EXHIBIT 10.78
AMENDMENT AGREEMENT
-------------------
AMENDMENT AGREEMENT ("Amendment") dated as of 12/17/04, 2004 to the
--------
Revolving Credit Agreement dated as of September 27, 2002, as amended to date
(as the same maybe further amended, supplemented or modified from time to time
in accordance with its terms, the "Credit Agreement") by and among UNITED STATES
ENRICHMENT CORPORATION, a Delaware corporation (the "Borrower"), the lenders
party thereto (the "Lenders") and JPMORGAN CHASE BANK, as Administrative and
Collateral Agent (the "Agent"), Merrill Lynch Capital, as Syndication Agent,
GMAC Commercial Finance LLC (formerly known as GMAC Business Credit, LLC), as
Documentation Agent and Congress Financial Corporation, as Managing Agent. All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to such terms in the Credit Agreement.
WHEREAS, the Borrower, Lenders and the Agent entered into the Credit
Agreement and other Financing Documents, including the Security Agreement;
WHEREAS, the Credit Agreement permits the Borrower to make restricted
payments to Holdings for certain purposes, but not for the purposes of providing
working capital to another Person;
WHEREAS, Holdings will be acquiring NAC Holding Inc. and NAC International
Inc. (collectively, "NAC");
WHEREAS, the Borrower has requested that the Required Lenders amend the
provisions of Section 6.06 of the Credit Agreement and certain related
provisions for the purpose of allowing certain restricted payments to be made to
Holdings in order to provide working capital to NAC; and
WHEREAS, the Borrower has also requested that the Required Lenders amend
the provisions of Sections 6.04 and 6.06 of the Credit Agreement for the purpose
of allowing ongoing intercompany loans to Holdings from the Borrower and any
other subsidiary of Holdings and to allow for the elimination of intercompany
balances by means of a cashless dividend under certain circumstances.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 The definition of Guarantor in Article I of the Credit Agreement is
hereby amended in its entirety to read as follows:
"`Guarantor' means, collectively, Holdings, NAC and each Subsidiary
------------
which becomes a Guarantor after the effective date."
1.2 The following definition shall be added to Article I of the Credit
Agreement in its alphabetical order:
"NAC" means, collectively, NAC Holding Inc., a Delaware
corporation and its wholly-owned subsidiary, NAC International Inc.,
a Delaware corporation."
1.3 The first sentence of Section 2.04(a) of the Credit Agreement is
hereby amended by inserting after the words "for its own account" the phrase "or
the account of Holdings to the extent permitted under Section 6.06(e)".
1.4 Section 5.01 of the Credit Agreement is hereby amended by deleting
the reference in subsection (g) to "Intentionally omitted" and substituting
therefor the following:
"so long as NAC continues as a separate Person and to the extent
required by GAAP, together with any delivery under (a), (b) or (c) above,
consolidating financial information for Holdings and its subsidiaries,
provided that any such information under (a) above need not be audited;"
1.5 Section 6.04 of the Credit Agreement is hereby amended by striking
the word "and" at the end of 6.04(l), striking the period at the end of 6.04(m)
and adding in its place "; and" and adding the following subsection (n):
"(n) Investments consisting of loans and advances to Holdings from
Borrower or any other subsidiary of Holdings and any promissory notes or
other evidence thereof.
1.6. Section 6.06 of the Credit Agreement is hereby amended by striking
the word "and" in the next to last line, substituting a comma, striking the
period at the end of such Section and adding the following subsections (e) and
(f):
"(e) the Borrower may transfer funds or provide Letter of Credit
accommodations to Holdings to permit Holdings to provide working capital
to NAC so long as the aggregate principal amount of such transfers
together with the face amount of Letter of Credit accommodations does not
exceed $4,000,000 at any one time outstanding; and
(f) the Borrower may declare and pay cashless dividends to
Holdings to eliminate intercompany balances when deemed necessary or
advisable for tax purposes."
SECTION 2. CONDITIONS PRECEDENT
2.1 All representations and warranties contained in this Amendment or
otherwise made in writing to the Agent in connection herewith shall be true and
correct.
