**Exhibit 10.35**

 

**SILICON VALLEY BANK**

**SPECIALTY FINANCEDIVISION**

 

 

ACCOUNTS RECEIVABLE FINANCING AGREEMENT

 

This ACCOUNTSRECEIVABLE FINANCING AGREEMENT (the “Agreement”), dated as of June 30, 2003 isbetween Silicon Valley Bank, Specialty Finance Division of (“Bank”), andINTERWAVE COMMUNICATIONS, INC., a Delaware corporation, (“Borrower”), whoseaddress is 2495 Leghorn, Mountain View, California  94043 and with a FAX number of 650-967-1293.

 

1.               **Definitions**.  In this Agreement:

 

**“Accounts”**are all existing and later arising accounts, contract rights, and otherobligations owed Borrower in connection with its sale or lease of goods(including licensing software and other technology) or provision of services,**allcredit insurance, guaranties, other security and all merchandise returned orreclaimed 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 anyperson liable on any Financed Receivable, such as, a guarantor of the FinancedReceivable 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 shortpayments, asserted by or on behalf of any Account Debtor for any FinancedReceivable.

 

**“Administrative Fee”**isdefined in Section 3.3.

 

**“Advance”**is defined in Section 2.2.

 

**“Advance Rate”**is **80**%,net of deferred revenue and offsets related to each specific Account Debtor, oranother percentage as Bank establishes under Section 2.2.

 

**“Applicable Rate”**is 1% per month.

 

“**Borrower’sBooks**” are all Borrower’s books and records including ledgers,records regarding Borrower’s assets or liabilities, the Collateral, businessoperations or financial condition and all computer programs or discs or anyequipment containing the information.

 

“**Code”**is the California Uniform Commercial Code.

 

**“Collateral”**is attached as Exhibit “A”.

 

**“Collateral HandlingFee”**is defined in Section 3.5.

 

**“Collections”**areall funds received by Bank from or on behalf of an Account Debtor for FinancedReceivables.

 

**“ComplianceCertificate”** is attached as Exhibit “B”.

 

 “**Deferred Maintenance Revenue**” is allamounts received in advance of performance under maintenance contract and notyet recognized as revenue.

 

**“Early TerminationFee”** is defined in Section 3.6.

 

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**“Event of Default”**is defined in Section 9.

 

**“Facility”** is an extension of credit byBank to Borrower in order to finance receivables with aggregate Advances notexceeding the Facility Amount.

 

**“Facility Amount”**is **$1,000,000**,provided that the total outstanding Advances under this Agreement and the EximAgreement (as defined in Section 2A. below) may not exceed $1,000,000.

 

**“Facility Fee”**is defined in Section 3.4.

 

**“Facility Period”**is the period beginning on this date and continuing until one year from thedate of this Agreement, unless the period is terminated sooner by Bank withnotice to Borrower or by Borrower under Section 3.6.

 

**“Finance Charges”** is defined in Section3.2.

 

**“FinancedReceivables”** are all those accounts, receivables,chattel paper, instruments, contract rights, documents, general intangibles,letters of credit, drafts, bankers acceptances, and rights to payment, and allproceeds, including their proceeds (collectively “receivables”), which Bankfinances and make an Advance.  AFinanced Receivable stops being a Financed Receivable (but remains Collateral)when the Advance made for the Financed Receivable has been finally paid.

 

**“Financed ReceivableBalance”**is the total outstanding amount, at any time,of all Financed Receivables.

 

**“Good Faith Deposit”**is described in Section 3.9.

 

**“Ineligible Receivable”** is any accountsreceivable:

 

(A)  that is unpaid (90) calendar days after theinvoice date; or

 

(B)        thatis owed by an Account Debtor that has filed, or has had filed against it, anybankruptcy case, assignment for the benefit of creditors, receivership, orInsolvency Proceeding or who has become insolvent (as defined in the UnitedStates Bankruptcy Code) or who is generally not paying its debts as they becomedue; or

 

(C)        for which there has been any breach of warranty orrepresentation 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 personunder the United States Bankruptcy Code, or any other bankruptcy or insolvencylaw, 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 andinvoice number and is signed by Borrower’s authorized representative.

