Exhibit 10.72
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT ("Ninth Amendment") is
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effective as of November 12, 1999, and is entered into by and among P-COM, INC.,
a Delaware corporation ("Borrower"); the financial institutions signatory hereto
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(each individually a "Lender" and collectively the "Lenders"); UNION BANK OF
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CALIFORNIA, N.A., for itself, as a Lender, and as administrative agent for
Lenders (in such capacity, "Agent"); and BANK OF AMERICA NATIONAL TRUST AND
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SAVINGS ASSOCIATION (for itself, as a Lender, and as syndication agent for
Lenders (in such capacity, "Syndication Agent").
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RECITALS
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A. Borrower, Lenders, Agent, and Syndication Agent have entered into
that certain Credit Agreement dated as of May 15, 1998, as amended
(collectively, the "Credit Agreement"), pursuant to which Agent, Syndication
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Agent, and Lenders agreed to provide financial accommodations to or for the
benefit of Borrower upon the terms and conditions contained therein. Unless
otherwise defined herein, capitalized terms or matters of construction defined
or established in the Credit Agreement shall be applied herein as defined or
established therein.
B. Events of Default have occurred and are continuing under Sections
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6.2(a), 6.2(c), 6.2(d) and 6.2(w) of the Credit Agreement for the period ending
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and as of September 30, 1999 (collectively, the "Applicable Defaults").
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C. Borrower has requested that Agent, Syndication Agent, and Lenders
waive the Applicable Defaults and make certain amendments to the Credit
Agreement in connection therewith. Agent, Syndication Agent, and Lenders are
willing to do so subject to the terms and conditions of this Ninth Amendment.
AGREEMENT
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NOW, THEREFORE, in consideration of the continued performance by
Borrower of its promises and obligations under the Credit Agreement and the
other Loan Documents, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower, Lenders, Agent, and
Syndication Agent hereby agree as follows:
1. Ratification and Incorporation of Credit Agreement and Other Loan
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Documents. Except as expressly modified under this Ninth Amendment, (a)
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Borrower hereby acknowledges, confirms, and ratifies all of the terms and
conditions set forth in, and all of its obligations under, the Credit Agreement
and the other Loan Documents, and (b) all of the terms and conditions set forth
in the Credit Agreement and the other Loan Documents are incorporated herein by
this reference as if set forth in full herein. Without limiting the generality
of the foregoing, each of Borrower and each other Loan Party acknowledges and
agrees that as of November 12, 1999, the sum of (i) the aggregate outstanding
principal amount of all Loans, plus (ii) the aggregate outstanding Letter of
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Credit Usage was $29,981,880.43. Each of Borrower and
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each other Loan Party represents that it has no offset, defense, counterclaim,
dispute or disagreement of any kind or nature whatsoever with respect to the
amount of such Debt.
2. Amendments to Credit Agreement.
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(a) The following new definition is hereby added to the Credit
Agreement in appropriate alphabetical order:
"Budget": the weekly cash flow projections of Borrower dated as
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of November 9, 1999, for the period from the week ending November 5, 1999,
through and including the week ending January 28, 2000, delivered by
Borrower to Agent and Lenders in connection with the Ninth Amendment to
Credit Agreement, which projections may be (a) modified from time to time,
at the request of Agent or any Lender, to provide additional detail or
information or (b) otherwise modified with the consent of Agent and
Lenders.
(b) Section 6.1(a) shall be amended to add the word "and" at the
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end of clause (vi) and add the following new clause (vii):
(vii) as soon as available, but in any event on or before
the second Business Day of each week, a written report setting forth in
comparative form Borrower's actual results on a cash basis as of the end of
the immediately preceding week versus the amount identified as the "Ending
Cash Balance" in the Budget for such immediately preceding week.
(c) Each of Section 6.2(a) and Section 6.2(c) is hereby deleted
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in its entirety.
(d) Section 6.2(d) is hereby deleted in its entirety and the
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following is substituted therefor:
(d) Profitability. Permit Consolidated Pre-Tax Income of
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Borrower and its consolidated Subsidiaries to reflect a loss exceeding the
correlative amount listed below for any fiscal quarter of Borrower
commencing with the fiscal quarter ended December 31, 1999; provided, that
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any profit recognized from any exchange from time to time by Borrower of
certain shares of its Common Stock for certain of the Notes issued pursuant
to the Indenture shall be excluded from Consolidated Pre-Tax Income for
purposes of this Section 6.2(d):
December 31, 1999 $(8,200,000).
