EXHIBIT 99.1
AMENDMENT NO. 1 TO
DECOMMISSIONING TRUST AGREEMENT
This Amendment Number 1 ("Amendment No. 1") to the
Decommissioning Trust Agreement, dated as of December 23, 2003, by and between
FMRI, Inc., a Delaware corporation, herein referred to as the "Grantor," and the
Bank of Waukegan, of Waukegan, Illinois, as trustee under Trust No. 2740, and
not individually, herein referred to as the "Trustee," is entered into this 13th
day of April, 2005.
WHEREAS, the Grantor and Trustee entered into the
Decommissioning Trust Agreement, herein referred to as the "Agreement,"
described above in conjunction with Grantor providing financial assurance that
funds will be available when needed for required remediation activities
described in the Agreement; and
WHEREAS, the Grantor has notified the United States Nuclear
Regulatory Commission ("NRC") that in conjunction with Grantor's remediation of
the site, Grantor will require access to the funds on deposit in the
Decommissioning Trust in an amount greater than that originally provided for in
the Agreement, and the NRC has indicated its consent to such additional access
to the funds;
NOW, THEREFORE, the Grantor and the Trustee agree that
effective as of the date of this Amendment No. 1, the Agreement is amended as
follows:
Section 1 is amended by adding the following definition as
follows:
Section 1. Definitions
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(e) The term "FMRI Notes" means the promissory notes
obligating Fansteel, Inc. to make payments to FMRI pursuant to
the Joint Reorganization Plan as approved by the United States
Bankruptcy Court and the NRC. Following Section 4, add the
following Section 4.1:
Section 4.1 Priority of Replenishment
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Replenishment of Subaccount No. 2, set up to provide for
borrowing for costs incurred for Phase 1, shall take place
first, before replenishment of Subaccount No. 1, set up for
borrowing under the Reorganization Plan.
Section 5 is deleted in its entirety and replaced with the
following:
Section 5 Borrowing for Required Activities Specified
in the Decommissioning Plan
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Two subaccounts shall be established for borrowing from the
Decommissioning Trust, one for borrowing authorized under the
Reorganization Plan, limited to Two Million Dollars
($2,000,000) (Subaccount No. 1); and a second for borrowing
for costs incurred during Phase 1 of the Decommissioning Plan
for disposition of WIP residues from Ponds 2 and 3 only
(Subaccount No. 2), limited to Two Million Five Hundred
Thousand Dollars ($2,500,000).
All payments to Grantor and withdrawals by Grantor constitute
borrowing subject to replenishment. A refund to Grantor, if
authorized in writing by the NRC, does not constitute
borrowing and is not subject to replenishment.
Grantor shall not use any funds from the Trust for litigation
expenses, provided, that any refund to Grantor shall not have
restrictions as to the use of such refund.
Section 5.1 Borrowing Pursuant to Reorganization Plan
(Subaccount No. 1)
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Regarding Subaccount No. 1, the Trustee shall make payments
from the Fund to the Grantor upon presentation of the
following:
(a) Prior to the first withdrawal, a certificate duly
executed by the Secretary of the Grantor attested to
the occurrence of the events and in the form set
forth in the attached Certificate of Events and
Certificate of Resolution, and
(b) For each requested withdrawal, a withdrawal
certificate executed by Grantor stating the amount
requested, the total outstanding amount of
withdrawals including the one requested, the
activities of the Decommissioning Plan for which the
funds will be used, and attesting to the following
conditions:
(1) that the decommissioning activities are
authorized in the NRC- approved
Decommissioning Plan;
(2) that the funds withdrawn will be expended
for activities undertaken pursuant to the
Decommissioning Plan;
(3) that Grantor has received all payments and
proceeds to which it is entitled under the
FMRI License and Decommissioning Plan or the
terms and conditions of the Joint
Reorganization Plan of Fansteel Inc. and
Subsidiaries, as approved by the United
States Bankruptcy Court for the District of
Delaware;
(4) that such payments and proceeds received by
Grantor are insufficient to fund the
decommissioning activities as planned and
budgeted in the Decommissioning Plan;
(5) that all replenishments of the Trust
specified in the FMRI Notes, or which
Grantor was reasonably capable of making,
were in fact made;
(6) that the total of all outstanding
withdrawals from this subaccount shall not
exceed Two Million and no/100 Dollars
($2,000,000);
(7) that 30 days prior to Grantor's request for
withdrawal, NRC received
(i) notice of Grantor's intent to
withdraw funds from the trust fund,
and
(ii) a copy of the withdrawal
certificate; and
(8) that the funds will not be used for
litigation expenses.
Section 5.2 Borrowing for Activities in Phase 1 of the
----------- Decommissioning Plan (Subaccount No. 2)
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With regard to Subaccount No. 2, up to Two Million Five
Hundred Thousand ($2,500,000) may be borrowed from the Trust
based on the number of tons of WIP residue actually
dispositioned at a licensed site. The Trustee shall not make
payment to Grantor from this subaccount until after FMRI
presents an invoice for actual charges incurred for
disposition of WIP residues from Ponds 2 and 3.
