Table of Contents

 

Page

 

ARTICLE 1.

DEFINITIONS

 

Section 1.1	Defined Terms	2
Section 1.2	Defined Agreements as Modified	25
Section 1.3	Computation of Time Periods; Other Definitional Provisions	26
Section 1.4	Accounting Terms	26
Section 1.5	Pro Forma Calculations	26
ARTICLE 2.
LOANS
Section 2.1	The Loans	26
Section 2.2	Manner of Borrowing and Disbursement	26
Section 2.3	Interest	28
Section 2.4	Repayment	29
Section 2.5	[Reserved]	29
Section 2.6	Optional Prepayments and Application of Prepayments	29
Section 2.7	[Reserved]	30
Section 2.8	Mandatory Prepayments	30
Section 2.9	Evidence of Debt	31
Section 2.10	Manner of Payment	32
Section 2.11	Reimbursement	33
Section 2.12	Pro Rata Treatment	34
Section 2.13	Capital Adequacy	34
Section 2.14	Taxes	35
Section 2.15	[Reserved]	37
ARTICLE 3.
CONDITIONS PRECEDENT
Section 3.1	Conditions Precedent	37
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Section 4.1	Representations and Warranties	41
Section 4.2	Survival of Representations and Warranties, Etc.	49

 

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		Page
ARTICLE 5.
GENERAL COVENANTS
Section 5.1	Preservation of Existence and Similar Matters	49
Section 5.2	Business; Compliance with Applicable Law	49
Section 5.3	Maintenance of Properties	50
Section 5.4	Accounting Methods and Financial Records	50
Section 5.5	Insurance	50
Section 5.6	Payment of Taxes and Claims	51
Section 5.7	Visits and Inspections	51
Section 5.8	Payment of Indebtedness; Loans	52
Section 5.9	Use of Proceeds	52
Section 5.10	Real Estate	52
Section 5.11	Indemnity	52
Section 5.12	Interest Rate Hedging	53
Section 5.13	Covenants Regarding Formation of Subsidiaries and the Making of Acquisitions	54
Section 5.14	Maintenance of Rating	55
Section 5.15	Environmental Compliance	55
Section 5.16	Required Consents and Transfer of Licenses in Event of Default	56
Section 5.17	Subordination of Intercompany Loans	56
ARTICLE 6.
INFORMATION COVENANTS
Section 6.1	Quarterly and Interim Financial Statements and Information	57
Section 6.2	Annual Financial Statements and Information	57
Section 6.3	Performance Certificates	57
Section 6.4	Copies of Other Reports	58
Section 6.5	Notice of Litigation and Other Matters	58
ARTICLE 7.
NEGATIVE COVENANTS
Section 7.1	Indebtedness of Parent, EnergySolutions and Their Respective Subsidiaries	59
Section 7.2	Limitation on Liens	62
Section 7.3	Amendment and Waiver	62
Section 7.4	Liquidation, Merger, Disposition of Assets	63
Section 7.5	Limitation on Guarantees	64
Section 7.6	Investments and Acquisitions	64
Section 7.7	Financial Covenants	66
Section 7.8	Affiliate Transactions and Restricted Payments	68
Section 7.9	Real Estate	68
Section 7.10	ERISA Liabilities	68
Section 7.11	Limitation on Preferred Stock	69
Section 7.12	Negative Pledge	69
Section 7.13	Payment Restrictions Affecting Subsidiaries	69

 

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		Page
Section 7.14	Speculative Transactions	70
Section 7.15	Name, Jurisdiction of Organization and Business	70
Section 7.16	[Reserved]	70
Section 7.17	Permitted Activities of Parent	70
ARTICLE 8.
DEFAULT
Section 8.1	Events of Default	71
Section 8.2	Remedies	73
Section 8.3	Payments Subsequent to Declaration of Event of Default	74
Section 8.4	[Reserved]	74
Section 8.5	Certain Cure Rights	74
ARTICLE 9.
THE AGENTS
Section 9.1	Appointment and Authorization	75
Section 9.2	Interest Holders	75
Section 9.3	Consultation with Counsel	75
Section 9.4	Documents	76
Section 9.5	CNAI and Affiliates	76
Section 9.6	Responsibility of the Administrative Agent and the Collateral Agent	76
Section 9.7	Collateral and Guaranty Matters	76
Section 9.8	Action by the Administrative Agent and the Collateral Agent	77
Section 9.9	Notice of Default or Event of Default	77
Section 9.10	Responsibility Disclaimed	78
Section 9.11	Indemnification	78
Section 9.12	Credit Decision	79
Section 9.13	Successor Agents	79
Section 9.14	Delegation of Duties	80
Section 9.15	Additional Agents	80
Section 9.16	Administrative Agent May File Proofs of Claim	80
Section 9.17	Security Documents	81
ARTICLE 10.
CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS
Section 10.1	Eurodollar Basis Determination Inadequate or Unfair	81
Section 10.2	Illegality	82
Section 10.3	Increased Costs	82
Section 10.4	Effect on Other Loans	84

 

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		Page
ARTICLE 11.
MISCELLANEOUS
Section 11.1	Notices	84
Section 11.2	Costs and Expenses	85
Section 11.3	Waivers	86
Section 11.4	Set-Off	87
Section 11.5	Binding Effect and Assignment	87
Section 11.6	Accounting Principles	90
Section 11.7	Counterparts	90
Section 11.8	Governing Law and Jurisdiction	90
Section 11.9	Severability	91
Section 11.10	Interest	91
Section 11.11	Table of Contents and Headings	91
Section 11.12	Amendment and Waiver	91
Section 11.13	Entire Agreement	92
Section 11.14	Other Relationships	93
Section 11.15	Directly or Indirectly	93
Section 11.16	Reliance on and Survival of Various Provisions	93
Section 11.17	Senior Debt	93
Section 11.18	Obligations Several	93
Section 11.19	Confidentiality	93
Section 11.20	[Reserved]	94
Section 11.21	Patriot Act Notice	94
Section 11.22	Performance	94
Section 11.23	The Platform	94
ARTICLE 12.
WAIVER OF JURY TRIAL
Section 12.1	Waiver of Jury Trial	95

 

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EXHIBITS

 

Exhibit A		-		Form of EnergySolutions/Parent/Subsidiary Pledge Agreements
Exhibit B		-		[Reserved]
Exhibit C		-		Form of Performance Certificate
Exhibit D		-		Form of Request for Loan
Exhibit E		-		[Reserved]
Exhibit F		-		[Reserved]
Exhibit G		-		Form of Request for Loan Eurodollar Basis
Exhibit H-1		-		Form of Subsidiary Guaranty
Exhibit H-2		-		Form of Parent Guaranty
Exhibit I		-		Form of EnergySolutions Security Agreement
Exhibit J-1		-		Form of Parent Security Agreement
Exhibit J-2		-		Form of Subsidiary Security Agreement
Exhibit K		-		Form of Note
Exhibit L		-		Form of EnergySolutions Loan Certificate
Exhibit M		-		Form of Subsidiary Loan Certificate (Corporation)
Exhibit N		-		Form of Subsidiary Loan Certificate (Partnership)
Exhibit O		-		Form of Subsidiary Loan Certificate (Limited Liability Company)
Exhibit P		-		Form of Assignment and Assumption Agreement
Exhibit Q		-		Form of Subordination Agreement
Exhibit R		-		Form of Perfection Certificate
Exhibit S		-		Loan Party Acknowledgment

 

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SCHEDULES

 

Schedule 1		-		Subsidiaries and Investments of Parent
Schedule 2		-		Licenses
Schedule 3		-		Liens of Record as of the Agreement Date
Schedule 4		-		Loan Commitments of the Lenders and Such Lenders’ Addresses for Notice
Schedule 5		-		[Reserved]
Schedule 6		-		Consents, Applicable Law, Conflicts and Liens
Schedule 7		-		Issues Pertaining to Necessary Authorizations and Licenses
Schedule 8		-		Litigation
Schedule 9		-		Liabilities
Schedule 10		-		Agreements with Affiliates, Management Agreements
Schedule 11		-		Real Estate
Schedule 12		-		[Reserved]
Schedule 13		-		Employee Relations, Collective Bargaining Agreements, Labor Unions
Schedule 14		-		Existing Indebtedness
Schedule 15		-		[Reserved]
Schedule 16		-		Taxes
Schedule 17		-		Existing Investments

 

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AMENDED AND RESTATED CREDIT AGREEMENT

 

This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 23, 2009, is made by and among DURATEK, INC., a Delaware corporation (“ Duratek ”), the Lenders party hereto from time to time, CITIGROUP GLOBAL MARKETS INC. (“ CGMI ”), as sole lead arranger and bookrunner (the “ Arranger ”), and CITICORP NORTH AMERICA, INC. (“ CNAI ”), as administrative agent (the “ Administrative Agent ”), as collateral agent (the “ Collateral Agent ”) and as successor agent (the “ Successor Agent ”).

 

WITNESSETH:

 

WHEREAS, Duratek, certain lenders thereto (the “ Duratek Lenders ”), CGMI as sole lead arranger and bookrunner, CNAI, as administrative agent and collateral agent, and CALYON NEW YORK BRANCH (“ Calyon ”), as syndication agent entered into that certain credit agreement dated as of June 7, 2006, as amended as of June 19, 2006, as further amended as of February 9, 2007, as further amended as of June 26, 2007 and as further amended as of November 1, 2007 (the “ Original Duratek Loan Agreement ”);

 

WHEREAS, Duratek is a wholly owned subsidiary of EnergySolutions, LLC (“ EnergySolutions ”), a Delaware limited liability company, and EnergySolutions is a subsidiary of EnergySolutions, Inc. (“ Parent ”), a Delaware corporation; and

 

WHEREAS, the parties hereto desire to amend and restate the Original Duratek Loan Agreement in its entirety, on the terms and subject to the conditions set forth herein, to:  (a) allow ZionSolutions, LLC (“ ZionSolutions ”), a subsidiary of EnergySolutions, to purchase from Exelon Generation Company, LLC (“ Exelon ”), a Pennsylvania limited liability company, certain assets relating to the Zion Energy Center, Units 1 and 2 and the related transactions, as described in the Zion Agreements (as defined herein) (the “ Zion Acquisition ”), located in Zion, Illinois, (b) permit Duratek to incur additional unsecured debt under certain circumstances, (c) reset certain financial covenants and (d) make other amendments as set forth herein (collectively, the “ Amendment Transactions ”);

 

WHEREAS, the Obligations (as defined in the Original Duratek Loan Agreement, hereinafter the “ Original Duratek Loan Obligations ”) of Duratek and the other Loan Parties under the Original Duratek Loan Agreement and the Security Documents (as defined in the Original Duratek Loan Agreement, such Security Documents hereinafter the “ Duratek Loan Security Documents ”) are secured by certain collateral (hereinafter the “ Duratek Loan Collateral ”) and are guaranteed or supported or otherwise benefited by the Duratek Loan Security Documents; and

 

WHEREAS, the parties hereto intend that (a) the Original Duratek Loan Obligations which remain unpaid and outstanding as of the Agreement Date shall continue to exist under this Agreement on the terms set forth herein and (b) the Duratek Loan Collateral and the Duratek Loan Security Documents shall continue to secure, guarantee, support and otherwise benefit the Original Duratek Loan Obligations, the other Secured Obligations of Duratek and the other Loan Parties under this Agreement and the other Loan Documents and the Secured Obligations under and as defined in the Original Duratek Loan Agreement.

 

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the Original Duratek Loan Agreement is hereby amended and restated to read in its entirety as follows:

 

 

ARTICLE 1.

 

Definitions

 

Section 1.1             Defined Terms .

 

For the purposes hereof, the following terms shall have the following meanings:

 

“ Acquisition ” shall mean (whether by purchase, exchange, issuance of capital stock, limited partnership interests, general partnership interests or other equity or debt securities, merger, reorganization or any other method) (a) any acquisition by Parent or any of its Subsidiaries of all or substantially all of any other Person, which Person shall then become consolidated with EnergySolutions or any such Subsidiary in accordance with GAAP, or (b) any acquisition by Parent or any of its Subsidiaries of all or substantially all of the assets of any other Person; provided that Acquisition shall not mean or include any acquisition of any interest in real property, either individually or together with the acquisition of other property or assets.

 

“ Acquisition Entity ” shall mean in respect of any Acquisition of any entity, collectively, and on a consolidated basis, such entity and all of the other entities, if any, that are Affiliates or Subsidiaries of such entity and that are acquired with such entity in one transaction or a series of two or more related transactions.

 

“ Additional Mortgage ” shall mean each mortgage, deed of trust, trust deed or deed to secure debt to be delivered after the Agreement Date pursuant to Section 5.10 hereof, as the same may hereafter be amended, modified, supplemented or restated from time to time.

 

“ Additional Permitted Debt ” shall mean Indebtedness of EnergySolutions or Duratek that (i) is unsecured, (ii) other than in the case of Indebtedness incurred pursuant to Section 7.1(w)  or, to the extent replacing, renewing, extending, refinancing or refunding Indebtedness originally incurred pursuant to Section 7.1(w) , Section 7.1(n) , is not guaranteed by EnergySolutions, Parent or any of their Subsidiaries, (iii) matures no earlier than 180 days after the Term Loan Maturity Date (as such term is defined in the EnergySolutions Credit Agreement), (iv) requires no payment of principal (whether by way of scheduled amortization, mandatory redemption, mandatory prepayment, sinking fund or otherwise) to be made prior to its maturity date (except with respect to an acceleration after an event of default); provided that in the case of Indebtedness incurred pursuant to Section 7.1(w)  or, to the extent replacing, renewing, extending, refinancing or refunding Indebtedness originally incurred pursuant to Section 7.1(w) , Section 7.1(n) , the terms of such Indebtedness may require redemptions or offers to purchase upon asset sales and change of control events on customary terms, and (v) does not require Parent, EnergySolutions or any of their respective Subsidiaries to maintain any specified financial condition.