(e) Clause (ii) of Section 6.2(l) is hereby deleted in its
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entirety and the following is substituted therefor:
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(ii) at any time after the Revolving Commitment has been
permanently reduced to $22,000,000, Borrower may assign and sell accounts
receivable to any Qualified Financial Institutions pursuant to the
Receivables Facilities; provided, that the total outstanding amount of all
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purchased receivables under the Receivables Facilities shall not exceed
$7,000,000 at any time; and provided, further, that Borrower shall not
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assign or sell any accounts receivable following the occurrence and during
the continuation of a Potential Event of Default or an Event of Default.
(f) Section 6.2(w) is hereby deleted in its entirety and the
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following is substituted therefor:
(w) Minimum Consolidated EBITDA. Permit Consolidated
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EBITDA to be less than the correlative amount listed below for any fiscal
quarter of Borrower commencing with the fiscal quarter ended December 31,
1999:
December 31, 1999 $ (1,000,000).
(g) Section 7.1(n) is hereby deleted in its entirety and the
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following is substituted therefor:
(n) Borrower shall default on its obligations under (i) that
certain Exchange Agreement dated June 4, 1999, between Xxxxxxxx Capital
Management, Inc. and Borrower, as modified by that certain waiver letter
dated August 6, 1999, and as the same may be amended, supplemented, or
otherwise modified from time to time, (ii) that certain Exchange Agreement
dated June 4, 1999, between Capital Ventures International and Borrower, as
modified by that certain waiver letter dated August 9, 1999, and as the
same may be amended, supplemented, or otherwise modified from time to time,
or (iii) that certain Exchange Agreement dated June 4, 1999, between Castle
Creek Technology Partners LLC and Borrower, as modified by that certain
waiver letter dated August 4, 1999, and as the same may be amended,
supplemented, or otherwise modified from time to time, including, without
limitation, Borrower's obligations under Section 5(d)(ii) of each such
Exchange Agreement;
(h) The following new Section 7.1(o) is hereby added to the
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Credit Agreement:
(o) the actual amounts expended or incurred by Borrower
during any week shall exceed the amount identified as the "Ending Cash
Balance" in the Budget by more than 15% for such week;
3. Consent. Notwithstanding any contrary term or provision set forth
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in the Credit Agreement, Agent and Lenders hereby consent, subject to the terms
and conditions set forth herein, to the following:
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a. Borrower's issuance of warrants for the purchase of 443,000
shares of its Common Stock to the holders ("Series B Holders") of the Common
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Stock that was issued in exchange for Borrower's Series B Convertible
Participating Preferred Stock ("Series B Stock");
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b. Borrower's issuance of up to 220,000 shares of its Common
Stock to the Series B Holders; and
c. Borrower's issuance to the Series B Holders of a convertible
promissory note in the original principal amount of $400,000 bearing interest at
a rate of 12%, and having no scheduled payments of interest or principal until
November 15, 2000.
4. Waivers by Agent and Lenders. Subject to satisfaction of each of
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the conditions set forth in Section 5 of this Ninth Amendment, Agent and Lenders
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hereby waive the Applicable Defaults and agree that, with respect to the
Applicable Defaults only, no Default or Event of Default shall be deemed to have
occurred as a result thereof; provided, that such waiver shall not be deemed
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effective to the extent that any of the following has occurred: (a) with
respect to the Applicable Default under Section 6.2(d), Consolidated Pre-Tax
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Income of Borrower and its consolidated Subsidiaries for the fiscal quarter
ending September 30, 1999, reflects a loss in excess of $(15,000,000); or (b)
with respect to the Applicable Default under Section 6.2(w), Consolidated EBITDA
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for the fiscal quarter ending September 30, 1999, is less than $(6,000,000).
