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Exhibit 10.34
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of March 29, 2000 by and between SUPERCONDUCTOR TECHNOLOGIES, INC., a
Delaware corporation ("Borrower"), and PNC BANK, NATIONAL ASSOCIATION, a
national banking association ("Bank"), with reference to the following facts:
A. Borrower and Bank are parties to that certain Credit Agreement dated
as of June 18, 1999, by and between the Borrower and the Bank as amended by that
certain First Amendment to Credit Agreement dated as of December 1, 1999, and as
amended by that certain Second Amendment to Credit Agreement dated as of January
12, 2000, (as amended, the "Credit Agreement"). The Credit Agreement and all
related and supporting documents collectively are referred to in this Amendment
as the "Loan Documents."
B. All preferred shares of the Borrower ("Preferred Shares") that were
issued prior to the date hereof have been fully converted into common shares of
Borrower ("Common Shares"), in accordance with the terms and provisions of
certain agreements (the "Preferred Agreements") between Borrower and the holders
("Preferred Holders") of the Preferred Shares, with the result that the only
equity securities of Borrower remaining issued and outstanding as of the date
hereof are Common Shares. Borrower hereby represents and warrants the truth,
accuracy and completeness of the immediately preceding sentence hereof.
C. Borrower has requested a waiver of certain financial covenants, and
Bank has agreed, upon the terms and conditions set forth herein, to provide such
waiver.
NOW, THEREFORE, in consideration of the promises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein shall
have the same meanings as set forth in the Credit Agreement.
2. Waiver. To the extent that the existence of any provision contained
in the Preferred Agreements entitling the Preferred Holders to cause the
Borrower to redeem for cash all or any portion of the Preferred Shares from the
Preferred Holders might have constituted, or given rise to, at any time prior to
the date hereof, a default or breach of the Loan Documents by Borrower
(including without limitation, a breach of or default under Sections 7.2.16,
7.2.18, and 7.2.19 of the Credit Agreement), Bank hereby waives any such default
or breach. The above waiver is specific as to time and scope, and Bank does not
waive any other right of Bank, or any other failure by Borrower to perform its
Obligations under the Loan Documents, except for those expressly provided for
herein.
3. Conditions to Effectiveness of Amendment.
This Amendment shall become effective, only upon receipt by the
Bank of the following (each of which shall be in form and substance satisfactory
to the Bank and its counsel):
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(a) counterparts of this Amendment duly executed by Borrower and the
Bank;
(b) copies of resolutions of the Board of Directors or other
authorizing documents of the Borrower, authorizing the execution and delivery of
this Amendment; and
(e) completion of such other matters and delivery of such other
agreements, documents and certificates as Bank may reasonably request.
4. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
PENNSYLVANIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
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.
6. All Other Terms Unchanged. Except to the extent expressly amended
hereby, all other terms and conditions of the Loan Documents shall remain
unchanged, and the parties hereby reaffirm all of their respective obligations
under the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SUPERCONDUCTOR TECHNOLOGIES, INC.
By:
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Title:
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PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
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