 

“ Adjusted Net Income ” shall mean, for any fiscal period, as reflected in the consolidated financial statements or the notes thereto for Parent and its Subsidiaries, the sum of (i) Net Income, (ii) amortization of intangible assets, (iii) non-cash charges for equity-based compensation arrangements and (iv) non-recurring items subject to the consent of the Administrative Agent.  For the avoidance of doubt, the calculation of clause (ii) above shall not include charges for impairments of goodwill or intangible assets.

 

“ Administrative Agent ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Administrative Agent’s Account ” shall mean the account of the Administrative Agent maintained by the Administrative Agent at its office at 390 Greenwich Street, New York, NY 10013, Account

 

2

 

No. 36852248 Attention: Christina Quezon, or such other account as the Administrative Agent shall specify from time to time in writing to the Lenders.

 

“ Affiliate ” shall mean, with respect to a Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such first Person.  For purposes of this definition, “control” when used with respect to any Person includes, without limitation, the direct or indirect beneficial ownership of more than ten percent (10%) of the voting securities or voting equity of such Person, or the power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.  Unless otherwise specified, “Affiliate” shall mean an Affiliate of Parent, and shall include its Subsidiaries.

 

“ Agent Parties ” shall have the meaning set forth in Section 11.23 .

 

“ Agents ” shall mean, collectively, the Administrative Agent, the Collateral Agent, the Successor Agent and the Syndication Agent.

 

“ Agreement ” shall mean this credit agreement as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“ Agreement Date ” shall mean the date as of which this Agreement is dated.

 

“ Amendment Transactions ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Applicable Law ” shall mean, in respect of any Person, all provisions of constitutions, statutes, rules, regulations and orders of governmental bodies or regulatory agencies applicable to such Person, including, without limiting the foregoing, the Licenses and all Environmental Laws, and all orders, decisions, judgments and decrees of all courts and arbitrators in proceedings or actions to which the Person in question is a party or by which it is bound.

 

“ Applicable Margin ” shall mean the interest rate margin applicable to Loans hereunder as determined in accordance with Section 2.3(f)  hereof.

 

“ Applicable Section 7.1(w) Prepayment Percentage ” means, on any date of incurrence of Indebtedness pursuant to Section 7.1(w), if (A) the Leverage Ratio as of the date of such incurrence shall be 2.0:1 or greater on a pro forma basis for such incurrence, 100% and (B) if the Leverage Ratio as of the date of such incurrence shall be less than 2.0:1 on a pro forma basis for such incurrence, 50% (in each case, assuming the relevant period for the determination of Operating Cash Flow for purposes of calculation of such Leverage Ratio is the four quarter period ending on the Latest Financial Reporting Date).

 

“ Approved Fund ” shall mean, with respect to any Lender, any fund that invests in commercial loans and is managed or advised by such Lender or an Affiliate of such Lender, or by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

 

“ Arranger ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Assignment and Assumption Agreement ” shall mean an Assignment and Assumption Agreement substantially in the form attached hereto as Exhibit P .

 

“ Authorized Signatory ” shall mean such officers of each Loan Party as may be duly authorized and designated in writing by such Loan Party to execute documents, agreements and instruments on behalf of such Loan Party.

 

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“ Available Adjusted Net Income ” shall mean, for Parent and its Subsidiaries on a consolidated basis, (i) for fiscal year 2009, (x) the aggregate amount of Adjusted Net Income for the prior four fiscal quarters minus (y) the aggregate dividends paid by EnergySolutions pursuant to Section 7.8(a)  during such four fiscal quarters and (ii) for fiscal year 2010 and thereafter, (x) the aggregate amount of Adjusted Net Income from January 1, 2009 to the applicable calculation date minus (y) the aggregate dividends paid by EnergySolutions pursuant to Section 7.8(a)  from January 1, 2009 to the applicable calculation date.

 

“ Base Rate ” shall mean a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of:

 

(a)           the rate of interest announced by CNAI, from time to time, as its prime rate in effect at its principal office in the city of New York; and

 

(b)           a rate of interest that is 1/2 of 1% above the Federal Funds Rate.

 

The Base Rate is an index rate and is not necessarily intended to be the lowest or best rate of interest charged to customers in connection with extensions of credit or to other banks.

 

“ Base Rate Basis ” shall mean a simple interest rate equal to the sum of (a) the Base Rate and (b) the Applicable Margin.  The Base Rate Basis shall be adjusted automatically as of the opening of business on the effective date of each change in the Base Rate to account for such change and shall also be changed to reflect adjustments in the Applicable Margin.

 

“ Base Rate Loan ” shall mean the portion of the Loans as to which Duratek has elected the Base Rate Basis for the interest rate thereon, in accordance with the provisions of Section 2.2 hereof, and which shall be in a principal amount of at least $5,000,000 and in an integral multiple of $1,000,000.

 

“ Business Day ” shall mean a day of the year on which banks are not required or authorized by law to close in New York, New York and, if the applicable Business Day relates to any Eurodollar Loans, on which dealings are carried on in the London interbank market.

 

“ Calyon ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Capital Expenditures ” shall mean, in respect of any Person, without duplication, expenditures for (i) the purchase of tangible assets of long-term use which are capitalized in accordance with GAAP and (ii) Real Property Acquisitions, to the extent not otherwise included in clause (i); provided that Capital Expenditures shall not include any expenditures that (a) constitute Permitted Acquisitions, (b) are made with casualty insurance proceeds to the extent such proceeds are permitted to be reinvested pursuant to the terms of this Agreement, (c) are deemed to occur by virtue of the trade-in or other exchange of existing assets permitted under this Agreement, (d) are made with the cash proceeds of an asset disposition permitted under this Agreement to purchase an asset of like kind or function or (e) are expenditures by any Special Purpose Subsidiary.

 

“ Capitalized Lease Obligation ” shall mean that portion of any obligation of a Person as lessee under a lease which is required to be capitalized on the balance sheet of such lessee in accordance with GAAP.

 

“ Cash Equivalents ” shall mean the Investments described in Section 7.6(a) .

 

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“ Cash Interest Expense ” shall mean, for any period, for Parent and its Subsidiaries, on a consolidated basis, cash interest paid in respect of Indebtedness for Money Borrowed (including, without duplication, any net obligations owing under Hedge Agreements), as determined in accordance with GAAP, and shall also include the interest component of payments for such period in respect of Capitalized Lease Obligations.

 

“ CGMI ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Change of Control ” shall mean:

 

(a)           (i) that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person and its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), excluding the Equity Sponsors, is or becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than the greater of (x) thirty-five percent (35%) of the shares outstanding and (y) the percentage of the then outstanding voting stock owned beneficially by the Equity Sponsors directly or indirectly of, in each case, Parent, or (ii) any Person other than Parent or any Subsidiary that is a Loan Party has an economic or voting interest in EnergySolutions or Duratek; or

 

(b)           occupation of a majority of the seats (other than vacant seats) on the board of directors of Parent by Persons who were not Continuing Directors.

 

“ CNAI ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.

 

“ Collateral ” shall mean any property of any kind provided as collateral for the Secured Obligations under any of the Security Documents.

 

“ Collateral Agent ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Commitment ” shall mean, with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule 4 hereto under the caption “Term Commitment” or, if such Lender has entered into one or more Assignment and Assumption Agreement, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 11.5(c) .

 

“ Communications ” shall have the meaning set forth in Section 11.23 .

 

“ Conduit Lender ” shall have the meaning set forth in Section 11.5(h) .

 

“ Consolidated Subsidiary ” shall mean any Subsidiary the income or loss of which is included in the computation of consolidated Net Income of Parent and its Subsidiaries.

 

“ Continuing Directors ” shall mean the directors of Parent and each other director, if, in each case, such other director’s nomination for election to the board of directors is recommended by a majority of the then Continuing Directors or such other director receives the vote of the Equity Sponsors in his or her election by the stockholders of Parent.

 

“ Covered Taxes ” shall have the meaning set forth in Section 2.14(a) .

 

5

 

“ Cure Amount ” shall have the meaning set forth in Section 8.5(a) .

 

“ Cure Right ” shall have the meaning set forth in Section 8.5(a) .

 

“ Debt Service ” shall mean, for any period, the amount of Cash Interest Expense, together with scheduled principal repayments (excluding any repayments made or required to be made in accordance with Section 2.8 hereof) in respect of Indebtedness for Money Borrowed, of Parent and its Subsidiaries on a consolidated basis.  For purposes of this definition, “principal” shall include the principal component of payments for such period in respect of Capitalized Lease Obligations.

 

“ Default ” shall mean any of the events specified in Section 8.1 , regardless of whether there shall have occurred any passage of time or giving of notice, or both, that would be necessary in order to constitute such event.

 

“ Default Rate ” shall mean a simple per annum interest rate equal to the sum of the otherwise applicable Interest Rate Basis plus two percent (2%).  With respect to amounts (other than principal) bearing interest at the Default Rate, for purposes of the foregoing sentence, the words “otherwise applicable Interest Rate Basis” shall be deemed to mean the Base Rate Basis.

 

“ Defaulting Lender ” shall have the meaning set forth in Section 2.2(e)(iv) .

 

“ Derivatives Contract ” shall mean any forward contract (other than a contract to purchase inputs or provide services entered into in the ordinary course of the Permitted Business), futures contract, option (other than an option to purchase inputs or provide services entered into in the ordinary course of the Permitted Business), swap, notional principal contract, synthetic position or other financial contract similar to any of the foregoing.

 

“ Dollars ” or “ $ ” shall mean the basic unit of the lawful currency of the United States of America.

 

“ Duratek ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Duratek Acquisition ” shall mean EnergySolutions’ acquisition of Duratek as of June 7, 2006, pursuant to the Duratek Acquisition Agreement.

 

“ Duratek Acquisition Agreement ” shall mean that certain acquisition agreement among EnergySolutions, Dragon Merger Corporation and the other parties thereto dated as of February 6, 2006.

 

“ Duratek Loan Documents ” shall mean the Agreement, the Security Agreements, the Pledge Agreements, the guarantees, notes, security documents and all other material documents and agreement executed or delivered in connection with the Duratek Loans, as each such document may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.

 

“ Duratek Loans ” shall mean the Loans described in Section 2.1(b) .

 

“ EnergySolutions ” shall have the meaning set forth in the recitals to this Agreement.

 

“ EnergySolutions Credit Agreement ” shall mean that Third Amended and Restated Credit Agreement, dated as of the date hereof, among Parent, EnergySolutions and the lenders from time to time party thereto, CGMI, as sole lead arranger, CNAI, as administrative agent, as collateral agent, as the initial revolving issuing bank and as the initial synthetic issuing bank and as syndication agent.

 

6

 

“ EnergySolutions Guaranty ” shall mean that certain EnergySolutions Guaranty, dated as of the Original Agreement Date, in favor of the Collateral Agent, for itself and for the ratable benefit of the Secured Parties, given by EnergySolutions.

 

“ EnergySolutions Payoff ” shall mean any time when the EnergySolutions Term Loans have been repaid in full and no Indebtedness remains outstanding pursuant to Section 7.1(o)  hereof.

 

“ EnergySolutions Pledge Agreement ” shall mean that certain Pledge Agreement, dated as of the Original Agreement Date, between EnergySolutions and the Collateral Agent.

 

“ EnergySolutions Security Agreement ” shall mean that certain Security Agreement, dated as of the Original Agreement Date, between EnergySolutions and the Collateral Agent.

 

“ EnergySolutions Term Loans ” shall mean the Term Loans (as defined in the EnergySolutions Credit Agreement).

 

“ Environmental Claim ” shall mean any administrative, regulatory or judicial action (whether by a private party, governmental authority or any other Person) or cause of action, suit, obligation, liability, loss, proceeding, decree, judgment, penalty, fine, fee, demand, order, directive, claim (including any claim involving liability in tort, strict, absolute or otherwise), lien, accusation, allegation, abatement, notice of noncompliance or violation or legal or consultant fee or cost of investigation or proceeding (hereinafter “ Claim ”), resulting from or based on any Environmental Law or Environmental Permit, or arising from the actual or alleged presence, Release or threatened Release of any Hazardous Material, including and regardless of the merit of such Claim, any Claim for enforcement, clean-up, removal, response, mitigation, remedial or other activities or damages, contribution, indemnification, cost recovery, compensation or injunctive or declaratory relief pursuant to any Environmental Law or any alleged injury or threat of injury to property, health, safety, natural resources or the environment.

 

“ Environmental Clean-up Activities ” shall have the meaning set forth in Section 5.15(c)  hereof.

 

“ Environmental Law ” shall mean any applicable federal, state or local law, statute, treaty, convention, rule, regulation, ordinance, code, decree, injunction, criterion, guideline, directive, Environmental Permit, writ, order or judgment (including common law), and any applicable requirement thereunder, relating to human health or safety, Hazardous Materials, pollution, noise, the environment or natural resources, as such laws (and all other items indicated above) have been or may be amended from time to time.  Environmental Law includes, but is not limited to, the Comprehensive Environmental Response, Compensation and Liability Act (“ CERCLA ”), the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, the Atomic Energy Act, the Energy Reorganization Act, the Uranium Mill Tailings Radiation Control Act, the Hazardous Waste Transportation Act, the Energy Policy Act, the Low-level Radioactive Waste Policy Act, the Nuclear Waste Policy Act, the Utah Radiation Control Act, the Utah Air Conservation Act, the Utah Solid and Hazardous Waste Act, the Utah Water Quality Act, the Tennessee Radiological Health Service Act,  the South Carolina Radiation Control Act, the South Carolina Radioactive Waste Transportation and Disposal Act, the Tennessee Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the Oil Pollution Act of 1990 and the Occupational Safety and Health Act; each as from time to time amended, and the regulations promulgated thereunder, and all analogous state and local statutes in any state in which Parent or any of its Subsidiaries is engaged in a Permitted Business, including any environmental transfer of ownership notification or approval statutes.