 

**“Lockbox”**isdescribed in Section 6.2.

 

**“Minimum Finance Charge”** is **$1,000**per month, combined under this Agreement and the Exim Agreement.

 

**“Obligations”**are all advances, liabilities, obligations, covenants and duties owing,arising, due or payable by Borrower to Bank now or later under this Agreementor any other document, instrument or agreement, account (including thoseacquired by assignment) primary or secondary, such as all Advances, FinanceCharges, Administrative Fees, interest, fees, expenses, professional fees andattorneys’ fees or other.

 

**“Prime Rate”**is Bank’s most recently announced “prime rate,” even if it is not Bank’s lowestrate.

 

**“Reconciliation Day”**isthe last calendar day of each month.

 

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**“ReconciliationPeriod”** is each calendar month.

 

2.               **Financingof Accounts Receivable**.

 

2.1.**Request forAdvances**.  During theFacility Period, Borrower may offer accounts receivable to Bank, if there isnot an Event of Default.  Borrower willdeliver an Invoice Transmittal for each accounts receivable it offers.  Bank may rely on information on or with theInvoice Transmittal.

 

2.2. **Acceptance of Accounts Receivable**.  Bank is not obligated to finance anyaccounts receivable.  Bank may approveany Account Debtor’s credit before financing any receivable.  When Bank accepts a receivable, it will payBorrower the Advance Rate times the face amount of the receivable (the“Advance”).  Bank may, in itsdiscretion, change the percentage of the Advance Rate.  When Bank makes an Advance, the receivablebecomes a “Financed Receivable.”  Allrepresentations and warranties in Section 6 must be true as of the date of theInvoice Transmittal and of the Advance and no Event of Default exists wouldoccur as a result of the Advance.  Theaggregate amount of all Advances outstanding at any time may not exceed theFacility Amount.

 

2A.  **EximAgreement; Cross-Collateralization;****Cross-Default.**  Bank and the Borrower areparties to that certain Accounts Receivable Financing Agreement (Exim Facility) of even date (the “Exim Agreement”). Both this Agreement and the Exim Agreement shall continue in full forceand effect, and all rights and remedies under this Agreement and the EximAgreement are cumulative.  The term“Obligations” as used in this Agreement and in the Exim Agreement shall includewithout limitation the obligation topay when due all Advances made pursuant to this Agreement (the “Non-EximAdvances”) and all Finance Charges and interest thereon and the obligation to pay when due all Advances madepursuant to the Exim Agreement (the “Exim Advances”) and all FinanceCharges and interest thereon.  Without limiting the generality of theforegoing, all “Collateral” as defined in this Agreement and as defined in theExim Agreement shall secure all Exim Advances and all Non-Exim Advances and allFinance Charges and interest thereon, andall other Obligations.  Any Event ofDefault under this Agreement shall also constitute an Event of Default underthe Exim Agreement, and any Event of Default under the Exim Agreement shallalso constitute an Event of Default under this Agreement.  In the event Bank assigns its rights underthe Exim Agreement and/or its rights under this Agreement, to any third party,including without limitation the Export-Import Bank of the United States (“EximBank”), whether before or after the occurrence of any Event of Default, Bankshall have the right (but not any obligation), in its sole discretion, toallocate and apportion Collateral to the Agreement assigned and to specify thepriorities of the respective security interests in such Collateral betweenitself and the assignee, all without notice to or consent of the Borrower. Inthe event Borrower terminates this Agreement, any such termination shall alsoconstitute a termination of the Exim Agreement, and all such terminations besubject to the other provisions of this Agreement and the Exim Agreement.

 

3.     **Collections, Finance Charges, Remittances and Fees**.  The Obligations shall be subjectto the following fees and Finance Charges. Fees and Finance Charges may, in Bank’s discretion, be charged as anAdvance, and shall thereafter accrue fees and Finance Charges as describedbelow.  Bank may, in its discretion,charge fee and Finance Charges to Borrower’s deposit account maintained withBank.

