1
EXHIBIT 10.30
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of January 12, 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 (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 an additional credit facility from Bank, and
Bank has agreed, upon the terms and conditions set forth herein, to provide such
credit facility in the amount of One Million Five Hundred Thousand Dollars
($1,500,000.00) (`Term Loan').
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:
(a) The following definitions shall be added to Section 1.1
Second Amendment means the Second Amendment to Credit Agreement
dated as of January 12, 2000.
Term Closing date shall mean January 12, 2000 or the date upon
which all conditions specified in Section 3 hereof are satisfied or waived.
Term Loan shall have the meaning set forth in Section 2A.1.
Term Loan fee shall have the meaning set forth in Section 2A.2.
Term Maturity Date shall have the meaning set forth in Section
2A.3.
Term Note shall mean the Term Note in the form of Exhibit 1
hereto evidencing the Term Loan, together with all amendments,
extensions, renewals, replacements, refinancings, or refundings
thereof in whole or in part.
(b) The definition of Loan Documents is amended to add the following
"the Term Note".
(c) The definition of Note is amended to include the Term Note.
(d) The following section is added as Section 2A.
2A Term Loan
1
2
2A.1 Term Loan Commitment. Subject to the terms and conditions
hereof, and relying upon representations and warranties herein set forth, Bank
agrees to make a term loan (the "term Loan") to the Borrower upon satisfaction
or waiver of the conditions set forth in the Second Amendment ("Term Closing
Date") in the amount of One Million Five Hundred Thousand Dollars
($1,500,000.00)
2A.2 Term Loan Facility Fee. The Borrower agrees to pay Bank, on
the Term Closing Date, as consideration for the Term Loan, a non-refundable
facility fee of $7,500.00 ("Term Loan Fee")
2A.3 Term Loan Note. The Obligation of Borrower to repay the
unpaid principal amount of the Term Loan together with interest thereon, shall
be evidenced by a Term Note dated the Term Closing Date in the form of Exhibit I
hereto. The outstanding principal on the Term Loan shall be due and payable upon
the earlier of (i) June 12, 2000 or (ii) the closing of an equity financing in
which Borrower issues shares of stock and receives an aggregate of at least
$3,000,000.00 in net proceeds from such issuance ("Term Maturity Date").
2A.4 Mandatory Prepayments. Upon the occurrence of any net
proceeds from equity contributions including but not limited to funds raised
through venture capital rounds, strategic investors or private placements of
equity, Borrower shall immediately make a prepayment on the Term Loan equal to
the amount of such net proceeds.
2A.5 Interest Rate/Payment - Term Loan. Except as set forth in
Section 3.2.1, the Term Loan shall bear interest at a fluctuating rate per annum
(computed on the basis of a year of 360 days) equal to (i) the Base Rate plus 4%
from the Term Loan Closing Date until May 12, 2000 and (ii) thereafter at a rate
equal to the Base Rate plus 5%.
2A.6 Use of Proceeds. The proceeds of the Term Loan shall be used
for general working capital purposes provided, however, that $500,000 of the
Term Loan shall be immediately used to pay down an overadvance currently
existing on the Revolving Credit Facility.
(e) Sections 3.2.1 and 3.2.2 are amended to add the words "and Term
Loan" after each reference to Revolving Credit Loan(s).
(f) Section 4.2 is amended to add "and Term Loan" after each
reference to Revolving Credit Loan(s) and to add "and Term Maturity Date" after
the reference to "Expiration Date" in the second line thereof.
(g) Section 4.3 is amended to add "and Term Loan" after each
reference to Revolving Credit Loan(s).
(h) Section 7.1 is amended to add "and Term Loan" after each
reference to Revolving Credit Loan(s).
(i) Section 8.1.1 is amended to add "or Term Loan" after each
reference to Revolving Credit Loan(s).
(j) Seciton 8.2 is amended to add "or Term Loan" after each reference
to Revolving Credit Loan(s).
(k) Section 8.6 is amended to add "or Term Loan" after Revolving
Credit Loan and to further add "and Term Maturity Date" after Expiration Date.
2
3
3. Conditions to Effectiveness of Amendment.
This Amendment shall become effective, only upon:
(i) 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) the Term Note
(c) the Warrant in the form of Exhibit 2A to the Second Amendment
duly executed by Borrower; and
(d) copies of resolutions of the Board of Directors or other
authorizing documents of the Borrower, authorizing the execution and delivery of
this Amendment;
(e) an Opinion of Borrower's counsel Xxxxxx Xxxxxxx Xxxxxxxx and
Xxxxxx dated the date hereof and in form and substance satisfactory to Bank and
its counsel; and
(ii) completion of such other matters and delivery of such other
agreements, documents and certificates as Bank may reasonably request.
4. Collateral. The Intellectual Property Security Agreement and Security
Agreement are hereby amended to the extent necessary to include the Term Loan as
an obligation secured by all collateral set forth in each agreement.
5. Opinion of Counsel. Borrower agrees to deliver to Bank on or Before
February 1, 2000, an opinion of Borrower's counsel, Xxxxxx Xxxxxxx Xxxxxxxx and
Xxxxxx in form and substance satisfactory to Bank and its counsel. The failure
to deliver said opinion to Bank would constitute an Event of Default.
6. Representations and Warranties. In order to induce the Bank to enter
into this Amendment, the Borrower represents and warrants to the Bank that the
following statements are true, correct and complete as of the effective date of
this Amendment:
(a) Corporate Power and Authority. The Borrower has all requisite
corporate power and authority to enter into this Amendment and the Warrant and
to carry out the transactions contemplated by, and perform its obligations
under, the Credit Agreement as amended by his Amendment (the "Amended
Agreement") and the Warrant. The Articles of Incorporation and Bylaws of the
Borrower have not been amended since the copies previously delivered to the
Bank.
(b) Authorization of Agreements. The execution and delivery of this
Amendment and the performance by the Borrower of the Amended Agreement have been
duly authorized by all necessary corporate action on the part of the Borrower.
(c) No Conflict. The execution and delivery by the Borrower of this
Amendment do not and will not contravene (i) any law or any governmental rule or
regulation applicable to the Borrower, (ii) the Articles of Incorporation or
Bylaws of the Borrower, (iii) any order, judgment or decree of any court or
other agency of government binding on the Borrower, or (iv) any material
agreement or instrument binding on the Borrower.
3
4
(d) Governmental Consents. The execution and delivery by the Borrower
of this Amendment and the performance by the 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.
(e) Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by the Borrower and are the binding obligations
of the Borrower, enforceable against the 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
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are correct on and as of the effective date of this Amendment
as though made on and as of such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they were true
and correct as of such earlier date). (g) Absence of Default. After giving
effect to this Amendment, no event has occurred and is continuing or will result
from the consummation of the transactions contemplated by this Amendment that
would constitute an Event of Default or a Potential Default.
7. Miscellaneous.
(a) Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(i) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement," "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the Bank
under the Credit Agreement or any of the other loan Documents.
(b) Fees and Expenses. All costs and expenses of the Bank, including,
but not limited to, reasonable attorneys' fees, incurred by the Bank in the
preparation and negotiation of this Amendment constitute costs and expenses in
connection with the amendment and restructuring of the Loan Documents, and as
such are payable by the borrower in accordance with Section 8.5 of the Credit
Agreement.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(d) 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.
(e) Counterparts. The 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
4
5
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.
[REMAINDER INTENTIONALLY LEFT BLANK]
5
6
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: /s/ M. Xxxxx Xxxxxx
-------------------------------
Title: President and CEO
--------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Title:
--------------------------------
6
