TABLE OF CONTENTS

 

		Page
ARTICLE 1.
Definitions
Section 1.1	Defined Terms	2
Section 1.2	Defined Agreements as Modified	37
Section 1.3	Computation of Time Periods; Other Definitional Provisions	37
Section 1.4	Accounting Terms	37
Section 1.5	Pro Forma Calculations	37
ARTICLE 2.
Loans and Letters of Credit
Section 2.1	The Loans and the Letters of Credit	37
Section 2.2	Manner of Borrowing and Disbursement	39
Section 2.3	Interest	44
Section 2.4	Repayment	45
Section 2.5	Fees	47
Section 2.6	Optional Prepayments and Application of Prepayments	48
Section 2.7	Synthetic Deposit Reductions	48
Section 2.8	Mandatory Prepayments	49
Section 2.9	Evidence of Debt	50
Section 2.10	Manner of Payment	51
Section 2.11	Reimbursement	53
Section 2.12	Pro Rata Treatment	54
Section 2.13	Capital Adequacy	54
Section 2.14	Taxes	55
Section 2.15	Increase in Commitments	58
Section 2.16	Synthetic Deposit Account	60
Section 2.17	Synthetic Letters of Credit	63
Section 2.18	Termination and Reduction of Commitments	65
ARTICLE 3.
Conditions Precedent
Section 3.1	Conditions Precedent to Initial Loans	66
Section 3.2	Conditions Precedent to Each Loan	70

 

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		Page
ARTICLE 4.
Representations and Warranties
Section 4.1	Representations and Warranties	71
Section 4.2	Survival of Representations and Warranties, Etc.	80
ARTICLE 5.
General Covenants
Section 5.1	Preservation of Existence and Similar Matters	81
Section 5.2	Business; Compliance with Applicable Law	81
Section 5.3	Maintenance of Properties	81
Section 5.4	Accounting Methods and Financial Records	81
Section 5.5	Insurance	82
Section 5.6	Payment of Taxes and Claims	83
Section 5.7	Visits and Inspections	83
Section 5.8	Payment of Indebtedness; Loans	83
Section 5.9	Use of Proceeds	84
Section 5.10	Real Estate	84
Section 5.11	Indemnity	84
Section 5.12	Interest Rate Hedging	85
Section 5.13	Covenants Regarding Formation of Subsidiaries and the Making of Acquisitions	86
Section 5.14	Maintenance of Rating	87
Section 5.15	Environmental Compliance	87
Section 5.16	Required Consents and Transfer of Licenses in Event of Default	88
Section 5.17	Subordination of Intercompany Loans	89
ARTICLE 6.
Information Covenants
Section 6.1	Quarterly and Interim Financial Statements and Information	89
Section 6.2	Annual Financial Statements and Information	89
Section 6.3	Performance Certificates	90
Section 6.4	Copies of Other Reports	90
Section 6.5	Notice of Litigation and Other Matters	91
ARTICLE 7.
Negative Covenants
Section 7.1	Indebtedness of Parent, EnergySolutions and Its Subsidiaries	92
Section 7.2	Limitation on Liens	95

 

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		Page
Section 7.3	Amendment and Waiver	96
Section 7.4	Liquidation, Merger, Disposition of Assets	96
Section 7.5	Limitation on Guarantees	97
Section 7.6	Investments and Acquisitions	97
Section 7.7	Financial Covenants	100
Section 7.8	Affiliate Transactions and Restricted Payments	101
Section 7.9	Real Estate	102
Section 7.10	ERISA Liabilities	102
Section 7.11	Limitation on Preferred Stock	102
Section 7.12	Negative Pledge	102
Section 7.13	Payment Restrictions Affecting Subsidiaries	103
Section 7.14	Speculative Transactions	104
Section 7.15	Name, Jurisdiction of Organization and Business	104
Section 7.16	[Reserved]	104
Section 7.17	Permitted Activities of Holdings and Parent	104
ARTICLE 8.
Default
Section 8.1	Events of Default	105
Section 8.2	Remedies	108
Section 8.3	Payments Subsequent to Declaration of Event of Default	109
Section 8.4	Actions in Respect of the Letters of Credit upon Default	109
Section 8.5	Certain Cure Rights	109
ARTICLE 9.
The Agents
Section 9.1	Appointment and Authorization	110
Section 9.2	Interest Holders	111
Section 9.3	Consultation with Counsel	111
Section 9.4	Documents	111
Section 9.5	CNAI and Affiliates	111
Section 9.6	Responsibility of the Administrative Agent and the Collateral Agent	111
Section 9.7	Collateral and Guaranty Matters	112
Section 9.8	Action by the Administrative Agent and the Collateral Agent	113
Section 9.9	Notice of Default or Event of Default	113
Section 9.10	Responsibility Disclaimed	114
Section 9.11	Indemnification	114
Section 9.12	Credit Decision	116
Section 9.13	Successor Agents	116
Section 9.14	Delegation of Duties	117
Section 9.15	Additional Agents	118
Section 9.16	Administrative Agent May File Proofs of Claim	118

 

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		Page
Section 9.17	Security Documents	119
ARTICLE 10.
Change in Circumstances Affecting Fixed Rate Loans
Section 10.1	Eurodollar Basis Determination Inadequate or Unfair	119
Section 10.2	Illegality	119
Section 10.3	Increased Costs	120
Section 10.4	Effect on Other Loans	122
ARTICLE 11.
Miscellaneous
Section 11.1	Notices	122
Section 11.2	Costs and Expenses	124
Section 11.3	Waivers	125
Section 11.4	Set-Off	125
Section 11.5	Binding Effect and Assignment	126
Section 11.6	Accounting Principles	129
Section 11.7	Counterparts	129
Section 11.8	Governing Law and Jurisdiction	129
Section 11.9	Severability	130
Section 11.10	Interest	130
Section 11.11	Table of Contents and Headings	131
Section 11.12	Amendment and Waiver	131
Section 11.13	Entire Agreement	133
Section 11.14	Other Relationships	133
Section 11.15	Directly or Indirectly	133
Section 11.16	Reliance on and Survival of Various Provisions	133
Section 11.17	Senior Debt	133
Section 11.18	Obligations Several	133
Section 11.19	Confidentiality	134
Section 11.20	No Liability of the Issuing Banks	134
Section 11.21	Patriot Act Notice	135
Section 11.22	Performance	135
Section 11.23	The Platform	135
Section 11.24	Conversion of Currencies	136
ARTICLE 12.
Waiver of Jury Trial
Section 12.1	Waiver of Jury Trial	137

 

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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	-	Form of Revolving Note
Exhibit F	-	[Reserved]
Exhibit G	-	Form of Request for Term Loan Eurodollar Basis
Exhibit H	-	Form of 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 Term 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 Third Amended and Restated Credit Agreement Effective Date
Schedule 4-A	-	Revolving Commitments of the Revolving Lenders and Such Lenders’ Addresses for Notice
Schedule 4-B	-	Term Loan Commitments of the Term Lenders and Such Lenders’ Addresses for Notice
Schedule 4-C	-	Synthetic Deposit Percentages of the Synthetic 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

 

vi

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

 

This THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of September 23, 2009, is made by and among ENERGYSOLUTIONS, LLC, a Utah limited liability company (“ EnergySolutions ”), ENERGYSOLUTIONS, INC. (“ Parent ”), 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 ”), as successor agent (the “ Successor Agent ”), as the initial revolving issuing bank (the “ Initial Revolving Issuing Bank ”) and as the initial synthetic issuing bank (the “ Initial Synthetic Issuing Bank ”).

 

WITNESSETH :

 

WHEREAS, EnergySolutions, ENV Holdings LLC (“ Holdco ”), certain lenders party thereto and Calyon New York Branch (“ Calyon ”), as administrative agent, syndication agent, documentation agent and sole lead arranger, entered into that certain credit agreement, dated as of January 31, 2005 and first amended and restated as of April 13, 2005 and as further amended on February 1, 2006 (the “ Original Credit Agreement ”);

 

WHEREAS, the parties to the Original Credit Agreement amended and restated the Original Credit Agreement 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 “ Second Amended and Restated Credit Agreement ”) and whereby CNAI replaced Calyon as administrative agent and collateral agent;

 

WHEREAS, Duratek, Inc., a Delaware corporation (“ Duratek ”), certain lenders thereto, CGMI as sole lead arranger and bookrunner, CNAI as administrative agent, collateral agent and 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 “ Duratek Loan Agreement ”);

 

WHEREAS, the parties hereto desire to amend and restate the Second Amended and Restated Credit Agreement in its entirety, on the terms and subject to the conditions set forth herein, to: (a) allow 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, located in Zion, Illinois and to consummate the related transactions, as described in the Zion Agreements (as defined herein) (the “ Zion Acquisition ”), (b) allow EnergySolutions to establish a new, one year (with customary one year renewal provisions), unfunded incremental letter of credit facility (the “ Zion Incremental Facility ”) and/or third party credit support facility in aggregate principal amount not to exceed $50,000,000 for related purposes, (c) permit EnergySolutions to incur additional unsecured debt under certain circumstances, (d) reset certain financial covenants and (e) make other amendments as set forth herein (collectively, the “ Amendment Transactions ”);

 

WHEREAS, the Obligations (as defined in the Second Amended and Restated Credit Agreement, hereinafter the “ Second Amended and Restated Credit Obligations ”) of EnergySolutions

 

 

and the other Loan Parties under the Second Amended and Restated Credit Agreement and the Security Documents (as defined in the Second Amended and Restated Credit Agreement, such Security Documents hereinafter the “ Second Amended and Restated Security Documents ”) are secured by certain collateral (hereinafter the “ Second Amended and Restated Collateral ”) and are guaranteed or supported or otherwise benefited by the Second Amended and Restated Security Documents;

 

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

 

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the Second Amended and Restated Credit 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 Third Amended and Restated Credit Agreement Effective Date pursuant to Section 5.10 hereof, as the same may hereafter be amended, modified, supplemented or restated from time to time.