 

3.1. **Collections**.Collections will be credited to the Financed Receivables Balance, but if thereis an Event of Default, Bank may apply Collections to the Obligation in anyorder it chooses.   If Bank receives apayment for both Financed Receivable and a non Financed Receivable, the fundswill first be applied to the Financed Receivable and, if there is not an Eventof Default, the excess will be remitted to the Borrower, subject to Section3.10.

 

3.2.**FinanceCharges**. In computing Finance Charges on the Obligations, allCollections received by Bank shall be deemed applied by Bank on account of theObligations Three Business Days after receipt of the Collections.  Borrower will pay a monthly finance charge(the “Finance Charge”), which is equal to the Applicable Rate times the numberof days in the Reconciliation Period times the outstanding average dailyFinanced Receivable Balance for that Reconciliation Period, provided that thetotal Finance Charge each month under this Agreement and the Exim Agreementshall not be less than the Minimum Finance Charge. After an Event of Default,Obligations accrue interest at 5 percent above the Applicable Rateeffective immediately before the Event of Default.

 

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3.3.  **Administrative Fee**.   Not applicable.

 

3.4. **Facility Fee**.A fully earned, non-refundable total facility fee of $15,000 combined for thisAgreement and the Exim Agreement, reduced by any fees payable to Exim Bankunder Section 2A of the Exim Agreement.

 

**3.5.**Collateral Handling Fee. On eachReconciliation Day, Borrower will pay to Bank a collateral handling fee, equalto 0.50% per month of theaverage daily Financed Receivable Balance outstanding during the applicableReconciliation Period. After an Event of Default, the Collateral Handling Feewill increase an additional 0.50% effective immediately before the Event ofDefault.

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3.6. **EarlyTermination Fee**. Not applicable.

 

3.7. **Accounting.**  After each Reconciliation Period, Bank willprovide an accounting of the transactions for that Reconciliation Period,including the amount of all Financed Receivables, all Collections, Adjustments,Finance Charges, the Collateral Handling Fee and the Administrative Fee.  If Borrower does not object to theaccounting in writing within 30 days it is considered correct.  All Finance Charges and other interest andfees 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 fromany Advances made or Collections received by Bank.

 

3.9.  **Good Faith Deposit.**  Borrower has paid to Bank a Good FaithDeposit of $**7,000** to initiate Banks due diligence review process.  Any portion of the deposit not utilized topay expenses will be applied to the Facility Fee.

 

3.10.**AccountCollection Services**.  AllBorrowers’ receivables are to be paid to the same address/or party and Borrowerand Bank must agree on such address.  IfBank collects all receivables and there is not an Event of Default or an eventthat with notice or lapse of time will be an Event of Default, within **five (5)**daysof receipt of those collections, Bank will give Borrower, the receivablescollections it receives for receivables other than Financed Receivables and/oramount 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, Administrative Fee,Collateral Handling Fee and expenses or otherwise. This Section does not imposeany affirmative duty on Bank to do any act other than to turn overamounts.  All receivables andcollections are Collateral and if an Event of Default occurs, Bank need notremit 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 theearliest of: (a) payment of the Financed Receivable in respect which theAdvance was made, (b) the Financed Receivable becomes an Ineligible Receivable,(c) when any Adjustment is made to the Financed Receivable (but only to theextent of the Adjustment if the Financed Receivable is not otherwise anIneligible Receivable, or (d) the last day of the Facility Period (includingany early termination). Each payment will also include all accrued FinanceCharges on the Advance and all other amounts due hereunder.

 

4.2.**  Repayment on Event of Default**.  When there is an Event of Default, Borrowerwill, 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, includethe Advance for each Financed Receivable then outstanding and all accruedFinance Charges, Administrative Fees, attorneys and professional fees, courtcosts and expenses, and any other Obligations.

