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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")
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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 reali