 

“ Environmental Permit ” shall mean any permit, authorization, approval, license, registration, consent, order, certificate, waiver, exception, variance, exemption or filing with or issued by any court or

 

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governmental or regulatory agency, authority, entity, department, commission or board relating to or required by any Environmental Law.

 

“ Environmental Testing ” shall have the meaning set forth in Section 5.15(c)  hereof.

 

“ Equity Interests ” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.

 

“ Equity Sponsors ” shall mean, collectively, the Primary Equity Sponsors and the Local Investors.

 

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as in effect from time to time.

 

“ ERISA Affiliate ” shall mean any Person, including a Subsidiary or an Affiliate of EnergySolutions, that is a member of any group of organizations (within the meaning of Code Section 414(b), 414(c), 414(m) or 414(o)) of which EnergySolutions is a member.

 

“ ERISA Affiliate Plan ” shall mean any employee pension benefit plan (other than a Multiemployer Plan) as defined in Section 3(2) of ERISA, subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code maintained by an ERISA Affiliate or to which an ERISA Affiliate contributed, contributes or is obligated to contribute.

 

“ Eurocurrency Liabilities ” shall have the meaning set forth in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

“ Eurodollar Basis ” shall mean a simple per annum interest rate (rounded upward, if necessary, to the nearest one-hundredth (1/100th) of one percent) equal to the sum of (a) the quotient of (i) the Eurodollar Rate divided by (ii) one minus the Eurodollar Reserve Percentage, stated as a decimal, plus (b) the Applicable Margin.  The Eurodollar Basis shall apply to Interest Periods of one (1), two (2), three (3), six (6) and, if available to all applicable Lenders, nine (9) and twelve (12) months (each, a “ Eurodollar Period ”), and, once determined, shall remain unchanged during the applicable Interest Period, except for changes to reflect adjustments in the Eurodollar Reserve Percentage and the Applicable Margin pursuant to Section 2.3(f)  hereof.

 

“ Eurodollar Loan ” shall mean any portion of the Loans as to which Duratek has elected the Eurodollar Basis for the interest rate thereon, in accordance with the provisions of Section 2.2 hereof, and which shall be in a principal amount of at least $5,000,000 and in an integral multiple of $1,000,000.

 

“ Eurodollar Period ” shall have the meaning set forth in the definition of “Eurodollar Basis.”

 

“ Eurodollar Rate ” shall mean, for any Interest Period, an interest rate per annum equal to (a) the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at 11:00 a.m. (London time) or as soon thereafter as possible, two Business Days before the first day of such Interest Period for a period equal to such Interest Period ( provided that, if for any reason such rate is not available, the term “Eurodollar Rate” shall mean, for any Interest Period for any Eurodollar Loan, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Dow Jones Market Service as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) or as soon thereafter as possible, two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided , however , if more than one rate is specified on Reuters

 

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Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates), or (b) if such rate is for any reason not available, the rate per annum equal to the rate at which the Administrative Agent or its designee is offered Dollar deposits at or about 11:00 a.m. (London time) two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market for delivery on the first day of such Interest Period for the number of days comprised therein and in the amount requested to be outstanding.

 

“ Eurodollar Reserve Percentage ” for any Interest Period, shall mean the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Loans is determined) having a term equal to such Interest Period.

 

“ Event of Default ” shall mean any of the events set forth in Section 8.1 , provided that any requirement for notice or lapse of time or both has been satisfied.

 

“ Excess Cash Flow ” shall mean (y) for the first three quarters of each fiscal year, based upon the unaudited financial statements for such fiscal quarter required to be provided under Section 6.1 hereof, and (z) for the fourth quarter of each fiscal year, based on the audited financial statements for such fiscal year required to be provided under Section 6.2 hereof and calculated, for such fourth quarter, by subtracting from the annual amount of each element of the determination of Excess Cash Flow, the aggregate amount of such element utilized in determining Excess Cash Flow for any of the preceding fiscal periods during such fiscal year, the remainder, if any, without duplication, of (a) the operating cash flow of Duratek and its Subsidiaries (which shall be calculated as the sum of (x) the net income of Duratek and its Subsidiaries on a consolidated basis determined in accordance with GAAP and (y) any items that would be added to the net income of Duratek and its Subsidiaries in the calculation of the operating cash flow of Duratek and its Subsidiaries (calculated in the same manner, and with the same adjustments, as “Operating Cash Flow” of EnergySolutions and its Subsidiaries), but excluding costs, expenses and charges of Duratek and its Subsidiaries identified in clauses (f) and (g) of the definition of “Operating Cash Flow”) for such fiscal quarter minus (b) the sum of the following: (i) Capital Expenditures by Duratek and its Subsidiaries during such fiscal quarter (other than Capital Expenditures that are financed with the proceeds of Indebtedness); (ii) Tax Distributions made by Duratek and cash Taxes paid by Duratek and its Subsidiaries during such fiscal quarter; (iii) Debt Service paid by Duratek and its Subsidiaries for such fiscal quarter; (iv) to the extent not included in the calculation of Operating Cash Flow, legal fees and expenses of, or the payment of any judgment against, any Loan Party paid by Duratek for such fiscal quarter; and (v) cash paid by Duratek or any of its Subsidiaries in respect of a Permitted Acquisition during such fiscal quarter; provided that if EnergySolutions is a Subsidiary of Duratek, (i) “Duratek and its Subsidiaries” shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions or its Subsidiaries.

 

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

 

“ Excluded Asset Sales ” shall mean (i) sales, leases or other dispositions of inventory in the ordinary course of business and obsolete or worn-out assets, (ii) any sale or discount, in each case without recourse and in the ordinary course of business, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction, (iii) any transfer of assets by any Consolidated Subsidiary of EnergySolutions to EnergySolutions and by any consolidated subsidiary of Duratek to Duratek and any transfer of assets by Parent

 

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to any of its Consolidated Subsidiaries, or between any of such Consolidated Subsidiaries, so long as the security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and remain perfected and of the same priority (to at least the same extent as in effect immediately prior to such transfer), (iv) personal property with a fair market value in the aggregate of less than $1,000,000 per year, (v) dispositions of personal property to the extent that (x) such personal property is exchanged for credit against the purchase price of replacement personal property performing the same function or (y) the proceeds of any such disposition are promptly applied to the purchase price of similar replacement personal property, (vi) sales, transfers, contributions or dispositions of assets contributed for the purpose of creating a Special Purpose Subsidiary other than ZionSolutions otherwise permitted herein not to exceed $10,000,000 per such Special Purpose Subsidiary, (vii) sales, transfers, contributions or dispositions of assets (A) of a Special Purpose Subsidiary for the purpose of terminating, liquidating or winding down of such Special Purpose Subsidiary or (B) pursuant to the Zion Agreements with a fair market value not exceeding the fair market value of any assets to be disposed of or transferred pursuant to the Zion Agreements in the forms most recently delivered to the Administrative Agent prior to the date hereof (without, for the avoidance of doubt, giving effect to any amendments or modifications thereof pursuant to clause (o) of the definition of “Zion Agreements”) or (viii) additional dispositions or transfers of assets in connection with the Zion Acquisition pursuant to the Zion Agreements with an aggregate fair market value not exceeding $5,000,000.

 

“ Exelon ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Existing Mortgage ” shall mean each mortgage, deed of trust, trust deed or deed to secure debt listed on Schedule 11 hereto, as the same may have been amended, modified or supplemented prior to the Agreement Date.

 

“ Existing Mortgage Policy ” shall mean each mortgagee title insurance policy issued (or to be issued) in favor of the Collateral Agent in connection with one or more Existing Mortgages and insuring title to one or more Mortgaged Properties.

 

“ Federal Funds Rate ” shall mean, as of any date, the weighted average of the rates on overnight federal funds transactions with the members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent or its Affiliate from three (3) federal funds brokers of recognized standing selected by the Administrative Agent or its Affiliate.

 

“ Fee Letter ” shall mean that certain agreement dated as of September 12, 2009 setting forth the applicable fees to be paid by EnergySolutions to the Administrative Agent.

 

“ Financial Condition Covenant ” shall have the meaning set forth in Section 8.5(a) .

 

“ First Lien Leverage Ratio ” shall mean, as of any calculation date and for the relevant period then ended, on a consolidated basis for Parent and its Subsidiaries, the ratio of Indebtedness of Parent and its Subsidiaries that is secured on a first lien basis as of such calculation date to the Operating Cash Flow for such period.

 

“ Flood Determination ” shall have the meaning set forth in Section 3.1(b)(x)(B) .

 

“ GAAP ” shall have the meaning set forth in Section 1.4 .

 

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“ Granting Lender ” shall have the meaning set forth in Section 11.5(h) .

 

“ Guarantees ” shall mean the Parent Guaranty, the Subsidiary Guaranty, the EnergySolutions Guaranty and any other Guaranty of the Secured Obligations whether now or hereafter in existence.

 

“ Guarantors ” shall mean Parent, EnergySolutions, each Subsidiary Guarantor and any other Person that Guarantees the Secured Obligations.

 

“ Guaranty ” or “ Guaranteed ,” as applied to an obligation, shall mean and include (a) a guaranty, direct or indirect, in any manner, of all or any part of such obligation, and (b) any agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of all or any part of such obligation, including, without limiting the foregoing, any reimbursement obligations with respect to outstanding letters of credit.

 

“ Hazardous Material ” shall mean any (a) petroleum or petroleum product, explosive, radioactive material, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, dioxins, furans or lead, or (b) substance, material, product, derivative, compound, mixture, mineral, chemical, waste, solid, liquid or gas, in each case whether naturally occurring, human made or the by-product of any process, (i) that is now or hereafter becomes defined as or included within the definition of a “hazardous substance,” “hazardous waste,” “hazardous material,” “radioactive waste,” “mixed waste,” “toxic chemical,” “toxic substance,” “toxic waste,” “hazardous chemical,” “extremely hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” or any other words of similar meaning under any Environmental Law, or (ii) exposure to which or the presence, use, generation, treatment, Release, transport or storage of which is now or hereafter prohibited, limited, restricted or regulated under any Environmental Law or by any governmental or regulatory authority.

 

“ Hedge Agreements ” shall mean interest rate cap, collar or similar agreements, provided that such agreements are intended to and reasonably would be expected to reduce EnergySolutions’, Parent’s, or Duratek’s (as the case may be) interest rate risk with respect to its Obligations permitted under this Agreement.

 

“ Holdco ” shall mean ENV Holdings LLC.

 

“ Indebtedness ” of any Person shall mean without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (e) all indebtedness (excluding prepaid interest thereon) of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the indebtedness secured thereby has been assumed; provided that the amount of Indebtedness under this clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby, (f) all Guarantees by such Person of Indebtedness, (g) all Capitalized Lease Obligations of such Person and (h) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

 

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“ Indebtedness for Money Borrowed ” shall mean, as of any date with respect to any Person, Indebtedness for money borrowed and Indebtedness represented by notes payable and drafts accepted representing extensions of credit, all obligations evidenced by bonds, debentures, notes or other similar instruments, any net obligations of such Person owing under Hedge Agreements, all Indebtedness upon which interest charges are customarily paid, all Capitalized Lease Obligations, all unsatisfied reimbursement obligations as of such date in respect of a draw made on or prior to such date under any letter of credit, all Indebtedness issued or assumed as full or partial payment for property or services (other than trade payables arising in the ordinary course of business, but only if and so long as such accounts are payable on customary trade terms), whether or not any such notes, drafts, obligations or Indebtedness represents Indebtedness for money borrowed, and, without duplication, Guarantees of any of the foregoing; provided Synthetic Letters of Credit (as such term is defined in the EnergySolutions Credit Agreement) shall be included only to the extent of any unreimbursed Disbursements (as such term is defined in the EnergySolutions Credit Agreement).  For purposes of this definition, interest which is accrued but not paid on the scheduled due date for such interest shall be deemed Indebtedness for Money Borrowed; provided that no undrawn Letters of Credit (as such term is defined in the EnergySolutions Credit Agreement) shall constitute Indebtedness for Money Borrowed.

 

“ Indemnified Costs ” shall have the meaning set forth in Section 9.11 hereof.

 

“ Indemnitee ” shall have the meaning set forth in Section 5.11 hereof.

 

“ Intercompany Loans ” shall have the meaning set forth in Section 7.6(c)  hereof.

 

“ Interest Coverage Ratio ” shall mean, as of any calculation date and for the four fiscal-quarter period then ended, on a consolidated basis for Parent and its Subsidiaries, the ratio of Operating Cash Flow to Cash Interest Expense for such period.

 

“ Interest Period ” shall mean (a) in connection with any Base Rate Loan, the period beginning on the date such Loan is made or deemed continued and ending on the last Business Day of the calendar quarter in which such Loan is made or deemed continued, provided , however , that if a Base Rate Loan is made or deemed continued on the last day of any calendar quarter, it shall have an Interest Period ending on, and its Payment Date shall be, the last day of the following calendar quarter, and (b) in connection with any Eurodollar Loan, the term of the related Eurodollar Period selected by Duratek or otherwise determined in accordance with this Agreement.  Notwithstanding the foregoing, however, (i) any applicable Interest Period which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day unless, with respect to Eurodollar Loans only, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any applicable Interest Period, with respect to Eurodollar Loans only, which begins on a day for which there is no numerically corresponding day in the calendar month during which such Interest Period is to end shall (subject to clause (i) above) end on the last day of such calendar month, and (iii) no Interest Period shall extend beyond the Maturity Date with respect to Interest Periods applicable to Loans or such earlier date as would interfere with Duratek’s repayment obligations hereunder.  Interest shall be due and payable with respect to any Loan as provided in Section 2.3 hereof.

