1
EXHIBIT 10.45
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement") is made as of
this ___ day of December, 2000 by and among Caldera Systems, Inc., a Delaware
corporation ("Caldera") and The Canopy Group, Inc., a Utah corporation
("Canopy") and The Santa Xxxx Operation, Inc., a California corporation (the
"Borrower"). Caldera and Canopy are collectively referred to herein as the
"Creditors". All terms not otherwise defined herein shall have the meaning set
forth in the Security Agreements.
RECITALS
A. Borrower is indebted to Caldera in the amount of $7 million under that
certain Secured Convertible Promissory Note, dated as of an even date
herewith (the "Caldera Note"). Borrower is indebted to Canopy up to a
maximum amount of $18 million under that certain Secured Convertible
Promissory Note, dated as of an even date herewith (the "Canopy Note").
B. Borrower's obligations to Caldera under the Caldera Note are secured by a
senior security interest, except as otherwise provided herein, in certain
Collateral as specified in the Security Agreement, dated as of an even date
herewith, by and between Borrower and Caldera (the "Caldera Security
Agreement"). Borrower's obligations to Canopy under the Canopy Note are
secured by a junior security interest in certain Collateral as specified in
the Security Agreement, dated as of an even date herewith, by and between
Borrower and Canopy (the "Canopy Security Agreement") . The Caldera
Security Agreement and the Canopy Security Agreement are collectively
referred to herein as the "Security Agreements".
C. The parties wish to establish that Caldera possesses a senior security
interest to Canopy, except as otherwise provided herein, with respect to
Collateral, regardless of the time or order of filing of the financing
statements perfecting such security interests and certain other matters.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Security Interest in the Collateral.
(a) The security interest of Caldera in and to the Collateral
shall be senior in all respects to the security interest of Canopy in and to the
Collateral, and Canopy hereby subordinates the security interest that Canopy now
has or may hereinafter acquire pursuant to the Canopy Security Agreement to the
seven million dollar ($7,000,000) security interest that Caldera now has
pursuant to the Caldera Security Agreement, provided, however, notwithstanding
the forgoing, that the security interest of Canopy shall be senior to the
security interest of Caldera with respect to all shares of Common Stock, whether
issued by Caldera or Caldera International, Inc., either currently held or
hereinafter issued to Borrower in connection
2
with the closing of the Agreement and Plan of Reorganization dated July 31,
2000, by and between Caldera and Borrower.
(b) The establishment of the priority of the security
interests pursuant to this Agreement shall be effective without regard to the
time or order of attachment or perfection of the security interest or of filing
financing statements insofar as Caldera and Canopy each has an enforceable and
perfected security interest in the Collateral. If and to the extent the security
interest of Caldera or Canopy in any Collateral is or becomes unenforceable or
unperfected in any respect, the relative priorities of such security interests
of Caldera and Canopy shall be determined in accordance with applicable law.
2. Conversion of Debt. For as long as both the Caldera Note and the
Canopy Note are outstanding, (i) Caldera shall not be entitled to convert debt
under the Caldera Note into an aggregate number of shares that exceeds 4.5% of
the total outstanding shares of Borrower's Common Stock and (ii) Canopy shall
not be entitled to acquire an aggregate number of shares through conversion of
debt under the Canopy Note or purchased shares under that certain Warrant
granted by Borrower to Canopy and dated on even date herewith (the "Warrant")
and any Additional Warrants issued pursuant to the Loan Agreement, dated the
date hereof, between Canopy and Borrower, that exceeds 14.% of the total
outstanding Borrower's Common Stock. Notwithstanding the foregoing, in no event
shall the aggregate number of shares acquired through the conversion of debt
under the Caldera Note and the Canopy Note and the purchase of shares under the
Warrant exceed 19% of the total outstanding shares of Borrower's Common Stock.
3. First Priority. Borrower hereby represents and warrants that there
are no liens or security interests in the Collateral in favor of any person or
entity other than the Creditors, Prior Liens or Permitted Liens.
4. No Creditor Obligations. Subject only to the obligation to share
Collateral and Collateral proceeds as specified in Section 1 of this Agreement,
each of the Creditors is free to exercise independently its respective rights
and remedies under its agreements with Borrower provided, however, that each of
the Creditors must provide the other five (5) days written notice prior to
exercising any right. Without limiting the generality of the foregoing, subject
only to the requirements of Section 1 of this Agreement, each of the Creditors
is free, for example, (a) to accept payments under its agreements with Borrower,
and (b) to declare an event of default under its agreements with Borrower and
proceed to enforce its creditor remedies against Borrower and the Collateral.
5. Notices. All notices and other communications under this Agreement
shall be properly given only if made in writing and mailed by certified mail,
return receipt requested, postage prepaid, or delivered by hand (including
messenger or recognized delivery, courier, or air express service) to the party
at the address set forth in this paragraph or such other address as such party
may designate in writing to the other party. Such notices and other
communications shall be effective on the date of receipt (evidenced by the
certified mail receipt) if mailed, or on the date of such hand delivery if hand
delivered. If any such notice or other communication is
2
3
not received or cannot be delivered due to a change in address of the receiving
party of which notice was not previously given to the sending party or due to a
refusal to accept by the receiving party, such notice of other communication
shall be effective on the date delivery is attempted.
If to Caldera:
Caldera Systems, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, III
Fax: (000) 000-0000
If to Canopy:
Canopy
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx & Xxxxxxx
000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
If to Borrower:
The Santa Xxxx Operation, Inc.
000 Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx
Attention: Chief Executive Officer and Law and Corporate
Affairs
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
3
4
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
6. Termination. When all of the indebtedness and obligations secured by
the Security Documents have been paid in full or otherwise satisfied, this
Agreement shall terminate and the Creditors and Borrower shall execute all
documents necessary to confirm such termination.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Utah.
8. Miscellaneous. This Agreement shall benefit and bind the parties and
their respective successors and assigns. No benefit to Borrower or any third
party is conferred by this Agreement. Caldera and Canopy each hereby waive and
relinquish any and all rights, whether at law or in equity, by statute or
otherwise, to require the other party to seek the enforcement of any remedy
against Borrower or by the other party.
9. Counterparts; Amendments. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute but one and
the same document. This Agreement may be amended only in a writing executed and
delivered by the Creditors and Borrower. This Agreement constitutes the entire
and integrated agreement between the Creditors relating to the subject matter of
this Agreement, and supersedes all prior agreements, understandings, offers and
negotiations, oral or written, with respect to the subject matter of this
Agreement.
4
5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
CALDERA SYSTEMS, INC.
By:
---------------------------------
Name:
Title:
THE CANOPY GROUP, INC.
By:
---------------------------------
Name:
Title:
THE SANTA XXXX OPERATIONS, INC.
By:
---------------------------------
Name:
Title:
5