 

2

 

“ 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 Parent, EnergySolutions or any of their Subsidiaries, (iii) matures no earlier than 180 days after the Term Loan Maturity Date, (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, Duratek 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 No. 36852248  Attention:  Christina Quezon, or such other account as the Administrative Agent shall specify from time to time in writing to the Lender Parties.

 

“ 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 Currency ” shall have the meaning set forth in Section 11.24(b) .

 

“ Agreement Date ” shall mean January 31, 2005.

 

3

 

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

 

“ Applicable Creditor ” shall have the meaning set forth in Section 11.24(b) .

 

“ 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 and Synthetic Deposits 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 Party, any fund that invests in commercial loans and is managed or advised by such Lender Party or an Affiliate of such Lender Party, or by the same investment advisor as such Lender Party 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 .

 

“ Assumption Agreement ” shall mean that certain assumption agreement dated as of June 7, 2006 made by Duratek surviving the merger of Dragon Merger Corporation, a Delaware corporation, with and into Duratek.

 

“ 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.

 

“ 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.

 

4

 

“ Available Amount ” of any Letter of Credit shall mean, at any time, (i) if the Letter of Credit is denominated in Dollars, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing) and (ii) if the Letter of Credit is denominated in an Available Foreign Currency, the Dollar Equivalent of the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).

 

“ Available Foreign Currencies ” shall mean Canadian Dollars and Euro or such other currency as agreed to by the Administrative Agent and EnergySolutions.

 

“ 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 ½ 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 Option Loan(s) ” shall mean any or all of a Base Rate Term Loan and a Base Rate Revolving Loan, as the context may require.

 

“ Base Rate Revolving Loan ” shall mean the portion of the Revolving Loans as to which EnergySolutions has elected the Base Rate Basis for the interest rate thereon, in accordance with the provisions of Section 2.2 hereof, and which, except in the case of a Base Rate Revolving Loan the proceeds of which shall be used solely to repay or prepay in full outstanding Letter of Credit Loans, shall be in a principal amount of at least $500,000 and in an integral multiple of $100,000.

 

“ Base Rate Term Loan ” shall mean the portion of the Term Loans as to which EnergySolutions 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 Option 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.

 

“ Canadian Dollars ” shall mean lawful money of Canada.

 

5

 

“ 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 Collateral Account ” shall mean a blocked deposit account at CNAI (or another commercial bank which has executed a control agreement in accordance with the provisions of the Security Documents) in the name of the Collateral Agent and under the sole dominion and control of the Collateral Agent, and otherwise established in a manner satisfactory to the Collateral Agent.

 

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

 

“ 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.

 

6

 

“ 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.

 

“ Collateralized Letter of Credit ” shall mean any Revolving Letter of Credit as to which an amount of cash not less than the Available Amount thereof has been deposited in an L/C Collateral Account in respect thereof.

 

“ Commitment ” shall mean the Term Commitment, the Revolving Commitment, the Revolving Letter of Credit Commitment, the Reclamation L/C Facility Commitment, the Synthetic Letter of Credit Commitment and the Zion Incremental Facility Commitment.

 

“ 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) .

 

“ 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.

 

7

 

“ 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.

 

“ Disbursement ” shall have the meaning set forth in Section 2.17(d) .

 

“ Dollar Equivalent ” shall mean, on any date of determination, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Available Foreign Currency, the equivalent in Dollars of such amount, determined by the Administrative Agent using the applicable Exchange Rate.

 

“ 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 recitals 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 Guaranty ” shall mean that certain Duratek Guaranty, dated as of June 7, 2006, in favor of the Collateral Agent, for itself and for the ratable benefit of the Secured Parties, given by Duratek.

 

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

 

“ Duratek Loan Documents ” shall mean the Duratek Loan 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 loans issued pursuant to the Duratek Loan Agreement.

 

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

 

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

 

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“ EnergySolutions Pledge Agreement ” shall mean that certain Pledge Agreement, dated as of the Agreement Date, as amended and restated as of June 7, 2006, between EnergySolutions and the Collateral Agent.

 

“ EnergySolutions Security Agreement ” shall mean that certain Security Agreement, dated as of the Agreement Date, as amended and restated as of June 7, 2006, between EnergySolutions and the Collateral Agent.

 

“ 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

 

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by any court or 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.

 

“ Euro ” shall mean the single currency of the Participating Member States.

 

“ 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 Option Loan(s) ” shall mean any or all of a Eurodollar Term Loan and a Eurodollar Revolving Loan, as the context may require.

 

“ 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

 

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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 Option 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 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 Option Loans is determined) having a term equal to such Interest Period.

 

“ Eurodollar Revolving Loan ” shall mean any portion of the Revolving Loans as to which EnergySolutions 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 $1,000,000 and in an integral multiple of $500,000.

 

“ Eurodollar Term Loan ” shall mean any portion of the Term Loans as to which EnergySolutions 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.

 

“ 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 (calculated by excluding from Operating Cash Flow (x) the net income of Duratek and its Subsidiaries on a consolidated basis determined in accordance with GAAP, (y) any items that would be added to the net income of Duratek

 

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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 Parent and its Subsidiaries) and (z) the costs, expenses and charges 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 Parent and its Subsidiaries (other than 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 Parent and cash Taxes paid by Parent and its Subsidiaries (other than Duratek and its Subsidiaries) during such fiscal quarter; (iii) Debt Service paid by Parent and its Subsidiaries (other than 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 Parent and Permitted Advisory Fees for such fiscal quarter and (v) cash paid by Parent or any of the Subsidiaries (other than Duratek and its Subsidiaries) in respect of a Permitted Acquisition during such fiscal quarter; provided that “Duratek and its Subsidiaries” shall not include Parent and its Subsidiaries if Parent is a Subsidiary of Duratek.

 

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

 

“ Exchange Rate ” shall mean, on any day with respect to any Available Foreign Currency, the rate at which such Available Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for such Available Foreign Currency; in the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as determined by the Administrative Agent, or, in the absence of such publicly available service, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such Available Foreign Currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of Dollars for delivery two Business Days later.

 

“ 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 EnergySolutions or Parent 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

 

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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 Third Amended and Restated Credit Agreement Effective 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 in connection with certain of the Loans and the Commitments created hereunder.

 

“ 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 .

 

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

 

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

 

“ Guarantors ” shall mean Parent, 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’ or Parent’s (as the case may be) interest rate risk with respect to its Obligations permitted under this Agreement.

 

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

 

“ Increase Effective Date ” shall have the meaning set forth in Section 2.15(a) .

 

“ Incremental Commitment Cap ” shall mean $50,000,000 less the sum of (i) Incremental Commitments, (ii) Incremental Term Commitments and (iii) Reclamation L/C Facility Commitments.

 

“ Incremental Commitments ” shall have the meaning set forth in Section 2.15(a) .

 

“ Incremental Term Commitment ” shall have the meaning set forth in Section 2.15(a) .

 

“ Incremental Term Loans ” shall have the meaning set forth in Section 2.15(c)(i) .

 

“ 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,

 

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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.

 

“ 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 shall be included only to the extent of any unreimbursed Disbursements.  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 shall constitute Indebtedness for Money Borrowed.

 

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

 

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

 

“ Initial Revolving Issuing Bank ” shall have the meaning set forth in the preamble to this Agreement.

 

“ Initial Synthetic Issuing Bank ” shall have the meaning set forth in the preamble to this Agreement.