 

“ Interest Rate Basis ” shall mean the Base Rate Basis or the Eurodollar Basis, as appropriate.

 

“ Investment ” shall mean, with respect to any Person, any loan, advance or extension of credit (other than to customers in the ordinary course of business) by such Person to, or any Guaranty or other contingent liability with respect to the capital stock, limited partnership interests, general partnership interests, or other securities or other equity or ownership interests, Indebtedness or other obligations of, or any contributions to the capital of, any other Person, or any ownership, purchase or other acquisition by

 

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such Person of any interest in any Indebtedness, capital stock, limited partnership interests, general partnership interests, or other securities or other equity or ownership interests of any such other Person, other than an Acquisition.  “Investment” shall also include the total cost of any future commitment or other obligation binding on any Person to make an Investment or any subsequent Investment.

 

“ Lenders ” shall mean each financial institution listed on the signature page hereto as a Lender or any other Person that has become a party to the Original Duratek Loan Agreement in accordance with Section 11.5 thereof and that becomes a Lender hereunder pursuant to Section 11.5 , for so long as such Lender or Person, as the case may be, shall be a party to this Agreement.

 

“ Leverage Ratio ” shall mean, as of any calculation date and for the relevant period then ended, on a consolidated basis for Parent and its Subsidiaries, the ratio of Indebtedness for Money Borrowed as of such calculation date to the Operating Cash Flow for such period.

 

“ LGB ” shall mean Lindsay Goldberg & Bessemer L.P. and its Affiliates.

 

“ Licenses ” shall mean any permits or licenses held by EnergySolutions, Parent or any of their respective Subsidiaries, all of which are listed as of the Agreement Date on Schedule 2 hereto.

 

“ Lien ” shall mean, with respect to any property, any mortgage, lien, pledge, assignment, charge, security interest, title retention agreement, levy, execution, seizure, attachment, garnishment or other encumbrance of any kind in respect of such property, whether created by statute, contract, the common law or otherwise, and whether or not choate, vested or perfected; provided , however , that “Lien” shall not include any license, sublicense, lease or sublease of or with respect to any personal property.

 

“ Loan Documents ” shall mean this Agreement (including the Original Duratek Loan Agreement), any Notes, the Security Documents, the Guarantees, the Fee Letter, all Requests for Loans and all other material documents and agreements executed or delivered by a Loan Party in connection with this Agreement.

 

“ Loan Parties ” shall mean, collectively, Duratek, each Subsidiary Guarantor, EnergySolutions and Parent.

 

“ Loans ” shall mean, collectively, the amounts advanced by the Lenders to Duratek in an aggregate amount of $240,000,000, as set forth on Schedule 4 attached hereto.

 

“ Local Investors ” shall mean, collectively, Peterson Partners IV, L.P. and its Affiliates.

 

“ Majority Lenders ” shall mean, at any time, Lenders owed or holding at least a majority in interest of the sum, without duplication, of (a) the aggregate principal amount of the Loans (as defined in the EnergySolutions Credit Agreement) outstanding at such time, (b) the aggregate Available Amount (as defined in the EnergySolutions Credit Agreement) of all Revolving Letters of Credit (as defined in the EnergySolutions Credit Agreement) outstanding at such time, (c) the aggregate amount of Synthetic Deposits (as defined in the EnergySolutions Credit Agreement) at such time, (d) the aggregate Unused Revolving Commitments (as defined in the EnergySolutions Credit Agreement) at such time and (e) the aggregate principal amount of the Loans outstanding at such time; provided , however , that (I) if any Lender (as defined in the EnergySolutions Credit Agreement) shall be a Defaulting Lender (as defined in the EnergySolutions Credit Agreement) at such time, there shall be excluded from the determination of Majority Lenders at such time (i) the aggregate principal amount of the Loans (as defined in the EnergySolutions Credit Agreement) owing to such Lender (in its capacity as a Lender) and outstanding at such time, (ii) such Lender’s Pro Rata Share (as defined in the EnergySolutions Credit Agreement) of the aggregate

 

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Available Amount of all Revolving Letters of Credit outstanding at such time and (iii) the Unused Revolving Commitment of such Lender at such time and (II) if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Majority Lenders at such time the aggregate principal amount of the Loans owing to such Lender (in its capacity as a Lender) and outstanding at such time.  For purposes of this definition, the aggregate principal amount of (x) Letter of Credit Loans (as defined in the EnergySolutions Credit Agreement) owing to the Revolving Issuing Bank (as defined in the EnergySolutions Credit Agreement) and (y) the Available Amount (as defined in the EnergySolutions Credit Agreement) of each Revolving Letter of Credit (as defined in the EnergySolutions Credit Agreement) shall be deemed “owed to” the Revolving Lenders (as defined in the EnergySolutions Credit Agreement) ratably in accordance with their respective Revolving Commitments (as defined in the EnergySolutions Credit Agreement).

 

“ Material Adverse Change ” shall mean (A) as of the Original Agreement Date, any effect on, or change, event, occurrence or state of facts that (i) is material and adverse to the business, properties, assets, liabilities (contingent or otherwise), results of operations or financial condition of EnergySolutions and its Subsidiaries taken as a whole, or (ii) prevents EnergySolutions from performing its obligations under the Duratek Acquisition Agreement or from consummating the Transactions (as defined in the Duratek Acquisition Agreement; provided , however , that none of the following will be taken into account in determining whether there has been a Material Adverse Change on June 7, 2006:  (w) conditions affecting any of the industries in which EnergySolutions operates generally ( provided that any such condition does not disproportionately affect EnergySolutions or its Subsidiaries), (x) conditions affecting the economy or capital markets ( provided that any such condition does not disproportionately affect EnergySolutions or its Subsidiaries), (y) any failure, in and of itself, by EnergySolutions to meet any internal or published projections, forecasts or revenue or earnings predictions or projections (it being understood that the facts or circumstances giving rise to or contributing to such failure may be taken into account in determining whether there has been a Material Adverse Change) or (z) any effect, change, event, occurrence or state of facts resulting from, or attributable to, the announcement or consummation of the Merger (as defined in the Duratek Acquisition Agreement) and (B) thereafter, any act, omission, event, development or circumstance that in the Administrative Agent’s reasonable judgment has had or could reasonably be expected to have a material adverse effect on or affecting (a) the Amendment Transactions, (b) the Duratek Acquisition, (c) the business, assets, property, liabilities (fixed or contingent), condition (financial or otherwise), operations, business or prospects of EnergySolutions, Parent and their Subsidiaries, taken as a whole or (d) the validity, enforceability or priority of any of the Loan Documents or the liens thereunder or the rights and remedies of the Administrative Agent and the Lenders thereunder.

 

“ Maturity Date ” shall mean the earlier of (a) June 7, 2013 or (b) the date on which the payment of all outstanding Obligations shall be due (whether by acceleration or otherwise).

 

“ Moody’s ” shall mean Moody’s Investors Service, a subsidiary of Moody’s Corporation.

 

“ Mortgage ” shall mean each Existing Mortgage, as modified by the applicable Mortgage Amendment, and each Additional Mortgage, if any, as the same may hereafter be further amended, modified, supplemented or restated from time to time.

 

“ Mortgage Amendment ” shall mean (i) an amendment to an Existing Mortgage, dated as of the Agreement Date (or such later date as the Collateral Agent may agree to in its sole discretion), duly executed and delivered by the applicable Loan Party for the benefit of the Collateral Agent, as mortgagee, in form and substance reasonably satisfactory to the Collateral Agent and appropriate for recording and/or filing in the appropriate real property records to perfect and protect the lien created by such Existing Mortgage as modified by such Mortgage Amendment, and (ii) any future amendments to the Mortgages.

 

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“ Mortgage Policy ” shall mean (i) each Existing Mortgage Policy together with any and all endorsements thereto issued, or to be issued, in favor of the Collateral Agent, (ii) each mortgagee title insurance policy issued, or to be issued, in favor of the Collateral Agent in connection with any Additional Mortgage and (iii) each endorsement issued to any Existing Mortgage Policy or mortgage title insurance policy issued after the date hereof in connection with any Mortgage Amendment, as provided for herein.

 

“ Mortgaged Property ” shall mean (a) as of the Agreement Date, the real property designated as “Mortgaged Property” on Schedule 11 hereto and (b) thereafter, all of the real property referred to in clause (a) together with any and all real property which is encumbered by an Additional Mortgage.

 

“ Multiemployer Plan ” shall have the meaning set forth in Section 4001(a)(3) of ERISA.

 

“ Necessary Authorizations ” shall mean all approvals and licenses from, and all filings and registrations with, any governmental or other regulatory authority, including, without limiting the foregoing, the Licenses and all grants, approvals, licenses, filings and registrations necessary in order to enable Parent or any of its Subsidiaries to own, construct, maintain and operate its Permitted Business and to make and hold Investments in other Persons who own, construct, maintain and operate their respective Permitted Businesses.

 

“ Net Income ” shall mean, for Parent and its Subsidiaries on a consolidated basis, for any period, net income determined in accordance with GAAP.

 

“ Net Proceeds ” shall mean, with respect to any sale, lease, transfer, swap or other disposition of assets or securities by any of the Loan Parties or any of their Subsidiaries, the aggregate amount of cash received for such assets or securities (including, without limitation, any payments received for non-competition covenants, consulting or management fees, and any portion of the amount received evidenced by a buyer promissory note or other evidence of Indebtedness), net of (a) amounts reserved, if any, for taxes payable with respect to any such sale (after application of any available losses, credits or other offsets), (b) reasonable and customary transaction fees, commissions, discounts, costs and out-of-pocket expenses properly attributable to such transaction and payable by such Loan Party or any of its Subsidiaries (other than to an Affiliate if not on an arms’-length basis) in connection with such sale, lease, transfer or other disposition of assets or securities, (c) until actually received by such Loan Party or any of its Subsidiaries, any portion of the amount received held in escrow or evidenced by a buyer promissory note, or a non-compete agreement or covenant, management agreement or consulting agreement, for which compensation is paid over time, (d) the principal amount of any Indebtedness for Money Borrowed (other than the Loans) that is secured by the asset subject to such sale, lease, transfer, swap or other disposition and that is repaid in connection therewith, and (e) any reserve for adjustments in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any pension and other post-employment benefit liabilities associated with such asset or assets and retained by such Loan Party or any of its Subsidiaries after such sale, lease, transfer, swap or other disposition so long as such reserve is required by law.  Upon receipt by the Loan Parties or any of their Subsidiaries of amounts referred to in clause (c) of the preceding sentence or to the extent the amounts referred to in clause (a) and clause (e) of the preceding sentence exceed the amounts actually so required, such amounts shall then be deemed to be “Net Proceeds.”  With respect to any incurrence of Indebtedness for Money Borrowed incurred by, or any issuance or sale of equity interests issued by, any Loan Party, “Net Proceeds” shall mean the aggregate amount of such Indebtedness for Money Borrowed or the aggregate cash received in connection with such issuance or sale of equity interests net of any reasonable fees, commissions, discounts, costs and out-of-pocket expenses associated with the incurrence of such Indebtedness for Money Borrowed or such issuance or sale of equity interests.

 

“ Non-Consenting Lender ” shall have the meaning set forth in Section 11.12 .

 

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“ Non-U.S. Jurisdiction ” shall mean each jurisdiction of organization of a Subsidiary of EnergySolutions or Parent other than the United States (or any State thereof) or the District of Columbia.

 

“ Non-U.S. Subsidiary ” shall mean any Subsidiary that is or becomes organized under the laws of a Non-U.S. Jurisdiction.

 

“ Notes ” shall mean those certain term promissory notes in the aggregate original principal amount of $240,000,000, one issued to each of the Lenders listed on Schedule 4 hereto that requests a promissory note, by Duratek in the amount of each of such Lenders’ Loan to Duratek, each one substantially in the form of Exhibit K attached hereto, and any extensions, modifications, renewals, endorsements or replacements of or amendments to any of the foregoing.

 

“ Obligations ” shall mean (a) all payment and performance obligations of every kind, nature and description of the Loan Parties (including any interest on the Loans accruing after commencement of any bankruptcy or insolvency proceeding with respect to any Loan Party regardless of whether such interest is allowed in such proceeding) to the Administrative Agent, any other Agents, the Lenders or Affiliates of the Lenders in connection with this Agreement and the other Loan Documents (including any interest, fees and other charges on the Loans or otherwise under the Loan Documents that would accrue but for the filing of a bankruptcy action with respect to any Loan Party, whether or not such claim is allowed in such bankruptcy action), as they may be amended from time to time, or as a result of making the Loans, whether such obligations are direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, now existing or hereafter arising, and (b) the obligation of any Loan Party to pay an amount equal to the amount of any and all damages which the Lenders, the Administrative Agent or any other Agent or any of them may suffer by reason of a breach by any Loan Party of any obligation, covenant or undertaking with respect to this Agreement or any other Loan Document.

