Exhibit 10.54
AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of October
21, 2003 (this "Agreement"), is by and among SILICON VALLEY BANK ("SVB"),
WARBURG PINCUS PRIVATE EQUITY VIII, L.P., as collateral agent for the
Noteholders (as herein defined) (in such capacity, the "Collateral Agent"),
PROXIM CORPORATION (the "Company") and PROXIM WIRELESS NETWORKS, INC.,
WIRELESSHOME CORPORATION and PROXIM INTERNATIONAL HOLDINGS, INC. (formerly
Western Multiplex International Holdings, Inc.), each of which is a wholly-owned
subsidiary of the Company (collectively the "Guaranteeing Subsidiaries").
W I T N E S S E T H:
WHEREAS, reference is made to those certain SVB Agreements (as herein
defined) pursuant to which the Company has granted a security interest in and
lien on the SVB Parent Collateral (as herein defined) to SVB and to those
certain SVB Subsidiary Agreements (as herein defined), pursuant to which the
Guaranteeing Subsidiaries have guaranteed the obligations of the Company under
the SVB Agreements and have granted security interests in and liens on the SVB
Subsidiary Collateral (as herein defined);
WHEREAS, reference is made to that certain Securities Purchase
Agreement, dated as of July 22, 2003, as amended on September 4, 2003 (the
"Original Purchase Agreement"), by and among the Company and the purchasers
named therein (the "Purchasers"), pursuant to which the Company issued $30
million in aggregate principal amount of secured promissory notes (the "July
2003 Notes") to the Purchasers;
WHEREAS, reference is made to that certain Pledge and Security
Agreement, dated as of July 30, 2003 (the "Original Pledge and Security
Agreement"), by and among the Company, the Collateral Agent and the Purchasers
(for the purposes of agreeing to and accepting the provisions set forth in
Article X and Article XI therein), pursuant to which the Company granted to the
Collateral Agent a lien on and security interest in all of the Company's right,
title and interest in, to and under the Collateral (as defined in the Original
Pledge and Security Agreement);
WHEREAS, reference is made to that certain Intercreditor Agreement,
dated as of July 30, 2003, by and among SVB, the Collateral Agent and the
Company (the "Original Intercreditor Agreement"), which governed the ranking and
priority of the security interests and liens granted pursuant to the Original
Pledge and Security Agreement;
WHEREAS, reference is made to that certain Amended and Restated
Securities Purchase Agreement, dated as of October 21, 2003 the ("Purchase
Agreement"), by and among the Company and the Purchasers, pursuant to which,
subject to the conditions set forth therein, (i) the parties thereto have agreed
to amend and restate the July 2003 Notes (the July 2003 Notes as amended and
restated, the "Amended Notes"), (ii) the Company has agreed to issue such
Amended Notes upon execution of the Purchase Agreement and (iii) the parties
thereto have agreed to the issuance of up to an additional $10 million in
aggregate principal amount of secured promissory notes (the "New Notes" and,
together with the Amended Notes, the "Notes")
to the Purchasers (the Purchasers and the other holders from time to time of the
New Notes being referred to herein collectively as the "New Noteholders");
WHEREAS, pursuant to the Amended and Restated Pledge and Security
Agreement, dated as of even date herewith (the "Amended Pledge and Security
Agreement"), by and among the Company, the Collateral Agent and the Purchasers
(for the purposes of agreeing to and accepting the provisions set forth in
Article X and Article XI therein), the parties are amending and restating the
Original Pledge and Security Agreement for the purpose of, among other things,
(i) confirming the grant of the lien and security interest made thereby and (ii)
providing that the Noteholder Collateral (as herein defined) provided for
therein shall also secure the full, prompt and complete payment and performance
when due of the New Notes Obligations (as herein defined);
WHEREAS, reference is made to those certain Subsidiary Guaranties,
dated as of even date herewith (collectively the "Subsidiary Guaranties"), by
each of the Guaranteeing Subsidiaries in favor of the Amended Noteholders and
the New Noteholders, respectively, and (ii) those certain Subsidiary Pledge and
Security Agreements, dated as of even date herewith (collectively the
"Subsidiary Pledge and Security Agreements"), by and among each of the
Guaranteeing Subsidiaries and the Collateral Agent;
WHEREAS, the Amended Pledge and Security Agreement and the Subsidiary
Pledge and Security Agreements provide that the ranking and priority of the
security interests and liens granted thereunder shall be governed in accordance
with the provisions set forth herein; and
WHEREAS, in connection with the Amended Pledge and Security Agreement
and the Subsidiary Pledge and Security Agreements, the parties wish to amend and
restate the Original Intercreditor Agreement.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby amend and restate the Original Intercreditor
Agreement as set forth herein and agree as follows:
SECTION 1 Definitions.