 

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

 

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“ 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 Option 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 Option 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, (b) in connection with any Eurodollar Option Loan, the term of the related Eurodollar Period selected by EnergySolutions or otherwise determined in accordance with this Agreement and (c) in connection with any Synthetic Deposit, the period beginning on (and including) the date on which such Synthetic Deposit is deposited or on the last day of the preceding Interest Period and ending on (but excluding) the date which is 30 days thereafter.  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 Option 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 Option 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 Term Loan Maturity Date or the Revolving Maturity Date with respect to Interest Periods applicable to Revolving Loans and Term Loans or such earlier date as would interfere with EnergySolutions’ 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 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.

 

“ Issuing Banks ” shall mean the Revolving Issuing Bank and the Synthetic Issuing Bank.

 

“ Judgment Currency ” shall have the meaning set forth in Section 11.24(ii) .

 

“ L/C Collateral Account ” shall mean an interest bearing cash collateral account to be established and maintained by the Administrative Agent, over which the Administrative Agent

 

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shall have sole dominion and control, upon terms as may be satisfactory to the Administrative Agent.

 

“ L/C Disbursement ” shall mean a payment or disbursement made by the Revolving Issuing Bank pursuant to a Revolving Letter of Credit.

 

“ L/C Related Documents ” shall have the meaning set forth in Section 2.4(d)(ii)(A) .

 

“ Latest Financial Reporting Date ” shall have the meaning set forth in Section 7.1(w) .

 

“ Lender Party ” shall mean any Lender or any Issuing Bank.

 

“ Lenders ” shall mean each financial institution party to the Original Credit Agreement or Second Amended and Restated Credit Agreement or listed on the signature page hereto as a Lender or any other Person that has become a party to the Original Credit Agreement or the Second Amended and Restated Credit 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.

 

“ Letter of Credit ” shall mean, as the context may require, a Revolving Letter of Credit, a Synthetic Letter of Credit, a Reclamation Letter of Credit and the Zion Incremental Letter of Credit.

 

“ Letter of Credit Agreement ” shall mean, as the context may require, a Revolving Letter of Credit Agreement, a Synthetic Letter of Credit Agreement, a Reclamation Letter of Credit Agreement and a Zion Incremental Letter of Credit Agreement.

 

“ Letter of Credit Loan ” shall mean a funding made by the Revolving Issuing Bank or any Revolving Lender pursuant to Section 2.2(f)(ii) .

 

“ 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 the Subsidiaries, all of which are listed as of the Third Amended and Restated Credit Agreement Effective 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.

 

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“ Loan Documents ” shall mean this Agreement (including the Original Credit Agreement and the Second Amended and Restated Credit Agreement, as amended and restated hereby), the Assumption Agreement, any Notes, the Security Documents, the Guarantees, each Letter of Credit Agreement, 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, EnergySolutions, each Subsidiary Guarantor and Parent.

 

“ Loans ” shall mean, collectively, the Revolving Loans, the Letter of Credit Loans, the Term Loans and unreimbursed Disbursements in accordance with Section 2.17(d) .

 

“ 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 outstanding at such time, (b) the aggregate Available Amount of all Revolving Letters of Credit outstanding at such time, (c) the aggregate amount of Synthetic Deposits at such time, (d) the aggregate Unused Revolving Commitments at such time and (e) the aggregate principal amount of the Duratek Loans outstanding at such time; provided , however , that (I) if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Majority Lenders at such time (i) the aggregate principal amount of the Loans owing to such Lender (in its capacity as a Lender) and outstanding at such time, (ii) such Lender’s Pro Rata Share of the aggregate 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” (as defined in the Duratek Loan Agreement) at such time, there shall be excluded from the determination of Majority Lenders at such time the aggregate principal amount of the Duratek 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 owing to the Revolving Issuing Bank and (y) the Available Amount of each Revolving Letter of Credit shall be deemed “owed to” the Revolving Lenders ratably in accordance with their respective Revolving Commitments.

 

“ Majority Revolving Lenders ” shall mean, at any time, Revolving Lenders owed or holding at least a majority in interest of the sum, without duplication, of (a) the aggregate principal amount of the Revolving Loans outstanding at such time, (b) the aggregate Available Amount of all Revolving Letters of Credit outstanding at such time and (c) the aggregate Unused Revolving Commitments at such time; provided , however , that if any Revolving Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Majority Revolving Lenders at such time (i) the aggregate principal amount of the Revolving Loans owing to such Lender (in its capacity as a Revolving Lender) and outstanding at such time, (ii) such Lender’s Pro Rata Share of the aggregate Available Amount of all Revolving Letters of Credit outstanding at such time and (iii) the Unused Revolving Commitment of such Lender at such time.  For purposes of this definition, the aggregate principal amount of (x) Letter of Credit Loans owing to the Revolving Issuing Bank and (y) the Available Amount of each Revolving Letter of Credit shall be deemed “owed to” the Revolving Lenders ratably in accordance with their respective Revolving Commitments.

 

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“ Material Adverse Change ” shall mean (A) as of June 7, 2006, 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.

 

“ 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 Third Amended and Restated Credit Agreement Effective 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.

 

“ Mortgage Policy ” shall mean (i) each Existing Mortgage Policy together with any and all endorsements thereto issued, or to be issued, in favor of Collateral Agent, (ii) each mortgagee title insurance policy issued, or to be issued, in favor of 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.

 

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“ Mortgaged Property ” shall mean (a) as of the Third Amended and Restated Credit Agreement Effective 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 arm’s-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.

 

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

 

“ Non-U.S. Jurisdiction ” shall mean each jurisdiction of organization of a Subsidiary of 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, collectively, the Revolving Notes and the Term Notes.

 

“ Notice of Issuance ” shall have the meaning set forth in Section 2.2(f)(i) .

 

“ 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 Lender Parties, Affiliates of the Lender Parties in connection with this Agreement and the other Loan Documents (including any Letter of Credit commissions, interest, fees and other charges on the Loans or Synthetic Deposits 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 or Synthetic Deposits, 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 Lender Parties, 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

 

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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 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 Credit 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 preamble 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.

 

“ Participating Member State ” shall mean any member state of the European Community that adopts or had adopted the euro as its lawful currency in accordance with legislation of the European Community relating to the Economic and Monetary Union.

 

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

 

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“ 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 Third Amended and Restated Credit Agreement Effective 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 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

 

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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 setoff) and which are within the general parameters customary in the banking industry;

 

(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;

 

(l)            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 Duratek Loan 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 Third Amended and Restated Credit Agreement Effective Date, Liens (x) on the assets or properties of, or on any general or limited partnership

 

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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 except for ZionSolutions 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 Third Amended and Restated Credit Agreement Effective 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 Third Amended and Restated Credit Agreement Effective Date.

 

“ 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

 

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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 Third Amended and Restated Credit Agreement Effective 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 Parent 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.

 

“ Post-Increase Revolving Lenders ” shall have the meaning set forth in Section 2.15(d) .

 

“ Pre-Increase Revolving Lenders ” shall have the meaning set forth in Section 2.15(d) .

 

“ Primary Equity Sponsors ” shall mean LGB and WPG.

 

“ Pro Rata Share ” of any amount shall mean (i) with respect to any Revolving Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Revolving Commitment at such time and the denominator of which is the aggregate Revolving Commitments at such time.

 

“ Property ” shall mean property now or hereafter owned, operated or leased by EnergySolutions or the 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, reorganization or any other method) the acquisition by EnergySolutions or

 

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any of the 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.

 

“ Reclamation L/C Facility Commitment ” shall mean Commitments issued pursuant to Section 2.15(a)  with respect to Reclamation L/C Facility Commitments relating to Obligations of a Special Purpose Subsidiary.

 

“ Reclamation L/C Facility Commitment Cap ” shall mean $50,000,000.

 

“ Reclamation L/C Facility Maturity Date ” shall mean one year from the date of issuance of any Reclamation Letter of Credit with customary one year renewal provisions; provided that in no event shall the Reclamation L/C Facility Maturity Date be later than the Term Loan Maturity Date.

 

“ Reclamation Letter of Credit ” shall mean any Letter of Credit issued under a Reclamation L/C Facility Commitment pursuant to a Reclamation Letter of Credit Agreement.

 

“ Reclamation Letter of Credit Agreement ” shall mean an application and agreement for a Reclamation Letter of Credit.

 

“ 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 requesting a Revolving Loan hereunder, which shall be in substantially the form of Exhibit D attached hereto and shall, among other things, (a) specify the date of the Revolving Loan, which shall be a Business Day, the amount of the Revolving Loan, Type of Loan, and, with respect to a Eurodollar Revolving Loan, the Interest Period selected by EnergySolutions, and (b) state that there shall not exist, on the date of the requested Revolving Loan, both before and after giving effect thereto, a Default.

 

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“ Request for Term Loan Eurodollar Basis ” shall mean a certificate designated as a “Request for Term Loan Eurodollar Basis” signed by an Authorized Signatory requesting that a portion of the Term Loans complying with the requirements of this Agreement applicable to Eurodollar Term 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.

