EXHIBIT 10(k)
September 26, 1995
Nuclear Metals, Inc.
Carolina Metals, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Re: LINE OF CREDIT
Gentlemen:
Reference is made to that certain (a) Credit Agreement dated as of March
31, 1995 between Nuclear Metals, Inc. ("Nuclear Metals"), Carolina Metals,
Inc. ("Carolina Metals;" together with Nuclear Metals, "Borrowers"), as
amended by First Amendment to Credit Agreement dated as of June 30, 1995
("Credit Agreement"), pursuant to which the Bank established a credit
facility in favor of the Borrowers in the aggregate principal amount of
$5,650,000, and (b) Joint Security Agreement between the Borrowers and the
Bank dated as of March 31, 1995 ("Security Agreement"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Credit Agreement.
As a result of the Borrower's unexpected lack of borrowing availability
under the Credit Agreement and their current working capital needs, the
Borrowers have requested that the Bank establish in their favor a short term
line of credit facility ("Line of Credit"). The Bank hereby agrees to
establish such facility on the following terms and conditions:
1. From time to time, at any time prior to the earlier of January 15,
1996 and the Mandatory Prepayment, the Bank may in its absolute and sole
discretion advance such funds ("Line of Credit Advances") as either Borrower
may request from time to time, by written notice to the Bank; provided that
for the following periods the aggregate
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of all outstanding Line of Credit Advances shall not exceed the respective
amounts set forth opposite each such period:
PERIOD AMOUNT
------ ------
9/26/94 through 10/1/95 $ 925,000
10/2/95 through 10/8/95 $1,300,000
10/9/95 through 10/15/95 $1,680,000
10/16/95 through 1/15/96 $2,000,000
The Bank shall have the absolute right to decline to make any Line of Credit
Advance at any time. Subject to the above limitations and the terms and
conditions hereof, the Borrowers shall have the right to repay outstanding
Line of Credit Advances and to request further Line of Credit Advances.
Proceeds from Line of Credit Advances only shall be used by the Borrowers for
working capital purposes.
2. Interest on the outstanding Line of Credit Advances shall be (a)
paid by the Borrowers at the Prime Rate plus one and one-half percent (1
1/2%), and (b) payable in arrears on the first day of each month, commencing
October 1, 1995 and continuing until all such Advances are repaid in full.
All Line of Credit Advances shall be payable by the Borrowers on demand.
Without limiting the demand nature of the Line of Credit, the Borrowers shall
repay all outstanding Line of Credit Advances, together with all accrued
interest thereon and fees and expenses associated therewith upon the payment
("Mandatory Prepayment") by British Aerospace, Royal Ordnance Division
("XXXXX") of its obligations to Nuclear Metals with respect to the sale by
Nuclear Metals to XXXXX of 7,500 CHARM III Ammunition Blanks ("Product").
Amounts owed to the Bank with respect to Line of Credit Advances shall be
evidenced by a Line of Credit Demand Note ("Demand Note") in the form of
EXHIBIT A attached hereto.
3. On the first day of each month, commencing October 1, 1995 and
continuing until all outstanding Line of Credit Advances are repaid in full,
the Borrowers shall pay to the Bank a facility fee equal to one percent (1%)
of the average of the daily outstanding Line of Credit Advances for the month
immediately preceding each such month.
4. Any contract between Nuclear Metals and XXXXX with respect to the
Product shall name the Bank as payee thereunder and otherwise be in form and
substance satisfactory to the Bank. Upon receipt of the Mandatory
Prepayment, the Bank shall apply such payment first, to the outstanding Line
of Credit Advances, accrued interest thereon and fees and expenses associated
therewith and second, to obligations of the Borrowers to the Bank under
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the Credit Agreement. Proceeds remaining after the foregoing application
shall be forthwith paid over by the Bank to Nuclear Metals.
5. On Tuesday of each week hereafter, the Borrowers shall deliver to
the Bank a cash flow report in form satisfactory to the Bank with respect to
the immediately preceding week. Additionally, on the second and fourth
Tuesday of each month hereafter, the Borrowers shall deliver to the Bank a
report in form satisfactory to the Bank regarding the sale of the Product to
XXXXX.
6. The Bank waives the Borrowers' covenant default for the period
ending June 30, 1995 under Section 4.22 of the Credit Agreement.
7. The Borrowers agree that except as set forth on EXHIBIT B attached
hereto, the representations and warranties set forth in the Credit Agreement
are true and accurate as of the date hereof as if made as of the date hereof
(except as the same may relate to an earlier date). Further, the Borrowers
agree that the representations and warranties contained in Section 2.03 of
the Credit Agreement, as applied to this letter agreement and all documents
and instruments executed in connection herewith, are true and accurate as of
the date hereof.
8. Any default by the Borrowers in the performance of any covenant or
agreement contained herein shall constitute an "Event of Default" under the
Credit Agreement. Additionally, if any representation or warranty made by
the Borrowers herein shall prove to have been false or incorrect in any
material respect when made or furnished, the Borrowers agree that it shall
constitute an "Event of Default" under the Credit Agreement.
