Exhibit 10.39


 


PARTNERS FOR GROWTH


 


Amendment
to Loan Documents


 


	
  Borrower:

  	
   

  	
  INTERWAVE
  COMMUNICATIONS, INC.

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  2495 Leghorn,
  Mountain View, California  94043

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  September 10,
  2004

  



 


THIS AMENDMENT TO LOAN DOCUMENTS (this “Amendment”) is entered into
between PARTNERS
FOR GROWTH, L.P. (“PFG”), and the borrower named above (“Borrower”).


 


The Parties agree
to amend the Loan and Security Agreement between them, dated June 4, 2004
(as otherwise amended, if at all, the “Loan Agreement”), as follows, effective
as of the date hereof.  (Capitalized
terms used but not defined in this Amendment, shall have the meanings set forth
in the Loan Agreement.)


 


1.                                      Addition of Term Loan Facility. 
Section 1 of the Schedule to the Loan Agreement  is hereby amended to read as follows:


 


“1.  Credit
Limit (Section 1.1):                                      The sum of the Revolving Loans under
subsection (a) below and the Term Loans under subsection (b) below:


 


(a)                                  Revolving Loans. 
Loans (the “Revolving Loans”) in an amount not to exceed the lesser of
(1) $1,500,000 (the “Dollar Credit Limit”) at any one time outstanding, or (2)
an amount equal to the sum of the following:


 


(A)                              up to 80% (an “Advance Rate”) of the
amount of Borrower’s Eligible Accounts-Domestic (as defined in Section 8
above); plus


 


(B)                                up to 80% (an “Advance Rate”) of the
amount of Borrower’s Eligible Accounts-Foreign (as defined in Section 8
above); plus


 


(C)                                up to 100% (an “Advance Rate”) of the
amount of Borrower’s Eligible Accounts-LC Supported (as defined in
Section 8 above); plus


 


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(D)                               up to 75% (an “Advance Rate”) of the
amount of Borrower’s Eligible Purchase Orders (as defined in Section 8
above); plus


 


(E)                                 up to 50% (an “Advance Rate”) of the
value of Borrower’s Eligible Inventory (as defined in Section 8
above),  calculated at the lower of cost
or market value and determined on a first-in, first-out basis.


 


PFG may, from time to time, modify the Advance Rates,
in its good faith business judgment, upon notice to the Borrower, based on
changes in collection experience with respect to Accounts, its evaluation of
the Inventory or other issues or factors relating to the Accounts, Inventory or
other Collateral.


 


Borrower shall have the right to repay and reborrow
Revolving Loans hereunder, subject to all of the terms and conditions of this
Agreement.


 


(b)                                 Term Loans.  Loans (the
“Term Loans”) in an amount not to exceed $2,000,000, which shall be subject to
the following terms and conditions:


 


(1)                                  Disbursements. 
The first disbursement of the Term Loans, in the amount of $1,000,000
shall be made by PFG to Borrower on or about September    ,
2004.  Subsequent disbursements of the
Term Loans shall be subject to the approval of PFG, which shall be a matter of
PFG’s good faith business judgment, and, if approved, shall be made within
three Business Days of written request therefor, in disbursements of not less
than $250,000, and with the total number of disbursements not to exceed five
(including the first disbursement).


 


(2)                                  Reborrowing; Prepayment. 
Term Loans may not be reborrowed, once they have been repaid.  Term Loans may be prepaid, in whole or in
part, at any time without premium or penalty. 
Prepayments shall be applied to the payments on the Term Loan in the
inverse order of their maturity.


 


(3)                                  Loan Fee.  On the date
hereof, Borrower shall pay PFG a loan fee of $30,000 representing 3% of the
$1,000,000 first disbursement of the Term Loan, and thereafter, Borrower shall
pay PFG a loan fee in an amount equal to 3% of the principal amount of


 


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each subsequent disbursement of the Term Loan,
concurrently with the disbursement. 
Such loan fees are fully earned on the date due, are in addition to all
interest and all other fees and are non-refundable.


 


(4)                                  Due Date; Mandatory Prepayment. 
Borrower shall repay the unpaid principal balance of the Term Loans and
any accrued and unpaid interest on October 31, 2004 (or on any earlier
termination of this Agreement) (the “Term Loan Maturity Date”); provided that
Borrower shall be required to prepay unpaid principal of the Term Loans (the
“Mandatory Prepayments”) in the amount of any loans, advances or other sums
that Borrower has the right to receive from the Senior Lender under the
Accounts Receivable Financing Agreement between Borrower and Senior Lender
dated June 30, 2003, as amended, and any other loan or similar agreement
(the “Senior Loans”) meeting the following requirements:


 


(i)                                     on or prior to September 30,
2004:  Senior Loans which Borrower has
the right to receive, and which Senior Loans would bring the total unpaid
principal balance of outstanding indebtedness of Borrower to Senior Lender to
more than $575,000; or


 


(ii)                                  after September 30, 2004: any and
all Senior Loans which Borrower has the right to receive.