1.1 Definitions. Terms used but not otherwise defined herein shall
have the meanings provided in the Purchase Agreement. As used herein:
"Amended Noteholders" means the Purchasers and the other holders from
time to time of the Amended Notes.
"Amended Notes Guaranty Obligations" means the obligations of the
Guaranteeing Subsidiaries under the Subsidiary Guaranties in favor of the
Amended Noteholders.
"Amended Notes Obligations" has the meaning given to it in the Amended
Pledge and Security Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code.
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"Bankruptcy Event" means any voluntary or involuntary bankruptcy,
insolvency, receivership or other statutory or common law proceeding or
arrangement involving the Company or any Guaranteeing Subsidiary or the
readjustment of its liabilities or any assignment for the benefit of its
creditors or any marshalling of its assets or liabilities.
"Event of Default" has the meaning given to it in the Amended Notes or
the New Notes.
"New Notes Guaranty Obligations" means the obligations of the
Guaranteeing Subsidiaries under the Subsidiary Guaranties in favor of the New
Noteholders.
"New Notes Obligations" has the meaning given to it in the Amended
Pledge and Security Agreement.
"Noteholder Collateral" means "Collateral," as defined in the
Noteholder Collateral Documents.
"Noteholder Collateral Documents" means the Amended Pledge and Security
Agreement, the Subsidiary Pledge and Security Agreements, any intellectual
property security agreement and any and all other security agreements, pledge
agreements, deeds of trust, security deeds and like instruments establishing or
otherwise giving effect to the liens on and security interests in the Noteholder
Collateral, including Uniform Commercial Code financing statements and notice
filings in respect of intellectual property, in each case as amended or
modified.
"Noteholders" means collectively the Amended Noteholders and the New
Noteholders.
"Requisite Holders" has the meaning given to it in the Amended Pledge
and Security Agreement.
"SVB Agreements" means collectively the following (as the same have
been previously modified or amended and as the same may hereafter be modified or
amended from time to time): (a) the Loan and Security Agreement, dated as of
December 27, 2002 and as amended on March 18, 2003, between SVB and the Company;
(b) the Intellectual Property Security Agreement, dated as of December 27, 2002,
between SVB and the Company; (c) the Letter Agreement, dated June 13, 2003,
between SVB and the Company; (d) the Accounts Receivable Financing Agreement,
dated as of June 13, 2003, between SVB and the Company; (e) the Temporary
Overadvance Agreement, dated as of June 23, 2003, between SVB and the Company;
(f) all present and future documents, instruments and agreements relating to the
foregoing and (g) all schedules, exhibits and annexes attached to the foregoing.
"SVB Collateral" means the SVB Parent Collateral and the SVB Subsidiary
Collateral.
"SVB Obligations" means all present and future indebtedness,
liabilities, guarantees and other obligations of the Company or any Guaranteeing
Subsidiary to SVB, including without limitation, those relating to cash
management services, letters of credit and foreign exchange contracts, and
interest accruing before or after any bankruptcy or insolvency proceeding is
commenced by or against the Company or any Guaranteeing Subsidiary, as the case
may be, provided, that the aggregate principal amount thereof does not exceed
$20,000,000.
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"SVB Parent Collateral" means "Collateral," as defined in the SVB
Agreements, including without limitation the assets described on Exhibit A
hereto.
"SVB Subsidiary Agreements" means collectively the following (as the
same may have been previously modified or amended and as the same may hereafter
be modified or amended from time to time): (a) the Continuing Guaranty, dated
December 27, 2002, by the Guaranteeing Subsidiaries in favor of SVB; (b) the
Security Agreement, dated December 27, 2002, between the Guaranteeing
Subsidiaries and SVB; and (c) the Intellectual Property Security Agreement,
dated as of December 27, 2002, between the Guaranteeing Subsidiaries and SVB.
