EXHIBIT 10(m)
FIRST AMENDMENT TO JOINT SECURITY AGREEMENT
THIS FIRST AMENDMENT is made September 26, 1995, by and among NUCLEAR METALS,
INC. ("Nuclear Metals"), CAROLINA METALS, INC. ("Carolina Metals";
together with Nuclear Metals, "Borrowers"), and STATE STREET BANK AND
TRUST COMPANY ("Bank").
WHEREAS, the Borrowers and Bank entered into (a) a Credit Agreement dated as
of March 31, 1995, as amended by a First Amendment to Credit Agreement
("First Credit Agreement Amendment") dated as of June 30, 1995 (as
further amended, modified, supplemented and/or restated from time to
time, "Credit Agreement"), and (b) a Joint Security Agreement dated as
of March 31, 1995, as amended by the First Credit Agreement Amendment
and hereby (as further amended, modified, supplemented and/or restated
from time to time, "Security Agreement");
WHEREAS, pursuant to the Credit Agreement, the Bank established a credit
facility in favor of the Borrowers in the aggregate principal amount of
$5,650,000;
WHEREAS, the Borrowers have requested that the Bank establish in their favor
an additional credit facility in the principal amount of $2,000,000
("Line of Credit");
WHEREAS, on the date hereof, the Borrowers and Bank have entered into a
letter agreement (as amended, modified, supplemented and/or restated
from time to time, "Letter Agreement") by which the Bank has agreed to
establish the Line of Credit;
WHEREAS, a condition to the effectiveness of the Letter Agreement is the
execution and delivery by the Borrowers to the Bank of this First
Amendment;
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers and Bank agree as follows:
1. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them
in the Security Agreement;
2. Section 1 of the Security Agreement is
amended by including in the definition of the term "Collateral," all
equipment (as such term is defined by the Uniform Commercial Code as
adopted in Massachusetts) in which either Borrower now has or hereafter
acquires any rights and the proceeds therefrom (including, without
limitation, proceeds of insurance) and accessions thereto.
3. The Borrowers agree and acknowledge that
the defined term "Obligations" set forth in Section 2 of the Security
Agreement includes the obligations of the Borrowers to the Bank now
existing or hereafter arising under, relating to or in connection with
the Letter Agreement, including, without limitation, all obligations of
the Borrowers under the Demand Note, as defined in the Letter Agreement.
4. As of September 25, 1995, the obligations
of the Borrowers to the Bank under the Credit Agreement equaled
$2,750,188.89, comprised of (a) $1,733,333.35 and $10,688.88, in
principal and interest respectively under the Term Note (as defined in
the Credit Agreement), and (b) $1,000,000 and $6,166.66 in principal and
interest respectively under the Revolving Credit Note (as defined in the
Credit Agreement), as amended, plus attorneys' fees, charges and
expenses.
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5. The Company acknowledges and agrees that
(a) the amounts set forth in paragraph 4 above are due and owing to the
Bank without any counterclaim or setoff, and (b) the Obligations are
secured by a first priority perfected security interest in all of the
personal property of the Borrowers granted to the Bank pursuant to the
Security Agreement, as amended by the First Credit Agreement Amendment
and hereby, including without limitation, all accounts, inventory,
equipment and general intangibles (including (a) the patents and patent
applications ("Patents") owned by Nuclear Metals and listed on SCHEDULE
I attached hereto, together with all proceeds thereof, all rights
corresponding thereto and all reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof, and the
recordings and applications therefor, and (b) the trademarks and
trademark ("Trademarks") applications owned by Nuclear Metals and listed
on SCHEDULE II attached hereto, all proceeds thereof, all rights
corresponding thereto and the recordings and applications therefor and
all goodwill of the business to which each such trademark and
application relates.
6. Carolina Metals acknowledges and agrees
that the Guaranty Agreement dated as of April 13, 1995 executed by it in
favor of the Bank is a valid and enforceable guaranty of all of the
obligations of Nuclear Metals to the Bank, whether now existing or
hereafter arising.
7. The Borrowers represent and warrant that
(a) each of the Patents is valid and enforceable and Nuclear Metals is
the sole and exclusive owner of the entire and unencumbered right, title
and interest in and to each of the Patents, free and clear of any liens,
charges, licenses, collateral assignments, mortgages or other
encumbrances other than in favor of the Bank, (b) each of the Trademarks
is valid and enforceable and Nuclear
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Metals is the sole and exclusive owner of the entire and unencumbered
right, title and interest in and to each of the Trademarks, free and
clear of any liens, charges, licenses, collateral assignments,
mortgages or other encumbrances other than in favor of the Bank, and
(c) the representations and warranties in the Security Agreement are
true and accurate as of the date hereof, including without limitation,
the representation and warranty pertaining to the locations of
Collateral, as the same pertains to equipment in which either Borrower
has any rights.
8. The Borrowers jointly and severally release,
remise and forever discharge the Bank and each of its past, present and
future officers, directors, stockholders, agents, employees,
affiliates, attorneys, successors and assigns of and from any and all
claims, obligations, demands, causes of action, counterclaims and
defenses of any kind or nature whatsoever (including any claims,
counterclaims or defenses based on so-called lender liability), which
either or both of the Borrowers now has against the Bank and/or any of
its past, present and future officers, directors, stockholders, agents,
employees, affiliates, attorneys, successors and assigns, or ever had
from the beginning of the world to this date.
9. This First Amendment, which shall be
governed by the laws of The Commonwealth of Massachusetts, may be
executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment on
the date first above written.
NUCLEAR METALS, INC.
/S/ XXXXX X. XXXXXXX
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CAROLINA METALS, INC.
/S/ XXXXX X. XXXXXXX
----------------------
Name: Xxxxx X. Xxxxxxx
Title: President
STATE STREET BANK AND TRUST
COMPANY
/S/ XXXXXXX X. XXXXX XX
-------------------------
Name: Xxxxxxx X. Xxxxx XX
Title: Vice President
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SCHEDULE I
PATENT NO. DATE OF PATENT
---------- --------------
4,488,031 12/11/84
4,501,073 02/26/85
4,699,769 10/13/87
4,701,310 10/20/87
4,735,252 04/05/88
4,793,978 12/27/88
4,813,965 03/21/89
4,824,478 04/25/89
4,837,375 06/06/89
4,938,400 07/03/90
5,084,253 01/28/92
5,147,448 09/15/92
5,273,711 12/28/93
5,276,335 01/04/94
5,349,908 09/27/94
5,354,358 10/11/94
5,417,778 05/23/95
5,421,916 06/06/94
SCHEDULE II
TRADEMARK REGISTRATION NUMBER REGISTRATION DATE
--------- ------------------- -----------------
REP-R- 945061 10/17/72
PREP-R- 1,683,587 4/21/92
BERALCAST-TM- Application Serial No. 74- N/A
620,903