2.2 No unwaived event has occurred and is continuing which constitutes
an Event of Default under the Credit Amendment or would constitute such an Event
of Default but for the requirement that notice be given or time elapse or both.
2.3 The Agent shall have received counterparts of this Amendment duly
executed by the Borrower, Holdings and Required Lenders.
SECTION 3. MISCELLANEOUS
3.1 The Borrower reaffirms and restates the representations and
warranties set forth in Article IV of the Credit Agreement and all such
representations and warranties shall be true and correct on the date hereof with
the same force and effect as if made on such date (except insofar as such
representations and warranties relate expressly to an earlier date). Each of the
Borrower and Holdings represents and warrants (which representations and
warranties shall survive the execution and delivery hereof) to the Agent that:
(a) It has the power and authority to execute, deliver and carry
out the terms and provisions of this Amendment and the transactions
contemplated hereby and has taken or caused to be taken all necessary
action to authorize the execution, delivery and performance of this
Amendment and the transactions contemplated hereby;
(b) No consent of any other person, and no action of, or filing
with any governmental or public body or authority is required to
authorize, or is otherwise required in connection with the execution,
delivery and performance of this Amendment;
(c) This Amendment has been duly executed and delivered on behalf
of each such party by a duly authorized officer, and constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms, subject to bankruptcy, reorganization, insolvency, moratorium and
other similar laws affecting the enforcement of creditors' rights
generally and the exercise of judicial discretion in accordance with
general principles of equity;
(d) The execution, delivery and performance of this Amendment will
not violate any law, statute or regulation, or any order or decree of any
court or governmental instrumentality, or conflict with, or result in the
breach of, or constitute a default under any contractual obligation of
each.
3.2 All references to the Credit Agreement in the Credit Agreement, the
Financing Documents and the other documents and instruments delivered pursuant
to or in connection therewith shall mean the Credit Agreement as amended hereby
and as such may in the future be amended, restated, supplemented or modified
from time to time;
3.3 Except as expressly set forth in this Amendment, the terms,
provisions and conditions of the Credit Agreement and other Financing Documents
are unchanged, and said agreements shall remain in full force and effect and are
hereby confirmed and ratified;
3.4 This Amendment may be executed by the parties hereto individually or
in combination, in one or more counterparts, each of which shall be an original
and all of which shall constitute one and the same agreement;
3.5 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart;
and
3.6 This Amendment shall be governed by, and construed and interpreted
in accordance with, the internal laws of the State of New York and shall become
effective upon execution thereof by the Borrower, the Agent and the Required
Lenders.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower, the Agent and the Required Lenders have
caused this Amendment to be duty executed by their respective officers as of the
date and year first above written.
UNITED STATES ENRICHMENT CORPORATION,
as Borrower
By: /s/ Ellen C. Wolf
-------------------------------
Name: Ellen C. Wolf
Title: SVP-CFO
JPMORGAN CHASE BANK, individually and as Administrative
and Collateral Agent and Lead Arranger
By: /s/ James M. Barbato
-------------------------------
Name: James M. Barbato
Title: Vice President
MERRILL LYNCH CAPITAL, a division of Merrill Lynch
Business Financial Services, Inc., as Syndication Agent
and Lender
By: /s/ Mark Gertzof
-------------------------------
Name: Mark Gertzof
Title: Director
GMAC COMMERCIAL FINANCE LLC, as
Documentation
Agent and Lender
By: /s/ Thomas Maiale
-------------------------------
Name: Thomas Maiale
Title: Director
CONGRESS FINANCIAL CORPORATION, as Managing
Agent and Lender
By: /s/ Jason Searle
-------------------------------
Name: Jason Searle
Title: Assistant VP
SIEMENS FINANCIAL SERVICES, INC., as Lender
By: /s/ Frank Amodio
-------------------------------
Name: Frank Amodio
Title: Vice President - Credit
SOVEREIGN BANK, as Lender
By: /s/ Eric Ritter
-------------------------------
Name: Eric Ritter
Title: AVP
Acknowledged:
USEC INC., as Guarantor
By: /s/ Ellen C. Wolf
-------------------------------
Name: Ellen C. Wolf
Title: SVP-CFO