"SVB Subsidiary Collateral" means the collateral described in the SVB
Subsidiary Security Agreement, including without limitation, the assets set
forth in Exhibit B attached hereto.
"SVB Subsidiary Security Agreement" means the Security Agreement, dated
December 27, 2002, between each of the Guaranteeing Subsidiaries and SVB and all
future amendments and supplements thereto.
SECTION 2 Priority Provisions and Consent.
2.1 Priority. (a) The parties hereto agree that, as between SVB,
on the one hand, and the Collateral Agent and the Noteholders, on the other
hand, and as between the Amended Noteholders, on the one hand, and the New
Noteholders, on the other hand:
(i) the security interests and liens of SVB in the SVB
Collateral shall be first priority security interests and liens;
(ii) the security interests and liens of the Collateral
Agent, on behalf of the New Noteholders, in the SVB Collateral to
secure the New Notes Obligations shall be junior and subordinate to the
security interests and liens therein of SVB;
(iii) the security interests and liens of the Collateral
Agent, on behalf of the Amended Noteholders, in the SVB Collateral to
secure the Amended Notes Obligations shall be junior and subordinate,
first, to the security interests and liens therein of SVB and, second,
to the security interests and liens therein granted to the Collateral
Agent, on behalf of the New Noteholders, to secure the performance and
payment of the New Notes Obligations; and
(iv) the provisions of clauses (i), (ii) and (iii) above
shall be effective regardless of the times or order of issuance or
incurrence of any of the obligations referred to in this Section 2.1
(a) , or the times of creation, attachment or perfection of any of such
security interests and liens or of the order of execution of any
agreements or instruments relating thereto or of the order of filing or
recording of any financing statement, notice of lien or other document
with respect thereto.
(b) The parties hereto agree that, as between SVB, on the one
hand, and the Collateral Agent and the Noteholders, on the other hand, and as
between the Amended Noteholders, on the one hand, and the New Noteholders, on
the other hand:
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(i) the security interests and liens of SVB in the SVB
Subsidiary Collateral shall be first priority security interests and
liens;
(ii) the security interests and liens of the Collateral
Agent, on behalf of the New Noteholders, in the SVB Subsidiary
Collateral to secure the New Notes Guaranty Obligations shall be junior
and subordinate to the security interests and liens therein of SVB;
(iii) the security interests and liens of the Collateral
Agent, on behalf of the Amended Noteholders, in the SVB Subsidiary
Collateral to secure the Amended Notes Guaranty Obligations shall be
junior and subordinate, first, to the security interests and liens
therein of SVB and, second, to the security interests and liens therein
granted to the Collateral Agent, on behalf of the New Noteholders, to
secure the performance and payment of the New Notes Guaranty
Obligations; and
(iv) the provisions of clauses (i), (ii) and (iii) above
shall be effective regardless of the times or order of issuance or
incurrence of any of the obligations referred to in this Section
2.1(b), or the times of creation, attachment or perfection of any of
such security interests and liens or of the order of execution of any
agreements or instruments relating thereto or of the order of filing or
recording of any financing statement, notice of lien or other document
with respect thereto.
(c) SVB hereby consents to: (i) the issuance of the Notes by the
Company to the Noteholders; (ii) the issuance of the Preferred Stock upon
exchange of the Notes; (iii) the issuance of the Warrants; (iv) the issuance of
the Common Stock issuable upon the conversion of the Preferred Stock and upon
exercise of the Warrants; (v) the execution and delivery of the Subsidiary
Guaranties; and (vi) the creation and grant of the security interests in and
liens on the Noteholder Collateral to the Collateral Agent, on behalf of
Noteholders, pursuant to the Loan Documents.
2.2 Proceeds of SVB Collateral. Without limiting the provisions of
Section 2.3 hereof, any amounts received by the Collateral Agent or any
Noteholder on or as a result of any exercise of remedies under the Noteholder
Collateral Documents with respect to, or otherwise from the proceeds of a sale
or transfer or other disposition of, the SVB Collateral, or otherwise, shall be
paid over to SVB for application to the SVB Obligations in the manner provided
in the SVB Agreements or the SVB Subsidiary Agreements, as the case may be.