 

“ Operating Cash Flow ” shall mean, for any fiscal period, for Parent and its Subsidiaries on a consolidated basis, or for any Acquisition Entity, as applicable, Net Income for such period (after eliminating any extraordinary gains and losses, including gains and losses from the sale of assets, and minority interests, and equity in earnings (losses) of non-consolidated entities), plus cash (except for extraordinary cash) received from non-consolidated joint ventures by Parent and its Subsidiaries in such period plus , to the extent deducted or accrued in determining Net Income, the sum of each of the following for such period: (a) depreciation, amortization and other non-cash charges (including, without limitation, accretion charges and compensation expenses for equity grants issued) (but excluding non-cash charges that constitute an accrual of a reserve for future cash payments), (b) Cash Interest Expense, (c) Permitted Advisory Fees, (d) income tax expense, (e) fees and expenses incurred by Parent and its Subsidiaries in connection with the Amendment Transactions and the Duratek Acquisition; provided that no costs and expenses incurred by Parent or its Subsidiaries to Guaranty the payment or performance of a Special Purpose Subsidiary or the Zion Acquisition or EnergySolutions’ decommissioning obligations related thereto shall be included in this clause (e), (f) costs and expenses relating to unrealized synergies expected to be achieved by Parent and its Subsidiaries, incurred in connection or as a result of the Duratek Acquisition, not to exceed the Restructuring Cost Cap in any four-quarter fiscal period, (g) cash charges incurred to effectuate the savings identified in clause (f) not to exceed $15,000,000 in the aggregate from the date of the Original Credit Agreement through September 30, 2008 and (h) fees and expenses incurred by Parent and its Subsidiaries in connection with the initial public offering of the shares of common stock of Parent (including, without limitation, any advisory and underwriting fees and expense to terminate excess performance bonus plans of certain of its current and former senior management); provided that for purposes of the covenants set forth in Section 7.7 hereof, if either Parent or any of its respective Subsidiaries makes any Acquisition during a period in which Operating Cash Flow is to be determined hereunder, such Operating

 

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Cash Flow will be determined on a pro forma basis as if such Acquisition were consummated on the first day of the relevant period.

 

“ Original Agreement Date ” shall mean June 7, 2006.

 

“ Original Duratek Loan Agreement ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Other Taxes ” shall have the meaning set forth in Section 2.14(b) .

 

“ Parent ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Parent Guaranty ” shall mean that certain Guaranty Agreement, dated as of November 20, 2007, between Parent and the Collateral Agent.

 

“ Parent Pledge Agreement ” shall mean that certain Pledge Agreement, dated as of November 20, 2007, between Parent and the Collateral Agent.

 

“ Parent Security Agreement ” shall mean that certain Security Agreement, dated as of November 20, 2007, between Parent and the Collateral Agent.

 

“ Patriot Act ” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law on October 26, 2001.

 

“ Payment Date ” shall mean, with respect to any Loan, the last day of any Interest Period applicable to such Loan and the date of payment in full of such Loan.

 

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation or any successor thereto.

 

“ Performance Certificate ” shall mean a certificate of an executive officer of EnergySolutions as to its financial performance, in substantially the form attached as Exhibit C hereto.

 

“ Permitted Acquisition ” shall mean (i) the U.K. Acquisition and (ii) an Acquisition by Parent or any of its Subsidiaries of any Person (a) primarily engaged in a Permitted Business, (b) who Guarantees the Secured Obligations and (iii) an Acquisition by Parent or any of its Subsidiaries of a Special Purpose Subsidiary.

 

“ Permitted Advisory Fees ” shall mean management fees to be paid to some or all of the Equity Sponsors in an annual amount up to the greater of (a) $3 million, or (b) 3% of Operating Cash Flow, if and to the extent that before and after giving effect to any such payment, Parent and its Subsidiaries are in current and pro forma covenant compliance with the financial covenants set forth in Section 7.7 hereof.

 

“ Permitted Asset Sale ” shall mean the sale by Parent or any of its Subsidiaries of any part of its or their assets as and to the extent permitted under Section 7.4(a)  hereof.

 

“ Permitted Business ” shall mean (i) all existing business operations of Parent and its Subsidiaries (including, without limitation, Duratek and its Subsidiaries) conducted prior to or as of the Agreement Date, as well as those reasonably related thereto (in the discretion of EnergySolutions), including environmental services, and (ii) any reasonably related business in respect of the use and management of

 

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radioactive material and radioactive waste in accordance with Applicable Law, the Licenses and the Necessary Authorizations.

 

“ Permitted Investments ” shall mean Investments described in and permitted to be made under Section 7.6(c)  hereof.

 

“ Permitted Liens ” shall mean, as applied to any Person:

 

(a)           any Lien in favor of the Administrative Agent (for itself and for the ratable benefit of the Secured Parties) given to secure the Secured Obligations;

 

(b)           (i) Liens on real estate for real estate taxes not yet delinquent and (ii) Liens for taxes, assessments, judgments, governmental charges or levies or claims not overdue for a period of not more than thirty (30) days or the nonpayment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on such Person’s books, but only so long as no foreclosure, distraint, sale or similar proceedings have been commenced with respect thereto and remain unstayed for a period of thirty (30) days after their commencement;

 

(c)           Liens of landlords, carriers, warehousemen, mechanics, laborers and materialmen incurred in the ordinary course of business for sums not yet overdue by more than thirty (30) days or being diligently contested in good faith, if reserves or appropriate provisions shall have been made therefor;

 

(d)           Liens incurred in the ordinary course of business in connection with worker’s compensation, unemployment insurance and social security insurance;

 

(e)           restrictions on the transfer of assets imposed by any of the Licenses as now in effect or by any Environmental Laws, any state laws and any regulations thereunder;

 

(f)            easements, rights-of-way, restrictions and other similar encumbrances on the use of real property which do not interfere with the ordinary conduct of the business of such Person, or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness or other extensions of credit and which do not in the aggregate materially detract from the value of such properties or materially impair their use in the operation of the business of such Person;

 

(g)           purchase money security interests which are perfected automatically by operation of law, only for the period (not to exceed twenty (20) days) of automatic perfection under the law of the applicable jurisdiction, and limited to Liens on assets so purchased;

 

(h)           cash collateralization of the mark-to-market value of the Obligations under Secured Hedge Agreements in an aggregate amount not to exceed $2,000,000;

 

(i)            any Liens of record listed on Schedule 3 attached hereto;

 

(j)            Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, and (ii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

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(k)           Liens arising from precautionary Uniform Commercial Code financing statement filings regarding leases entered into by the Loan Parties or any of their Subsidiaries in the ordinary course of business;

 

(1)           Liens existing on property at the time of its acquisition or existing on the property of any Person that becomes a Subsidiary; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof) and (iii) the Indebtedness secured thereby is permitted under Section 7.1 hereof;

 

(m)          leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business and not interfering in any material respect with the business of Parent or its Subsidiaries;

 

(n)           any interest or title of a lessor, sublessor, licensee, sublicensee, licensor or sublicensor under any lease or license agreement granted in the ordinary course of business;

 

(o)           other Liens securing Indebtedness outstanding in an aggregate amount not to exceed $5,000,000;

 

(p)           Liens on the Collateral securing obligations under the EnergySolutions Credit Agreement; provided that such Liens are pari passu to the Liens securing the Secured Obligations in accordance with the terms of the Security Documents;

 

(q)           on or after the Agreement Date, Liens (x) on the assets or properties of, or on any general or limited partnership interest, limited liability, membership interest in, or ownership of any shares of capital stock, or other securities of, ZionSolutions and (y) on the Collateral securing the Zion Credit Support Obligation; provided that, in the case of the foregoing clause (y), Liens on Collateral securing the Zion Credit Support Obligation may be granted either (A) under the Security Documents pursuant to joinder and similar agreements reasonably satisfactory to the Collateral Agent or (B) pursuant to security documentation and intercreditor agreements reasonably satisfactory to the Collateral Agent (and the Lenders specifically authorize the Administrative Agent and/or the Collateral Agent to enter into such joinder and similar agreements and/or such intercreditor agreements, as the case may be);

 

(r)            in addition to the Liens permitted pursuant to clause (q)  above, Liens on the assets or properties of, or on any general or limited partnership interest, limited liability, membership interest in, or ownership of any shares of capital stock, or other securities of, any Special Purpose Subsidiary incurred as a result of the formation or acquisition of such Special Purpose Subsidiary (i) pursuant to the SPS Project Documentation and (ii) in an aggregate amount not to exceed $20,000,000 per Special Purpose Subsidiary and $50,000,000 in the aggregate; and

 

(s)           (i) on or after the Agreement Date, easements granted pursuant to the Zion Agreements and (ii) easements granted solely for the purpose of securing the availability of capacity at EnergySolutions’ Class A low level radioactive disposal site in Clive, Utah for the disposal of Class A low level radioactive waste in connection with contracts entered into by Special Purpose Subsidiaries to decommission non-operating nuclear power generation facilities or to secure performance thereof; provided the aggregate area of any easement granted pursuant to this clause (s)  shall not exceed 10% of the availability at such Clive, Utah disposal site for the disposal of Class A low level radioactive waste as of the Agreement Date.

 

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“ Permitted Refinancing Indebtedness ” shall mean any Indebtedness issued in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge other Indebtedness; provided that:

 

(1)           the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on the Indebtedness and the amount of all fees, expenses and premiums incurred in connection therewith);

 

(2)           such Permitted Refinancing Indebtedness has a final maturity date not earlier than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

(3)           if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and

 

(4)           such Indebtedness is incurred either by Parent or by the Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

 

“ Permitted Restricted Payments ” shall include (i) Permitted Advisory Fees, (ii) Tax Distributions, (iii) Restricted Payments that do not exceed $15,000,000, in the aggregate, from the Agreement Date and (iv) after the consummation of the initial public offering of the shares of common stock of Parent, to the holders of Equity Interests of Parent, the dividends specified in Section 7.8(a) .

 

“ Person ” shall mean an individual, corporation, limited liability company, association, partnership, joint venture, trust or estate, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.

 

“ Plan ” shall mean any employee pension benefit plan (other than a Multiemployer Plan) as defined in Section 3(2) of ERISA, subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code maintained by EnergySolutions, Parent or any Subsidiary or to which EnergySolutions, Parent or any Subsidiary contributed, contributes or is obligated to contribute.

 

“ Platform ” shall have the meaning set forth in Section 11.23 .

 

“ Pledge Agreements ” shall mean the EnergySolutions Pledge Agreement, the Subsidiary Pledge Agreement and any additional pledge agreement substantially in the form of Exhibit A attached hereto that secures the Secured Obligations whether now or hereafter in existence.

 

“ Primary Equity Sponsors ” shall mean LGB and WPG.

 

“ Property ” shall mean property now or hereafter owned, operated or leased by EnergySolutions or its respective Subsidiaries.

 

“ Real Property Acquisition ” shall mean (whether by purchase, exchange, issuance of capital stock, limited partnership interests, general partnership interests or other equity or debt securities, merger,

 

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reorganization or any other method), the acquisition by EnergySolutions or any of its respective Subsidiaries of any interest in real property, whether done and made individually or as part of a transaction including assets or property other than real property.

 

“ Register ” shall have the meaning set forth in Section 11.5(c)  hereof.

 

“ Release ” shall mean the release, deposit, disposal or leakage at, into, upon or under any land, water or air, or otherwise into the environment or into the indoor air, including by means of burial, disposal, discharge, emission, injection, spillage, leakage, seepage, leaching, dumping, pumping, pouring, escaping, emptying, migrating, placement and the like (including the disposal of barrels, containers and other closed receptacles containing Hazardous Materials).

 

“ Remedial Action ” shall mean all actions, including, without limitation, any capital expenditures, undertaken to (i) clean up, remove, treat or in any other way address any Hazardous Material; (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material so it does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care; or (iv) bring facilities on any property owned, operated or leased by the Loan Parties and the facilities located and operations conducted thereon into compliance with all Environmental Laws and Environmental Permits.

 

“ Reportable Event ” shall have the meaning set forth in Section 4043 of ERISA and any regulations promulgated thereto.

 

“ Request for Loan ” shall mean a certificate designated as a “Request for Loan” signed by an Authorized Signatory  and which shall be in substantially the form of Exhibit D attached hereto.

 

“ Request for Loan Eurodollar Basis ” shall mean a certificate designated as a “Request for Loan Eurodollar Basis” signed by an Authorized Signatory requesting that a portion of the Loans complying with the requirements of this Agreement applicable to Eurodollar Loans bear interest at the Eurodollar Basis, which shall be in substantially the form of Exhibit G attached hereto and shall, among other matters, (a) specify the applicable Interest Period and the requested commencement date thereof, and (b) state that there shall not exist, on the first day of the requested Interest Period, both before and after giving effect to such request, a Default.

 

“ Restricted Payment ” shall mean (a) any direct or indirect cash distribution, cash dividend or other cash payment by EnergySolutions, Parent or any of their Subsidiaries to any Person (other than to Parent or any other Subsidiary) on account of any general or limited partnership interest in, membership interest in, or ownership of any shares of capital stock or other securities of, EnergySolutions, Parent or any of their Subsidiaries; or (b) any payment by EnergySolutions, Parent or any of their Subsidiaries to a Person other than EnergySolutions, Parent or any of their Subsidiaries under any management or consulting agreement, or other similar agreement or arrangement not entered into in the ordinary course of business.

 

“ Restructuring Cost Cap ” shall mean $20,000,000 for the four-quarter period ended September 30, 2006.  For each successive four-quarter period thereafter, “Restructuring Cost Cap” shall be reduced by $2,500,000.  For the avoidance of doubt, the “Restructuring Cost Cap” shall be $17,500,000 for the four-quarter period ended December 31, 2006 and $0 for the four-quarter period ended September 30, 2008.

 

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“ S&P ” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

“ Secured Hedge Agreement ” shall mean any Hedge Agreement that is entered into by and between any Loan Party and any Secured Party.

 

“ Secured Obligations ” shall mean (a) the Obligations and (b) the due and punctual payment and performance of all obligations of EnergySolutions and the other Loan Parties under each Secured Hedge Agreement entered into with any counterparty that is a Secured Party.

 

“ Secured Parties ” shall mean, collectively, the Administrative Agent, each other Agent, the Lenders and each counterparty to a Hedge Agreement if at the date of entering into such Hedge Agreement such Person was a Lender or an Affiliate of a Lender and such Person executes and delivers to the Administrative Agent a letter agreement in form and substance acceptable to the Administrative Agent pursuant to which such person (i) appoints the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound by the provisions of Sections 11.2 and 11.9 as if it were a Lender.