 


Such prepayment shall be due on the earliest dates
Borrower has the right to receive the Senior Loans from the Senior Lender and
from the first proceeds of such loans. 
Borrower agrees to borrow from Senior Lender all Senior Loans available
to it, at the first date they become available to Borrower from the Senior
Lender, and to execute and deliver in connection therewith all loan requests
and other documents and instruments necessary in order to borrow such Senior
Loans, and to cause the proceeds thereof to be paid directly by Senior Lender
to PFG to the extent necessary to make the foregoing Mandatory Prepayments or
to make payment of the Term Loans in full on the due date


 


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of the Term Loans, but the obligation of the Borrower
to pay the Term Loans in full on the Term Loan Maturity Date is not dependent
on whether or not Borrower has Senior Loans available to it.


 


(5)                                  Irrevocable Assignment. 
Borrower shall, prior to the first disbursement of the Term Loan,
execute and deliver to PFG an Irrevocable Assignment of Loan Proceeds and
Consent in the form of Exhibit A hereto (the “Assignment”).  Disbursement of the Term Loan is conditioned
on the Senior Lender also executing and delivering the Assignment to PFG.  If, for any reason, notwithstanding the
Assignment, the Borrower receives proceeds of Senior Loans Borrower shall hold
the same in trust for PFG and remit the same to PFG within one business day of
receipt of the same, to the extent a Mandatory Prepayment or other payment on
the Term Loans is due.


 


(6)                                  Late Charge. In the event any installment of
principal of the Term Loan or interest thereon is not paid on the date due
(including without limitation Mandatory Prepayments), the Borrower  agrees to pay PFG a late charge in an amount
equal to 5% of the amount of the installment as liquidated damages and fair
compensation to the PFG to compensate the PFG for the delinquency, but nothing
herein shall be construed to obligate the PFG to accept late payment or to
limit any of the PFG’s rights and remedies as a result of the late payment.


 


(c)                                  Loans.  Revolving
Loans and Term Loans are “Loans” for all purposes of this Loan Agreement.


 


(d)                                 Interest.  Revolving
Loans and Term Loans shall bear interest at the rate set forth in
Section 2 below of this Schedule.


 


2.                                      Representations True.  Borrower
represents and warrants to PFG that all representations and warranties set
forth in the Loan Agreement are true and correct in all material respects.


 


3.                                      General Provisions.  This Amendment, the Loan Agreement, any
prior written amendments to the Loan Agreement signed by PFG and Borrower, and
the other written documents and agreements between PFG and Borrower set forth
in full all of the representations and agreements of the parties with respect
to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof.  Except as herein
expressly amended, all of the terms and provisions of the


 


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Loan Agreement, and all other documents and agreements between PFG and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.


 


	
  Borrower:

  	
  PFG:

  
	
   

  	
   

  
	
  INTERWAVE
  COMMUNICATIONS,

  INC.

  	
  PARTNERS
  FOR GROWTH, L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  	
     /s/ Lorraine Nield

  	
   

  
	
  By

  	
     /s/ Erwin Leichtle

  	
   

  	
  Title

  	
    Manager

  	
   

  
	
   

  	
  President

  	
   

  	
   

  	
    Partners for Growth, LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
    Its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
     /s/
  Cal R. Hoagland

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  	
   

  	
   

  	
   

  	
   

  
								



 


 


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CONSENT


 


Each of the
undersigned acknowledges that its consent to the foregoing Amendment is not
required, but the undersigned nevertheless does hereby consent to the foregoing
Amendment and to the documents and agreements referred to therein and to all
future modifications and amendments thereto, and any termination thereof, and
to any and all other present and future documents and agreements between or
among the foregoing parties.  Nothing
herein shall in any way limit any of the terms or provisions of the Continuing
Guaranty of the undersigned, all of which are hereby ratified and affirmed.


 


	
  Interwave Advanced
  Communications, Inc.

  	
   

  	
  Interwave
  Communications International,

  Ltd.