2.3 Limitations on Rights and Remedies. Neither the Collateral
Agent nor any Noteholder shall be entitled to exercise any rights or remedies
with respect to the SVB Collateral, including any right to (a) enforce any liens
thereon or sell or otherwise foreclose on any portion of the SVB Collateral or
(b) request any action, institute proceedings, give any instructions, make any
election, give any notice to account debtors or make collections with respect to
any portion of the SVB Collateral. The Collateral Agent will execute and deliver
any and all releases and other documents that SVB may reasonably request to give
effect to any such sale of or foreclosure upon SVB Collateral (subject to the
rights of the Collateral Agent and the
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Noteholders to any SVB Collateral or proceeds thereof if such sale or
foreclosure shall result in a termination of this Agreement as to SVB pursuant
to Section 4.4 hereof).
2.4 No Other Beneficiaries of Lien Subordination. This Agreement
and the provisions contained herein are intended only for the benefit of SVB
and, to the extent provided in Section 2.1 or Section 4.4 hereof, the New
Noteholders, and not for the benefit of the Company or the Guaranteeing
Subsidiaries or any other creditor of the Company. Neither the Company nor any
Guaranteeing Subsidiary will publish or give to any creditor or prospective
creditor of the Company any copy, statement or summary (or acquiesce in the
publication or giving of any such copy, statement or summary) as to the
subordination hereunder of the lien rights of the Collateral Agent, on behalf of
the Noteholders, relative to the lien rights of SVB, without also stating or
causing to be stated (in a conspicuous manner in the case of any document) that
such subordination is solely for the benefit of SVB and not for the benefit of
any other creditor of the Company or the Company.
2.5 Rights of SVB Not to be Impaired. No right of SVB to enforce
the provisions hereof shall at any time in any way be prejudiced or impaired by
any act or omission in good faith by SVB or by any noncompliance by any other
party to this Agreement with the terms and provisions hereof or of any documents
or instruments relating to the SVB Obligations, regardless of any knowledge
thereof that SVB may have or otherwise be charged with.
2.6 Waivers. SVB shall not have any liability or duty of any kind
to the Collateral Agent or the Noteholders with respect to the SVB Collateral,
except as set forth in this Agreement. The Collateral Agent and the Noteholders
hereby waive and release any claim that any of them may now or hereafter have
against SVB arising out of any and all actions which it, in good faith, takes or
omits to take with respect to the SVB Collateral, including (a) actions with
respect to the creation, perfection or continuation of liens on or security
interests in such Collateral, (b) actions with respect to the foreclosure upon,
sale, release or disposition of, or failure to realize upon, any of such
Collateral or (c) any other action with respect to the enforcement of any
provision with respect to the SVB Collateral or the valuation, use, protection
or disposition of such Collateral. Notwithstanding the foregoing, SVB shall give
the Collateral Agent reasonable prior notice of any foreclosure upon or
disposition of any SVB Collateral by SVB.
2.7 Remedies. The rights and remedies of SVB under the SVB
Agreements and the SVB Subsidiary Agreements shall be cumulative and not
exclusive of any rights or remedies which it would otherwise have. No failure or
delay by SVB in exercising any such right shall operate as a waiver of such
right, nor shall any partial or single exercise of any such right preclude its
other or further exercise or the exercise of any other right.
2.8 SVB's Rights. This is a continuing agreement of subordination
of Collateral Agent's and the Noteholders' security interests, and SVB may
continue, without notice to the Collateral Agent and the Noteholders, to extend
credit or other accommodations or benefits, and loan monies, to or for the
account of the Company in reliance hereon. SVB may at any time, in its
discretion, renew or extend the time of payment of all or any SVB Obligations,
amend or modify the SVB Obligations and any terms or provisions thereof
(including without limitation the rate of interest thereon) or of any agreement
securing the same or otherwise relating thereto,
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waive or release any SVB Collateral which may be held therefor at any time, and
make and enter into any such agreement or agreements as SVB may deem proper or
desirable relating to the SVB Obligations, without notice to or further consent
from the Collateral Agent and the Noteholders; provided, however, that the
aggregate principal amount of the SVB Obligations shall not exceed $20,000,000
(plus interest and reasonable costs, fees and expenses, including without
limitation reasonable attorneys fees) without the consent of the Collateral
Agent. The Collateral Agent and the Noteholders waive notice of acceptance
hereof, notice of the creation of any SVB Obligations, the giving or extension
of any credit by SVB to the Company, or the taking, waiving or releasing of any
security therefor, or the making of any modifications to any SVB Agreements
(except as provided in the second sentence of this Section 2.8), and the
Collateral Agent and the Noteholders waive presentment, demand, protest, notice
of protest, notice of default, and all other notices to which the Collateral
Agent and the Noteholders might otherwise be entitled, except as herein
expressly set forth.