 

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

 

“ Revolving Issuing Bank ” shall mean (i) the Initial Revolving Issuing Bank and any assignee to which a Revolving Letter of Credit Commitment hereunder has been assigned pursuant to Section 11.5 so long as each such assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as the Revolving Issuing Bank and notifies the Administrative Agent of the amount of its Revolving Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register), for so long as the Initial Revolving Issuing Bank or assignee, as the case may be, shall have a Revolving Letter of Credit Commitment and (ii) with respect to the existing letters of credit set forth on Schedule 4-B hereto, each Lender identified as a “Revolving Issuing Bank” on such schedule.

 

“ Revolving Lender ” shall mean a Lender that has a Revolving Commitment.

 

“ Revolving Letter of Credit ” shall have the meaning set forth in Section 2.1(d) , but shall include those letters of credit existing on the Second Amendment Effective Date.

 

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“ Revolving Letter of Credit Agreement ” shall have the meaning set forth in Section 2.2(f)(i) .

 

“ Revolving Letter of Credit Commitment ” shall mean, with respect to the Revolving Issuing Bank, an amount equal to $60,000,000.

 

“ Revolving Loans ” shall mean, collectively, the amount advanced by the Revolving Lenders to EnergySolutions under the Revolving Commitments, not to exceed the aggregate amount of the Revolving Commitments.

 

“ Revolving Maturity Date ” shall mean June 7, 2011.

 

“ Revolving Notes ” shall mean those certain revolving promissory notes in the aggregate original principal amount of $75,000,000, one issued by EnergySolutions to each of the Revolving Lenders issuing a Revolving Commitment that requests a promissory note, in accordance with each such Revolving Lender’s Revolving Commitment, each one substantially in the form of Exhibit E attached hereto, and any extensions, modifications, renewals, endorsements or replacements of or amendments to any of the foregoing.

 

“ Revolving Notice of Renewal ” shall have the meaning set forth in Section 2.1(d) .

 

“ Revolving Notice of Termination ” shall have the meaning set forth in Section 2.1(d) .

 

“ Rollover Letter of Credit ” shall have the meaning set forth in Section 2.17(b) .

 

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

 

“ Second Amendment Effective Date ” shall mean June 7, 2006.

 

“ Second Amended and Restated Credit Agreement ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Second Amended and Restated Credit Obligations ” from the fifth recital.

 

“ Second Amended and Restated Collateral ” from the fifth recital.

 

“ Second Amended and Restated Security Documents ” from the fifth recital.

 

“ 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 Lender Parties 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

 

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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 Agreements and any additional security agreement substantially in the form of Exhibit I , Exhibit J-1 or Exhibit J-2 , respectively, 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 Third Amended and Restated Credit Agreement Effective Date or with respect to any transaction contemplated or undertaken after the Third Amended and Restated Credit Agreement Effective 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.

 

“ 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

 

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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 Third Amended and Restated Credit Agreement Effective 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 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 June 6, 2006, between the 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 June 6, 2006, 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-2 attached hereto.

 

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

 

“ Successor Agent Agreement ” shall mean that certain agreement, dated as of June 7, 2006, between Calyon and CNAI, pursuant to which CNAI assumed all the rights and obligations of Calyon as Collateral Agent hereunder.

 

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

 

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

 

“ Synthetic A Deposits ” shall mean those Synthetic A Deposits established pursuant to the Second Amended and Restated Credit Agreement.

 

“ Synthetic Deposit ” shall mean, with respect to each Synthetic Lender at any time, amounts actually on deposit in the Synthetic Deposit Account to the credit of such Lender’s Synthetic Deposit Sub-Account at such time.

 

“ Synthetic Deposit Account ” shall mean the account established by the Administrative Agent at Citibank, N.A. with the title “Synthetic Lenders (EnergySolutions) Credit-Linked Deposit Account” pursuant to Section 2.16(a) .

 

“ Synthetic Deposit Amount ” shall mean, with respect to any Synthetic Lender, an amount equal to the product of (a) such Lender’s Synthetic Deposit Percentage and (b) the Synthetic Facility Available Amount.

 

“ Synthetic Deposit Percentage ” shall mean, with respect to any Synthetic Lender, the percentage of the total Synthetic Deposits represented by such Lender’s Synthetic Deposit.  If the Synthetic Deposits have been reduced to zero, the Synthetic Deposit Percentages shall be determined based upon the Synthetic Deposits most recently in effect, giving effect to any assignments.  Each Synthetic Lender’s Synthetic Deposit Percentage on the Second Amendment Effective Date is set forth opposite it’s name on  Schedule 4-C hereto under the caption “Synthetic Deposit Percentage” or, if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 11.5(c) .

 

“ Synthetic Deposit Sub-Account ” shall have the meaning set forth in Section 2.16(a) .

 

“ Synthetic Deposit Return ” shall have the meaning set forth in Section 2.16(d) .

 

“ Synthetic Facility Available Amount ” shall mean $100,000,000 less (i) the aggregate amount of all Synthetic Deposits returned to Lenders pursuant to Section 2.7 and (ii) the Dollar Equivalent of the amount of unreimbursed Disbursements in accordance with Section 2.16(c)(i) .

 

“ Synthetic Facility Availability Date ” shall mean any Business Day on or after the establishment of the Synthetic Deposit Account pursuant to Section 2.16(a) .  On such date, after giving effect to any Rollover Letters of Credit being deemed Synthetic Letter of Credit hereunder, the Available Amount for all Revolving Letters of Credit shall not exceed $60,000,000.

 

“ Synthetic Issuing Bank ” shall mean the Initial Synthetic Issuing Bank and any other Person deemed to be a Synthetic Issuing Bank pursuant to Section 2.17(b)  and any assignee (i) consented to by the Administrative Agent and EnergySolutions (each such consent not to be unreasonably withheld or delayed) and (ii) to which a Synthetic Deposit hereunder has been assigned pursuant to Section 11.5 so long as each such assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required

 

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to be performed by it as the Synthetic Issuing Bank and notifies the Administrative Agent of the amount of its Synthetic Deposit (which information shall be recorded by the Administrative Agent in the Register), for so long as the Initial Synthetic Issuing Bank or assignee, as the case may be, shall have a Synthetic Deposit.

 

“ Synthetic Lender ” shall mean, as of any time of determination, any Lender which has a Synthetic Deposit Percentage greater than 0%.

 

“ Synthetic Letter of Credit ” shall have the meaning set forth in Section 2.17(a) .

 

“ Synthetic Letter of Credit Agreement ” shall have the meaning set forth in Section 2.2(f)(i) .

 

“ Synthetic Letter of Credit Commitment ” shall mean the Synthetic Issuing Bank’s obligation to issue Synthetic Letters of Credit pursuant to Section 2.17(a)  and, with respect to each Synthetic Lender, such Lender’s Synthetic Letter of Credit Participation Obligation.

 

“ Synthetic Letter of Credit Maturity Date ” shall mean June 7, 2013.

 

“ Synthetic Letter of Credit Outstandings ” shall mean, at any time of determination, the sum of (i) the aggregate Available Amount of all issued and outstanding Synthetic Letters of Credit plus (ii) all outstanding Synthetic Reimbursement Obligations.

 

“ Synthetic Letter of Credit Participation Obligation ” shall have the meaning set forth in Section 2.17(c) .

 

“ Synthetic Notice of Renewal ” shall have the meaning set forth in Section 2.17(a) .

 

“ Synthetic Notice of Termination ” shall have the meaning set forth in Section 2.17(a) .

 

“ Synthetic Reimbursement Obligation ” shall have the meaning set forth in Section 2.17(d) .

 

“ 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 ,

 

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

 

“ Term Facility ” shall mean, at any time, the aggregate amount of the Term Loans at such time.

 

“ Term Lender ” shall mean any Lender that has a Term Commitment.

 

Term Loan 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).

 

“ Term Loans ” shall mean, collectively, the amounts advanced by the Term Lenders pursuant to the Term Commitments, as set forth on Schedule 4-B attached hereto.

 

“ Term Notes ” shall mean those certain term promissory notes, one issued to each of the Lenders listed on Schedule 4-B hereto that requests a promissory note, by EnergySolutions in the amount of each of such Lenders’ Term Loan to EnergySolutions, 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.

 

“ Third Amended and Restated Amendment Agreement ” shall mean that certain Third Amended and Restated Amendment Agreement, dated as of September 23, 2009, by and among EnergySolutions, the Administrative Agent and the Lenders signatories thereto.

 

“ Third Amended and Restated Credit Agreement Effective Date ” shall mean September 23, 2009.