  
	
   

  	
   

  	
   

  
	
  By

  	
     /s/
  Erwin Leichtle

  	
   

  	
   

  	
  By

  	
     /s/
  Erwin Leichtle

  	
   

  
	
  Name

  	
     Erwin
  Leichtle

  	
   

  	
   

  	
  Name

  	
     Erwin
  Leichtle

  	
   

  
	
  Title

  	
     President and CEO

  	
   

  	
   

  	
  Title

  	
     President and CEO

  	
   

  
												



 


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IRREVOCABLE
ASSIGNMENT OF LOAN PROCEEDS AND CONSENT


 


THIS IRREVOCABLE ASSIGNMENT OF LOAN
PROCEEDS AND CONSENT
is entered into on September 10, 2004 
among SILICON VALLEY BANK (“Bank“), INTERWAVE COMMUNICATIONS, INC. (the
“Company“), and PARTNERS FOR GROWTH, L.P. (“PFG“).


 


1.  Assignment of Loan Proceeds.


 


1.1  Irrevocable Assignment.  The Company hereby irrevocably assigns to PFG all of its right,
title and interest in and to all loans, advances or other sums now or hereafter
due from the Senior Lender to the Company (the “Assigned Funds“) under the
Accounts Receivable Financing Agreement between Borrower and Senior Lender
dated June 30, 2003, as amended, and any other present or future loan or
similar agreement (collectively, the “Loan Agreement“).


 


1.2  Payment.  Bank shall
remit all Assigned Funds which would otherwise be payable to the Company under
the Loan Agreement (subject to all of Bank‘s rights under the Loan Agreement),
directly to PFG at such address and to such account as PFG shall from time to time
direct by written notice to the Bank.  
All payments made by Bank to PFG hereunder shall be applied by PFG as
follows:


 


(i)                                     first to any Mandatory Prepayments due on
the Term Loan (the “PFG Term Loan“) under the Loan and Security Agreement
between the Company and PFG dated June 4, 2004 (as amended by the
Amendment to Loan Documents of even date (the “PFG Amendment“), as so amended,
the “PFG Loan Agreement“), and accrued interest thereon;


 


(ii)                                  next to any other payments due on the PFG
Term Loan; and


 


(iii)                               provided no default or event of default has occurred
and is continuing under the PFG Loan Agreement, any excess shall be remitted by
PFG to the Company.


 


1.3  Subordination Agreement; Consent.  Bank agrees that
the payments from the Bank to PFG provided for herein and the application of
such payments to the indebtedness of the Company to PFG as provided herein
shall be permitted under the Subordination Agreement between Bank and PFG dated
June 7, 2004. Bank acknowledges receipt of the PFG Amendment and consents
to the transactions described therein (the “Transactions“), including the
incurrence of term loans of up to $2,000,000 and the assignment of certain
assets described in this Assignment to PFG. Bank agrees that the consummation
of the Transactions shall not constitute a default under the Loan Agreement.


 


1.4  Monthly Statements and Information.  Bank shall send PFG a copy of all monthly statements and other
statements rendered to the Company under or in connection with the Loan
Agreement at the same time as they are provided to the Company, provided that
Bank shall have no liability to PFG for negligently or inadvertently failing to
furnish such monthly statements.  Bank
shall also respond to reasonable inquiries from PFG relating to the status of
the Loan Agreement, the


 

















 


availability of loans
thereunder, and other matters relating thereto.  The Company hereby irrevocably authorizes the Bank to provide to
PFG all information called for by this Assignment.


 


1.5  Authority; Further Assurance. 
The Company represents that it has not made, executed or delivered any
other assignment of the monies covered by this Agreement.  The Company hereby irrevocably authorizes
and empowers PFG to ask, demand, receive, receipt and give acquittance for any
and all monies hereby assigned, and to endorse any checks or other orders for
the payment of money payable to the Company in payment thereof.  The Company agrees that it will at all times
hereafter at the request of PFG, make, do and execute all such further acts, agreements,
assurances and other documents and instruments as shall be reasonably required
to enable PFG to collect all sums due or to become due under or in connection
with the Loan Agreement, according to the intent and purpose of this Agreement.  Bank is hereby authorized to recognize PFG‘s
claims to rights hereunder without investigating the reason for any action
taken by PFG or the validity or the amount of the obligations owing from the
Company to PFG or the existence of any default or the application to be made by
PFG of any of the amounts paid to PFG.


 


1.6  Assignment Subject to Loan Agreement. 
This Assignment is subject in all respects to, and shall not affect or
limit any rights of Bank under, the terms and conditions of the Loan Agreement
(as it may be amended from time to time) with respect to any matter, including
(but not limited to) Bank’s right to retain reserves from time to time in its
sole discretion, Bank‘s right to offset any amounts owing by the Company to
Bank from time to time, and Bank’s right to terminate the Loan Agreement in
accordance with the terms thereof, all without prior notice to PFG (except that
Bank shall send to PFG a copy of any notice of termination given to the
Company, at the same time as the same is sent to the Company). Nothing
contained in this Agreement shall be construed to require Bank to advance any
funds beyond any amount provided in the Loan Agreement.