 

5.               **Power ofAttorney**. Borrower irrevocably appoints Bank and its successors and assigns itattorney-in-fact and authorizes Bank, regardless of whether there has been anEvent of Default, to:

 

(A)      sell,assign, transfer, pledge, compromise, or discharge all or any part of theFinanced Receivables:

 

(B)        demand,collect, sue, and give releases to any Account Debtor for monies due andcompromise, prosecute, or defend any action, claim, case or proceeding aboutthe Financed Receivables, including filing a claim or voting a claim in anybankruptcy case in Bank’s or Borrower’s name, as Bank chooses:

 

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(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)       notifyall Account Debtors to pay Bank directly;

 

(E)         receive,open, and dispose of mail addressed to Borrower;

 

(F)         endorseBorrower’s name on check or other instruments;

 

(G)        executeon Borrower’s behalf any instruments, documents, financing statements toperfect Bank’s interests in the Financed Receivables and Collateral; and

 

(H)       doall acts and things necessary or expedient.

 

6.     **Representations, Warranties****andCovenants.**

 

6.1. **Representationsand Warranties.**  Borrower represents and warrants foreach Financed Receivable:

 

(A)      Itis the owner with legal right to sell, transfer and assign it;

 

(B)        Thecorrect amount is on the Invoice Transmittal and is not disputed;

 

(C)        Paymentis not contingent on any obligation or contract and it has fulfilled all itsobligations as of the Invoice Transmittal date;

 

(D)       Itis based on an actual sale and delivery of goods and/or services rendered, dueto 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 interestsand encumbrances;

 

(E)         Thereare no defenses, offsets, counterclaims or agreements for which the AccountDebtor may claim any deduction or discount;

 

(F)         Itreasonably believes no Account Debtor is insolvent or subject to any InsolvencyProceedings;

 

(G)        Ithas not filed or had filed against it Insolvency Proceedings and does notanticipate any filing;

 

(H)       Bankhas the right to endorse and/ or require Borrower to endorse all paymentsreceived on Financed Receivables and all proceeds of Collateral.

 

(I)            Norepresentation, warranty or other statement of Borrower in any certificate orwritten statement given to Bank contains any untrue statement of a materialfact or omits to state a material fact necessary to make the statementcontained in the certificates or statement not misleading.

 

6.1.1 **AdditionalRepresentations and Warranties.** Borrower represents and warrants as follows:

 

(A)      Borroweris duly existing and in good standing in its state of formation and qualifiedand licensed to do business in, and in good standing in, any state in which theconduct of its business or its ownership of property requires that it bequalified.  The execution, delivery andperformance of this Agreement has been duly authorized, and does not conflictwith Borrower’s organizational documents, nor constitute an Event of Defaultunder any material agreement by which Borrower is bound.  Borrower is not in default under anyagreement to which or by which it is bound.

 

(B)        Borrowerhas good title to the Collateral. All inventory is in all material respects ofgood and marketable quality, free from material defects.

 

(C)        Borroweris not an “investment company” or a company “controlled” by an “investmentcompany” under the Investment Company Act. Borrower is not engaged as one of its important activities in extendingcredit for margin stock (under Regulations G, T and U of the FederalReserve Board of

 

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Governors).  Borrower has complied with the Federal FairLabor Standards Act.  Borrower has notviolated any laws, ordinances or rules. None of Borrower’s properties or assetshas been used by Borrower, to the best of Borrower’s knowledge, by previouspersons, in disposing, producing, storing, treating, or transporting anyhazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or madeadequate 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 governmentauthorities that are necessary to continue its business as currently conducted.

 

6.2.**AffirmativeCovenants. **Borrower will doall of the following:

 

(A)      Maintainits corporate existence and good standing in its jurisdictions of incorporationand maintain its qualification in each jurisdiction necessary to Borrower’sbusiness or operations.

 

(B)        GiveBank at least written notice of changes to its name, organization, chiefexecutive office or location of records, within 15 days after the date suchchange occurs.

 

(C)        Payall its taxes including gross payroll, withholding and sales taxes when due andwill deliver satisfactory evidence of payment if requested.

 

(D)       Providea written report within 10 days, if payment of any Financed Receivable does notoccur by its due date and include the reasons for the delay.

