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Exhibit 10.35
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of December 21, 2000 by and between SUPERCONDUTOR 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, as
amended by that certain Second Amendment to Credit Agreement dated as of January
12, 2000, and as amended by that certain Third Amendment to Credit Agreement
dated March 29, 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. Borrower has requested a renewal of its Two Million Five Hundred
Thousand Dollar revolving line of credit with Bank which expired July 1, 2000
(the "RENEWAL"), and Bank has agreed, upon the terms and conditions set forth
herein, to provide such renewal.
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. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(i) The definition of "Expiration Date" in Section 1.1 is hereby
amended in its entirety as follows:
"Expiration Date" shall mean, with respect to the Revolving Credit
Commitment, December 20, 2001."
(ii) Section 1.1 is hereby amended to include the following definition:
"EBITDA Loss shall mean for any fiscal quarter, determined for the
Borrower in accordance with GAAP, the net loss for such quarter (as a negative
number) adjusted as follows: (a) reduced by adding back to such amount, the
amount of each of the following expenses actually deducted during such fiscal
quarter in the determination of such net loss: interest expense, income taxes,
depreciation, amortization and non-cash items of expense; and (b) increased by
subtracting
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from such amount, interest income and the amount of non-cash income actually
included during such fiscal quarter in the determination of such net loss."
(iii) Section 5.1.2 entitled "Capitalization and Ownership" is hereby
amended in its entirety to read as follows:
"5.1.2 Capitalization and Ownership.
The authorized capital stock of Borrower consists of 75,000,000 shares
of common stock and 2,000,000 of preferred stock of which 17,815,164 shares of
common stock and 37,500 shares of Preferred Stock are issued and outstanding and
are owned as indicated on Schedule 5.1.2. All of the outstanding shares have
been validly issued and are fully paid and nonassessable. There are no options,
warrants or other rights outstanding to purchase any such shares except as
indicated on Schedule 5.1.2."
(iv) Section 5.1.24 entitled "ERISA" is hereby amended in its entirety
to read as follows:
"5.1.24 ERISA. Borrower has employee benefit arrangements subject to
the provisions of ERISA. Each Plan has been and will be maintained and funded in
accordance with its terms and with all provisions of the Internal Revenue Code
and ERISA applicable thereto, and there are no unfunded benefit liabilities with
respect to any Plan at any time as determined under ERISA Section 4001(a)(18)."
(v) Section 7.2.15 entitled "Capital Expenditures and Leases" is hereby
amended in its entirety to read as follows:
"7.2.15 Capital Expenditures and Leases.
Borrower shall not make any payments exceeding $8,000,000 in
the aggregate in any fiscal year on account of the purchase or lease of any
assets which if purchased would constitute fixed assets or which if leased would
constitute a capitalized lease, or any payments exceeding $1,300,000 in the
aggregate in any fiscal year on account of the rental or lease of real or
personal property of any other Person which does not constitute a capitalized
lease, and all such capital expenditures and leases shall be made under usual
and customary terms and in the ordinary course of business."
(vi) Section 7.2.16 entitled "Maximum Leverage Ratio" is hereby amended
in its entirety to read as follows:
"7.2.16 Maximum Leverage Ratio.
Borrower shall not any time permit the ratio of total debt of
Borrower to Tangible Net Worth to exceed 0.20 : 1.00 at all times."
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(vii) Section 7.2.17 entitled "Maximum Loss and Minimum Profitability"
is hereby amended in its entirety to read as follows:
"7.2.17 Maximum Loss and Minimum Profitability.
Borrower shall not permit the EBITDA Loss for any one quarter to exceed
the amount set forth for the period specified below:
Quarter Ending Loss Amount
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December 31, 2000 $3,300,000
March 31, 2001 $3,200,000
June 30, 2001 $4,200,000
September 30, 2001 $4,200,000
December 31, 2001 $4,200,000
Thereafter, Borrower shall not permit any two consecutive quarter
loses."
(vii) Section 7.2.18 entitled "Minimum Tangible Net Worth" is hereby
amended in its entirety to read as follows:
"7.2.18 Minimum Tangible Net Worth.
Borrower shall not at any time permit Tangible Net Worth to be less
than the following amounts during the following periods:
Period Amount
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Closing Date through December 31, 2000 $28,000,000
January 1, 2000 - March 31, 2001 $24,000,000
April 1, 2001 - June 30, 2001 $21,000,000
July 1, 2001 - September 30, 2001 $19,000,000
October 1, 2001 - December 31, 2001 $17,000,000
The above requirements shall automatically increase by 100% of any new
equity raised plus 75% of positive net income. The covenant includes the equity
infusion of $37,500,000 received on October 2, 2000."
(viii) Section 7.2.19 entitled "Minimum Quick Ratio" is hereby amended
in its entirety to read as follows:
"7.2.19 Minimum Quick Ratio.
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Borrower shall not at any time permit the ratio of Quick Assets to
current liabilities to be less than the following amounts during the following
periods:
Period Ratio
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December 31, 2000 2 : 1
March 31, 2001 2 : 1
June 30, 2001 2 : 1
September 30, 2001 2 : 1
December 31, 2001 2 : 1"
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):
(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
(c) as consideration for the Renewal, a non-refundable facility fee
of 62.5 basis points ($15,625.00);
(d) completion of such other matters and delivery of such other
agreements, documents and certificates as Bank may reasonably request.
(e) payment of all fees and expenses incurred by the Bank and
reimbursable by the Borrower, including but not limited to, fees and expenses
due and payable to Xxxx Xxxx Xxxx & Freidenrich LLP.
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 an attached
to a single counterpart so that all signature pages are physically attached to
the same document.
6. Expenses. The Borrower will reimburse the Bank for the Bank's (i)
out-of-pocket expenses incurred or to be incurred in conducting UCC, title and
other public record searches,
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and in filing and recording documents in the public records to perfect the
Bank's liens and security interests and (ii) expenses (including the reasonable
fees and expenses of the Bank's outside and in-house counsel) in documenting and
closing this transaction, in connection with any amendments, modifications or
renewals of the Loan, and in connection with the collection of all of the
Borrower's obligations to the Bank, including but not limited to enforcement
actions relating to the Loan.
7. 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.
Signature page to follow.
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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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