5. Conditions to Effectiveness. This Ninth Amendment shall become
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effective on November 12, 1999 (the "Effective Date"), only upon satisfaction of
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each of the following conditions:
(a) receipt by Agent of this Ninth Amendment duly executed by
Borrower, Bank of America National Trust and Savings Association, as Syndication
Agent and Lender, and Union Bank of California, N.A., as Agent and Lender;
(b) receipt by Agent of the attached Guarantor Consents
(individually, a "Guarantor Consent" and collectively, the "Guarantor
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Consents"), duly executed by each Guarantor;
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(c) with respect to each of the Series B Holders of Series B
Stock, receipt by Agent of either (i) a fully-executed agreement, in form and
substance satisfactory to Agent, by and between Borrower and such Series B
Holder relating to, among other things, such Series B Holder's waiver of rights
to redeem shares of Borrower's Common Stock pursuant to Section 5 of the
Exchange Agreements or (ii) a waiver letter from such Series B Holder extending
the deadlines established in Section 5(d)(ii) of each of the Exchange Agreements
referred to in Section 2(g) of this Ninth Amendment to a date not earlier than
November 22, 1999, in form and substance reasonably satisfactory to Agent;
(d) receipt by Agent of the Budget attached hereto as Exhibit A;
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(e) receipt by Agent of copies of resolutions, in form and
substance satisfactory to Agent and its counsel, of the Board of Directors or
other authorizing documents of Borrower, authorizing the execution and delivery
of this Ninth Amendment; and
(f) the absence of any Potential Events of Default or Events of
Default, after giving effect to Section 4 hereof.
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6. Additional Covenants.
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(a) On or before November 22, 1999, with respect to each of the
Series B Holders that on the Effective Date delivered a waiver letter referenced
in clause (ii) of Section 5(c) of this Ninth Amendment, Borrower shall deliver a
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fully-executed agreement, in form and substance satisfactory to Agent, by and
between Borrower and such Series B Holder relating to, among other things, such
Series B Holder's waiver of its rights to redeem shares of Borrower's Common
Stock pursuant to Section 5 of the Exchange Agreements.
(b) On or before November 30, 1999, Borrower shall deliver the
following items to Agent: (i) executed signature pages of P-Com Network
Services (UK) Ltd. and RT Masts Ltd. to the Subsidiary Pledge Agreement and
final schedules thereto; (ii) original stock certificates of RT Masts Ltd., RT
Ltd., and Sky Masts, Ltd. and original stock powers relating thereto; and (iii)
Secretary's Certificate of Borrower attaching board resolutions referred to in
Section 5(d) of the Eighth Amendment to Credit Agreement.
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(c) Borrower acknowledges that it has granted a lien to Agent,
for the benefit of Agent and Lenders, on all of its tangible and intangible
assets and that Agent has requested that Borrower provide Agent and Lenders with
updated information relating to the status of the registration of its assets
consisting of its rights and licenses to use trademarks, trade names,
copyrights, patents or technical processes (collectively "Intellectual
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Property"). Borrower shall (i) on or before November 30, 1999, deliver to Agent
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and Lenders a schedule listing all of Borrower's and Subsidiaries' rights and
licenses to use Intellectual Property and the status of the registration of
same, and (ii) without limiting its obligations under Section 6.1(i) of the
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Credit Agreement, use its commercially reasonable best efforts to apply (or
cause its Subsidiaries to apply) for registration with the United States Patent
and Trademark Office or United States Copyright Office, as applicable, each of
Borrower's or Borrower's Subsidiaries' rights or licenses to use Intellectual
Property existing in any Material Product (including Intellectual Property
existing in the Borrower's product known as the point to multipoint wireless
transmission system) that is not currently registered or in the process of being
registered. If Borrower fails to use commercially reasonable efforts to apply
for the registrations described in clause (ii) of this subparagraph (c), then
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such failure shall constitute an Event of Default.
(d) If Borrower is unable to deliver or cause the delivery of the
items described in subparagraphs (a), (b) or (c)(i) of this Section 6 by the
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applicable date of delivery therefor, then such failure shall constitute an
Event of Default.
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(e) On or after the Effective Date, Borrower shall not transfer,
or permit any of its Subsidiaries to transfer, any of its assets (including cash
or cash equivalents) to P-Com (Barbados) FSC Limited and P-Com Corpl, Int'l
(Cayman) Ltd. The failure of Borrower to comply with this Section 6(e) shall
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constitute an Event of Default.
7. Representations and Warranties. In order to induce Lenders to
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enter into this Ninth Amendment, Borrower represents and warrants to Agent,
Syndication Agent, and Lenders that the following statements are true, correct
and complete as of the Effective Date of this Ninth Amendment:
(a) Corporate Power and Authority. Borrower has all requisite
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corporate power and authority to enter into this Ninth Amendment and to carry
out the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Ninth Amendment (the "Amended Agreement").