 

(E)         Unlessthe same are publicly available, give Bank copies of all Forms 10-K, 10-Q and8-K (or equivalents) within 5 days of filing with the Securities and ExchangeCommission, while any Financed Receivable is outstanding.

 

(F)         Executeany further instruments and take further action as Bank requests to perfect orcontinue Bank’s security interest in the Collateral or to effect the purposesof this Agreement.

 

(G)        ProvideBank with a Compliance Certificate no later than 30 days following the end ofeach month, or as requested by Bank.

 

(H)       ProvideBank with, as soon as available, but no later than 30 days following eachReconciliation Period, a company prepared balance sheet and income statement,prepared under GAAP, consistently applied, covering Borrower’s operationsduring the period together with a deferred revenue report, and as soon asavailable, but no later than 20 days following each Reconciliation Period anaged listing of accounts receivable and accounts payable.

 

(I)            Immediatelynotify, transfer and deliver to Bank all collections Borrower receives forFinanced Receivables.

 

(J)           Borrowerwill remit all payment’s for Accounts to the Bank by the close of business oneach Friday along with a detailed cash receipts journal and shall immediatelynotify and direct all of the Borrower’s Account Debtor’s to make all payment’sfor Borrower’s Accounts to a lockbox account established with the Bank(“Lockbox”) or to wire transfer payments to a cash collateral account that Bankcontrols. It will be considered an immediate Event of Default if the Lockbox isnot set-up and operational within 45 days from the date of this Agreement.

 

(K)       Borrowerwill allow Bank to audit Borrower’s Collateral, including but not limited toBorrower’s Accounts, at Borrowers expense, at such times as Bank shalldetermine in its good faith business judgment.

 

(L)         Borrowershall, at all times, maintain its primary operating and investment accountswith Bank, and without limiting the generality of the foregoing, Borrower shallat all times maintain not less than 85% of Borrower’ total cash, cashequivalents, deposit accounts and investment accounts with Bank.

 

6.3. **NegativeCovenants. **Borrower will notdo any of the following without Bank’s prior written consent:

 

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(A)      Assign,transfer, sell or grant, or permit any lien or security interest in theCollateral.

 

(B)        Convey,sell, lease, transfer or otherwise dispose of the Collateral.

 

(C)        Create,incur, assume, or be liable for any indebtedness.

 

(D)       Becomean “investment company” or a company controlled by an “investment company,”under the Investment Company Act of 1940 or undertake as one of its importantactivities extending credit to purchase or carry margin stock, or use theproceeds of any Advance for that purpose; fail to meet the minimum fundingrequirements of ERISA, permit a Reportable Event or Prohibited Transaction, asdefined in ERISA, to occur; fail to comply with the Federal Fair LaborStandards Act or violate any other law or regulation, or permit any of itssubsidiaries 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 Borrowerbreaches any of the representations, warranties or covenants set forth inSection 6., Borrower will promptly advise Bank.  Borrower will resell any rejected, returned, returned, orrecovered personal property for Bank, at Borrower’s expense, and pay proceedsto Bank.  While Borrower has returnedgoods that are Borrower property, Borrower will segregate and mark them“property of Silicon Valley Bank.”  Bankowns the Financed Receivables and until receipt of payment, has the right totake possession of any rejected, returned, or recovered personal property.

 

8.     **Security Interest**. Borrower grants toBank a continuing security interest in all presently and later acquiredCollateral.  Any security interest willbe a first priority security interest in the Collateral.

 

9.               **Events ofDefault**. Any one or more of the following is an Event ofDefault.