 

“ Security Agreements ” shall mean the EnergySolutions Security Agreement, the Parent Security Agreement, the Subsidiary Security Agreement and any additional security agreement substantially in the form of Exhibits I , J-1 and J-2 attached hereto that secures the Secured Obligations whether now or hereafter in existence.

 

“ Security Documents ” shall mean the Pledge Agreements, the Guarantees, the Security Agreements, the Mortgages, any other agreement or instrument providing collateral for the Secured Obligations whether now or hereafter in existence, and any filings, instruments, agreements and documents related thereto or to this Agreement and providing the Collateral Agent, for itself and for the benefit of the Secured Parties, with collateral for the Secured Obligations.

 

“ Security Interest ” shall mean all Liens in favor of the Collateral Agent, for itself and for the benefit of the Secured Parties, created hereunder or under any of the Security Documents to secure the Secured Obligations.

 

“ Solvent ” shall mean, with respect to any Loan Party, that as of the date of determination, both (i)(a) the sum of such Loan Party’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Loan Party’s present assets; (b) such Loan Party’s capital is not unreasonably small in relation to its business as contemplated on the Agreement Date or with respect to any transaction contemplated or undertaken after the Agreement Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).

 

“ SPA ” shall mean that certain Share Purchase Agreement between British Nuclear Fuels plc, EnergySolutions EU Limited and EnergySolutions, dated June 6, 2007.

 

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“ Special Purpose Subsidiary ” shall mean (i) ZionSolutions and (ii) no more than five (5) other Subsidiaries, each of which Subsidiary referred to in this clause (ii) shall (x) other than with respect to directors’ qualifying shares or de minimis non-economic interests held by the transferor of the assets to such Subsidiary pursuant to the applicable SPS Project Documentation (as defined below), be a Person whose Equity Interests are wholly-owned by EnergySolutions or a Subsidiary Guarantor, (y) have been designated with reasonable prior notice by EnergySolutions to the Administrative Agent as a Special Purpose Subsidiary and (z) have been formed for the purpose of entering into one or more contracts (such contracts and all related documentation referred to in this clause (ii), the “ SPS Project Documentation ”) to decommission nuclear or other types of power facilities whereby any such Subsidiary purchases and/or leases all or part of the assets of such facilities in part to succeed to licenses or permits granted in respect of such facilities by the United States Nuclear Regulatory Commission or any other federal or state governmental entity.

 

“ Subordination Agreement ” shall mean a Subordination Agreement in the form attached hereto as Exhibit Q .

 

“ Subsidiary ” shall mean, as applied to any Person, (a) any corporation of which more than fifty percent (50%) of the outstanding stock (other than directors’ qualifying shares) having ordinary voting power to elect its board of directors, regardless of the existence at the time of a right of the holders of any class or classes of securities of such corporation to exercise such voting power by reason of the happening of any contingency, or any partnership of which more than fifty percent (50%) of the outstanding partnership interests, are at the time owned directly or indirectly by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person, or (b) any other entity which is directly or indirectly controlled or capable of being controlled by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person.  “Subsidiaries” as used herein, unless otherwise indicated, shall mean all Subsidiaries of Parent (including EnergySolutions), including Subsidiaries of any Subsidiaries of Parent.  The Subsidiaries of Parent as of the Agreement Date are set forth on Schedule 1 attached hereto.

 

“ Subsidiary Guarantor ” shall mean each domestic Subsidiary that Guarantees the Secured Obligations in accordance with the terms of this Agreement.

 

“ Subsidiary Guaranty ” shall mean each subsidiary guaranty given by each Subsidiary Guarantor, substantially in the form of Exhibit H-1 attached hereto.

 

“ Subsidiary Pledge Agreement ” shall mean (i) that certain Subsidiary Pledge Agreement, dated as of February 27, 2006, as amended and restated as of the Original Agreement Date, between the respective Subsidiaries of EnergySolutions party thereto and the Collateral Agent and (ii) any additional pledge agreement substantially in the form of Exhibit A attached hereto executed by a new Subsidiary in accordance with Section 5.13 .

 

“ Subsidiary Security Agreement ” shall mean (i) that certain Subsidiary Security Agreement, dated as February 27, 2006, as amended and restated as of the Original Agreement Date, between the respective Subsidiaries party thereto and the Collateral Agent and (ii) each additional subsidiary security agreement executed by a new Subsidiary in accordance with Section 5.13 , substantially in the form of Exhibit J attached hereto.

 

“ Successor Agent ” shall have the meaning set forth in the preamble to this Agreement.

 

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“ Syndication Date ” shall have the meaning set forth in Section 11.5(b) .

 

“ Tax Distributions ” shall mean, for any period in which EnergySolutions is treated as a disregarded entity or a partnership for federal, applicable state and/or local income tax purposes, distributions paid to direct or indirect members of EnergySolutions for the purpose of funding each such member’s income tax liability attributable to such Person’s direct or indirect distributive share of the taxable income of EnergySolutions for such period, in an aggregate amount (for all such members) equal to the product of (a) the taxable income allocable to the members for such period less  the cumulative amount of net taxable loss allocated to such members of EnergySolutions for all prior taxable periods (as if such periods were one combined period), to the extent such prior net losses are of a character (i.e., ordinary or capital) that would have allowed such losses to be offset against the current period’s income and (b) the Assumed Tax Rate (as defined below), plus any previously undistributed amounts permitted under the foregoing formula.  If EnergySolutions is a corporation for U.S. federal, applicable state and/or local income tax purposes and a member of a group filing consolidated, combined or unitary tax returns of which EnergySolutions is not the common parent, EnergySolutions may make payments to the parent of such group in respect of EnergySolutions’ share of taxable income, provided , however , that the amount of such payments in respect of any tax period does not exceed the lesser of (i) the actual tax liability of the consolidated group or (ii) the amount that EnergySolutions would have been required to pay in respect of federal, state or local income taxes (as the case may be) for such year if EnergySolutions paid such taxes directly as a stand-alone taxpayer at the Assumed Tax Rate, less, in each case, any such taxes payable directly by EnergySolutions.  Each Tax Distribution shall be designated as such, and with respect to a particular fiscal quarter of EnergySolutions’ fiscal year, in such EnergySolutions’ books and records.  “ Assumed Tax Rate ” shall mean the highest hypothetical combined marginal effective U.S. federal, state and local income tax rate prescribed for an individual or corporation resident of New York, New York or Salt Lake City, Utah applicable to the character of the net taxable income (i.e., capital gains, dividends and/or ordinary income) allocable to the direct or indirect members of EnergySolutions in the relevant taxable year (taking into account the deductibility of state and local income taxes as applicable at the time for U.S. federal income tax purposes).

 

“ Taxes ” shall have the meaning set forth in Section 2.14(a) .

 

“ Term Facility ” shall mean, at any time, the aggregate amount of the Term Loans outstanding under the EnergySolutions Credit Agreement.

 

“ Type ” refers to the distinction between Loans bearing interest at the Base Rate and Loans bearing interest at the Eurodollar Rate.

 

“ U.K. Acquisition ” shall mean the acquisition by EnergySolutions, Parent and their Subsidiaries of 100% of the capital stock of Reactor Sites Management Company Limited that was consummated on June 27, 2007 in accordance with the SPA and all other related documentation (without amendment, modification or waiver thereof which is materially adverse to the Lenders (as reasonably determined by the Arranger) without the prior consent of the Arranger).

 

“ Uniform Commercial Code ” or “ UCC ” shall mean the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

“ WPG ” shall mean Western Pacific Group, L.C., Creamer Investments, Inc. and/or any of their respective Affiliates.

 

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“ Zion Acquisition ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Zion Agreements ” shall mean collectively the following documents (each in the form most recently delivered to the Administrative Agent prior to the Agreement Date):  (a) the ZionSolutions Limited Liability Company Agreement entered into by members of ZionSolutions, (b) the Asset Sale Agreement (and the amendment thereto dated as of August 17, 2009), (c) an Assignment and Assumption Agreement to be entered into by and between Exelon and ZionSolutions, (d) a Bill of Sale to be entered into by and between Exelon and ZionSolutions, (e) a Lease Agreement to be entered into by and between Exelon and ZionSolutions, (f) a Put Option Agreement to be entered into by and between Exelon and ZionSolutions, (g) a Pledge Agreement made by EnergySolutions in favor of Exelon, (h) the Guaranty made as of December 11, 2007 by Parent in favor of Exelon, (i) an Irrevocable Easement for Disposal Capacity to be made by EnergySolutions to a certain trustee named thereto, (j) a Disposal Services Agreement to be entered into by and between EnergySolutions and a certain trustee named thereto, (k) a Leased Personnel Agreement to be entered into by Exelon and ZionSolutions, (l) the Performance Guaranty made as of December 11, 2007 by EnergySolutions in favor of Exelon, (m) a Trust Agreement by and among EnergySolutions, a trustee named thereto and other parties party thereto in connection with a backup non-qualified decommissioning, (n) a Credit Support Agreement among Exelon, EnergySolutions and Parent and (o) all amendments or modifications to any of the agreements listed in the foregoing clauses (a) through (n), to the extent such amendments or modifications are delivered to the Administrative Agent ten (10) Business Days prior to becoming effective and, to the extent such amendments or waivers could reasonably be expected to adversely affect the interests of the Lenders in any material respect, the Administrative Agent has consented thereto in writing (it being understood that any modification, amendment or waiver of any Zion Agreement that increases the amount of Indebtedness of Parent, EnergySolutions or their respective Subsidiaries pursuant to such Zion Agreement shall be deemed to adversely affect the interests of the Lenders in a material respect).  All capitalized terms in this paragraph not otherwise defined herein shall have the meanings ascribed to such terms in that certain Asset Sale Agreement, dated December 11, 2007, by and among Exelon, ZionSolutions, EnergySolutions and Parent.

 

“ Zion Credit Support Obligation ” shall mean any letter of credit, performance or fidelity bond or related obligation in favor of third party support providers relating to the Zion Acquisition; provided that the aggregate amount of all such letters of credit, performance and fidelity bonds and related obligations shall not at any time exceed $50,000,000 minus the aggregate amount of the Zion Incremental Facility Commitment at such time; provided further that, to the extent secured by all or any portion of the Collateral, all such letters of credit, performance and fidelity bonds and related obligations shall mature, expire or otherwise terminate prior to the Term Loan Maturity Date.

 

“ Zion Incremental Facility Commitment ” shall mean commitments issued pursuant to Section 2.15(a)  of the EnergySolutions Credit Agreement.

 

“ Zion Incremental Facility Commitment Cap ” shall at any time mean $50,000,000 minus the aggregate amount of the Zion Credit Support Obligation at such time.

 

“ ZionSolutions ” shall mean ZionSolutions, LLC, a Delaware limited liability company, organized for the purpose of consummating the Zion Acquisition and whose Equity Interests shall be (other than with respect to directors’ qualifying shares or de minimis non-economic interests held by Exelon or its Affiliates) wholly-owned by EnergySolutions or a Subsidiary Guarantor.

 

Section 1.2              Defined Agreements as Modified .

 

Each definition of an agreement or instrument in this Article 1 shall include such agreement or instrument as amended, modified, renewed or restated from time to time in accordance herewith.

 

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Section 1.3              Computation of Time Periods; Other Definitional Provisions .

 

In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”  References in the Loan Documents to any agreement or contract “as amended” shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.  All notices shall be required to be in writing.

 

Section 1.4              Accounting Terms .

 

All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.1(k)  (“ GAAP ”).

 

Section 1.5              Pro Forma Calculations .

 

For purposes of computing each of the Leverage Ratio and the Interest Coverage Ratio for any purpose hereunder, such ratio (and any financial calculations or components required to be made or included therein) shall be determined, with respect to the relevant period, after giving pro forma effect to the Duratek Acquisition, each Permitted Acquisition and disposition of a Person, line of business or division consummated during such period (including, in each case, any incurrence, assumption, refinancing or repayment of Indebtedness for Money Borrowed), as if such Duratek Acquisition, Permitted Acquisition, disposition or related transactions had been consummated on the first day of such period, in each case, either (i) prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended, or (ii)(a) that have been certified by a financial officer of EnergySolutions as having been prepared in good faith based upon reasonable assumptions and (b) are reasonably acceptable to the Administrative Agent.

 

ARTICLE 2.

 

Loans

 

Section 2.1              The Loans .

 

(a)            [Reserved] .

 

(b)            The Loans .   The Lenders who have agreed to make Loans agree, severally in accordance with their respective Commitments as set forth on Schedule 4 hereof and not jointly, upon the terms and subject to the conditions of this Agreement, to lend to Duratek, on the Original Agreement Date, an aggregate amount equal to $240,000,000.  After the Agreement Date, the Loans will bear interest at the Eurodollar Basis or the Base Rate Basis as provided in Section 2.2 hereo.  Amounts borrowed under this Section 2.1(b)  and repaid or prepaid may not be reborrowed.

 

(c)            [Reserved] .

 

Section 2.2              Manner of Borrowing and Disbursement .

 

(a)            Choice of Interest Rate, Etc .  (i)  Any Loan shall, at the option of Duratek, bear interest as a Base Rate Loan, or, subject to Section 2.2(a)(ii)  and Article 10 hereof, a Eurodollar Loan.  Any notice given to the Administrative Agent in connection with a requested Loan hereunder shall be given to the

 

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Administrative Agent prior to 12:30 p.m. (New York time) in order for such Business Day to count toward the minimum number of Business Days required.

 

(ii)             (A)  On the date on which the aggregate unpaid principal amount of any Eurodollar Loan shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Eurodollar Loan shall automatically, on the last day of the then existing Interest Period therefor, be continued as a Base Rate Loan.