 

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“ Type ” refers to the distinction (a) between Loans bearing interest at the Base Rate and Loans bearing interest at the Eurodollar Rate, (b) among the Revolving Loans, the Letter of Credit Loans and the Term Loans or (c) between the Revolving Commitment and the Revolving Letter of Credit Commitment.

 

“ U.K. Acquisition ” shall mean the acquisition by EnergySolutions or 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.

 

“ Unused Revolving Commitment ” shall mean, with respect to any Lender at any time, an amount equal to (a) such Lender’s Revolving Commitment at such time minus (b) the sum (without duplication) of (i) the aggregate principal amount of all Revolving Loans and Letter of Credit Loans made by such Lender (in its capacity as a Lender) and outstanding at such time and (ii) such Lender’s Pro Rata Share of (A) the aggregate Available Amount of all Revolving Letters of Credit outstanding at such time and (B) the aggregate principal amount of all Letter of Credit Loans made by the Revolving Issuing Bank pursuant to Section 2.2(f)(ii)  and outstanding at such time.

 

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

 

“ 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 Third Amended and Restated Credit Agreement Effective 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

 

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

 

“ Zion Incremental Facility Commitment ” shall mean Commitments issued pursuant to Section 2.15(a)  with respect to Zion Incremental Facility Commitments relating to Obligations of ZionSolutions.

 

“ 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.

 

“ Zion Incremental Facility Maturity Date ” shall mean one year from the date of issuance of the Zion Incremental Facility Letter of Credit with customary one year renewal provisions; provided that in no event shall the Zion Incremental Facility Maturity Date be later than the Term Loan Maturity Date.

 

“ Zion Incremental Letter of Credit ” shall mean any Letter of Credit issued under the Zion Incremental Facility Commitment pursuant to a Zion Incremental Letter of Credit Agreement.

 

“ Zion Incremental Letter of Credit Agreement ” shall mean an application and agreement for a Zion Incremental Letter of Credit.

 

“ 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.

 

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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.

 

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 and Letters of Credit

 

Section 2.1                The Loans and the Letters of Credit .

 

(a)           The Revolving Loans .  The Revolving Lenders agree, severally in accordance with their respective Revolving Commitments and not jointly, upon the terms and subject to the conditions of this Agreement, to lend and relend to EnergySolutions, on and after the Agreement Date and prior to the Revolving Maturity Date, amounts requested by EnergySolutions which, in the aggregate, do not exceed at any time the aggregate Revolving Commitments; provided that no Loan may be made at any time under this Section 2.1(a)  in an amount that shall exceed the

 

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aggregate Unused Revolving Commitments at such time.  Loans under the Revolving Commitment may be repaid and reborrowed as provided in Section 2.2 hereof.

 

(b)           The Term Loans .  The Term Loans bear interest at the Eurodollar Basis or the Base Rate Basis as provided in Section 2.2 hereof.  Term Loans repaid or prepaid may not be reborrowed.

 

(c)           [Reserved].

 

(d)           Revolving Letters of Credit .  The Revolving Issuing Bank agrees, on the terms and conditions hereinafter set forth, to issue (or cause any of its Affiliates that is a commercial bank to issue on its behalf) standby letters of credit (each a “ Revolving Letter of Credit ”) in Dollars or any Available Foreign Currency for the account of EnergySolutions or any of the Subsidiaries from time to time on any Business Day during the period from the Agreement Date until five days before the Revolving Maturity Date in an aggregate Available Amount (i) for all Revolving Letters of Credit not to exceed at any time the Revolving Letter of Credit Commitment at such time and (ii) for each such Revolving Letter of Credit not to exceed the aggregate Unused Revolving Commitments as of the date of issuance thereof.  No Revolving Letter of Credit shall have an expiration date later than the earlier of (i) one year after the date of issuance thereof, or (ii) five days before the Revolving Maturity Date, but may by its terms be renewable annually upon written notice (a “ Revolving Notice of Renewal ”) given to the Revolving Issuing Bank that issued such Revolving Letter of Credit and the Administrative Agent on or prior to any date for notice of renewal set forth in such Revolving Letter of Credit but in any event at least 10 Business Days prior to the date of the proposed renewal of such Revolving Letter of Credit and upon fulfillment of the applicable conditions set forth in Article 3 unless the Revolving Issuing Bank has notified EnergySolutions (with a copy to the Administrative Agent) on or prior to the date for notice of termination set forth in such Revolving Letter of Credit but in any event at least 5 Business Days prior to the date of automatic renewal of its election not to renew such Revolving Letter of Credit (a “ Revolving Notice of Termination ”); provided that the terms of each Revolving Letter of Credit that is automatically renewable annually shall (x) require the Revolving Issuing Bank that issued such Revolving Letter of Credit to give the beneficiary named in such Revolving Letter of Credit notice of any Revolving Notice of Termination, (y) permit such beneficiary, upon receipt of such notice, to draw under such Revolving Letter of Credit prior to the date such Revolving Letter of Credit otherwise would have been automatically renewed and (z) not permit the expiration date (after giving effect to any renewal) of such Revolving Letter of Credit in any event to be extended to a date later than five days before the Revolving Maturity Date.  If either a Revolving Notice of Renewal is not given by EnergySolutions or a Revolving Notice of Termination is given by the Revolving Issuing Bank pursuant to the immediately preceding sentence, such Revolving Letter of Credit shall expire on the date on which it otherwise would have been automatically renewed.  Within the limits of the Revolving Letter of Credit Commitment, and subject to the limits referred to above, EnergySolutions may request the issuance of Revolving Letters of Credit under this Section 2.1(d) , repay any Letter of Credit Loans resulting from drawings thereunder pursuant to Section 2.2(f)  and request the issuance of additional Revolving Letters of Credit under this Section 2.1(d) .  EnergySolutions shall be liable for all obligations in respect of each Revolving Letter of Credit issued for the account of any of the Subsidiaries, including, without limitation, the obligations to repay any Letter of Credit Loan in respect thereof under Section 2.4(c) .

 

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Section 2.2                Manner of Borrowing and Disbursement .

 

(a)           Choice of Interest Rate, Etc .

 

(i)            Any Loan under the Revolving Commitment or made as a Term Loan shall, at the option of EnergySolutions, bear interest as a Base Rate Option Loan, or, subject to Section 2.2(a)(ii)  and Article 10 hereof, a Eurodollar Revolving Loan or Eurodollar Term Loan, as the case may be.  Any notice given to the Administrative Agent in connection with a requested Loan hereunder shall be given to the 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 Revolving Loan or Eurodollar Term Loan shall be reduced, by payment or prepayment or otherwise, to less than $1,000,000 in the case of a Eurodollar Revolving Loan and $5,000,000 in the case of a Eurodollar Term Loan, such Eurodollar Option Loan shall automatically, on the last day of the then existing Interest Period therefor, be (1) reborrowed as a Base Rate Revolving Loan, in the case of any Eurodollar Revolving Loan or (2) continued as a Base Rate Term Loan, in the case of any Eurodollar Term Loan.

 

(B)           If EnergySolutions shall fail to select the duration of any Interest Period for any Eurodollar Revolving Loan or Eurodollar Term Loan in accordance with the provisions contained in the definition of “Interest Period” in Section 1.1 , the Administrative Agent will forthwith so notify EnergySolutions and the Lenders which have made such Eurodollar Option Loan, whereupon each such Eurodollar Option Loan shall automatically, on the last day of the then existing Interest Period therefor, be (1) reborrowed as a Base Rate Revolving Loan, in the case of a Eurodollar Revolving Loan or (2) continued as a Base Rate Term Loan, in the case of a Eurodollar Term Loan.

 

(C)           Upon the occurrence and during the continuance of any Default, (1) each Eurodollar Option Loan will automatically, on the last day of the then existing Interest Period therefor, be (i) reborrowed as a Base Rate Revolving Loan, in the case of a Eurodollar Revolving Loan or (ii) continued as a Base Rate Term Loan, in the case of a Eurodollar Term Loan, and (2) the obligation of the Lenders to make any Eurodollar Revolving Loan or Eurodollar Term Loan shall be suspended.

 

(b)           Base Rate Option Loans .

 

(i)            Initial Loans .  EnergySolutions shall give the Administrative Agent in the case of initial Base Rate Option Loans at least one (1) Business Day’s irrevocable prior written notice in the form of a Request for Loan or telephonic notice followed immediately by a Request for Loan; provided , however , that EnergySolutions’ failure to confirm any telephonic notice with a Request for Loan shall not invalidate any notice so given.

 

(ii)           Repayments and Reborrowings of Base Rate Revolving 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, EnergySolutions may repay or prepay a Base Rate Revolving Loan without regard to its Payment Date and (A) reborrow all or a portion of the principal amount thereof as one or more Eurodollar

 

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Revolving Loans for the Interest Period(s) selected, (B) reborrow all or a portion of the principal amount thereof as one or more Base Rate Revolving Loans, or (C) not reborrow all or any portion of such Base Rate Revolving Loan at that time.  On the date indicated by EnergySolutions, such Base Rate Revolving Loan, subject to the provisions hereof, shall be so repaid and, as applicable, reborrowed.