2.9 Agreement Not to Transfer Notes Without Consent. Each
Noteholder agrees that it will not transfer any Note held by it (other than to
transfer any Note to the Company for cancellation or to be exchanged for
Preferred Stock) without causing the transferee or assignee to execute a written
acknowledgment accepting the terms and conditions of this Agreement.
2.10 Receipt in Trust. In the event that, notwithstanding the
foregoing, any payment shall be made to the Collateral Agent or a Noteholder
that is not permitted by Section 2.2 hereof, such payment shall be received and
held in trust for SVB and shall be paid over and delivered forthwith to SVB or
its representative for application to the SVB Obligations in the manner provided
in the SVB Agreements; provided, further that as to any payments to which SVB is
not entitled, such payments shall be received and held in trust for the New
Noteholders and, if received by or on behalf of any of the Amended Noteholders,
shall be paid over and delivered forthwith to the New Noteholders or any
representative designated by a New Noteholder for application to the New Notes
Obligations in the manner provided in the Loan Documents.
2.11 Company Agreement. The Company agrees that any Event of
Default shall constitute a default and an event of default under the SVB
Agreements.
SECTION 3 Intercreditor Arrangements in Bankruptcy.
(a) This Agreement shall remain in full force and effect and
enforceable pursuant to its terms in accordance with Section 510(a) of the
Bankruptcy Code, and all references herein to the Company or any Guaranteeing
Subsidiary shall be deemed to apply to such entity as debtor in possession and
to any trustee in bankruptcy for the estate of such entity.
(b) Except as otherwise specifically permitted in this Section 3,
until the SVB Obligations have been paid in full and all financing commitments
under the SVB Agreements have expired or been terminated, the Collateral Agent
will not assert, without the written consent of SVB, any claim, motion or
objection in respect of the SVB Collateral or the Noteholder Collateral in
connection with any Bankruptcy Event (other than a claim or assertion that SVB
has acted in bad faith or in violation of law) which could otherwise be asserted
or raised in connection with such Bankruptcy Event by the Collateral Agent or a
Noteholder as a creditor of the Company or such Guaranteeing Subsidiary, as the
case may be, including without limitation
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any claim, motion or objection seeking or opposing adequate protection or relief
from the automatic stay in respect of the SVB Collateral or the Noteholder
Collateral.
(c) Without limiting the generality of the foregoing, the
Collateral Agent agrees that if a Bankruptcy Event occurs, (i) SVB may consent
to the use of cash collateral on such terms and conditions and in such amounts
as it shall in good faith determine without seeking or obtaining the consent of
the Collateral Agent or the Noteholders as holders of an interest in the
Noteholder Collateral; (ii) SVB may provide postpetition financing for the
Company or any Guaranteeing Subsidiary pursuant to Section 364 of the Bankruptcy
Code or other applicable law and on such terms and conditions and in such
amounts as it shall in good faith determine without seeking or obtaining the
consent of the Collateral Agent or the Noteholders as holders of an interest in
the Noteholder Collateral, and neither the Collateral Agent nor the Noteholders
shall oppose such financing; (iii) neither the Collateral Agent nor the
Noteholders shall oppose the Company's use of cash collateral on the basis that
their interest in the Noteholder Collateral is impaired by such use or
inadequately protected by such use to the extent such use has been approved by
SVB in good faith; and (iv) neither the Collateral Agent nor the Noteholders
shall oppose any sale or other disposition of any assets comprising part of the
Noteholder Collateral free and clear of security interests and liens of any
party, including the Noteholders, under Section 363 of the Bankruptcy Code on
the basis that the interest of the Noteholders in the Noteholder Collateral is
impaired by such sale or inadequately protected as a result of such sale if SVB
has consented in good faith to such sale or disposition of such assets.