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The Certificate of Incorporation and Bylaws of Borrower have not been amended
since the copies previously delivered to Agent, Syndication Agent, and Lenders.
(b) Authorization of Agreements. The execution and delivery of
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this Ninth Amendment and the performance by Borrower of the Amended Agreement
have been duly authorized by all necessary corporate action on the part of
Borrower.
(c) No Conflict. The execution and delivery by Borrower of this
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Ninth Amendment do not and will not contravene (i) any law or any governmental
rule or regulation applicable to Borrower, except to the extend not resulting in
a Material Adverse Effect, (ii) the Certificate of Incorporation or Bylaws of
Borrower, (iii) any order, judgment or decree of any court or other agency of
government binding on Borrower, or (iv) any material agreement or instrument
binding on Borrower, except to the extent not resulting in a Material Adverse
Effect.
(d) Governmental Consents. The execution and delivery by
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Borrower of this Ninth Amendment and the performance by Borrower of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body (except routine reports required
pursuant to the Securities Exchange Act of 1934, as amended (as such act is
applicable to any Loan Party), which reports will be made in the ordinary course
of business).
(e) Binding Obligation. This Ninth Amendment and the Amended
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Agreement have been duly executed and delivered by Borrower and are the binding
obligations of Borrower, enforceable against Borrower in accordance with their
respective terms, except in each case as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws and equitable principles relating to or affecting creditors' rights.
(f) Incorporation of Representations and Warranties From Credit
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Agreement. The representations and warranties contained in Section 5.1 of the
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Credit Agreement
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are correct in all material respects on and as of the Effective Date of this
Ninth Amendment as though made on and as of such date, except (a) to the extent
that a particular representation or warranty by its terms expressly applies only
to an earlier date, or (b) to the extent that Borrower or any other Loan Party,
as applicable, has previously advised Agent in writing as contemplated under the
Credit Agreement.
(g) Absence of Default. After giving effect to Sections 2, 3 and
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4 of this Ninth Amendment, no event has occurred and is continuing or will
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result from the consummation of the transactions contemplated by this Ninth
Amendment that would constitute an Event of Default or a Potential Event of
Default.
8. Release.
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(a) Each Loan Party acknowledges that Agent, Syndication Agent,
and Lenders would not enter into this Ninth Amendment without the Loan Parties'
assurance that each Loan Party has no claims against Agent, Syndication Agent,
or Lenders, or any of such parties' shareholders, officers, directors,
employees, agents, or attorneys arising out of or related to the Loan Documents
or any other agreement between any Loan Party and any Lender. Except for the
obligations arising hereafter under the Amended Agreement, each Loan Party, for
itself and on behalf of its successors, assigns, and present and future
shareholders, officers, directors, employees, agents, and attorneys, hereby
remises, releases and forever discharges each of Agent, Syndication Agent, and
each Lender and their respective present and former shareholders, officers,
directors, employees, agents, attorneys, successors and assigns from any and all
claims, rights, actions, causes of action, suits, liabilities, defenses, damages
and costs that both (a) exist or may exist as of the Effective Date and (b)
arise from or are otherwise related to the Credit Agreement or the other Loan
Documents, any transaction contemplated thereby, the administration of the Loans
and other financial accommodations made thereunder, the collateral security
given in connection therewith, or any related discussions or negotiations, in
each case whether known or unknown, suspected or unsuspected. Each Loan Party
waives the provisions of California Civil Code section 1542, which states:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
(b) The provisions, waivers and releases set forth in this
section are binding upon each Loan Party and each Loan Party's shareholders,
agents, employees, assigns and successors in interest. The provisions, waivers
and releases of this section shall inure to the benefit of each Lender, Agent,
Syndication Agent, and each such party's shareholders, agents, employees,
officers, directors, assigns and successors in interest as parties to the Credit
Agreement.
(c) The provisions of this section shall survive payment in full
of the obligations, full performance of all the terms of this Ninth Agreement
and the Loan Documents,
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or Agent's or any Lender's actions to exercise any remedy available under the
Loan Documents or otherwise.
