EXHIBIT 10.14
AMENDMENT
TO
LOAN AGREEMENT
This Amendment to Loan Agreement (the "Amendment") is entered into as of
May 6, 1998, by and between Imperial Bank ("Bank") and Metawave Communications
Corporation ("Borrower").
RECITALS
Borrower and Bank are parties to that certain Loan Agreement dated as of
October 14, 1997, as amended from time to time (the "Agreement"). The parties
desire to amend the Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The reference in Section 1.A of the Agreement to "$5,000,000" is
amended to read "$7,500,000". The reference in Section 1.A(3) of the Agreement
to "April 30, 1998" is amended to read "June 30, 1998".
2. The reference in Section 10.C of the Agreement to "1.00:1.00" is
amended to read "1.50 to 1.00", and Section 10.I is added to the Agreement, as
follows: Upon the date (the "Step-Up Date") that is the earlier to occur of
December 31, 1998 or the date that Borrower receives not less than $40,000,000
from the sale of its equity securities pursuant to an offering made under a
registration statement filed in accordance with the Securities Act of 1933, as
amended, Borrower shall maintain, at all times, (i) a Minimum Tangible Net Worth
of at least $25,000,000 and (ii) a Minimum Quick Ratio of not less than 1.00 to
1.00. Bank waives Borrower's obligation to comply with Section 10.A and Section
10.B until the Step-Up-Date. The definition of Minimum Quick Ratio in Section
10.C is amended to exclude from current liabilities the obligations under the
Notes issued pursuant to the Note Agreement dated as of April 29, 1998 (the
"Note Agreement"). The reference in Sections 10(F) and 10(F) to "twenty five
(25) days" are amended to read "thirty (30) days".
3. Notwithstanding the provisions of Clause (8) of the defined term
"Eligible Accounts", the concentration limit for Accounts owing to Borrower by
Alltel, 360 Communications, Millicom, GTE and Airtouch shall be fifty percent
(50%). Bank acknowledges that the terms "Permitted Indebtedness" and "Permitted
Liens" include the indebtedness incurred under, and the security interests
granted in connection with, the Note Agreement and the equipment lease between
Borrower and Insight Investment Corp. The priority of Bank's security interest
in the Collateral is subject to that certain Intercreditor Agreement (the
"Intercreditor Agreement") dated as of April 28, 1998 among Bank and the
Creditors named therein. The IP Security Agreement shall terminate, all
references in the Agreement to the IP Security Agreement shall be deleted, and
Bank shall return the original of the IP Security Agreement to Borrower;
provided that Bank retains a second priority security interest in the Creditor
Collateral, as defined in the Intercreditor Agreement. Borrower and Bank shall
execute an Amendment to Financing Statement in a mutually acceptable form to
clarify that Bank has a first priority security interest in the Imperial
Collateral and a second priority security interest in the Creditor Collateral.
"Collateral" under the General Security Agreement dated as of October 14, 1997
between Borrower and Bank, shall include all of such Imperial Collateral and
Creditor Collateral, subject to the priorities specified in the Intercreditor
Agreement.
4. Unless otherwise defined, all capitalized terms in this Amendment
shall be defined in the Agreement. Except as amended, the Agreement remains in
full force and effect.
5. Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of the date of
this Amendment (except that the financial statements to which such
Representations and Warranties relate shall be those dated as of March 31, 1998,
not September 30, 1997, and except such representations and warranties to be
expressly true as of a specific date), and that no unwaived or uncured Event of
Default has occurred and is continuing.
6. As a condition to the effectiveness of this Amendment, Borrower shall
pay Bank a fee equal to $9,375, plus the expenses incurred by Bank in preparing
this Amendment. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
METAWAVE COMMUNICATIONS CORPORATION
By: /s/ Vito E. Palermo
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Chief Financial Officer
IMPERIAL BANK
By: /s/ James E. Ellison
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Senior Vice President
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CORPORATE RESOLUTIONS TO BORROW
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BORROWER: Metawave Communications Corporation.
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I, the undersigned Secretary or Assistant Secretary of Metawave
Communications Corporation (the "Corporation"), HEREBY CERTIFY that the
Corporation is organized and existing under and by virtue of the laws of the
state of its incorporation.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation (or
by other duly authorized corporate action in lieu of a meeting), duly called and
held, at which a quorum was present and voting, the following resolutions were
adopted.
BE IT RESOLVED, that ANY ONE (1) of the following named officers,
employees, or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
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acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Imperial Bank ("Bank"), on
such terms as may be agreed upon between the officers, employees, or agents and
Bank, such sum or sums of money as in their judgment should be borrowed, without
limitation, including such sums as are specified in the Amendment to Loan
Agreement dated as of May 6, 1998, as amended from time to time by Bank and
Corporation (the "Loan Agreement").
EXECUTE NOTES. To execute and deliver to Bank the promissory note or notes
of the Corporation, on Bank's forms, at such rates of interest and on such terms
as may be agreed upon, evidencing the sums of money so borrowed or any
indebtedness of the Corporation to Bank, and also to execute and deliver to Bank
one or more renewals, extensions, modifications, refinancing, consolidations, or
substitutions for one or more of the notes, or any portion of the notes.
GRANT SECURITY. To grant a security interest to Bank in the Collateral
described in the Loan Agreement, which security interest shall secure all of the
Corporation's Obligations, as described in the Loan Agreement.
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NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness payable
to or belonging to the Corporation or in which the Corporation may have an
interest, and either to receive cash for the same or to cause such proceeds to
be credited to the account of the Corporation with Bank, or to cause such other
disposition of the proceeds derived therefrom as they may deem advisable.
LETTERS OF CREDIT. To execute letters of credit applications and other
related documents pertaining to Bank's issuance of letters of credit.
FOREIGN EXCHANGE CONTRACTS. To request Bank to enter into foreign exchange
contracts on its behalf.
FURTHER ACTS. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder, and in
all cases, to do and perform such other acts and things, to pay any and all fees
and costs, and to execute and deliver such other documents and agreements as
they may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
resolutions and performed prior to the passage of these resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set forth opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Corporation; and
that the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever.
I FURTHER CERTIFY that attached hereto are true and correct copies of the
Certificate of Incorporation and Bylaws of the Corporation.
IN WITNESS WHEREOF, I have here unto set my hand as of May ___, 1998, and
attest that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
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