 

(A)      Borrowerfails to pay any amount owed to Bank when due;

 

(B)        Borrowerfiles or has filed against it any Insolvency Proceedings or any assignment forthe benefit of creditors, or appointment of a receiver or custodian for any ofits assets, provided that, in the case of an involuntary bankruptcy proceedingfiled against Borrower, the same shall not constitute an Event of Default if itis dismissed within 30 days after the date it was filed;

 

(C)        Borrowerbecomes insolvent or is generally not paying its debts as they become due;

 

(D)       Anyinvoluntary lien, garnishment, attachment attaches to the Financed Receivablesor any Collateral;

 

(E)         Borrowerbreaches any covenant, agreement, warranty, or representation is an immediateEvent of Default;

 

(F)         Borroweris in default under any document, instrument or agreement evidencing any debt,obligation or liability in favor of Bank its affiliates or vendors regardlessof whether the debt, obligation or liability is direct or indirect, primary orsecondary, or fixed or contingent;

 

(G)        [intentionallyomitted];

 

(H)       Amaterial default or Event of Default occurs under any agreement betweenBorrower and any creditor of Borrower that signed a subordination agreementwith Bank;

 

(I)            Anycreditor that has signed a subordination agreement with Bank breaches any termsof the subordination agreement; or

 

(J)           (i)A material impairment in the perfection or priority of the Bank’s securityinterest 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 theAdvances occurs.

 

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10.   **Remedies.**

 

10.1. **RemediesUpon Default**.  When an Eventof Default occurs, (1) Bank may stop financing receivables or extending creditto Borrower;  (2) at Banks option and ondemand, all or a portion of the Obligations or, for to an Event of Defaultdescribed in Section 9(B), automatically and without demand, are due andpayable in full; (3) apply to the Obligations any (i) balances and deposits ofBorrower it holds, or (ii) any amount held by Bank owing to or for the creditor the account of Borrower; and (4) Bank may exercise all rights and remediesunder this Agreement and the law, including those of a secured party under theCode, power of attorney rights in Section 5 for the Collateral, and the rightto collect, dispose of, sell, lease, use, and realize upon all FinancedReceivables and Collateral in any commercial manner.  Borrower agrees that any notice of sale required to be given toBorrower is deemed given if at least five days before the sale may be held.

 

10.2.**Demand Waiver**. ** **Borrower waives demand, notice ofdefault or dishonor, notice of payment and nonpayment, notice of any default,nonpayment at maturity, release, compromise, settlement, extension, or renewalof accounts, documents, instruments, chattel paper, and guaranties held by Bankon which Borrower is liable.

 

10.3. **Default Rate**.  If any amount is not paid when due, theamount bears interest at the Applicable Rate plus five percent until theearlier of (a) payment in good funds or (b) entry of a final judgment when theprincipal amount of any money judgment will accrue interest at the highest rateallowed by law.

 

11.   **Fees,Costs and Expenses**.  The Borrower will pay on demand all fees, costs and expenses  (including attorneys’ and professionals feeswith costs and expenses) that Bank incurs from:  (a) preparing, negotiating, administering, and enforcing thisAgreement or related agreement, including any amendments, waivers or consents,(b) any litigation or dispute relating to the Financed Receivables, theCollateral, this Agreement or any other agreement, (c) enforcing any rightsagainst Borrower or any guarantor, or any Account Debtor, (d) protecting orenforcing its interest in the Financed Receivables or other Collateral, (e)collecting the Financed Receivables and the Obligations, and (f) any bankruptcy case or insolvency proceedinginvolving Borrower, any Financed Receivable, the Collateral, or any AccountDebtor.

 

12.   **Choice of Law, Venue and Jury Trial Waiver**.  California law governs this Agreement.  Borrower and Bank each submit to theexclusive jurisdiction of the State and Federal courts in Santa Clara County,California.

 

**BORROWER AND BANK EACH WAIVE THEIR RIGHT TO AJURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THISAGREEMENT OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OFDUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTHPARTIES 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 bein writing and personally delivered or sent by an overnight delivery service,by certified mail postage prepaid return receipt requested, or by FAX to theaddresses listed at the beginning of this Agreement.  A party may change notice address by written notice to the otherparty.

 

14.   **General Provisions**.

 

14.1.  **Successors and Assigns**.  This Agreement binds and is for the benefitof successors and permitted assigns of each party.  Borrower may not assign this Agreement or any rights under itwithout Bank’s prior written consent which may be granted or withheld in Bank’sdiscretion.  Bank may, without theconsent of or notice to Borrower, sell, transfer, or grant participation in anypart of Bank’s obligations, rights or benefits under this Agreement.