 

(iii)          Continuations of Base Rate Term 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, EnergySolutions shall specify whether all or a portion of each Base Rate Term Loan outstanding on the related Payment Date (A) is to be continued in whole or in part as one or more Eurodollar Term Loans for the Interest Period(s) selected, (B) is to be continued in whole or in part as one or more Base Rate Term Loans, or (C) is to be repaid and not reborrowed.

 

(c)           Eurodollar Option Loans .

 

(i)            Initial Loans .  EnergySolutions shall give the Administrative Agent in the case of any initial Eurodollar Option Loan at least three (3) Business Days’ irrevocable prior written notice in the form of a Request for Loan or Request for Term Loan Eurodollar Basis, or telephonic notice followed immediately by a Request for Loan or Request for Term Loan Eurodollar Basis; provided , however , that EnergySolutions’ failure to confirm any telephonic notice with a Request for Loan or Request for Term 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 EnergySolutions of such Eurodollar Basis.  EnergySolutions 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 EnergySolutions’ failure to confirm any such telephonic notice in writing shall not invalidate any notice so given.

 

(ii)           Repayments and Reborrowings of Eurodollar Revolving 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, EnergySolutions shall specify whether all or a portion of each Eurodollar Revolving Loan outstanding on the Payment Date (A) is to be repaid and then reborrowed in whole or in part as one or more Eurodollar Revolving Loans for the Interest Period(s) selected, (B) is to be repaid and then reborrowed in whole or in part as one or more Base Rate Revolving Loans, or (C) is to be repaid and not reborrowed at that time.

 

(iii)          Continuations of Eurodollar Term 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, EnergySolutions shall specify whether all or a portion of each Eurodollar Term Loan outstanding on the related Payment Date (A) is to be continued in whole or in part as one or more Eurodollar Term Loans for the Interest Period(s) selected, (B) is to be continued in whole or in part as a Base Rate Term Loan, or (C) is to be repaid and not reborrowed.

 

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(d)                                  Notification of Lenders .  Upon receipt of a Request for Loan, or a notice from EnergySolutions with respect to a selection of an Interest Period for a Revolving Loan, or a notice from EnergySolutions with respect to any outstanding Revolving Loan prior to the Payment Date for such Revolving Loan, the Administrative Agent shall promptly notify each Lender by telephone or telecopy of the contents thereof and the amount of such Lender’s portion of the related Revolving Loan.  Each Lender shall, not later than 2:30 p.m. (New York time) on the date of borrowing specified in such notice, make available to the Administrative Agent at the Administrative Agent’s Account, or at such account as the Administrative Agent shall designate, the amount of its portion of any Revolving Loan which represents an additional borrowing hereunder in immediately available funds.

 

(e)                                   Disbursement .

 

(i)                                      Prior to 3:00 p.m. (New York time) on the date of the making of a Revolving Loan hereunder, the Administrative Agent shall, subject to the satisfaction of any applicable conditions set forth in Article 3 hereof, disburse the amounts made available to it by the Lenders in like funds by (A) transferring the amounts so made available by wire transfer pursuant to EnergySolutions’ instructions, or (B) in the absence of such instructions, crediting the amounts so made available to the account of EnergySolutions maintained with the Administrative Agent; provided , however , that the Administrative Agent shall first make the applicable portion of such funds equal to the aggregate principal amount of any Letter of Credit Loans made by the Revolving Issuing Bank and by any other Revolving Lender and outstanding on the date of such Revolving Loan, plus interest accrued and unpaid thereon to and as of such date, available to the Revolving Issuing Bank and such other Revolving Lender for repayment of such Letter of Credit Loans.

 

(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 EnergySolutions 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 EnergySolutions 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 EnergySolutions and EnergySolutions 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

 

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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 EnergySolutions 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 EnergySolutions that it refuses, to fund its portion of a Loan or, in accordance with Section 2.2(f)(ii)  below, a disbursed amount (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 Unused Revolving Commitment and interest in any Loans or Revolving Letters of Credit shall not be counted as outstanding for purposes of determining “Majority Lenders” hereunder or (ii) to receive payments of (A) principal, interest or fees from EnergySolutions in respect of its unfunded portion of Loans, (B) any commitment fee in respect of its Revolving Commitment or (C) any portion of Revolving Letter of Credit fees or interests or amounts in respect of any Letter of Credit Loans.  In addition to the foregoing, and notwithstanding Section 2.1(d) , if any Lender shall become a Defaulting Lender, the Revolving Letter of Credit Commitment shall be reduced by an amount equal to such Defaulting Lender’s Pro Rata Share of the Revolving Letter of Credit Commitment unless and until arrangements reasonably satisfactory to the Revolving Issuing Bank have been entered into (the Revolving Issuing Bank having made a good faith effort to enter into such arrangements) to eliminate the Revolving Issuing Bank’s risk with respect to the Defaulting Lender’s Pro Rata Share of the Revolving Letter of Credit Commitment, including cash collateralizing the Revolving Issuing Bank’s Revolving Letter of Credit Commitment with respect to such Defaulting Lender’s Pro Rata Share.  The provisions of this Section 2.2(e)(iv)  are not in lieu of any other claim EnergySolutions may have against such Defaulting Lender.

 

(f)                                     Issuance of and Drawings and Reimbursement under Letters of Credit .

 

(i)                                      Request for Issuance .  Each Letter of Credit shall be issued upon notice, given not later than 12:30 p.m. (New York time) on the fifth Business Day prior to the date of the proposed issuance of such Letter of Credit, by EnergySolutions to the applicable Issuing Bank, which shall give to the Administrative Agent and each Revolving Lender (in the case of a request for a Revolving Letter of Credit) or each Synthetic Lender (in the case of a request for a Synthetic Letter of Credit) prompt notice thereof by telecopier or electronic communication.  Each such notice of issuance of a Letter of Credit (a “ Notice of Issuance ”) shall be by telephone, confirmed immediately in writing, or telecopier or electronic communication, specifying therein the requested (A) date of such issuance (which shall be a Business Day), (B) Available Amount of such Letter of Credit (which amount shall not be less than $100,000), (C) expiration date of such Letter of Credit, (D) name and address of the beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied by such application and agreement for Letter of Credit as the Issuing Bank may specify to EnergySolutions for use in connection with such requested Letter of Credit (a “ Revolving Letter of Credit Agreement ” or a “ Synthetic Letter of Credit Agreement ,” as applicable).  If (x) the requested form of such Letter of Credit is acceptable to the applicable Issuing Bank in its sole discretion, (y) as of the requested date of issuance, the requirements of Section 2.1(c)  or 2.17(a)  hereof have been satisfied as to such Letter of

 

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Credit, and (z) the applicable Issuing Bank has not received notice of objection to such issuance from the Majority Lenders, the applicable Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article 3 , make such Letter of Credit available to EnergySolutions at its office referred to in Section 11.1 or as otherwise agreed with EnergySolutions in connection with such issuance.  In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.

 

(ii)                                   Participations in Revolving Letters of Credit .  Upon the issuance of a Revolving Letter of Credit by the Revolving Issuing Bank, the Revolving Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each Revolving Lender, and each such Revolving Lender shall be deemed, without further action by any party hereto, to have purchased from the Revolving Issuing Bank, a participation in such Revolving Letter of Credit in an amount for each Revolving Lender equal to the Dollar Equivalent of such Lender’s Pro Rata Share of the Available Amount of such Revolving Letter of Credit, effective upon the issuance of such Revolving Letter of Credit.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay such Lender’s Pro Rata Share of each L/C Disbursement made by the Revolving Issuing Bank and not reimbursed by EnergySolutions forthwith on the date due as provided in Section 2.4(d)  (or which has been so reimbursed but must be returned or restored by the Revolving Issuing Bank because of the occurrence of an event specified in Section 8.1(f)  or (g)  or otherwise) by making available to the Administrative Agent for the account of the Revolving Issuing Bank by deposit to the Administrative Agent’s Account, in same day funds, an amount equal to the Dollar Equivalent of such Lender’s Pro Rata Share of such L/C Disbursement.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.2(f)(ii)  in respect of Revolving Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or the termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  If and to the extent that any Revolving Lender shall not have so made the amount of such L/C Disbursement available to the Administrative Agent, such Revolving Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date such L/C Disbursement is due pursuant to Section 2.4(c)  until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for its account or the account of the Revolving Issuing Bank, as applicable.  If such Lender shall pay to the Administrative Agent such amount for the account of the Revolving Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Letter of Credit Loan made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Letter of Credit Loan made by the Revolving Issuing Bank shall be reduced by such amount on such Business Day.