 


1.7  Perfection of PFG’s Security Interest.  PFG warrants and represents to Bank that the assignment to PFG by
the Company has been or will be validly perfected in all respects pursuant to
applicable law, and that PFG alone is entitled to receive all amounts otherwise
payable to the Company pursuant to the Loan Agreement.


 


1.8  Conflicting Demands. 
Bank shall not be obligated to make any payment to PFG hereunder, if any
such payment is enjoined, restrained, or stayed by any court or by any statute
or governmental rule or regulation.  In
the event any conflicting demands are made on Bank with respect to monies to be
paid hereunder, Bank shall not be required to determine the same and shall have
the right to file suit in interpleader or for declaratory relief.  In the event Bank shall bring any such
action, the Company agrees to reimburse Bank, for its attorneys‘ fees, costs
and expenses in connection therewith, and without limiting its other rights and
remedies, and Bank shall be entitled to deduct such attorneys‘ fees, costs and
expenses from the funds which are the subject of such interpleader or
declaratory relief action.


 


2. 
Termination.  The assignment in Section 1 above is
irrevocable and shall continue in effect until written notice of termination is
given by PFG to Bank.  PFG agrees to
provide such notice immediately upon payment in full of the PFG Term Loans and
all accrued interest thereon, provided no default or event of default has
occurred and is continuing under the PFG Loan Agreement.


 


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3. 
General.  This Agreement is solely for the benefit of
the parties hereto and their respective successors and assigns, and no other
person shall have any right, benefit, priority or interest under, or because of
the existence of, this Agreement.  All
of Bank‘s and PFG’s rights and remedies hereunder and under applicable law are
cumulative and not exclusive.  This
Agreement sets forth in full the terms of agreement among the parties with
respect to the subject matter hereof, and may not be modified or amended, nor
may any rights hereunder be waived, except in a writing signed by the parties
hereto.  The Company shall reimburse PFG
and Bank for all reasonable attorneys‘ fees and all other reasonable costs and
expenses incurred by them in connection with, or relating to, this Agreement,
whether or not any lawsuit is filed.  In
the event of any litigation between or among the Company, PFG and Bank based
upon, or arising out of, or relating to this Agreement, the prevailing party
shall be entitled to recover all of its reasonable costs and expenses
(including without limitation reasonable attorneys fees) from the
non-prevailing party.  This Agreement
shall be construed in accordance with, and governed by, the laws of the State
of California.  As a material part of
the consideration to the parties for entering into this Agreement, each party
(i) agrees that all actions and proceedings based upon, arising out of or
relating in any way directly or indirectly to, this Agreement shall be
litigated exclusively in courts located within Santa Clara County, California,
(ii) consents to the jurisdiction of any such court and consents to the
service of process in any such action or proceeding by personal delivery,
first-class mail, or any other method permitted by law, and (iii) waives
any and all rights to transfer or change the venue of any such action or
proceeding to any court located outside Santa Clara County, California.  This Agreement shall be binding upon and
inure to the benefit of PFG, the Company and Bank and their respective successors
and assigns.


 


4. 
Mutual Waiver of Jury Trial.  PFG, the
Company and Bank each hereby waive the right to trial by jury in any action or
proceeding based upon, arising out of, or in any way relating to: (i) this
Agreement; or (ii)  any other present or
future instrument or agreement between or among PFG, the Company and/or Bank;
or (iii) any conduct, acts or omissions of PFG, the Company or Bank or any of
their directors, officers, employees, agents, attorneys or any other persons
affiliated with PFG, the Company or Bank; in each of the foregoing cases,
whether sounding in contract or tort or otherwise.


 


	
  Company:

  	
  PFG:

  
	
   

  	
   

  
	
  Interwave Communications, Inc.

  	
  Partners For Growth, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
     /s/
  Erwin Leichtle

  	
   

  	
  By

  	
     /s/
  Lorraine Nield

  	
   

  
	
  Name

  	
     Erwin
  Leichtle

  	
   

  	
  Name

  	
     Lorraine
  Nield

  	
   

  
	
  Title

  	
     President
  and CEO

  	
   

  	
  Title

  	
     Manager,
  Partners for Growth, LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
     Its
  General Partner

  	
   

  
													



 


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  Bank:

  	
   

  
	
   

  	
   

  
	
  Silicon Valley Bank

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
     /s/
  Nick Tsiagkas

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
     Nick
  Tsiagkas

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
     Vice
  President

  	
   

  	
   

  	
   

  	
   

  
															



 


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