discretion, this IP Agreement
without first obtaining Grantor's approval of or signature to such modification
by amending Exhibit A, Exhibit B, Exhibit C, and Exhibit D hereof, as
appropriate, to include reference to any right, title or interest in any
Copyrights, Patents, Trademarks or Mask Works acquired by Grantor after the
execution hereof or to delete any reference to any right, title or interest in
any Copyrights, Patents, Trademarks, or Mask Works in which Grantor no longer
has or claims any right, title or interest; and
(ii) To file, in its sole discretion, one or more financing or
continuation statements and amendments thereto, relative to any of the
Intellectual Property Collateral without the signature of Grantor where
permitted by law.
7. Events of Default. The occurrence of any of the following shall
constitute an Event of Default under this IP Agreement:
(a) An Event of Default occurs under the Financing Agreement; or
3
(b) Grantor breaches any warranty or agreement made by Grantor in
this IP Agreement.
8. Remedies. Upon the occurrence and continuance of an Event of Default,
Bank shall have the right to exercise all the remedies of a secured party under
the California Uniform Commercial Code, including without limitation the right
to require Grantor to assemble the Intellectual Property Collateral and any
tangible property in which Bank has a security interest and to make it available
to Bank at a place designated by Bank. Bank shall have a nonexclusive, royalty
free license to use the Copyrights, Patents, Trademarks, and Mask Works to the
extent reasonably necessary to permit Bank to exercise its rights and remedies
upon the occurrence of an Event of Default. Grantor will pay any expenses
(including reasonable attorney's fees) incurred by Bank in connection with the
exercise of any of Bank's rights hereunder, including without limitation any
expense incurred in disposing of the Intellectual Property Collateral. All of
Bank's rights and remedies with respect to the Intellectual Property Collateral
shall be cumulative.
9. Indemnity. Grantor agrees to defend, indemnify and hold harmless Bank
and its officers, employees, and agents against: (a) all obligations, demands,
claims, and liabilities claimed or asserted by any other party in connection
with the transactions contemplated by this IP Agreement, and (b) all losses or
expenses in any way suffered, incurred, or paid by Bank as a result of or in any
way arising out of, following or consequential to transactions between Bank and
Grantor, whether under this IP Agreement or otherwise (including without
limitation, reasonable attorneys fees and reasonable expenses), except for
losses arising from or out of Bank's gross negligence or willful misconduct.
10. Reassignment. At such time as Grantor shall completely satisfy all of
the obligations secured hereunder, Bank shall execute and deliver to Grantor all
deed, assignments, and other instruments as may be necessary or proper to
reinvest in Grantor full title to the property assigned hereunder, subject to
any disposition thereof which may have been made by Bank pursuant hereto.
11. Course of Dealing. No course of dealing, nor any failure to exercise,
nor any delay in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
12. Attorneys' Fees. If any action relating to this IP Agreement is
brought by either party hereto against the other party, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and
disbursements.
13. Amendments. This IP Agreement may be amended only by a written
instrument signed by both parties hereto.
14. Counterparts. This IP Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute the same instrument.
15. Law and Jurisdiction. This IP Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
for choice of law provisions. Grantor and Bank consent to the nonexclusive
jurisdiction of any state or federal court located in Santa ▇▇▇▇▇ County,
California.
16. Confidentiality. In handling any confidential information, Bank shall
exercise the same degree of care that it exercises with respect to its own
proprietary information of the same types to maintain the confidentiality of any
non-public information thereby received or received pursuant to this IP
Agreement except that the disclosure of this information may be made (i) to the
affiliates of the Bank, (ii) to prospective transferee or purchasers of an
interest in the obligations secured hereby, provided that they have entered into
comparable confidentiality agreement in favor of Grantor and have deliver a copy
to Grantor, (iii) as required by law, regulation, rule or order, subpoena
judicial order or similar order and (iv) as may be required in connection with
the examination, audit or similar investigation of Bank.
IN WITNESS WHEREOF, the parties hereto have executed this IP Agreement on
the day and year first above written.
ADDRESS OF GRANTOR: GRANTOR:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Proxim Corporation
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EVP & CFO, Secretary
4
Exhibit "A" attached to that certain Intellectual Property Security Agreement.
EXHIBIT "A"
COPYRIGHTS
SCHEDULE A - ISSUED COPYRIGHTS
COPYRIGHT REGISTRATION DATE OF
DESCRIPTION NUMBER ISSUANCE
----------- ------ --------
SCHEDULE B - PENDING COPYRIGHT APPLICATIONS
FIRST DATE
COPYRIGHT APPLICATION DATE OF OF PUBLIC
DESCRIPTION NUMBER FILING CREATION DISTRIBUTION
----------- ------ ------ -------- ------------
SCHEDULE C - UNREGISTERED COPYRIGHTS (Where No Copyright Application is Pending)
DATE AND
RECORDATION
NUMBER OF
IP AGREEMENT TO
OWNER OF
ORIGINAL GRANTOR (IF
AUTHOR OR ORIGINAL AUTHOR
OWNER OF OR OWNER OF
FIRST DATE COPYRIGHT COPYRIGHT IS
COPYRIGHT DATE OF OF (IF DIFFERENT DIFFERENT FROM
DESCRIPTION CREATION DISTRIBUTION FROM GRANTOR) GRANTOR)
----------- -------- ------------ ------------- --------------
5
Exhibit "B" attached to that certain Intellectual Property Security Agreement.
EXHIBIT "B"
PATENTS
PATENT
DESCRIPTION DOCKET NO. COUNTRY SERIAL NO. FILING DATE STATUS
----------- ---------- ------- ---------- ----------- ------
6
Exhibit "C" attached to that certain Intellectual Property Security Agreement.
EXHIBIT "C"
TRADEMARKS
TRADEMARK
DESCRIPTION COUNTRY SERIAL NO. REG. NO STATUS
----------- ------- ---------- ------- ------
7
Exhibit "D" attached to that certain Intellectual Property Security Agreement.
EXHIBIT "D"
MASK WORKS
MASK WORK
DESCRIPTION COUNTRY SERIAL NO. REG. NO STATUS
----------- ------- ---------- ------- ------
8