 

(iii)                                [Reserved.]

 

(iv)                               Drawing and Reimbursement .  The payment by the Revolving Issuing Bank of a draft drawn under any Revolving Letter of Credit shall constitute for all purposes of this Agreement the making by the Revolving Issuing Bank of a Letter of Credit Loan, which shall be a Base Rate Option Loan, in the Dollar Equivalent of the amount of such draft.

 

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(v)                                  Letter of Credit Reports .  The Issuing Banks shall furnish (A) to the Administrative Agent on or about the first Business Day of each week a written report summarizing issuance and expiration dates of Letters of Credit issued during the previous week and drawings during such week under all Letters of Credit, (B) to each Revolving Lender and Synthetic Lender on or about the first Business Day of each month a written report summarizing issuance and expiration dates of Letters of Credit issued during the preceding month and drawings during such month under all Letters of Credit and (C) to the Administrative Agent and each Revolving Lender on the first Business Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during the preceding calendar quarter of all Revolving Letters of Credit.

 

(vi)                               Failure to Make Letter of Credit Loans .  The failure of any Lender to make the Letter of Credit Loan to be made by it on the date specified in Section 2.4(c)  shall not relieve any other Lender of its obligation hereunder to make its Letter of Credit Loan on such date, but no Lender shall be responsible for the failure of any other Lender to make the Letter of Credit Loan to be made by such other Lender on such date.

 

(vii)                            [Reserved.]

 

(viii)                         Applicability of ISP98 .  Unless otherwise expressly agreed by the applicable Issuing Bank and EnergySolutions when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Letter of Credit.

 

Section 2.3                                                 Interest .

 

(a)                                   On Base Rate Option Loans .  Interest on each Base Rate Option 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 Option Loan, in arrears on the applicable Payment Date for the period through the date immediately preceding such Payment Date.  Interest on Base Rate Option Loans then outstanding shall also be due and payable on the Revolving Maturity Date or the Term Loan Maturity Date, as applicable, with respect to Revolving Loans and Term Loans.

 

(b)                                  On Eurodollar Option Loans .  Interest on each Eurodollar Option 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 Option 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 Option Loan exceeds three (3) months, interest on such Eurodollar Option 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 Option Loans then outstanding shall also be due and payable on the Revolving Maturity Date or the Term Loan Maturity Date, as applicable, with respect to Revolving Loans and Term Loans.

 

(c)                                   Interest if No Notice of Selection of Interest Rate Basis .  With respect to any Loan, if EnergySolutions fails to give the Administrative Agent timely notice of its selection of a

 

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

 

(f)                                     Applicable Margin .  With respect to any Loan hereunder, the Applicable Margin shall be (i) with respect to any Term Loan, (x) 3.75% for Eurodollar Term 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 (y) 2.25% for Base Rate Term Loans (or 1.75% when the Leverage Ratio as of the most recently completed fiscal quarter is less than 2.0 to 1.0), (ii) with respect to any Revolving Loan, (x) 3.75% for Eurodollar Option Loans and (y) 2.25% for Base Rate Options Loans, (iii) with respect to any Synthetic Deposit and unreimbursed Disbursements in accordance with Section 2.17(d) , 3.75% (or 3.25% 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)                                   Any unpaid principal and interest of the Revolving Loans and any other outstanding Obligations under the Revolving Commitment shall be due and payable in full on the Revolving Maturity Date.  All Synthetic Deposits shall be refunded and any unpaid interest and participation fees in respect of such Synthetic Deposits, any unreimbursed Disbursements and any other outstanding Obligations relating to the Synthetic Deposits or the Synthetic Letter of Credit Commitment shall be due and payable in full on June 7, 2013.

 

(b)                                  [ Reserved ].

 

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

 

(d)                                  Letter of Credit Loans .

 

(i)                                      EnergySolutions shall repay to the Administrative Agent for the account of the Revolving Issuing Bank and each other Revolving Lender that has made a Letter of Credit Loan on the earlier of (1) the Business Day when such Letter of Credit Loan is made, if made on or prior to 2:00 p.m. (New York time), or the succeeding Business Day, if made after 2:00 p.m.

 

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(New York time), and (2) the Revolving Maturity Date, the outstanding principal amount of each Letter of Credit Loan made by each of them; provided that if the repayment of any such Letter of Credit Loan by EnergySolutions is made in respect of a Letter of Credit denominated in an Available Foreign Currency, such repayment of a Letter of Credit Loan shall include all additional amounts necessary to reimburse the Revolving Issuing Bank or the Revolving Lenders for exchange rate fluctuations such that the total repayment by EnergySolutions shall, in the reasonable judgment of the Administrative Agent, be equal to the amount of the L/C Disbursement.

 

(ii)                                   The Obligations of EnergySolutions and the Revolving Lenders with respect to Revolving Letters of Credit under this Agreement, any Letter of Credit Agreement and any other agreement or instrument relating to any Revolving Letter of Credit, shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances:

 

(A)                               any lack of validity or enforceability of any Loan Document, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the “ L/C Related Documents ”);

 

(B)                                 any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of EnergySolutions in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;

 

(C)                                 the existence of any claim, set-off, defense or other right that EnergySolutions may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), the Issuing Bank or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;

 

(D)                                any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(E)                                  payment by the Issuing Bank under a Letter of Credit against presentation of a draft, certificate or other document that does not strictly comply with the terms of such Letter of Credit;

 

(F)                                  any exchange, release or non-perfection of any Collateral or other collateral, or any release or amendment or waiver of or consent to departure from any Guaranty or any other guarantee, for all or any of the Obligations of EnergySolutions in respect of the L/C Related Documents; or

 

(G)                                 any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, EnergySolutions or a guarantor.

 

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Section 2.5                                                 Fees .

 

(a)                                   Fees Payable Under the Fee Letter .  EnergySolutions agrees to pay such fees as are mutually agreed upon and as are described in the Fee Letter.

 

(b)                                  Commitment Fee .  In addition, EnergySolutions agrees to pay to the Administrative Agent, for the benefit of each of the Revolving Lenders in accordance with their respective Revolving Commitments, a commitment fee on the aggregate Unused Revolving Commitments, for each day from the Agreement Date until the Revolving Maturity Date calculated at the rate of 0.50% per annum.

 

The aggregate Available Amount of all Revolving Letters of Credit outstanding shall count as usage for purposes of computing the foregoing commitment fee.  Such commitment fee shall be computed on the basis of a year of 360 days for the actual number of days elapsed, shall be payable quarterly in arrears on the last Business Day of each calendar quarter, commencing on September 30, 2006, and on the Revolving Maturity Date, shall be fully earned when due, and shall be non-refundable when paid.

 

(c)                                   Letter of Credit Fees .

 

(i)                                      EnergySolutions shall pay to the Administrative Agent for the account of each Revolving Lender a commission on such Revolving Lender’s Pro Rata Share of the average daily aggregate Available Amount of all Revolving Letters of Credit outstanding from time to time at a rate per annum equal to the Applicable Margin for Eurodollar Option Loans under the Revolving Commitments in effect from time to time, if any, payable in arrears quarterly on the last Business Day of each calendar quarter, commencing on September 30, 2006, and on the Revolving Maturity Date and thereafter from time to time on demand, shall be fully earned when due, and shall be non-refundable when paid.

 

(ii)                                   EnergySolutions shall pay to the Revolving Issuing Bank, for its own account, a Revolving Letter of Credit fronting fee in respect of each Revolving Letter of Credit, payable in arrears quarterly on the last Business Day of each calendar quarter and on the Revolving Maturity Date, of such Revolving Letter of Credit, computed at 0.25% per annum of the face amount of such Revolving Letter of Credit, and shall also pay to the Revolving Issuing Bank customary commissions, issuance fees, fronting fees, transfer fees and other fees and charges in connection with the issuance, administration, amendment, payment and negotiation of each Revolving Letter of Credit.  EnergySolutions shall pay to the Synthetic Issuing Bank, for its own account, a Synthetic Letter of Credit fronting fee in respect of each Synthetic Letter of Credit, payable in arrears quarterly on the last Business Day of each calendar quarter and on the Synthetic Letter of Credit Maturity Date, of such Synthetic Letter of Credit, computed at 0.25% per annum of the face amount of such Letter of Credit, and shall also pay to the Synthetic Issuing Bank customary commissions, issuance fees, fronting fees, transfer fees and other fees and charges in connection with the issuance, administration, amendment, payment and negotiation of each Synthetic Letter of Credit.  Letter of Credit commissions shall be computed on the basis of a year of 360 days for the actual number of days elapsed.

 

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(d)                                  Participation Fees .