(d) The Collateral Agent agrees that it will not initiate or
prosecute any claim, action or other proceeding (i) challenging the validity or
enforceability of the SVB Agreements or the SVB Subsidiary Agreements, (ii)
challenging the validity, enforceability or unavoidability of any claim of SVB
with respect to the SVB Collateral, (iii) challenging the perfection,
enforceability or unavoidability of any liens securing the SVB Collateral or
(iv) asserting any such claims which the Company or any Guaranteeing Subsidiary
may hold with respect to SVB or the SVB Obligations.
(e) To the extent that SVB receives payments or transfers on the
SVB Obligations or proceeds of the SVB Collateral which are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy or other applicable law, then, to the extent of such payment or
proceeds received, the SVB Obligations, or part thereof, intended to be
satisfied shall be revived and continue in full force and effect enjoying all
rights and benefits of this Agreement as if such payments or proceeds had not
been received by SVB.
(f) Notwithstanding any other provision of this Section 3, the
Collateral Agent and each Noteholder shall be entitled to file any necessary
responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or otherwise
seeking the disallowance of the claims of the Noteholders, including without
limitation any claims secured by the Noteholder Collateral, or challenging the
perfection, enforceability or unavoidability of any liens securing the
Noteholder Collateral.
SECTION 4 Miscellaneous.
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4.1 Successors. This Agreement is being entered into for the
benefit of SVB, the Collateral Agent and the Noteholders and shall be binding
upon all of the parties hereto.
4.2 Further Assurances. The Company, each Guaranteeing Subsidiary
and the Collateral Agent will, at the Company's expense, and at any time and
from time to time, promptly execute and deliver all further instruments and
documents, and take all further action, that SVB may reasonably request in order
to perfect or otherwise protect any right or interest granted or purported to be
granted hereby or to enable SVB to exercise and enforce its rights and remedies
hereunder. The Company, each Guaranteeing Subsidiary and SVB will, at the
Company's expense and as soon as practical after the payment in full of the SVB
Obligations and expiration or termination of the financing commitments under the
SVB Agreements, promptly execute, deliver and file any and all further
instruments and documents necessary to evidence the termination of the liens
granted under the SVB Agreements or the SVB Subsidiary Agreements.
4.3 Notices; Amendments etc.
(a) All notices, requests and demands to or upon the parties to
this Agreement to be effective shall be in writing (including by facsimile or
telecopy transmission) and shall be deemed to have been duly given or made (i)
when delivered by hand or (ii) three business days after being deposited in the
mail, postage prepaid or (iii) one business day after being sent by priority
overnight mail with an internationally recognized overnight delivery carrier or
(iv) if by telecopy or facsimile, when received, at the addresses or
transmission numbers for notices set forth as follows or to such other address
or transmission number as may be hereafter notified in writing by the respective
parties hereto:
SVB: SILICON VALLEY BANK
0000 Xxxx Xxxx
Xxxxx 000, Xxxx Xxxx XX 00000
Attention: Xxxxx Xxxxxxx Leaf
Facsimile: (000) 000-0000
COLLATERAL AGENT AND C/O WARBURG PINCUS PRIVATE EQUITY
NOTEHOLDERS: VIII, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
COMPANY AND GUARANTEEING PROXIM CORPORATION
SUBSIDIARIES: 000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
(b) This Agreement may be amended and the terms hereof may be
waived only with the written consent of each of SVB and the Collateral Agent,
which may act on behalf of the
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Noteholders with the consent of the Requisite Holders pursuant to Section 10.2
of the Amended Pledge and Security Agreement, and, in the case of any such
amendment or waiver that would adversely affect the Company or any Guaranteeing
Subsidiary, the Company.
4.4 Termination. This Agreement shall terminate, as to SVB, upon
payment in full of the SVB Obligations and expiration or termination of the
financing commitments under the SVB Agreements. Upon such termination, the
provisions of this Agreement shall continue in effect for the benefit of the New
Noteholders and the Collateral Agent, acting for the New Noteholders, to the
same extent, as nearly as may be practicable, as if the Collateral Agent, acting
for the New Noteholders, were the party identified as SVB for purposes of the
relevant provisions hereof.