 

(B)            If Duratek shall fail to select the duration of any Interest Period for any Eurodollar Loan in accordance with the provisions contained in the definition of “Interest Period” in Section 1.1 , the Administrative Agent will forthwith so notify Duratek and the Lenders which have made such Eurodollar Loan, whereupon each such Eurodollar Loan shall automatically, on the last day of the then existing Interest Period therefor, be continued as a Base Rate Loan.

 

(C)            Upon the occurrence and during the continuance of any Default, (1) each Eurodollar Loan will automatically, on the last day of the then existing Interest Period therefor, be continued as a Base Rate Loan, and (2) the obligation of the Lenders to continue any Eurodollar Loan shall be suspended.

 

(b)            Base Rate Loans .

 

(i)             Initial Loans .  The initial Base Rate Loans were issued on the Original Agreement Date.

 

(ii)            [Reserved].

 

(iii)           Continuations of Base Rate Loans .  Upon at least one (1), with respect to items (B) and (C) of this sentence, or three (3), with respect to item (A) of this sentence, Business Days’ irrevocable prior written notice to the Administrative Agent, Duratek shall specify whether all or a portion of each Base Rate Loan outstanding on the related Payment Date (A) is to be continued in whole or in part as one or more Eurodollar Loans for the Interest Period(s) selected, (B) is to be continued in whole or in part as one or more Base Rate Loans, or (C) is to be repaid and not reborrowed.

 

(c)            Eurodollar Loans .

 

(i)             Initial Loans .  Duratek shall give the Administrative Agent in the case of any initial Eurodollar Loan at least three (3) Business Days’ irrevocable prior written notice in the form of a Request for Loan or Request for Loan Eurodollar Basis, or telephonic notice followed immediately by a Request for Loan or Request for Loan Eurodollar Basis; provided , however , that Duratek’s failure to confirm any telephonic notice with a Request for Loan or Request for Loan Eurodollar Basis shall not invalidate any notice so given.  The Administrative Agent, whose determination shall be conclusive absent manifest error, shall determine the available Eurodollar Basis and shall notify Duratek of such Eurodollar Basis.  Duratek shall promptly notify the Administrative Agent by telephone or telecopy, and shall immediately confirm any such telephonic notice in writing, of its selection of a Eurodollar Basis and Interest Period for such Loan; provided , however , that Duratek’s failure to confirm any such telephonic notice in writing shall not invalidate any notice so given.

 

(ii)            [Reserved] .

 

(iii)           Continuations of Eurodollar Loans .  Upon at least one (1), with respect to items (B) and (C) of this sentence, or three (3), with respect to item (A) of this sentence, Business Days’ irrevocable prior written notice to the Administrative Agent, Duratek shall specify whether all or a portion of each

 

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Eurodollar Loan outstanding on the related Payment Date (A) is to be continued in whole or in part as one or more Eurodollar Loans for the Interest Period(s) selected, (B) is to be continued in whole or in part as a Base Rate Loan, or (C) is to be repaid and not reborrowed.

 

(d)            [Reserved] .

 

(e)            Disbursement .

 

(i)             [Reserved].

 

(ii)            Unless the Administrative Agent shall have received notice from a Lender prior to 2:30 p.m. (New York time) on the date of any Loan that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Loan, the Administrative Agent may assume that such Lender has made or will make such portion available to the Administrative Agent on the date of such Loan and the Administrative Agent may in its sole discretion and in reliance upon such assumption, make available to Duratek on such date a corresponding amount.  If and to the extent the Lender does not make such ratable portion available to the Administrative Agent, such Lender agrees to repay to the Administrative Agent on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to Duratek until the date such amount is repaid to the Administrative Agent, at the Federal Funds Rate for the first three (3) days and thereafter at the Federal Funds Rate plus one percent (1%).

 

(iii)           If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s portion of the applicable Loan for purposes of this Agreement.  If such Lender does not repay such corresponding amount immediately upon the Administrative Agent’s demand therefor, the Administrative Agent shall notify Duratek and Duratek shall immediately pay such corresponding amount to the Administrative Agent, together with interest thereon.  The failure of any Lender to fund its portion of any Loan shall not relieve any other Lender of its obligation hereunder to fund its respective portion of the Loan on the date of such borrowing, but no Lender shall be responsible for any such failure of any other Lender.

 

(iv)           In the event that, at any time when Duratek is not in Default and has satisfied all applicable conditions set forth in Article 3 hereof, a Lender for any reason fails, refuses, or has given notice to the Administrative Agent and/or Duratek that it refuses to fund its portion of a Loan (a “ Defaulting Lender ”), then, until such time as such Defaulting Lender has funded its portion of such Loan, or all other Lenders have received payment in full (whether by repayment or prepayment) of the principal and interest due in respect of such Loan, such Defaulting Lender shall not have the right (i) to vote regarding any issue on which voting is required or advisable under this Agreement or any other Loan Document, and such Lender’s interest in any Loans shall not be counted as outstanding for purposes of determining “Majority Lenders” hereunder or (ii) to receive payments of principal, interest or fees from Duratek in respect of its unfunded portion of Loans.  The provisions of this Section 2.2(e)(iv)  are not in lieu of any other claim Duratek may have against such Defaulting Lender.

 

Section 2.3              Interest .

 

(a)            On Base Rate Loans .  Interest on each Base Rate Loan shall be computed on the basis of a year of 365/366 days for the actual number of days elapsed and shall be payable at the Base Rate Basis for such Base Rate Loan, in arrears on the applicable Payment Date for the period through the date immediately preceding such Payment Date.  Interest on Base Rate Loans then outstanding shall also be due and payable on the Maturity Date.

 

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(b)            On Eurodollar Loans .  Interest on each Eurodollar Loan shall be computed on the basis of a 360-day year for the actual number of days elapsed and shall be payable at the Eurodollar Basis for such Eurodollar Loan, in arrears on the applicable Payment Date for the period through the day immediately preceding such Payment Date, and, in addition, if the Interest Period for a Eurodollar Loan exceeds three (3) months, interest on such Eurodollar Loan shall also be due and payable in arrears on every three-month anniversary of the first day of such Interest Period.  Interest on Eurodollar Loans then outstanding shall also be due and payable on the Maturity Date.

 

(c)            Interest if No Notice of Selection of Interest Rate Basis .  With respect to any Loan, if Duratek fails to give the Administrative Agent timely notice of its selection of a Eurodollar Basis, or if for any reason a determination of a Eurodollar Basis for any Loan is not timely concluded, the Base Rate Basis shall apply to such Loan.

 

(d)            Interest upon Default .  Immediately upon the occurrence of an Event of Default hereunder, all overdue principal in respect of the Loans, together with accrued and unpaid overdue interest, premium and other unpaid sums, shall bear interest at the Default Rate.  Such interest shall be payable on demand and shall accrue until the earliest of (a) waiver or cure (to the satisfaction of the Lenders required under Section 11.12 hereof to waive or cure) of such Event of Default, or (b) agreement by the Majority Lenders to rescind the charging of interest at the Default Rate, or (c) payment in full of the Obligations.

 

(e)            Eurodollar Loans .  At no time may the number of outstanding Eurodollar Loans exceed eight (8).

 

(f)             Applicable Margin .  The Applicable Margin shall be (i) 3.75% for Eurodollar Loans (or 3.25% when the Leverage Ratio as of the most recently completed fiscal quarter is less than 2.0 to 1.0) and (ii) 2.25% for Base Rate Loans (or 1.75% when the Leverage Ratio as of the most recently completed fiscal quarter is less than 2.0 to 1.0).

 

Section 2.4              Repayment .

 

(a)            [Reserved].

 

(b)            Commencing September 30, 2006 and at the end of each calendar quarter for the next 26 calendar quarters, the outstanding principal balance of the Loans shall be repaid in an amount equal to the product of the outstanding principal balance of the Loans as of the opening of business on September 30, 2006 multiplied by 0.25%.  On June 7, 2013, the outstanding principal balance of the Loans, if any, shall be repaid in full.  Notwithstanding anything to the contrary in this Section 2.4 , any unpaid principal and interest of the Loans shall be due and payable in full on the Maturity Date.

 

Section 2.5              [Reserved].

 

Section 2.6              Optional Prepayments and Application of Prepayments .

 

(a)            Optional Prepayment of Loans .  Subject to Section 2.6(b) , the principal amount of any Base Rate Loan may be prepaid in full or in part at any time, without penalty or premium and without regard to the Payment Date for such Loan, upon not less than one (1) Business Day’s prior written notice to the Administrative Agent of such prepayment.  Subject to Section 2.6(b)  and Section 2.11 , Eurodollar Loans may be prepaid prior to the due date thereof, upon not less than three (3) Business Days’ prior written notice to the Administrative Agent.  Partial prepayments shall be in a principal amount of not less than $1,000,000 and in an integral multiple of $500,000.  A notice of prepayment shall be irrevocable.

 

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(b)            Application of Prepayment .  Each prepayment of the Loans shall be applied (i) first, in direct order of maturities, to the next four scheduled principal repayment installments of the Loans and (ii) second, to the other principal repayment installments of the Loans on a pro rata basis.  The prepayment of any principal amount of Loans shall be made with accrued interest to the date of such prepayment on the aggregate principal amount prepaid and Duratek shall reimburse the Lenders and the Administrative Agent, on demand, for any loss or out-of-pocket expense incurred by any Lender or the Administrative Agent in connection with such prepayment, as set forth in Section 2.11 hereof.  Any prepayment under this Agreement shall not affect Duratek’s obligation to continue making payments under any Secured Hedge Agreements, which shall remain in full force and effect notwithstanding such prepayment, subject to the terms of such Secured Hedge Agreements.

 

Section 2.7              [ Reserved ].

 

Section 2.8              Mandatory Prepayments .

 

(a)            In addition to the scheduled repayments provided for in Section 2.4 hereof, Duratek shall prepay the Loans in an amount equal to 100% of the Net Proceeds (w) from any sale or disposition by Duratek or any of its Subsidiaries of any interest in any Loan Party (other than from a sale to another Loan Party), (x) except as set forth below, from any Permitted Asset Sales by Duratek or any of its Subsidiaries (other than any Excluded Asset Sales) and (y) except as set forth in Section 5.5(e)  hereof, received by Duratek or any of its Subsidiaries as a result of a casualty or condemnation; provided that if EnergySolutions is a Subsidiary of Duratek, each reference to Duratek and/or its Subsidiaries shall include Parent and/or its Subsidiaries.  Such amount shall be applied on the third Business Day following receipt thereof by Duratek or the affected Subsidiary in accordance with Section 2.6(b) .  Duratek shall also prepay the Loans, with application thereto in accordance with Section 2.6(b) , in respective amounts equal to the after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business.  Notwithstanding the foregoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of Duratek, and so long as no Default or Event of Default shall have occurred and be continuing, Duratek may reinvest all or any portion of such Net Proceeds in assets used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided , however , that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any capital assets purchased with the Net Proceeds thereof pursuant to this subsection shall be mortgaged or pledged, as the case may be, to the Administrative Agent, for the benefit of the Secured Parties, and (ii) if any Net Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to any such Net Proceeds shall be immediately applied to the prepayment of the Loans in accordance with Section 2.6(b) .  For the purposes of this Section 2.8(a) , if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.

 

(b)            In addition to the scheduled repayments provided for in Section 2.4 hereof, Duratek shall prepay the Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Original Agreement Date from any Indebtedness for Money Borrowed incurred by Duratek or any of its Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or its respective Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition, other than, in the case of clauses (i)

 

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and (ii), any Additional Permitted Debt incurred pursuant to Section 7.1(w)(A)  (to the extent required to be used to prepay Loans pursuant to such section).  Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b) .  For the purposes of this Section 2.8(b) , if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.

 

(c)            In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof (commencing with the fiscal quarter ended September 30, 2006), on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, Duratek shall prepay the Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, Duratek shall prepay the Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, Duratek shall not be required prepay the Loans.    For the purposes of this Section 2.8(c) , if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.

 

(d)            Any prepayment pursuant to this Section 2.8 shall be made in the manner set forth in Section 2.6(b) .

 

Section 2.9              Evidence of Debt .

 

(a)            The Loans shall be repayable in accordance with the terms and provisions set forth herein.  Upon the request of any Lender, Notes shall be issued by Duratek and payable to the order of such Lender reflecting such Lender’s Loans.  The Notes issued by Duratek to the Lenders shall be duly executed and delivered by one or more Authorized Signatories.

 

(b)            Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Duratek to such Lender resulting from each Loan owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(c)            The Register maintained by the Administrative Agent pursuant to Section 11.5(c)  shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Loan made hereunder, the Type of such Loan and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Assumption Agreement delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from Duratek to each Lender hereunder, and (iv) the amount of any sum received by the Administrative Agent from Duratek hereunder and each Lender’s share thereof.

 

(d)            Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.9(c)  above, and by each Lender in its account or accounts pursuant to Section 2.9(b)  above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from Duratek to, in the case of the Register, each Lender and, in the case of such account or

 

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accounts, such Lender, under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of Duratek under this Agreement. ›

 

Section 2.10            Manner of Payment .