The Trustee shall make payments from the Fund to the Grantor
upon presentation of the following:
(a) For each requested withdrawal following disposition
of WIP residues from Ponds 2 and 3, an invoice for
disposition charges from the licensed site at which
residue removed
from the FMRI facility for remediation of WIP was
received, which identifies the amount in tons of
residue dispositioned at the site; and
(b) For each requested withdrawal, a withdrawal
certificate executed by Grantor stating the amount is
for borrowing for Phase 1 activities, the amount
requested, the total outstanding amount of
withdrawals under the subaccount including the one
requested, and attesting to the following conditions:
(1) that the material dispositioned under the
invoice presented is WIP residue from Ponds
2 and 3;
(2) that the requested funds do not exceed the
amount calculated by the formula: number of
tons x $231.25, where number of tons = the
amount in tons of disposition of WIP
residues from Ponds 2 and 3 removed from the
FMRI facility for remediation of WIP and
which was dispositioned at a licensed site
and for which FMRI has received an invoice
for such charges, beginning with the first
ton dispositioned;
(3) that Grantor has received all payments and
proceeds to which it is entitled under the
FMRI License and Decommissioning Plan, the
FMRI Notes or the terms and conditions of
the Joint Reorganization Plan of Fansteel
Inc. and Subsidiaries, as approved by the
United States Bankruptcy Court for the
District of Delaware, and the NRC License
and Decommissioning Plan;
(4) that such payments and proceeds received by
Grantor are insufficient to fund the
decommissioning activities as planned and
budgeted in the Decommissioning Plan;
(5) that all replenishments of the Trust
specified in the FMRI Notes, or which
Grantor was reasonably capable of making,
were in fact made;
(6) that the total of all outstanding
withdrawals from this subaccount shall not
exceed Two Million Five Hundred Thousand
Dollars ($2,500,000);
(7) that 30 days prior to Grantor's request for
withdrawal, NRC received
(i) notice of the Grantor's intent to
withdraw funds from the trust fund,
and
(ii) a copy of the withdrawal
certificate; and
(8) that the funds will not be used for
litigation expenses.
Grantor shall notify Trustee and the NRC within 30 days of the
completion of Phase 1 that Phase 1 has been completed, and
that no further borrowing shall be permitted from the
Subaccount No. 2 set up under Section 5.2.
Section 5.3
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Grantor may request the Trustee to release, and the Trustee
shall release, up to Two Million Dollars ($2,000,000) on a
revolving basis (i.e., subject to replenishment) from fund for
Subaccount No. 1 set up under Section 5.1 above in accordance
with the purposes of the Trust and pursuant to the FMRI
License and Decommissioning Plan, including Table 15-11, the
Closure Cost Estimate, and the terms and conditions of the
Joint Reorganization Plan of Fansteel Inc. and Subsidiaries,
as approved by the United States Bankruptcy Court for the
District of Delaware. In addition, for the duration of Phase 1
only, Grantor may request the Trustee to release, and the
Trustee shall release, up to Two Million Five Hundred Thousand
Dollars ($2,500,000) on a revolving basis (i.e., subject to
replenishment) from the fund for Subaccount No. 2 set up under
Section 5.2 above to provide for borrowing for costs incurred
for Phase 1 in accordance with the purposes of the Trust and
pursuant to the FMRI License and Decommissioning Plan,
including Table 15-11, the Closure Cost Estimate.
In addition, the Trustee shall make payments from the Fund as
the NRC shall direct, in writing, to provide for payment of
the costs of required activities covered by this Agreement.
The Trustee shall make payments to the Grantor or other
persons as specified by the NRC from the Fund for expenditures
for required activities in such amounts as the NRC shall
direct in writing.
In addition, the Trustee shall refund to the Grantor such
amounts as the NRC specifies in writing. Upon refund, such
funds shall no longer constitute part of the Fund as defined
herein.
Except as expressly amended by this Amendment No. 1, the Agreement
shall remain in full force and effect and nothing in this Amendment No. 1 shall
otherwise affect any other provision of the Agreement or the rights and the
obligations of the parties thereto.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be
executed by the respective officers duly authorized and the corporate seals to
be hereunto affixed, as necessary.
ATTEST: /s/ Xxxxx X. Pufdad BANK OF WAUKEGAN, as trustee aforesaid and not individually
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Its: Trust Officer By: /s/ Xxxxxx X. Xxxxx
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ATTEST: /s/ R. Xxxxxxx XxXxxxx FMRI, Inc.
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Its: President By: /s/ E. Xxxxxxxx Xxxxxxx
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CONSENTED TO:
U.S. NUCLEAR REGULATORY
COMMISSION
By: /s/ X. X. Xxxxxxxxx
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(SEAL)