9. The Borrowers agree to indemnify and hold harmless the Bank and each
of their directors, officers, agents, employees and counsel, from and against
any and all losses, claims, damages, liabilities or expenses imposed on or
incurred by any of them in connection with the lending relationship reflected
herein except as a result of such indemnified parties' negligence or willful
misconduct.
10. The Borrowers will bear all reasonable expenses incurred by the Bank
in connection with the negotiation, preparation, execution, amendment,
interpretation, administration, termination or enforcement hereof and the
making and collection of the Line of Credit Advances, including without
limitation, the reasonable fees and disbursements of counsel.
11. Each Borrower (a) irrevocably consents and submits to the
non-exclusive jurisdiction of the Superior Court in the Commonwealth of
Massachusetts and the United States District Court for the Eastern District
of Massachusetts in connection with any action, proceeding or claim arising
out of or relating hereto, or the Demand Note or any agreement executed in
connection herewith, and (b) waives trial by jury in any action or
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proceeding of any kind arising out of or relating hereto, or any such Note or
agreement. In any such litigation, each Borrower waives personal service and
agrees that service may be made in the manner specified for notices
hereunder. Notices hereunder shall be given in accordance with Section 6.05
of the Credit Agreement and shall be deemed effective as set forth therein.
12. The obligations of the Borrowers hereunder and under any agreement
or instrument executed in connection herewith, including the Demand Note,
shall be joint and several.
13. This letter agreement only shall be effective upon (a) the Borrowers
payment to the Bank of all fees and expenses of the Bank outstanding on the
date hereof, (b) the Bank's receipt of a legal opinion from Peabody and
Xxxxxx, counsel to the Borrowers, in form and substance satisfactory to the
Bank, (c) the issuance by Nuclear Metals to the Bank of a duly executed
warrant to purchase 25,000 shares of Nuclear Metals common stock pursuant to
a warrant agreement in form and substance satisfactory to the Bank, (d) the
execution and delivery to the Bank by the Borrowers of patent and trademark
assignments in form and substance satisfactory to the Bank, (e) an amendment
to the Security Agreement in form and substance satisfactory to the Bank, and
(f) the filing of Uniform Commercial Code financing statements executed by
the Borrowers in the jurisdictions required by the Bank, which statements
shall be in form and substance satisfactory to the Bank.
14. No delay or omission on the part of the Bank in exercising any
rights hereunder or under any agreement or instrument executed in connection
herewith shall operate as a waiver of such right, nor shall any waiver on one
occasion be deemed an amendment or waiver of any such right with respect to
any future occasion. The Borrowers acknowledge and agree that all terms and
conditions of the Credit Agreement are in full force and effect and the
execution and delivery hereof, except as specifically set forth herein, (a)
shall not operate as a waiver of any right, power or remedy of the Bank under
the Credit Agreement or any agreement or instrument related to or in
connection therewith, nor (b) constitute a waiver of any provision of the
Credit Agreement or any such agreement or instrument.
15. This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
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Kindly indicate your agreement to the above terms and conditions by
executing and returning to me an enclosed counterpart hereof, along with a
completed Exhibit B.
Very truly yours,
STATE STREET BANK AND
TRUST COMPANY
By: /S/ XXXXXXX X. XXXXX XX
--------------------------
Vice President
AGREED TO:
Nuclear Metals, Inc.
By: /S/ XXXXX X. XXXXXXX
-----------------------
Vice President of Finance
Carolina Metals, Inc.
By: /S/ XXXXX X. XXXXXXX
-----------------------
President
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EXHIBIT A
LINE OF CREDIT DEMAND NOTE
$2,000,000 September __, 1995
FOR VALUE RECEIVED, the undersigned, NUCLEAR METALS, INC., a
Massachusetts corporation and CAROLINA METALS, INC., a Delaware corporation
(the "Borrowers"), hereby jointly and severally promise to pay to the order
of STATE STREET BANK AND TRUST COMPANY, an FDIC insured Massachusetts
chartered trust company ("Bank"), in lawful money of the United States of
America in immediately available funds at its office at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, on demand, the principal sum of TWO MILLION
DOLLARS ($2,000,000) or such lesser sum as may from time to time be
outstanding under the terms of that certain letter agreement between the
Borrowers and Bank of even date herewith, as amended, modified, supplemented
and/or restated from time to time (the "Letter Agreement"). Without limiting
the demand nature hereof, this Note is subject to the mandatory repayment
provisions set forth in the Letter Agreement.
The Borrowers promise to pay interest on the unpaid principal balance
hereof at the rates and at the times provided in the Letter Agreement.
This Note shall be governed and construed under the laws of the
Commonwealth of Massachusetts and shall be deemed to be under seal.
NUCLEAR METALS, INC.
WITNESS:
By:
---------------------------------
----------------------------- Name:
Title:
CAROLINA METALS, INC.
WITNESS:
By:
---------------------------------
----------------------------- Name:
Title:
EXHIBIT B
None