 

14.2.  **Indemnification.**  Borrower will indemnify, defend and hold harmless Bank and itsofficers, employees, and agents against: (a) obligations, demands, claims, and liabilities asserted by any otherparty in connection with the transactions contemplated by this Agreement; and(b) losses or expenses incurred, or paid by Bank from or consequential totransactions between Bank and Borrower (including reasonable attorneys fees andexpenses), except for losses caused by Bank’s gross negligence or willfulmisconduct.

 

14.3.  **Time of Essence**.  Time is of the essence for performance of all obligations in thisAgreement.

 

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14.4. **Severabilityof Provision**.  Each provisionof this Agreement is severable from every other provision in determining theenforceability of any provision.

 

14.5. **Amendmentsin Writing, Integration**.  Allamendments to this Agreement must be in writing.  This Agreement is the entire agreement about this subject matterand supersedes prior negotiations or agreements.

 

14.6**.Counterparts**.  This Agreementmay be executed in any number of counterparts and by different parties onseparate counterparts and when executed and delivered are one Agreement.

 

14.7. **Survival**. All covenants, representations and warranties made in this Agreementcontinue in force while any Financed Receivable amount remainsoutstanding.  Borrower’s indemnificationobligations survive until all statutes of limitations for actions that may bebrought against Bank have run.

 

14.8. **Confidentiality**.  Bank will use the same degree of care handling Borrower’sconfidential information that it uses for its own confidential information, butmay disclose information; (i) to its subsidiaries or affiliates in connectionwith their business with Borrower, (ii) to prospective transferees orpurchasers of any interest in the Agreement, (iii) as required by law,regulation, subpoena, or other order, (iv) as required in connection with anexamination or audit and (v) as it considers appropriate exercising theremedies 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 becomespart of the public domain after disclosure to Bank; or (b) disclosed to Bank bya third party, if Bank does not know that the third party is prohibited fromdisclosing the information.

 

14.9. **OtherAgreements**.  This Agreementmay not adversely affect Banks rights under any other document or agreement.  If there is a conflict between thisAgreement and any agreement between Borrower and Bank, Bank may determine inits sole discretion which provision applies. Borrower acknowledges that any security agreements, liens and/orsecurity interests securing payment of Borrower’s Obligations also secureBorrower’s Obligations under this Agreement and are not adversely affected bythis Agreement.  Additionally, (a) anyCollateral under other agreements or documents between Borrower and Banksecures Borrowers Obligations under this Agreement and (b) a default byBorrower under this Agreement is a default under agreements between Borrowerand Bank.

 

BORROWER:        INTERWAVE COMMUNICATIONS, INC.

 

 
| By                         | /s/ Cal R. Hoagland |   |   |
|----------------------------|---------------------|--------|--------|
| Title                      |  SVP and CFO   |   |   |
|                       |                |
|                       |                |
| BANK: SILICON  VALLEY BANK |                |
|                       |                |
|                       |                |
| By                         | /s/ Illegible       |   |   |
| Title                      |  VP            |   |   |
|                            |                     |        |        |  |  |  |

 

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# EXHIBIT A

#  

The Collateralconsists of all of Borrower’s right, title and interest in and to thefollowing:

 

All goods andequipment now owned or hereafter acquired, including, without limitation, allmachinery, fixtures, vehicles (including motor vehicles and trailers), and anyinterest in any of the foregoing, and all attachments, accessories, accessions,replacements, substitutions, additions, and improvements to any of theforegoing, wherever located;

 

All inventory,now owned or hereafter acquired, including, without limitation, allmerchandise, raw materials, parts, supplies, packing and shipping materials,work in process and finished products including such inventory as istemporarily out of Borrower’s custody or possession or in transit and includingany returns upon any accounts or other proceeds, including insurance proceeds,resulting from the sale or disposition of any of the foregoing and anydocuments of title representing any of the above;

 