(d) Each Loan Party warrants and represents that each such Loan
Party is the sole and lawful owner of all right, title and interest in and to
all of the claims released hereby and each such Loan Party has not heretofore
voluntarily, by operation of law or otherwise, assigned or transferred or
purported to assign or transfer to any Person any such claim or any portion
thereof. Each Loan Party shall indemnify and hold harmless each Lender, Agent,
and Syndication Agent, from and against any claim, demand, damage, debt,
liability (including payment of reasonable attorneys' fees and costs actually
incurred whether or not litigation is commenced) based on or arising out of any
assignment or transfer.
9. Entire Agreement. This Ninth Amendment, together with the Credit
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Agreement and the other Loan Documents, is the entire agreement between the
parties hereto with respect to the subject matter hereof. This Ninth Amendment
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof.
10. Miscellaneous.
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(a) Counterparts. This Ninth Amendment may be executed in
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identical counterpart copies, each of which shall be an original, but all of
which shall constitute one and the same agreement; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. Delivery of an executed counterpart of a signature page to this Ninth
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart thereof.
(b) Headings. Section headings used herein are for convenience
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of reference only, are not part of this Ninth Amendment, and are not to be taken
into consideration in interpreting this Ninth Amendment.
(c) Recitals. The recitals set forth at the beginning of this
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Ninth Amendment are true and correct, and such recitals are incorporated into
and are a part of this Ninth Amendment.
(d) Governing Law. THIS NINTH AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT
REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS.
(e) Effect. Upon the effectiveness of this Ninth Amendment,
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from and after the date hereof, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," or words of like import shall mean and be a
reference to the Credit Agreement as
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amended hereby and each reference in the other Loan Documents to the Credit
Agreement, "thereunder," "thereof," or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby.
(f) No Novation. Except as expressly provided in this Ninth
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Amendment, the execution, delivery, and effectiveness of this Ninth Amendment
shall not (i) limit, impair, constitute a waiver of, or otherwise affect any
right, power, or remedy of Agent or any Lender under the Credit Agreement or any
other Loan Document, (ii) constitute a waiver of any provision in the Credit
Agreement or in any of the other Loan Documents, or (iii) alter, modify, amend,
or in any way affect any of the terms, conditions, obligations, covenants, or
agreements contained in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
(g) Conflict of Terms. In the event of any inconsistency
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between the provisions of this Ninth Amendment and any provision of the Credit
Agreement, the terms and provisions of this Ninth Amendment shall govern and
control.
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IN WITNESS WHEREOF, this Ninth Amendment to Credit Agreement has been
duly executed as of the date first written above.
P-COM, INC.
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________
Name: Xxxxxx X. Xxxxxxx
___________________________
Title: VP & CFO
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UNION BANK OF CALIFORNIA, N.A.,
as Agent and a Lender
By: /s/ Xxxxx X. Xxxxx
_____________________________
Name: Xxxxx X. Xxxxx
___________________________
Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Syndication Agent and a Lender
By: /s/ X. Xxxxxx McDuffle
_____________________________
Name: X. Xxxxxx McDuffle
___________________________
Title: Managing Director
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GUARANTOR CONSENTS
Each of the undersigned hereby (i) ratifies and reaffirms, as of the
date hereof, all of the provisions of that certain Subsidiary Guaranty in favor
of Agent dated as of May 15, 1998 (the "Guaranty"), (ii) acknowledges receipt of
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a copy of the Ninth Amendment to Credit Agreement effective as of November12,
1999 (the "Ninth Amendment"), (iii) consents to all of the provisions of the
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Ninth Amendment, and (iv) acknowledges and agrees that nothing contained in the
Ninth Amendment in any way affects the validity and enforceability of the
Guaranty.
Effective as of November 12, 1999 CONTROL RESOURCES CORPORATION
By: /s/ Xxxxxx Xxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxx
___________________________
Title: Chairman
__________________________
Effective as of November 12, 1999 P-COM NETWORK SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxx
___________________________
Title: Chairman
__________________________
Effective as of November 12, 1999 P-COM FINANCE CORPORATION
By: /s/ Xxxxxx Xxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxx
___________________________
Title: Chairman
__________________________
Effective as of November 12, 1999 P-COM UNITED KINGDOM, INC.
By: /s/ Xxxxxx Xxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxx
___________________________
Title: Chairman
__________________________
Effective as of November 12, 1999 TELEMATICS, INC.
By: /s/ Xxxxxx Xxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxx
___________________________
Title: Chairman
__________________________
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EXHIBIT A
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(See Attached)
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