Exhibit 10.33
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of December 23,
1997, by and between Conductus, Inc. (the "Borrower") whose address is
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Silicon Valley Bank (the
"Lender") whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may
be owing by Borrower to Lender, Borrower is indebted to Lender pursuant to,
among other documents, a Promissory Note, dated August 15, 1994, in the
original principal amount of One Million and 00/100 Dollars ($1,000,000.00),
as may be amended (the "Line"), a Promissory Note, dated August 15, 1994, in
the original principal amount of One Million Five Hundred Thousand and 00/100
Dollars ($1,500,000.00), as amended ("Term Note 1"), a Promissory Note, dated
March 1, 1996, in the original principal amount of One Million and 00/100
Dollars ($1,000,000.00), as may be amended ("Term Note 2"), a Promissory Note
dated December 26, 1996, in the original principal amount of One Million and
00/100 Dollars ($1,000,000.00), as may be amended ("Term Note 3"). Term Note
# 1 was amended pursuant to among other documents, a Loan Modification
Agreement dated June 20, 1995, pursuant to which, among other things, the
principal amount was increased to Two Million and 00/100 Dollars
($2,000,000.00). Hereinafter, Term Note 1, Term Note 2 and Note 3 shall be
collectively referred to as the "Term Notes" and the Line and the Term Notes
shall be collectively referred to as the "Notes". The Notes, together with
other promissory notes from Borrower to Lender, are governed by the terms of
a Business Loan Agreement, dated August 15, 1994, between Borrower and
Lender, as such agreement may be amended from time to time (the "Loan
Agreement"). Defined terms used but not defined herein shall have the same
meanings as in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Lender shall be referred to
as the "Indebtedness".
2. DESCRIPTION OF COLLATERAL AND GUARANTIES: Repayment of the Term Notes is
secured by a Commercial Security Agreement, dated August 15, 1994 and
repayment of the Line is secured by an Assignment of Deposit Account
Agreement of even date herewith (the "Pledge Agreement"). In addition to the
foregoing, Borrower has agreed not to sell, transfer, assign, mortgage,
pledge, lease, grant a security interest in, or encumber any of Borrower's
Intellectual Property.
Hereinafter, the above-described security documents, together with all other
documents securing payment of the Indebtedness shall be referred to as the
"Security Documents". Hereinafter, the Security Documents, together with all
other documents evidencing or securing the Indebtedness shall be referred to
as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. MODIFICATION(S) TO THE LINE.
1. The principal amount of the Line is hereby decreased to
Five Hundred Thousand and 00/100 Dollars ($500,000.00).
B. MODIFICATIONS(S) TO LOAN AGREEMENT.
1. The paragraph entitled "Financial Covenants" is hereby
amended, in its entirety, to read as follows:
Borrower shall maintain, on a monthly basis, a minimum
liquidity coverage ratio of 2.00 to 1.00; a minimum
Tangible Net Worth of $3,500,000.00, plus 75% of new
equity or Subordinated Debt and a maximum total Debt minus
Subordinated Debt to Tangible Net Worth plus Subordinated
Debt ratio of 1.00 to 1.00. Furthermore, Borrower may
incur losses, provided such losses shall not exceed
$1,200,000.00 for the quarter ended December 31, 1997;
$900,000.00 for the quarter ending March 31, 1998;
$400,000.00 for the quarter ending June 30, 1998 and
$100,000.00 for the quarter ending September 30, 1999,
with quarterly profitability thereafter.
For calculation purposes, the liquidity coverage ratio
shall mean cash or cash equivalents plus availability
under the Line divided by the sum of outstanding balances
under the Term Notes.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor
signing below) agrees that, as of this date, it has no defenses against the
obligations to pay any amounts under the Indebtedness.
6. CONTINUING VALIDITY. Borrower (and each guarantor and pledgor signing
below) understands and agrees that in modifying the existing Indebtedness,
Lender is relying upon Borrower's representations, warranties, and
agreements, as set forth in the Existing Loan Documents. Except as expressly
modified pursuant to this Loan Modification Agreement, the terms of the
Existing Loan Documents remain unchanged and in full force and effect.
Lender's agreement to modifications to the existing Indebtedness pursuant to
this Loan Modification Agreement in no way shall obligate Lender to make any
future modifications to the Indebtedness. Nothing in this Loan Modification
Agreement shall constitute a satisfaction of the Indebtedness. It is the
intention of Lender and Borrower to retain as liable parties all makers and
endorsers of Existing Loan Documents, unless the party is expressly released
by Lender in writing. No maker, endorser, or guarantor will be released by
virtue of the Loan Modification Agreement. The terms of this paragraph apply
not only to this Loan Modification Agreement, but also to all subsequent loan
modification agreements.
7. CONDITIONS. The effectiveness of this Loan Modification Agreement is
conditioned upon Lender's receipt of the Pledge Agreement.
This Loan Modification Agreement is executed as of the date first
written above.
BORROWER: LENDER:
CONDUCTUS, INC. SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO Title: Vice President
