EXHIBIT 10.79
AMENDMENT AGREEMENT NO. 2
AMENDMENT AGREEMENT ("Amendment") dated as of February 1, 2005 to the
Revolving Credit Agreement dated as of September 27, 2002, as amended to date
(as the same may be 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, N.A. (formerly known as
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 and Guarantee of Holdings restrict the
incurrence of Liens on assets of the Borrower or Holdings;
WHEREAS, the Company and Holdings are parties to (x) Memoranda of
Agreement entered into as of December 10, 2004 pursuant to which the Department
of Energy ("DOE") will deliver to the Company certain feed material and (y) a
Security Agreement dated as of February 2, 2005 ("DOE Security Agreement")
pursuant to which the Company and Holdings will grant to the DOE a security
interest in such feed material and the proceeds thereof; and
WHEREAS, the Borrower and Holdings have requested that the Required
Lenders amend the provisions of Section 6.02 of the Credit Agreement and the
Holdings' Guarantee for the purpose of allowing a Lien in favor of the DOE on
feed material delivered to the Company by the DOE.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT
1.1 Section 6.02 of the Credit Agreement is hereby amended by striking
the word "and" at the end of 6.02(g), striking the period at the end of 6.02(h)
and adding in its place "; and" and adding the following subsection (i):
"(i) Liens created by the Security Agreement dated as of February 2,
2005 as in effect on its effective date made by the Borrower and Holdings
in favor of the Department of Energy covering natural uranium feed
material, the accounts arising from the sale thereof, all contracts and
agreements for the sale thereof, books and records related thereto and all
proceeds thereof (none of which for the purposes of this Agreement shall
constitute Eligible Inventory or Eligible Receivables) (collectively, the
"DOE Collateral"), provided that such material is maintained in
specifically designated cylinders and physically separated from Eligible
Inventory and the accounts arising from the sale of such material are
maintained by separate written or electronic records identifying the Lien
of the Department of Energy."
SECTION 2. AMENDMENT TO GUARANTEE OF HOLDINGS
2.1 Section 5 of the Holdings Guarantee is hereby amended by adding the
following unnumbered sentence at the end of such Section:
"Notwithstanding anything to the contrary contained in this Section
5, the Guarantor may enter into the Security Agreement dated as of
February 2, 2005 made by the Guarantor and the Borrower in favor of the
Department of Energy and grant a Lien on the assets described therein,
provided that such Lien complies with Section 6.02(g) of the Credit
Agreement."
SECTION 3. AMENDMENT TO SECURITY AGREEMENT
3.1 Section 2.1 Pledge and Grant of Security Interest is hereby amended
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by adding the following sentence at the end of the last paragraph thereof:
"In addition, in no event shall the Collateral include, and no
Pledgor shall be deemed to have granted a security interest in, the DOE
Collateral."
SECTION 4. CONDITIONS PRECEDENT
4.1 All representations and warranties contained in this Amendment or
otherwise made in writing to the Agent in connection herewith shall be true and
correct.
4.2 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.
4.3 The Agent shall have received counterparts of this Amendment duly
executed by the Borrower, Holdings and Required Lenders.
4.4 The Agent shall have received a fully executed copy of the DOE
Security Agreement in form and substance reasonably satisfactory to it.
SECTION 5. MISCELLANEOUS
5.1 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.
5.2 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;
5.3 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;
5.4 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;
5.5 The Required Lenders hereby authorize the Agent to file Uniform
Commercial Code amendments removing from the Collateral description assets which
are subject to the Lien of the DOE.
5.6 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart;
and
5.7 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.
IN WITNESS WHEREOF, the Borrower, the Agent and the Required Lenders have
caused this Amendment to be duly 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
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Name: Ellen C. Wolf
Title: Sr VP and CFO
JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), individually and as
Administrative and Collateral Agent and Lead
Arranger
By: /s/ James M. Barbato
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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
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Name: Mark Gertzof
Title: Director
GMAC COMMERCIAL FINANCE LLC, as Documentation
Agent and Lender
By: /s/ Thomas Maiale
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Name: Thomas Maiale
Title: Director
CONGRESS FINANCIAL CORPORATION, as Managing Agent
and Lender
By: /s/ Jason Searle
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Name: Jason Searle
Title: Assistant VP
SIEMENS FINANCIAL SERVICES, INC., as Lender
By: /s/ Michael Coiley
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Name: Michael Coiley
Title: Senior Vice President
SOVEREIGN BANK, as Lender
By: /s/ Eric Ritter
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Name: Eric Ritter
Title: AVP
Acknowledged:
USEC INC., as Guarantor
By: /s/ Ellen C. Wolf
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Name: Ellen C. Wolf
Title: Sr VP and CFO