 

(a)            Each payment (including any prepayment) by Duratek on account of the principal of or interest on the Loans, commitment fees and any other amount owed to the Lenders, the Administrative Agent or any of them under this Agreement shall be made not later than 2:00 p.m. (New York time) on the date specified for payment under this Agreement to the Administrative Agent at the Administrative Agent’s Account, for the account of the Lenders, or the Administrative Agent, as the case may be, in lawful money of the United States of America in immediately available funds without set-off or counterclaim.  Any payment received by the Administrative Agent after 2:00 p.m. (New York time) shall be deemed received on the next Business Day.  Receipt by the Administrative Agent of any payment hereunder at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to constitute receipt on such Business Day.  In the case of a payment for the account of a Lender, the Administrative Agent will promptly thereafter (and, if such amount is received before 2:00 p.m. (New York time), on the same day) distribute the amount so received in like funds to such Lender.  If the Administrative Agent shall not have received any payment from Duratek as and when due, the Administrative Agent will promptly notify the Lenders accordingly.  Only upon its acceptance of an Assignment and Assumption Agreement and recording of the information contained therein in the Register pursuant to Section 11.5(c) , from and after the effective date of such Assignment and Assumption Agreement, the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption Agreement shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

 

(b)            Duratek agrees to pay principal, interest, fees and all other Obligations due hereunder, under the Fee Letter, under any Notes or under the other Loan Documents without set-off or counterclaim or any deduction whatsoever (other than any deductions or withholdings required by law on account of Taxes).

 

(c)            Prior to the acceleration of the Loans under Section 8.2 hereof, if some but less than all amounts due from Duratek are received by the Administrative Agent with respect to the Obligations, the Administrative Agent shall distribute such amounts in the following order of priority:

 

(i)             first , to the payment of all of the fees, indemnification payments, costs and expenses that are due and payable to the Administrative Agent (solely in its capacity as the Administrative Agent) under or in respect of this Agreement and the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such fees, indemnification payments, costs and expenses owing to the Administrative Agent on such date;

 

(ii)            second , to the payment of all of the indemnification payments, costs and expenses that are due and payable to the Lenders under or in respect of this Agreement and the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such indemnification payments, costs and expenses owing to the Lenders on such date;

 

(iii)           third , to the payment of fees and all of the accrued and unpaid interest and any premiums on the Obligations of Duratek under or in respect of the Loan Documents that is due and payable to the Administrative Agent and the Lenders, ratably based upon the respective

 

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aggregate amounts of all such interest owing to the Administrative Agent and the Lenders on such date;

 

(iv)           fourth , ratably to the payment of the principal amount of all of the outstanding Loans that is due and payable to the Administrative Agent and the Lenders on such date, ratably based upon the respective aggregate amounts of all such principal owing to the Administrative Agent and the Lenders on such date and amounts payable under Secured Hedge Agreements with Lenders and/or their Affiliates (or Persons that were Lenders or Affiliates of Lenders at the time any such Secured Hedge Agreement was entered into);

 

(v)            fifth , to the payment of all other Secured Obligations of the Loan Parties owing under or in respect of the Loan Documents or Secured Hedge Agreements that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Secured Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

 

(vi)           sixth , the balance, if any, to the person lawfully entitled thereto (including the applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction may direct.

 

(d)            If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the Loans to which, or the manner in which, such funds are to be applied, the Administrative Agent may, but shall not be obligated to, in the case of the Loans, for application to such principal repayment installments thereof, as the Administrative Agent shall direct, and in other cases, elect to, distribute such funds to each of the Lenders in accordance with such Lender’s pro rata share of the aggregate principal amount of the Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.

 

(e)            Subject to any contrary provisions in the definition of “Interest Period,” if any payment under this Agreement or any of the other Loan Documents is specified to be made on a day which is not a Business Day, it shall be made on the next Business Day, and such extension of time shall in such case be included in computing interest and fees, if any, in connection with such payment; provided , however , that, if such extension would cause payment of interest on or principal of Eurodollar Loans to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

 

(f)             Unless the Administrative Agent shall have received notice from Duratek prior to the date on which any payment is due to any Lender hereunder that Duratek will not make such payment in full, the Administrative Agent may assume that Duratek has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent Duratek shall not have so made such payment in full to the Administrative Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.

 

Section 2.11            Reimbursement .

 

(a)            Whenever any Lender shall sustain or incur any losses or out-of-pocket expenses in connection with (i) failure by Duratek to borrow any Eurodollar Loan after having given notice of its intention

 

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to borrow in accordance with Section 2.2 hereof (whether by reason of Duratek’s election not to proceed or the non-fulfillment of any of the conditions set forth in Article 3 ), or (ii) payment of any Eurodollar Loan in whole or in part pursuant to Section 2.2(a)(ii) , 2.6 , 2.8 or 10.2 , acceleration of the maturity of the Loans pursuant to Section 8.2 or for any other reason, Duratek agrees to pay to such Lender, upon demand, an amount sufficient to compensate such Lender for all such losses and reasonable out-of-pocket expenses.  Such Lender’s good faith determination of the amount of such losses or out-of-pocket expenses, as set forth in writing pursuant to Section 2.11(b)  hereof, and accompanied by calculations in reasonable detail demonstrating the basis for its demand, shall be presumptively correct, absent manifest error.

 

(b)            Losses subject to reimbursement hereunder shall be (i) any loss incurred by any Lender in connection with the re-employment of funds prepaid, repaid, not borrowed, or paid, as the case may be, and the amount of such loss shall be the excess, if any, of (1) the interest or other cost to such Lender of the deposit or other source of funding used to make any such Eurodollar Loan (but specifically excluding any Applicable Margin) for the remainder of its Interest Period, over (2) the interest earned (or to be earned) by such Lender upon the re-lending or other redeployment of the amount of such Eurodollar Loan for the remainder of its putative Interest Period or (ii) any other expenses incurred by any Lender or any participant of such Lender permitted hereunder in connection with the re-employment of funds prepaid, repaid, not borrowed, or paid, as the case may be.

 

For the avoidance of doubt, nothing in this Section 2.11 shall be construed to apply to Taxes that are neither Covered Taxes nor Other Taxes.

 

Section 2.12            Pro Rata Treatment .

 

(a)            Loans .  Each Loan from the Lenders shall be made pro rata on the basis of the respective Commitments of the Lenders.

 

(b)            Payments .  Except as specifically provided in Section 2.2(e)(iv)  or Article 10 hereof or elsewhere in this Agreement, each payment and prepayment of principal of the Loans and each payment of interest on the Loans, shall be made to the Lenders pro rata on the basis of their respective unpaid principal amounts outstanding immediately prior to such payment or prepayment.  If any Lender shall obtain any payment (whether involuntary, through the exercise of any right of set-off, or otherwise) on account of any Loans made by it in excess of its ratable share of such Loans, such Lender shall forthwith purchase from the other Lenders such interests (whether by purchasing a participation or by assignment) in the applicable Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided , however , that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery; provided further , however , that, so long as the Obligations under the Loan Documents shall not have been accelerated, any excess payment received by any Lender in respect of any Type of Loans shall be shared on a pro rata basis only with other Lenders to which Loans of such Type are owing.  Duratek agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.12(b)  may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of Duratek in the amount of such participation.

 

Section 2.13            Capital Adequacy .

 

If, after the Agreement Date, the adoption or effectiveness of any Applicable Law regarding the capital adequacy of banks or bank holding companies, or any change or effectiveness in Applicable Law

 

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(whether adopted before or after the Agreement Date) or any change in the interpretation or administration or effectiveness thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender with any directive issued or adopted after the Agreement Date regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on any Lender’s capital, as a consequence of its obligations hereunder with respect to the Loans, to a level below that which it could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s policies with respect to capital adequacy immediately before such adoption, change or compliance and assuming that such Lender’s capital was fully utilized prior to such adoption, change or compliance) by an amount reasonably deemed by such Lender to be material, then such Lender shall promptly notify Duratek of such adoption, compliance or change.  Upon demand by such Lender, Duratek shall promptly pay to such Lender such additional amounts as shall be sufficient to compensate such Lender for such reduced return, together with interest on such amount from the fourth (4th) day after the date of demand until payment in full thereof at the Default Rate.  A certificate of such Lender setting forth the amount to be paid to such Lender by Duratek as a result of any event referred to in this paragraph and supporting calculations in reasonable detail shall be conclusive, absent manifest error.  For the avoidance of doubt, this Section 2.13 shall not apply to Taxes.

 

Section 2.14            Taxes .

 

(a)            Subject to the exclusions and limitations of this Section 2.14 and subject to the Lenders’ compliance with Section 2.14(f) , any and all payments by any Loan Party hereunder or under the other Loan Documents shall be made free and clear of and without deduction or withholding for any and all present or future taxes, levies, imposts, deductions, charges or withholdings (“ Taxes ”) imposed or assessed on or with respect to payments made under this Agreement or the other Loan Documents by the United States of America or any political subdivisions thereof or therein or any other jurisdiction (including non-U.S. jurisdictions), and all liabilities with respect hereto or thereto (but excluding any tax imposed on or measured by the net income or profits of a Lender or franchise taxes imposed in lieu of net income taxes on overall gross receipts, or any other similar taxes imposed, in each case, as a result of such Lender being organized in, having its principal office or applicable lending office in, engaging in a trade or business in, or having a present or former connection with the jurisdiction imposing such Tax (other than any such trade or business, or connection arising or deemed to arise solely or primarily from any transactions contemplated by this Agreement) (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “ Covered Taxes ”).

 

If any Loan Party shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender, (i) the sum payable shall be increased as may be necessary so that after making all required deductions or withholdings on account of Covered Taxes (including deductions applicable to additional sums payable under this Section 2.14(a) ) such Lender receives an amount equal to the sum it would have received had no such deductions or withholdings of Covered Taxes been made, (ii) the applicable Loan Party shall make such deductions or withholdings, and (iii) the applicable Loan Party shall pay the full amount of Covered Taxes deducted to the relevant taxation authority or other authority in accordance with Applicable Law.

 

(b)            Duratek agrees to pay any present or future recordation, transfer, mortgage, stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including any interest and penalties related thereto) imposed by the United States of America or any political subdivision thereof or any other jurisdiction (including non-U.S. jurisdictions) that arise from the execution, delivery, registration of, performance under, or enforcement of, this Agreement or any other Loan Document (hereinafter referred to as “ Other Taxes ”).

 

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(c)            Without duplication of its obligation to pay increased amounts on account of Covered Taxes and Other Taxes pursuant to Sections 2.14(a)  and (b) , respectively, Duratek shall indemnify each Lender for the full amount of Covered Taxes and Other Taxes (including, without limitation, any Covered Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.14 ) paid by such Lender and any penalties, interest and expenses arising therefrom or with respect thereto, whether or not such Covered Taxes or Other Taxes were correctly or legally asserted.  Payment by Duratek pursuant to this indemnification shall be made within thirty (30) days from the date such Lender (as the case may be) makes written demand therefor (submitted through the Administrative Agent).  A Lender’s failure to provide notice to Duratek shall not relieve Duratek of any of its obligations under this Section 2.14 .  Notwithstanding the foregoing, where notice is not given within one hundred twenty (120) days after the Lender has actual notice of the assertion of taxes and Duratek does not otherwise have notice of such assertion, no indemnification shall be required for penalties, additions to tax, expenses, and interest accruing on such Covered Taxes or Other Taxes from the date one hundred twenty (120) days after the Lender has actual notice of the assertion of such taxes until the date such notice was actually received by Duratek.

 

(d)            Within thirty (30) days after the date of any payment of Covered Taxes or Other Taxes by any Loan Party, such Loan Party shall furnish to the Administrative Agent, at its address referred to in Section 11.1 hereof, the original or a certified copy of a receipt evidencing payment thereof.  The applicable Loan Party shall compensate each Lender to the extent that such Lender is required to pay any Covered Taxes or Other Taxes (or applicable penalties, interest and expenses) as a result of any failure by such Loan Party to so furnish such copy of such receipt.

 

(e)            The agreements and obligations of the Loan Parties contained in this Section 2.14 shall survive the indefeasible payment in full of the Obligations.

 

(f)             Notwithstanding any provision to the contrary in this Agreement, to the extent that such Person is at such time legally entitled to do so, on the date a Person becomes an Agent or Lender hereunder and at such other times as reasonably requested by Duratek or the Administrative Agent in writing, such Person must provide to Duratek and the Administrative Agent two properly completed and duly executed originals of each of the following, as applicable:  (i) Form W-8ECI (in the case of a non-U.S. Person claiming exemption from withholding because the income is effectively connected with a U.S. trade or business), (ii) Form W-8BEN (in the case of a non-U.S. Person claiming exemption from, or reduction of, withholding tax under an income tax treaty or under the portfolio interest exemption), (iii) with respect to any interest in this Agreement in which a participation has been sold, a Form W-8IMY along with accompanying Form W-8BEN (claiming exemption from withholding under the portfolio interest exemption), (iv) any other applicable form, certificate or document necessary to establish such non-U.S. Person’s entitlement to exemption from United States federal withholding tax or reduced rate with respect to all payments to be made to such non-U.S. Person under this Agreement, or (v) Form W-9 (claiming exemption from backup withholding tax), or any successor forms.  Each Agent and Lender agrees that from time to time after the Original Agreement Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Agent or Lender will, to the extent that such Agent or Lender is at such time legally entitled to do so, deliver to Duratek and the Administrative Agent two new accurate and complete original signed copies of the applicable certification form.  Notwithstanding anything to the contrary in this Section 2.14 , a Lender shall not be entitled to payment on account of or indemnification for Covered Taxes that are U.S. federal withholding Taxes that are imposed pursuant to a law in effect at the time such Lender becomes a party to this Agreement, except, in the case of an assignee to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Loan Parties with respect to such Tax pursuant to Section 2.14(a)  and a Lender shall not be entitled to a payment on account of or indemnification for such

 

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Covered Taxes to the extent such Taxes result from the failure of such Lender to comply with the documentation requirements of this Section 2.14(f) .

 

(g)            If the Administrative Agent or any Lender determines, in its good faith sole discretion, that it has received a refund of any Covered Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which the Loan Party has paid additional amounts pursuant to this Section 2.14 , it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.14 with respect to the Covered Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender and without interest (other than any interest paid by the relevant governmental authority with respect to such refund); provided , that the Loan Party, upon the request of such Agent or such Lender, agrees to repay the amount paid over to such Loan Party to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such governmental authority.