4.5 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction, shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or invalidity without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
4.6 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
4.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA. At SVB's option, all actions and proceedings, to which SVB is a
party, based upon, arising out of or relating to, this Agreement shall be
litigated exclusively in courts located within Santa Xxxxx County, California,
and the Collateral Agent 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 waives any
and all rights to transfer or change the venue of any such action or proceeding
to any court located outside Santa Xxxxx County, California.
4.8 Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile), and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute one agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have entered into this Agreement as
of the date shown above.
SILICON VALLEY BANK
By: /s/ Xxxxx Xxxxxxx Leaf
--------------------------------------------
Name: Xxxxx Xxxxxxx Leaf
Title: Senior Vice President
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.,
as Collateral Agent
By: Warburg, Xxxxxx & Co.
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
PROXIM CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
Signature Page to the Amended and Restated Intercreditor Agreement
PROXIM WIRELESS NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
WIRELESSHOME CORPORATION
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: : Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
PROXIM INTERNATIONAL HOLDINGS, INC.
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
Signature Page to the Amended and Restated Intercreditor Agreement
EXHIBIT "A"
All right, title and interest of Company in and to the following,
whether now owned or hereafter arising or acquired and wherever located: all
Accounts; all Inventory; all Equipment; all Deposit Accounts; all General
Intangibles (including without limitation all Intellectual Property); all
Investment Property; all Other Property; and any and all claims, rights and
interests in any of the above, and all guaranties and security for any of the
above, and all substitutions and replacements for, additions, accessions,
attachments, accessories, and improvements to, and proceeds (including proceeds
of any insurance policies, proceeds of proceeds and claims against third
parties) of, all of the above, and all Company's books relating to any of the
above.
As used above in this Exhibit A, the following terms have the following
meanings:
"Accounts" means all present and future "accounts" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all accounts receivable and other sums owing to Company.
"Deposit Accounts" means all present and future "deposit accounts" as
defined in the California Uniform Commercial Code in effect on the date hereof
with such additions to such term as may hereafter be made, and includes without
limitation all general and special bank accounts, demand accounts, checking
accounts, savings accounts and certificates of deposit.
"Equipment" means all present and future "equipment" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all machinery, fixtures, goods, vehicles (including motor vehicles and
trailers), and any interest in any of the foregoing.
"General Intangibles" means all present and future "general
intangibles" as defined in the California Uniform Commercial Code in effect on
the date hereof with such additions to such term as may hereafter be made, and
includes without limitation all Intellectual Property, payment intangibles,
royalties, contract rights, goodwill, franchise agreements, purchase orders,
customer lists, route lists, telephone numbers, domain names, claims, income tax
refunds, security and other deposits, options to purchase or sell real or
personal property, rights in all litigation presently or hereafter pending
(whether in contract, tort or otherwise), insurance policies (including without
limitation key man, property damage, and business interruption insurance),
payments of insurance and rights to payment of any kind.
"Intellectual Property" means all present and future (a) copyrights,
copyright rights, copyright applications, copyright registrations and like
protections in each work of authorship and derivative work thereof, whether
published or unpublished, (b) trade secret rights, including all rights to
unpatented inventions and know-how, and confidential information; (c) mask work
or similar rights available for the protection of semiconductor chips; (d)
patents, patent applications and like protections including without limitation
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same; (e) trademarks, servicemarks, trade styles,
and trade names, whether or not any of the foregoing are registered, and all
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Company connected with and symbolized by
any such trademarks; (f) computer software and computer software products; (g)
designs and design rights; (h) technology; (i) all claims for damages by way of
past, present and future infringement
of any of the rights included above; (j) all licenses or other rights to use any
property or rights of a type described above.
"Inventory" means all present and future "inventory" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all merchandise, raw materials, parts, supplies, packing and shipping materials,
work in process and finished products, including without limitation such
inventory as is temporarily out of Company's custody or possession or in transit
and including any returned goods and any documents of title representing any of
the above.
"Investment Property" means all present and future investment property,
securities, stocks, bonds, debentures, debt securities, partnership interests,
limited liability company interests, options, security entitlements, securities
accounts, commodity contracts, commodity accounts, and all financial assets held
in any securities account or otherwise, wherever located, and all other
securities of every kind, whether certificated or uncertificated.
