EXHIBIT 10.80
AMENDMENT AGREEMENT NO. 3
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AMENDMENT AGREEMENT NO. 3 ("Amendment") dated as of April 26, 2005 to (i)
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
WACHOVIA BANK, N.A. (successor by merger to Congress Financial Corporation), as
Managing Agent and (ii) the Guarantee 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 "Holdings Guarantee"), executed by
USEC, Inc., a Delaware corporation ("Holdings"), in favor of the Agent for the
Lenders, the Agent as an issuer of Letters of Credit and certain other persons
more fully described in the preamble to the Guarantee. 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 Holdings Guarantee;
WHEREAS, the Credit Agreement permits the Borrower to make Permitted
Investments, but the Holdings Guarantee does not permit Holdings to make
Permitted Investments nor does the Credit Agreement permit the Borrower to make
Restricted Payments to Holdings for the purpose of making Permitted Investments;
WHEREAS, the categories of Permitted Investments does not permit
investments in auction rate securities;
WHEREAS, the Credit Agreement contains restrictions on the redemption of
Indebtedness; and
WHEREAS, the Borrower has requested that the Required Lenders amend the
definition of Permitted Investments to allow investments in certain auction rate
securities, amend the provisions of Section 6.06 of the Credit Agreement to
modify the restrictions on redemptions of Indebtedness and for the purpose of
allowing Restricted Payments to be made to Holdings for the purpose of making
Permitted Investments and to amend the Holdings Guarantee to permit the making
by Holdings of Permitted Investments.
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 "Permitted Investments" in Article I of the Credit
Agreement is hereby amended by striking the word "and" at the end of
subparagraph (e), striking the period at the end of subparagraph (f) and adding
in its place "; and" and adding the following subparagraph (g):
"(g) AAA rated asset backed auction rate securities which are
repriced at least every 35 days."
1.2 Section 6.06 of the Credit Agreement is hereby amended by (x)
striking the words "$25,000,000 in any fiscal year and" contained in subsection
(c) and (y) striking the word "; and" in the last line of subsection (e),
substituting a comma, striking the period at the end subsection (f),
substituting the word "and" and adding the following subsection (g):
"(g) the Borrower may transfer funds to Holdings to permit Holdings
to make Permitted Investments."
SECTION 2. AMENDMENT TO HOLDINGS GUARANTEE
2.1 Section 5 of the Holdings Guarantee is hereby amended by amending in
its entirety the final sentence at the end of such Section to read as follows:
"Notwithstanding anything to the contrary contained in this Section 5, the
Guarantor may (i) 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 and (ii)
make Permitted Investments, provided the Guarantor has granted a Lien on
all such Investments in favor of the Agent as required by the Security
Agreement."
SECTION 3. CONDITIONS PRECEDENT
3.1 All representations and warranties contained in this Amendment or
otherwise made in writing to the Agent in connection herewith shall be true and
correct.
3.2 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.
3.3 The Agent shall have received counterparts of this Amendment duly
executed by the Borrower, Holdings, the other Guarantors and Required Lenders.
SECTION 4. MISCELLANEOUS
4.1 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). The
foregoing representations and warranties shall be subject to, and interpreted in
conjunction with, the terms of the Waiver Agreement dated as of April 7, 2005
among the Borrower, Holdings, the Lenders and the Agent. Each of the Borrower,
Holdings and the other Guarantors 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.
4.2 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;
4.3 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;
4.4 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;
4.5 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart;
and
4.6 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 Left Intentionally Blank]
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
USEC INC., as Guarantor
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: 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/ Barry W. Dubin
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Name: Barry W. Dubin
Title: Assistant Vice President
GMAC COMMERCIAL FINANCE LLC, as
Documentation
Agent and Lender
By: /s/ Thomas Maiale
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Name: Thomas Maiale
Title: Director
WACHOVIA BANK, N.A. (successor by merger to
Congress Financial Corporation), as Managing Agent and
Lender
By: /s/ Jason Searle
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Name: Jason Searle
Title: Associate
SIEMENS FINANCIAL SERVICES, INC., as Lender
By: /s/ Frank Amodio
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Name: Frank Amodio
Title: Vice President - Credit
SOVEREIGN BANK, as Lender
By: /s/ Eric Ritter
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Name: Eric Ritter
Title:AVP
Acknowledged:
NAC HOLDING INC., as Guarantor
By: /s/ Michael R. Clarke
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Name: Michael R. Clarke
Title: Treasurer
NAC INTERNATIONAL INC., as Guarantor
By: /s/ Michael R. Clarke
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Name: Michael R. Clarke
Title: Treasurer