All contractrights and general intangibles now owned or hereafter acquired, including,without limitation, goodwill, trademarks, service marks, trade styles, tradenames, patents, patent applications, leases, license agreements, franchiseagreements, 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 ofinsurance and rights to payment of any kind;

 

All nowexisting and hereafter arising accounts, contract rights, royalties, licenserights and all other forms of obligations owing to Borrower arising out of thesale or lease of goods, the licensing of technology or the rendering ofservices by Borrower, whether or not earned by performance, and any and allcredit insurance, guaranties, and other security therefor, as well as allmerchandise returned to or reclaimed by Borrower;

 

All documents,cash, deposit accounts, securities, securities entitlements, securitiesaccounts, investment property, financial assets, letters of credit,certificates of deposit, instruments and chattel paper now owned or hereafteracquired and Borrower’s Books relating to the foregoing;

 

All copyrightrights, copyright applications, copyright registrations and like protections ineach work of authorship and derivative work thereof, whether published orunpublished, 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 orhereafter acquired; all mask work or similar rights available for theprotection of semiconductor chips, now owned or hereafter acquired; all claimsfor damages by way of any past, present and future infringement of any of theforegoing;

 

All Borrower’s Booksrelating to the foregoing and any and all claims, rights and interests in anyof the above and all substitutions for, additions and accessions to andproceeds thereof.

 

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**Exhibit “B”**

 

**SILICON VALLEY BANK**

**SPECIALTY FINANCEDIVISION**

 

Compliance Certificate

 

I, as authorized officer of INTERWAVE COMMUNICATIONS, INC. (“Borrower”)certify under the Accounts Receivable Financing Agreement (the “Agreement”)between Borrower and Silicon Valley Bank (“Bank”) as follows.

 

**Borrower represents and warrants for eachFinanced Receivable:**

 

It is theowner with legal right to sell, transfer and assign it;

 

The correctamount is on the Invoice Transmittal and is not disputed;

 

Payment is notcontingent on any obligation or contract and it has fulfilled all itsobligations as of the Invoice Transmittal date;

 

It is based onan 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 andencumbrances;

 

There are nodefenses, offsets, counterclaims or agreements for which the Account Debtor mayclaim any deduction or discount;

 

It reasonablybelieves no Account Debtor is insolvent or subject to any InsolvencyProceedings;

 

It has notfiled or had filed against it proceedings and does not anticipate any filing;

 

Bank has theright to endorse and/ or require Borrower to endorse all payments received onFinanced Receivables and all proceeds of Collateral.

 

Norepresentation, warranty or other statement of Borrower in any certificate orwritten statement given to Bank contains any untrue statement of a materialfact or omits to state a material fact necessary to make the statementcontained in the certificates or statement not misleading.

 

**Additionally,Borrower represents and warrants as follows:**

 

Borrower isduly existing and in good standing in its state of formation and qualified andlicensed to do business in, and in good standing in, any state in which theconduct of its business or its ownership of property requires that it bequalified.  The execution, delivery andperformance of this Agreement has been duly authorized, and do not conflictwith Borrower’s formations documents, nor constitute an Event of Default underany material agreement by which Borrower is bound.  Borrower is not in default under any agreement to which or bywhich it is bound.

 

Borrower hasgood title to the Collateral. All inventory is in all material respects of goodand marketable quality, free from material defects.

 

Borrower isnot an “investment company” or a company “controlled” by an “investmentcompany” under the Investment Company Act. Borrower is not engaged as one of its important activities in extendingcredit for margin stock (under Regulations G, T and U of the FederalReserve Board of Governors).  Borrowerhas 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 byBorrower, to the best of Borrower’s knowledge, by previous persons, indisposing, producing, storing, treating, or transporting any hazardoussubstance other than legally.  Borrowerhas timely filed all required tax returns and paid, or made adequate provisionto pay, all taxes.  Borrower hasobtained all consents, approvals and authorizations of, made all declarationsor filings with, and given all notices to, all government authorities that arenecessary to continue its business as currently conducted.

 

All representations and warranties in the Agreement are true andcorrect in all material respects on this date.

 

Sincerely,

 
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