"Other Property" means the following as defined in the California
Uniform Commercial Code in effect on the date hereof with such additions to such
term as may hereafter be made, and all rights relating thereto: all present and
future "commercial tort claims", "documents", "instruments", "promissory notes",
"chattel paper", "letters of credit", "letter-of-credit rights", "fixtures",
"farm products" and "money"; and all other goods and personal property of every
kind, tangible and intangible, whether or not governed by the California Uniform
Commercial Code.
EXHIBIT "B"
All right, title and interest of the Guaranteeing Subsidiaries in and
to the following, whether now owned or hereafter arising or acquired and
wherever located: all Accounts; all Inventory; all Equipment; all Deposit
Accounts; all General Intangibles (including without limitation all Intellectual
Property); all Investment Property; all Other Property; and any and all claims,
rights and interests in any of the above, and all guaranties and security for
any of the above, and all substitutions and replacements for, additions,
accessions, attachments, accessories, and improvements to, and proceeds
(including proceeds of any insurance policies, proceeds of proceeds and claims
against third parties) of, all of the above, and all of the Guaranteeing
Subsidiaries' books relating to any of the above.
As used above in this Exhibit B, the following terms have the following
meanings:
"Accounts" means all present and future "accounts" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all accounts receivable and other sums owing to the Guaranteeing Subsidiaries.
"Deposit Accounts" means all present and future "deposit accounts" as
defined in the California Uniform Commercial Code in effect on the date hereof
with such additions to such term as may hereafter be made, and includes without
limitation all general and special bank accounts, demand accounts, checking
accounts, savings accounts and certificates of deposit.
"Equipment" means all present and future "equipment" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all machinery, fixtures, goods, vehicles (including motor vehicles and
trailers), and any interest in any of the foregoing.
"General Intangibles" means all present and future "general
intangibles" as defined in the California Uniform Commercial Code in effect on
the date hereof with such additions to such term as may hereafter be made, and
includes without limitation all Intellectual Property, payment intangibles,
royalties, contract rights, goodwill, franchise agreements, purchase orders,
customer lists, route lists, telephone numbers, domain names, claims, income tax
refunds, security and other deposits, options to purchase or sell real or
personal property, rights in all litigation presently or hereafter pending
(whether in contract, tort or otherwise), insurance policies (including without
limitation key man, property damage, and business interruption insurance),
payments of insurance and rights to payment of any kind.
"Intellectual Property" means all present and future (a) copyrights,
copyright rights, copyright applications, copyright registrations and like
protections in each work of authorship and derivative work thereof, whether
published or unpublished, (b) trade secret rights, including all rights to
unpatented inventions and know-how, and confidential information; (c) mask work
or similar rights available for the protection of semiconductor chips; (d)
patents, patent applications and like protections including without limitation
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same; (e) trademarks, servicemarks, trade styles,
and trade names, whether or not any of the foregoing are registered, and all
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Guaranteeing Subsidiaries connected with
and symbolized
by any such trademarks; (f) computer software and computer software products;
(g) designs and design rights; (h) technology; (i) all claims for damages by way
of past, present and future infringement of any of the rights included above;
(j) all licenses or other rights to use any property or rights of a type
described above.
"Inventory" means all present and future "inventory" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all merchandise, raw materials, parts, supplies, packing and shipping materials,
work in process and finished products, including without limitation such
inventory as is temporarily out of Guaranteeing Subsidiaries' custody or
possession or in transit and including any returned goods and any documents of
title representing any of the above.
"Investment Property" means all present and future investment property,
securities, stocks, bonds, debentures, debt securities, partnership interests,
limited liability company interests, options, security entitlements, securities
accounts, commodity contracts, commodity accounts, and all financial assets held
in any securities account or otherwise, wherever located, and all other
securities of every kind, whether certificated or uncertificated.
"Other Property" means the following as defined in the California
Uniform Commercial Code in effect on the date hereof with such additions to such
term as may hereafter be made, and all rights relating thereto: all present and
future "commercial tort claims", "documents", "instruments", "promissory notes",
"chattel paper", "letters of credit", "letter-of-credit rights", "fixtures",
"farm products" and "money"; and all other goods and personal property of every
kind, tangible and intangible, whether or not governed by the California Uniform
Commercial Code.