 

(i)                                      Upon the deposit of the Synthetic Deposits in the Synthetic Deposit Account, the fees (“ Participation Fees ”) relative to the Synthetic Deposits shall accrue at a rate per annum equal to the sum of the Eurodollar Rate for the relevant Interest Period plus the Applicable Margin; provided that the amount due and payable by EnergySolutions under this clause shall be the amount set forth above less the Synthetic Deposit Return payable by the Administrative Agent to the Synthetic Lenders pursuant to Section 2.16(d)  for the applicable period. All Synthetic Deposits shall accrue fees at all times that they are on deposit in the Synthetic Deposit Account.

 

(ii)                                   Participation Fees accrued on each Synthetic Deposit shall be payable, without duplication: (a) on the Synthetic Letter of Credit Maturity Date, (b) on the date of any return of a Synthetic Deposit pursuant to Section 2.7 , on the amount of such deemed Synthetic Deposits so returned and (c) on the last day of each Interest Period.

 

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 Option 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 Option 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.

 

(b)                                  Application of Prepayment .  Each prepayment of the Term Loans shall be applied (i) first, in direct order of maturities, to the next four scheduled principal repayment installments of the Term Facility and (ii) second, to the other principal repayment installments of the Term Facility on a pro rata basis among the Term Lenders.  Any prepayment of Revolving Loans shall be applied (A) first, to prepayment of the Letter of Credit Loans then outstanding until such Loans are paid in full, (B) second, to prepayment of Revolving Loans then outstanding until such Loans are paid in full and (C) third, to be deposited in the L/C Collateral Account to cash collateralize the aggregate Available Amount of the Revolving Letters of Credit then outstanding.  Any prepayment of the Term Facility may not be reborrowed.  Any prepayment of Revolving Loans pursuant to this Section 2.6 shall not reduce the Revolving Commitment.  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 EnergySolutions shall reimburse the Lenders and the Administrative Agent, on demand, for any loss or out-of-pocket expense incurred by any Lender Party 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 EnergySolutions’ 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                                                 Synthetic Deposit Reductions .

 

From time to time on any Business Day, EnergySolutions may cause the Synthetic Deposits to be returned ratably to the Synthetic Lenders; provided that (A) all such voluntary reductions

 

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shall require at least one but no more than five Business Days’ prior telephonic notice (promptly confirmed by facsimile) to the Administrative Agent; (B) all such voluntary partial returns shall be in an aggregate minimum amount of $1,000,000 and an integral multiple of $500,000, and (C) such reductions shall be accompanied by reimbursement for losses or out-of-pocket expenses in accordance with Section 2.11 , if any.

 

Section 2.8                                                 Mandatory Prepayments .

 

(a)                                   In addition to the scheduled repayments provided for in Section 2.4 hereof, EnergySolutions shall prepay the Term Loans in an amount equal to 100% of the Net Proceeds (w) from any sale or disposition by Holdco, Parent or any of their 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 (other than any Excluded Asset Sales) and (y) except as set forth in Section 5.5(e)  hereof, received as a result of a casualty or condemnation.  Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions or the affected Subsidiary in accordance with Section 2.6(b) .  EnergySolutions shall also prepay the Term 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 EnergySolutions, and so long as no Default or Event of Default shall have occurred and be continuing, EnergySolutions 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 calculating the mandatory prepayment required by this Section 2.8(a) , “Net Proceeds” shall exclude all Net Proceeds received by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.

 

(b)                                  In addition to the scheduled repayments provided for in Section 2.4 hereof, EnergySolutions shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Second Amendment Effective Date from any Indebtedness for Money Borrowed incurred by Holdco, EnergySolutions, Parent or any of their 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 the 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) and (ii), any Additional Permitted Debt incurred pursuant to Section 7.1(w)  (to the extent required to prepay Term Loans pursuant to such section).  Such amount

 

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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 calculating the mandatory prepayment required by this Section 2.8(b) , “Net Proceeds” shall exclude all Net Proceeds received from any Indebtedness for Money Borrowed incurred by Duratek and its Subsidiaries other than under Section 7.1(w)  of this Agreement or the Duratek Loan Agreement; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.

 

(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, EnergySolutions shall prepay the Term 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, EnergySolutions shall prepay the Term 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, EnergySolutions shall not be required prepay the Term Loans.

 

(d)                                  On each date when the aggregate amount of all Synthetic Letter of Credit Outstandings exceeds the Synthetic Facility Available Amount, EnergySolutions shall cash collateralize all Synthetic Letter of Credit Outstandings in an aggregate amount equal to such excess.

 

(e)                                   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 EnergySolutions and payable to the order of such Lender reflecting such Lender’s Revolving Commitment and Term Loans.  The Notes issued by EnergySolutions to the Lenders shall be duly executed and delivered by one or more Authorized Signatories.

 

(b)                                  Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of EnergySolutions to such Lender Party resulting from each Loan owing to such Lender Party from time to time, including the amounts of principal and interest payable and paid to such Lender Party 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 Party, in which accounts (taken together) shall be recorded (i) the date and amount of each Loan made hereunder,

 

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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 EnergySolutions to each Lender Party hereunder, (iv) the amount of any sum received by the Administrative Agent from EnergySolutions hereunder and each Lender Party’s share thereof and (v) the amount of such Lender Party’s Synthetic Deposits.

 

(d)                                  Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.9(c)  above, and by each Lender Party 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 EnergySolutions to, in the case of the Register, each Lender Party and, in the case of such account or accounts, such Lender Party, under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent or such Lender Party 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 EnergySolutions under this Agreement.

 

Section 2.10                                           Manner of Payment .

 

(a)                                   Each payment (including any prepayment) by EnergySolutions on account of the principal of or interest on the Loans, commitment fees and any other amount owed to the Lender Parties, 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 Lender Parties, 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 Party, 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 Party.  If the Administrative Agent shall not have received any payment from EnergySolutions as and when due, the Administrative Agent will promptly notify the Lender Parties 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 Party 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)                                  EnergySolutions 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).

 

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(c)                                   Prior to the acceleration of the Loans under Section 8.2 hereof, if some but less than all amounts due from EnergySolutions 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 fees, indemnification payments, costs and expenses that are due and payable to each Issuing Bank (solely in its capacity as such) 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 such Issuing Bank on such date;

 

(iii)                                third , 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;

 

(iv)                               fourth , to the payment of all of fees and the accrued and unpaid interest and any premiums on the Obligations of EnergySolutions under or in respect of the Loan Documents that is due and payable to the Administrative Agent and the Lender Parties, ratably based upon the respective aggregate amounts of all such interest owing to the Administrative Agent and the Lender Parties on such date;

 

(v)                                  fifth , 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 Lender Parties on such date, ratably based upon the respective aggregate amounts of all such principal owing to the Administrative Agent and the Lender Parties 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);

 

(vi)                               sixth , 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

 

(vii)                            seventh , 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.

 

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(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 Term 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 Lender Parties in accordance with such Lender Party’s pro rata share of the sum of (i) the aggregate principal amount of the Loans outstanding at such time, (ii) the aggregate Available Amount of all Revolving Letters of Credit outstanding at such time and (iii) the aggregate amount of all unreimbursed Disbursements in respect of Synthetic Letters of Credit, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender Party.

 

(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 Option 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 EnergySolutions prior to the date on which any payment is due to any Lender Party hereunder that EnergySolutions will not make such payment in full, the Administrative Agent may assume that EnergySolutions 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 Party on such due date an amount equal to the amount then due such Lender Party.  If and to the extent EnergySolutions shall not have so made such payment in full to the Administrative Agent, each such Lender Party shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender Party together with interest thereon, for each day from the date such amount is distributed to such Lender Party until the date such Lender Party 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 EnergySolutions to borrow any Eurodollar Option Loan after having given notice of its intention to borrow in accordance with Section 2.2 hereof (whether by reason of EnergySolutions’ election not to proceed or the non-fulfillment of any of the conditions set forth in Article 3 ), or (ii) payment of any Eurodollar Option Loan in whole or in part pursuant to Section 2.2(a)(ii) , 2.6 , 2.8 , 10.2 or 11.24 , acceleration of the maturity of the Loans pursuant to Section 8.2 or for any other reason, EnergySolutions 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.

 

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(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 Option 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 Option 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 (i) on the basis of the respective Revolving Commitments of the Revolving Lenders with respect to Loans made under the Revolving Commitment, and (ii) on the basis of the respective Term Commitments of the Term Lenders with respect to Term Loans.

 

(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 or refunding of the Lender’s Synthetic Deposit Account, 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 or Synthetic Deposits made by it in excess of its ratable share of such Loans or Synthetic Deposits, 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 or Synthetic Deposits shall be shared on a pro rata basis only with other Lenders to which Loans of such Type are owing.  EnergySolutions 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 EnergySolutions in the amount of such participation.

 

Section 2.13                                           Capital Adequacy .

 

If, after the Third Amended and Restated Credit Agreement Effective Date, the adoption or effectiveness